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2011 DIGILAW 400 (JHR)

Narendra Pal Singh v. Ravi Prakash Bagroy

2011-05-04

POONAM SRIVASTAV

body2011
Order 1. The instant revision is preferred under Section 14(8) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 (hereinafter referred to as "the Act") challenging the judgment and decree dated 28.5.2010 passed by 2nd Additional Munsif, Ranchi in Eviction •Title Suit No. 24 of 2003. The suit was decreed in favour of the plaintiff and defendant-revisionist was directed to handover vacant possession of the suit property within two months from the date of judgment, which is a shop situated within holding no. 515 CI, Ward No.3, Main Road, Ranchi with dimensions 32' X 13'4" and with the height 20' and mezzanine floor with 11' height. 2. The case of the plaintiff according to the plaint, in brief, is that he is the landlord of the disputed premises and he inducted the defendant as tenant for a fixed period of 5 (five) years commencing from 1st July, 1998 and ending on 30th June, 2003 by virtue of a registered deed of lease dated 17th November, 1998. At the time of institution of suit the monthly rent of the premises paid by the defendant was Rs. 2,640/- payable by 10th day of every following calendar month. In fact it is admitted case that the shop was given on lease to the defendant since the year 1968 for a fixed period and renewal was allowed before expiry of the period of lease at an enhanced rate of 5%. However, the last renewal expired on 30th June, 2003. The lease deed has been brought on record as Ext.-3. The deed incorporated a renewal clause for enhancement of period of lease for another five years on a notice in writing to be given by the lessee at least 6 months prior to the expiry of the lease and the rent was to be settled by mutual agreement. According to the assertion in the plaint the renewal clause was 'void ab-initio', since the terms and conditions of renewal were vague and the defendant failed to exercise any option for renewal within the stipulated period, therefore, the plaintiff by means of a notice dated 26.6.2003 informed the tenant that vacant possession of the disputed premises be handed over to the plaintiff-landlord by 1st July, 2003. On receipt of the aforesaid notice the defendant submitted a reply on 26.6.2003 asking for renewal of lease. On receipt of the aforesaid notice the defendant submitted a reply on 26.6.2003 asking for renewal of lease. Plaintiff demanded renewal only after enhancement of rent to a tune of Rs. 80 per sq. feet, which was not acceptable to the defendant. Consequently the lease expired. The suit was instituted on the ground of expiry of period of lease and specific assertion was that the cause of action for the suit arose within the jurisdiction of the Court on 30.6.2003 after expiry of the period of lease and thereafter on all subsequent dates when the defendant continued his occupancy and also after expiry of the period when the plaintiff offered for renewal at the new rate and the offer was turned down. 3. The revisionist-defendant filed written statement admitted the relationship of the landlord and tenant and the execution of the lease deed and also that the suit was frivolous and was liable to be dismissed. The claim of the defendant was that the suit is barred on the ground of limitation and principle of waiver, estoppel and acquiescence and that the plaintiff had not approached the Court with clean hand. It was further contended that the defendant was in occupation of the premises as tenant since last 3.5 years for a fixed term of lease, the fixed term lease was renewed from time to time on enhancement of rent by 5%. However, it was admitted that the deed for the last time was executed for a fresh period of 5 years and the rent was enhanced and fixed at Rs. 2,640/- commencing from 1st July, 1998. The defendant denied that the renewal clause was vague and, therefore, void. There was an express agreement that the rate of rent will be fixed on a mutual agreement. Defendant claimed that he had made a request on several occasions for renewal of the lease some time verbally and on other occasion by means of a letter, though it was contended that the said letters were handed over personally. 4. Evidence was led by both the parties. Oral as well as documentary evidence were adduced. Five issues -'were I formulated, which are enumerated herein below: (i) Is the suit maintainable as framed? (ii) Has the plaintiff any valid cause of action for the suit? (iii) Whether the suit is barred by law of limitation, waiver, estoppel and acquiescence? 4. Evidence was led by both the parties. Oral as well as documentary evidence were adduced. Five issues -'were I formulated, which are enumerated herein below: (i) Is the suit maintainable as framed? (ii) Has the plaintiff any valid cause of action for the suit? (iii) Whether the suit is barred by law of limitation, waiver, estoppel and acquiescence? (iv) Whether the lease dated 17.9.1998 expired on 1.7.2003 and the defendant is liable to be evicted from the suit properties? (v) To what relief or reliefs the plaintiff is entitled too? 5. The Court decided issue no. 4 in favour of the plaintiff and against the defendant. Issue Nos. 1 and 2 were also decided in favour of the plaintiff and the Court held that issue no. 3 has not been pressed by either parties during the trial and no evidence was led. Issue No. 5 was also decided in favour of the plaintiff entitling him for the relief claimed. 6. Mr. V. Shivnath, learned Sr. Counsel assisted by Mr. Birendra Kumar advanced his arguments on behalf of the petitioner and Sri P.K. Prasad, learned Sr. Counsel assisted by Mr. Ayush Aditya, appeared on behalf of the opposite party plaintiff. 7. The first argument is that since the plaintiff himself has asserted in his plaint that the renewal clause is 'void abinitio', therefore, the entire lease deed is liable to be held void; if one part is void then no piecemeal claim could be made. The plaintiff had sought eviction on the basis of Section 11 (e) of the Act i.e. expiry of the period of lease and also claimed that the renewal clause as 'void ab-initio'. Therefore, the plaint was liable to be rejected and the suit could not be decreed whatsoever. 8. The next argument is that cause of action as claimed by the plaintiff cannot stand for the reasons that the last deed was executed for a period of five years on 1st July, 1998 and it expired on 30.6.2003. The defendant had served the plaintiff with notice dated 2nd January, 2003 for renewal of the lease i.e. before 6 months of the expiry of the lease. The defendant had served the plaintiff with notice dated 2nd January, 2003 for renewal of the lease i.e. before 6 months of the expiry of the lease. and as there was no refusal on the part of the plaintiff or even if there was refusal, the plaintiff was liable to apply to the Court within 15 days from the date of receipt of notice as contemplated under Section 18(2) of the Act, Since no such application was made by the plaintiff he could not institute the suit on the ground of expiry of lease under Section 11 (e) of The Act. The cause of action was within 15 days from the date of notice dated 2nd January, 2003, wherein the defendant had expressed his desire for renewal. Besides the decree passed by the Court below is also illegal as the suit is decreed in respect of arrears of rent also. The plaintiff has not paid any court fee in respect of arrears of rent. Learned counsel has also raised his objection on the ground that the plaintiff failed to enter witness box and P.W. 2, grandson of the plaintiff Gaurav Bagroy appeared as witness on the basis of power of attorney executed by the grandfather. Learned counsel pointed out that the grand father was isane and P.W. 2 has clearly stated in his statement on oath that the plaintiff is old and insane. Therefore, power of attorney cannot be said to be a validly executed document by a person of sound mind. He has also pointed out that the grandson and the plaintiff were not on talking terms. The intention of the defendant as conveyed to the plaintiff for renewal of the lease is also based• on certain negotiations between the respective parties prior to the institution of the suit. Therefore, it would be deemed that the renewal has taken place under deeming clause of Section 18 of the Act. Sri V. Shivnath also emphasized that the renewal clause clearly spelled that renewal will be only on a mutual agreement and not at the option of the landlord. Thus, the claim of the landlord that he had offered for renewal @ of Rs. 80/- per sq. feet is immaterial. The terms and conditions were to be arrived at on the basis of an agreement by both parties and not on the landlord's sweet will. 9. Sri P.K. Prasad Sr. Thus, the claim of the landlord that he had offered for renewal @ of Rs. 80/- per sq. feet is immaterial. The terms and conditions were to be arrived at on the basis of an agreement by both parties and not on the landlord's sweet will. 9. Sri P.K. Prasad Sr. Counsel while replying to the arguments of the counsel appearing on behalf of the tenant revisionist disputed the arguments that the Court cannot grant any relief on the basis of the plaint. It was one of the claim of the plaintiff that renewal clause was vague and therefore void which was denied by the tenant, but the Court refused to entertain this argument and decided the suit taking into consideration the substance and relief claimed in the plaint and accepted the renewal clause as a part of the lease deed. Therefore, the entire suit could not be thrown over board. Besides the revisionist has clearly admitted the relationship of landlord and tenant on the basis of the lease deed, which was exhibited in the Court as Ext.-3. Admittedly, it expired on 30.6.2003 and hence the suit for eviction. So far the notice dated 2nd January, 2003 is concerned, it has not been exhibited by the tenant in the Court. No one has proved the said notice, though there is one notice on record, which is Ext. 'X' for identification, but it cannot be read in evidence. In the circumstance the entire case of the tenant stands shattered. It is further argued by Sri Prasad that Ext. -1 is a notice dated 26.6.2003 given by the plaintiff to the tenant to vacate the disputed shop, since the lease stood expired. There is a reply of the defendant to the notice of the plaintiff on the same. day i.e. 26.6.2003, though it is not on record. The plaintiffs have also gave (given?) a second notice Ext.-4 dated 28.6.2000 (sic 2003 ?). It is also submitted by the counsel! appearing on behalf of the landlord that para 5 of the plaint which mentions the renewal clause 'void ab-initio' is only a submission, which is admitted in paragraph nos. 12 and 13 of the written statement. No issue on this question was formulated and the lease deed was admitted by the defendant and the same Was held to be a valid deed, which was duly exhibited in the Court. 12 and 13 of the written statement. No issue on this question was formulated and the lease deed was admitted by the defendant and the same Was held to be a valid deed, which was duly exhibited in the Court. Further argument regarding the filing of an application at the behest of the plaintiff under Section 18(2) of the Act within 15 days,' it is argued that since no notice is in existence on behalf of the tenant, therefore, provisions of Section 18(2) of the Act is not attracted. The tenant revisionist has neither led any evidence in the Court below nor any issue was framed on this question and, therefore, his argument is absolutely ill-founded and liable to be ignored. Learned counsel while disputing the arguments relating to the cause of action has submitted that on a complete reading of the pleadings, the Court has to judge the pith and substance of the reliefs claimed and the cause for claiming the said relief The Court has to judge the cause of action from the pleadings'. In the instant case the tenant has admitted his occupation of the disputed shop in the capacity of tenant and in lieu thereof a rent was being paid after execution of. a registered deed of renewal agreement, but after expiry of the last lease deed no fresh lease deed was executed and, therefore, on the date of expiry of the lease deed the cause of action for the landlord to file the suit arose. 10. Counsel appearing on behalf of the plaintiff-opposite party while replying the arguments' regarding power of attorney has disputed that the plaintiff executed the power of attorney in favour of P.W. 2 in a mental condition, when he was not capable of understanding the implication of his action. He has emphasized Section 12 of the Contract Act, which defines what is a sound mind for the purpose of contract. Submission on the basis of the statement of P.W. 2 is that he has clearly stated that his grandfather is old and because of his old age he was not able to depose in the Court about the particular facts and dates, but it does not mean that while executing power of attorney in favour of his grandson he was a mad person. Since it is also admitted by P.W.2 that he looks after the business and other property matters and, therefore, he is able to depose in the Court about the various transactions, negotiations and conversations between the landlord and tenant. It is also vehemently disputed that grandson and grandfather did not share good relations. The argument that the plaintiff did not enter the witness box is also countered by the landlord's counsel, he has placed an application moved by the defendant to summon the plaintiff. The application is dated 4th April, 2008 and endorsement is made by Advocate appearing on behalf of the plaintiff that he has no objection if this application is allowed. Consequent to his no objection the plaintiff did appear on two occasions in the Ranchi Court pursuant to the summons dated 1st May, 2009 and his Hajari has been reported on 23.5.2009 and 26.5.2009. This fact is illustrated from the record. It is further illustrated that there were two suits against different tenant going on in the Court and a similar objection was raised in the other suit and the plaintiff appeared in both the case. In the present case though he was present, no question was put by the defendant and therefore no objection could be raised regarding this aspect. So far the decree of arrears of rent is concerned, Sri P.K. Prasad has submitted that the decree for arrears of rent is only for the period, which is during the pendency of the lis and an application was made under Section 15 of the Act during the proceedings and orders were passed, which were also challenged in the High Court. Subsequent thereto the rent was being deposited in the Court and, therefore, any objection regarding the decree is also without any substance. Reliance has also been placed on a number of decisions, which I will deal in the latter part of the judgment. 11. After giving careful thought to the arguments advanced by the respective parties and going through the entire record, the objection regarding cause of action. The first question, which has to be examined is as to whether suit was maintainable at the time when it was instituted. The entire arguments of the revisionist revolves round his offer for enhancement of the period of lease as contemplated under Section 18 of the Act by means of a notice. The first question, which has to be examined is as to whether suit was maintainable at the time when it was instituted. The entire arguments of the revisionist revolves round his offer for enhancement of the period of lease as contemplated under Section 18 of the Act by means of a notice. The basic question is whether there is any notice in existence or not, in absence of notice, Section 18 of the Act will not come into play at all. The stress of argument by counsel that the procedure as provided in Section 14 of the Act is necessarily to be followed is correct, but I am not in agreement that the landlord was bound to move an application disagreeing with the intention of the tenant for enhancement of the lease period and only after the said application was rejected the suit could be instituted. Admittedly, there is no notice on record save Ext. 'X' for identification. This notice was neither marked as Exhibit and therefore, cannot have any reference to the evidence adduced in the case. 12. I have examined the entire statement of D.W. 2, defendant himself. He has nowhere proved the notice and, therefore, it cannot be said that there was any offer or request at the behest of the tenant as contemplated under Section 18 of the Act for the extension of period of lease. In fact, Section 18 sub-clause 1 of the Act clearly provides; (I) there has to be one month notice before expiry of the period of lease; (ii) the notice should be in writing of the intention to do so; (iii) only if the aforesaid conditions are satisfied then under the provisions of Section 11 of the Act the period of lease would be deemed to be extended by double period covered by original lease and such extension can only be maximum of one year. This provision also lays an embargo that in any case the tenant shall not be allowed to remain in possession beyond the period of one year. In the event the aforesaid conditions are fulfilled and the tenant fails to vacate the buildings on termination of the lease period then an order of ejectment could be passed on the basis of an application. In the event the aforesaid conditions are fulfilled and the tenant fails to vacate the buildings on termination of the lease period then an order of ejectment could be passed on the basis of an application. On a close scrutiny, the requirement of Section 18 of the Act does not stand fulfilled and there was no question for the landlord to move an application for ejectment under sub-clause 3 of Section 18 of the Act. The argument regarding existence of cause of action• is absolutely without any basis. The notice, which is the basis of argument of the tenant is not on record and, therefore, question of renewal of the lease deed or any intention to get the lease renewed or a deeming renewal for a period of one year is completely without any substance and, therefore, the arguments advanced on behalf of the tenant is liable to be completely discarded. It is also argued that there is no application of Order VII Rule 7 of the Civil Procedure Code. Since the Act is special Act and the procedure provided in Section 14 of the Act is necessarily be followed. To substantiate this argument Sri V. Shivnath has placed reliance on a decision of the Apex Court in the case of Rajendra Tiwary vs. 8asudeo Prasad and Another, AIR 2002 Supreme Court, 136 [ : 2001 (2) JLJR (SC) 890]. This argument has been advanced on the basis that negotiations were going on for extension of the period of lease and this subsequent event was liable to be taken into consideration. The landlord was not given any option to accept or refuse the extension of lease period, but according to the terms and conditions of the lease deed it was to be on a mutual agreement. Since the landlord had expressed his desire to extend the period of lease on payment of Rs. 80 per sq. feet, which was not acceptable to the tenant, therefore, this subsequent event is liable to be taken into consideration. The contention of behalf of the tenant that since the request for extension of the lease period was not accepted, therefore, it will not be a suit under Section 11 (1)( e) of the Act. 80 per sq. feet, which was not acceptable to the tenant, therefore, this subsequent event is liable to be taken into consideration. The contention of behalf of the tenant that since the request for extension of the lease period was not accepted, therefore, it will not be a suit under Section 11 (1)( e) of the Act. The argument that in the event of refusal by the landlord and the entitlement for getting the suit premises vacated first by moving an application under Section 18 of the Act is not sustainable. This argument is also far fetched one and I do not agree with this contention. The statement to the effect that the landlord should have instituted a second suit under Section 11 (e) of the Act after expiry of the period of one year and the ejectment could not be ordered on the basis of the instant suit cannot be accepted. Once again I am of the view that this submission is without any foundation or evidence cannot be sustained legally. The tenant cannot be permitted to take any advantage of Section 18 of the Act, since he has failed to demonstrate that he had given any notice whatsoever expressing his intention for renewal. So-called correspondence and negotiations between the two parties have also not been proved or exhibited during the proceedings and, as such, my considered view is that the suit was rightly instituted under Section 11 (e) of the Act. Admittedly, the period incorporated in the lease deed expired before the institution of the suit and the offer given by the landlord for enhancement of tile rate of rent at Rs. 80 per sq. feet was also not accepted and, therefore, after expiry of the period, the eviction of the tenant was inevitable. Similar view was expressed by this Court. in the case of United• India Insurance Co. Ltd. vs. Ravi Prasad, 2003 (4) J.C.R. 609 (Jhr) [: 2003 (4) JLJR 695 ]. Admittedly, defendant did not take any step for renewal before expiry of the lease deed and consequently the possession of the tenant cannot be held to be lawful. In my view the undisputed conclusion on the basis of a notice to vacate by the landlord is that he never consented for continuance of the tenant in occupation. Admittedly, defendant did not take any step for renewal before expiry of the lease deed and consequently the possession of the tenant cannot be held to be lawful. In my view the undisputed conclusion on the basis of a notice to vacate by the landlord is that he never consented for continuance of the tenant in occupation. Another decision has also been cited in the case of Surendra Sao vs. Sheo Shankar Prasad, 2006 (4) JLJR 37 . A similar view was expressed and the Court discarded the argument regarding Section 18 of the Act. In the said case the notice was served and accepted by the Court, whereas in the present case there is only assertion by the tenant that he had served a notice, but the notice has not been adduced in evidence and therefore it can safely be deduced that there is no notice by the tenant whatsoever expressing his desire for extension of period of lease and therefore Section 18 of the Act would not come into play at all. The next decision relied upon by counsel for the landlord is in the case of M/s Bata India Ltd. & Others vs. Keshar Prasad Modi & Another, 2000 (4) PLJR 485 , the defendants claimed to have sent a notice by ordinary post exercising their option for renewal, but the Court was of the view that since the defendants failed to prove the notice expressing his desire for renewal and, therefore, the conclusion of the trial Court was upheld. The facts of the said case also squarely applies to the facts of the present one. Learned counsel has cited certain other decision's, Ranvijaya Shahi vs. Bala Prasad Motani, AIR 1978 Patna 91, Paragraphs 17 and 18', Also AIR 1959 Patna 1 (Digambar Narai), Chaudhary vs. Commissioner of Tirhut Division and Others), Gadakh Yashwant rao Kankarrao vs. E.V. alias Balasaheb Vikhe Patil and Others, AIR 1994 Supreme Court page 678 and State of Maharashtra vs. Rashid Babubhai Mulani, A.I.R. 2006 Supreme Court 825. In all these cases the Apex Court refused to accept service of notice under certificate of posting to be sufficient evidence. It was held that a certificate of posting is of little assistance compared to communication by registered post. 13. In view of these circumstances, evidently there. is no notice on record. In all these cases the Apex Court refused to accept service of notice under certificate of posting to be sufficient evidence. It was held that a certificate of posting is of little assistance compared to communication by registered post. 13. In view of these circumstances, evidently there. is no notice on record. Neither there is any proof of service and mere assertion by defendant cannot be accepted and, therefore, I hold that the defendant failed to exercise his claim for renewal on mutual understanding, since there is no offer on the part of the defendant. Evidence during the proceedings supports the assertion in the plaint as well as by P.W. 2 in his cross-examination that the offer of Rs. 80 per sq. feet did not materialize and therefore the suit has rightly been decreed under Section 11 (e) of the Act. The arguments in respect of Section 18 of the Act is devoid of merit and I decline to take that into consideration for want of a valid notice. 14. I have examined the judgment of the Court below and I am in complete agreement with the conclusion and findings recorded. In fact, evidence has been assessed appropriately and there is no scope for interference in exercise of revisional jurisdiction under Section 14(8) of the Act. This Court in exercise of revisional jurisdiction is no doubt liable to examine the judgment and the manner of appraisal of evidence. The scope is definitely wider than Section 115 C.P.C., but it cannot be extended to that of a regular first appeal. This Court in exercise of jurisdiction under Section 14(8) of the Act has only to satisfy that the order of eviction has been passed after considering the evidence and material on record and the provisions of the Act. The scope of the revisional jurisdiction depends upon the satisfaction of the revisional court regarding as to whether the trial Court has acted in accordance with law and the judgment stands tested on this touchstone. This view clearly finds support by the Apex Court in the cases of Chandrika Prasad (D) thr. LRs. and Another vs. Umesh Kumar Verma and Others, AIR 2002 Supreme Court 108, Vithalbhai(P) Ltd. VS. Union Bank of India, (2005) 4 Supreme Court 315. This view clearly finds support by the Apex Court in the cases of Chandrika Prasad (D) thr. LRs. and Another vs. Umesh Kumar Verma and Others, AIR 2002 Supreme Court 108, Vithalbhai(P) Ltd. VS. Union Bank of India, (2005) 4 Supreme Court 315. The Apex Court also held in the case of Vithalbhai (P) Ltd. (supra) that in the event the defendants failed to raise objection regarding the suit being premature at the first instance. It will be considered to be a case that the defendant by his inaction amounting to waiver allowed the suit to proceed then he cannot be permitted at a belated stage to urge such a plea, which would cause hardship and irreparable injury to the plaintiff. However, in the instant case the objection on behalf of the tenant regarding cause of action is devoid of merit. 15. In the instant case I cannot loose sight of the fact that the lease deed expired in the year 2003, suit was instituted in the year 2003,- the defendant has not vacated the shop in question till date even after expiry of almost 8 years, whereas in the event the lease would have been renewed that would have also expired much before. So at this stage, the argument raised on behalf of the defendant is not worthy of consideration. The suit for ejectment has rightly been decreed. There is no scope of interference on the basis of argument raised in the instant revision. The judgment of the Court below stands confirmed. The revision is dismissed with costs. The suit for eviction is decreed in favour of the plaintiff opposite party. The vacant possession of the suit premises shall be handed over by the revisionist within 30 days from today. Accordingly, the revision is dismissed.