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2012 DIGILAW 1084 (ALL)

ANIL KUMAR v. KISHAN LAL

2012-05-08

SHASHI KANT GUPTA

body2012
JUDGMENT Hon’ble Shashi Kant Gupta, J.—This writ petition has been filed against the judgment and order dated 18.7.2011 passed by Lower Appellate Court/Additional District and Sessions Judge, Court No. 5, Mathura, whereby the order passed by the Trial Court dated 26.10.2009 was set aside and the matter was remanded to the Trial Court. Brief facts of the case as set out in the writ petition are as follows : 2. The petitioner purchased the disputed shop by registered sale-deed dated 3.6.2004. The petitioner sent a registered notice under Section 106 of Transfer of Property Act, 1882 (in short “T.P. Act”) which was duly served upon the tenant-opposite party and also replied by him. Thereafter, the petitioner filed a S.C.C. Suit No. 8 of 2005 for arrears of rent and ejectment. The respondent-tenant filed a written statement admitting the fact that the petitioner is a landlord and the rent is Rs. 150/- per month. 3. The Trial Court by order dated 26.10.2009 decreed the suit for arrears of rent holding that the U.P. Act No. XIII of 1972 (in short “the Act”) is not applicable to the property in dispute. It was also held that the respondent-tenant committed default in payment of rent and is not entitled to benefit of Section 114 of the T.P. Act. Feeling aggrieved and dissatisfied with the said order, the respondent filed a Revision, which was registered as S.C.C. Revision No. 20 of 2009. The Revisional Court by order dated 18.7.2011 allowed the revision and remanded the matter to the Trial Court for disposal afresh mainly on the ground that the Court below had erred in not giving the benefit of Section 114 of the T.P. Act. Hence the present writ petition. 4. Heard learned counsel for the parties and perused the record. 5. Learned counsel for the petitioner has mainly argued that the order passed by the Revisional Court is wholly erroneous, perverse and arbitrary, therefore, it is liable to be set aside. 6. It is not disputed that no written lease agreement was executed between the parties, so, it cannot be said that the lease was determined by way of forfeiture as provided under Section 111(g) of the T.P. Act. That being so, the necessary corollary whereof would be that the Provision of Section 114 of the T.P. Act would also not be applicable. That being so, the necessary corollary whereof would be that the Provision of Section 114 of the T.P. Act would also not be applicable. Thus the respondent cannot claim any benefit of Section 114 of the T.P. Act. 7. Learned counsel for the petitioner has relied upon a decision of this Court in the case of Yashpal v. Allahatala Malik Waqf Azakhan and others, 2005(3) ARC 764, wherein it has been held as follows : “Hence, the submission made by the learned counsel for the petitioner (defendant) that Section 111, Clause (g) would be rendered redundant if Category (1) of the said Clause (g) is confined to only a written lease, cannot, in my view, be accepted. Hence, in view of the aforesaid, it follows that for the applicability of Section 111 (g), Category (1), and, as such, of Section 114 of the Transfer of Property Act, it is necessary that the lease must be in writing containing the express condition as per the requirements of Section 111 (g), Category (1). In case, there is no written lease- deed, the provisions of Section 111(g), Category (1), and, as such, of Section 114 of the Transfer of Property Act will not apply. The provisions of Section 111 (g), Category (1), and consequently, of Section 114 of the Transfer of property Act are not applicable to oral lease. This view gets support from various judicial decisions.” 8. Since there is no written lease agreement between the parties, the provisions of Section 111(g) is not applicable, therefore, the respondent cannot take benefit of Section 114 of the T.P. Act. 9. I do not find any fault in the order passed by the Trial Court. 10. In view of the above, the order passed by the Revisional Court dated 18.7.2011 is set aside and order passed by the Trial Court dated 26.10.2009 is hereby confirmed. The writ petition is accordingly, allowed. 11. After the judgment was dictated, learned counsel for the respondent urged that at least six months time may be granted to him for vacating the premises in question. The learned counsel for the landlord did not raise any objection to it. 12. The writ petition is accordingly, allowed. 11. After the judgment was dictated, learned counsel for the respondent urged that at least six months time may be granted to him for vacating the premises in question. The learned counsel for the landlord did not raise any objection to it. 12. As urged by the learned counsel for the respondent, six month’s time is granted to the respondent to vacate the premises in dispute provided the respondent gives his undertaking in the form of an affidavit before the concerned Court within one month from today specifically stating therein that they will handover the peaceful possession of the said accommodation to the petitioner-landlord without inducting any third person within a period of six months from today and also deposit the entire decretal amount including the current rent/damages for use and occupation of the disputed premises within a period of one month from today. 13. In the event of default of any of the aforesaid conditions, the landlord will be at liberty to proceed to evict the respondent if necessary by coercive process with the aid of police force. ——————