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2012 DIGILAW 1893 (RAJ)

Nirmala Devi v. Tulsi Devi

2012-09-05

VINEET KOTHARI

body2012
Hon'ble Dr. KOTHARI, J.—The appellants-defendants, Smt. Nirmala Devi and others (who are the legal representatives of original-tenant, Hotchand Dadlani) have filed this first appeal under Section 96 of Code of Civil Procedure, 1908, aggrieved by the judgment and eviction decree dated 17.03.2005 passed by learned Additional District Judge, Abu Road, District Sirohi in Civil Original Suit No.59/03- Tulsi Devi vs. Nirmala Devi & Ors., which was filed by the plaintiff-landlady, Smt. Tulsi Devi W/o late Sh. Bhagwati Prasad Chorsiya. 2. The plaintiff-respondent-landlady filed the suit seeking eviction of the defendants, who are the legal representatives of original tenant, Hotchand Dadlani, from the suit premises, which is a residential house, situated in “Baghicha Colony”, Abu Road of which the tenant was in possession of three rooms, latrine and bathroom on the first floor of the said house. The eviction suit was filed by the plaintiff-landlady on the ground of default in payment of rent. The tenancy in question was terminated by notice under Section 106 of the Transfer of Property Act Ex.3 dated 01.08.2003, which was duly received by the defendants-tenants on 06.08.2003. The original tenancy was created on 07.05.1994 on rent of Rs.1,400/- per month and as per Rent-note Ex.1 executed, after every two years, Rs.100/-was to be increased in the rent. The lease was originally given to Hotchand Dadlani, husband of the appellant No.1 Smt. Nirmala Devi and father of appellants No. 2 to 4, namely, Harish, Pradeep, Renu and Padma. 3. The present suit was filed by the plaintiff-landlady on 18.09.2003, which was tried by the learned trial court of Additional District Judge, Abu Road, District Sirohi and after taking the evidence on record in the form of PW.1 Vijay Kumar (son of the plaintiff-landlady and power of attorney holder of plaintiff), and documentary evidence in the form of Power of Attorney as Ex.1, Rent-Receipts for 07.07.2002 to 06.08.2002 as Ex.2, Copy of Notice to Quit dated 01.08.2003 as Ex.3, Reply to the said notice as Ex.4 and rejoinder to reply of notice as Ex.5 and Registered AD Receipts as Ex.6. On behalf of defendants, DW.1 Harish S/o Hotchand was examined by the learned court below. 4. On behalf of defendants, DW.1 Harish S/o Hotchand was examined by the learned court below. 4. As far as the Issues No. 1, 2 and 3 relating to determination of rent and arrears thereof are concerned, the learned trial court has decided that the plaintiff has failed to prove that monthly rent was Rs.2300/- at the time of filing of the suit. As against that the monthly rent would come to Rs.1800/- only as per Rent Note Ex.1 under which the tenancy was commenced in the year 1994 at Rs.1400/- with agreement between the parties increase the same by Rs.100/- every two years. Thus, the learned trial court arrived at the finding that the monthly rent was @ Rs.1800/- at the time of filing of the suit and not Rs.2300/- per month as claimed by the plaintiff. The other Issue No.4 regarding validity of the notice terminating the tenancy and receipt thereof under Section 106 of the T.P. Act is concerned, in the absence of any objection raised by the defendants in this regard, the learned court below decided the said issue in favour of plaintiff-respondent treating the tenancy/lease as terminated and directed the eviction of the lessee-tenants and directed the defendants to hand-over the possession of the suit premises immediately and also pay the rent/mesne profit @ Rs.1800/- per month and also for further period also till the vacant possession is handed over to the plaintiff. 5. Being aggrieved by the same, the defendantsappellants-tenants have preferred this first appeal and it has come on record that the original defendant, Hotchand Dadlani (lessee-tenant) expired on 26.09.2002 and thereafter his legal representatives have preferred this first appeal, who were already on record before the court below. 6. Mr. Usman Gani, learned counsel for the appellantsdefendants has mainly urged the following points for consideration by this Court: (i). Firstly, since the rent determined was only Rs.1800/-per month at the time of filing of the eviction suit and the yearly rent would be Rs.22,400/- only and since the learned District Judge, pecuniary jurisdiction was over Rs.25,000/- only, therefore, the suit could not be tried by the learned Additional District Judge and required to be tried by the lower court of Civil Judge; (ii). Secondly, the arrears of rent at agreed terms was already paid by the defendants-tenants and since the learned trial court has also found the same in favour of defendants, therefore, there was no basis for giving Notice to Quit (Ex.3 dated 01.08.2003) under Section 106 of T.P. Act. He, therefore, submitted that the learned trial court has erred in decreeing the eviction suit on the basis of said notice. 7. On the other hand, Mr. Salil Trivedi, learned counsel for the respon-dent-plaintiff-landlady reiterated the averments made in the suit seeking eviction. He referred to the various oral and documentary evidence on record and submitted that the judgment and eviction decree passed by the learned court below is perfectly justified as the learned court below has thoroughly considered the evidence led before it. He, therefore, prayed that the present first appeal preferred by the appellants-defendants may be dismissed. 8. A perusal of the notice Ex.3 dated 01.08.2003, which admittedly was received by the defendants on 06.08.2003 as found by the learned court below, the landlady has terminated the said tenancy vide Clause (5) of the said notice and has also claimed arrears of rent @ Rs.2300/- per month from 07.08.2002 and further mesne profit @ Rs.3000/- per month. The said notice was sent by registered AD post to all the legal representatives of original tenant late Sh. Hotchand Dadlani, and AD receipts of Smt. Nirmala Devi, Harish and Padma have been produced on record as Ex.6. Therefore, the receipt of the notice is not in dispute, nor any objection about the validity of the said notice has been raised before the learned trial court on the part of defendants. The Ex.4 is the reply to the said notice by Advocate, Ms. Seema Garg dated 11.08.2003, in which it has been stated on behalf of lessee-tenants that rent of the suit premises in question is not Rs.2300/- as stated in the notice and the rent is Rs.1800/- only vide Clause (2) of the said reply. Along-with the said reply, treating the monthly rent of Rs.1800/- for the period 07.07.2003 to 06.10.2003, a Cheque No.271584 for Rs.5400/- sent in favour of landlady, Smt. Tulsi Devi, which was however, refused to be accepted by the plaintiff-landlady. 9. Along-with the said reply, treating the monthly rent of Rs.1800/- for the period 07.07.2003 to 06.10.2003, a Cheque No.271584 for Rs.5400/- sent in favour of landlady, Smt. Tulsi Devi, which was however, refused to be accepted by the plaintiff-landlady. 9. It was thus submitted by the learned counsel for the defendant that there was no default in payment of monthly rent and the plaintiff-landlady is not entitled to the eviction decree on that basis. The said reply of the defendant was replied by the plaintiff through her counsel, namely, Sh. Shantiswaroop Jain vide Ex.5 dated 22.08.2003, by which the cheque of Rs.5400/- was returned back reiterating that the monthly rent of the suit premises was Rs.2300/- per month and not Rs.1800/- per month as stated in the reply. It was further averred that since the tenancy has already been terminated by notice dated 01.08.2003, the landlady is not inclined to disclose her bank account number and bank's name as desired in the said reply Ex.4. Thereafter the present suit was filed on 18.09.2003. 10. Having heard learned counsels for the parties and upon careful perusal of the impugned judgment and decree of the learned court below, this Court is of the opinion that termination of the lease by serving notice u/s 106 of the T.P. Act does not have to depend upon the grounds of eviction as stipulated in the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (for short, hereinafter referred to as 'Act of 1950'). That special law was applicable to certain areas of State of Rajasthan and to certain areas it was not applicable. The protection given under the said Act of 1950 was available to only those tenants covered by the applicability of that Act to particular area. Admittedly, to the town “Abu Road”, at the relevant point of time, the provisions of Act of 1950 were not applicable. Therefore, the present suit was filed on the basis of terminating the tenancy/lease by serving notice under Section 106 of the T.P. Act vide Ex.3 dated 01.08.2003. 11. Admittedly, to the town “Abu Road”, at the relevant point of time, the provisions of Act of 1950 were not applicable. Therefore, the present suit was filed on the basis of terminating the tenancy/lease by serving notice under Section 106 of the T.P. Act vide Ex.3 dated 01.08.2003. 11. This Court in the case of Babu Lal vs. Smt. Anita Devi (SBCSA No.85/2012, decided on 28.08.2012) following the previous decision in the case of Rishabhwadi Jain Shwetamber Murti Pujak Trust vs. Mahaveer (SBCSA No.129/1994, decided 30.07.2012 quoted the provisions of sub-section (3) of Section 106 of the T.P. Act, and the transitory provision of the Transfer of Property (Amendment) Act, 2002 (3 of 2003) has held that a notice under Section (1) shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under that sub-section, where a suit or proceedings is filed after the expiry of the period mentioned in that sub-section. 12. This Court in yet another case while dealing with Section 106(4) of the T.P. Act in the case of Om Prakash vs. LR's of Dev Raj (SBCSA No.857/2011, decided on 14.08.2012) relying upon Supreme Court decision in the case of M/s Madan & Co. vs. Wazir Jaivir Chand reported in AIR 1989 SC 630 has interpreted the word “receipt” of notice by lessee u/s 106 of the T.P. Act has held that Section 106 (4) of the Act envisages four modes of service of notice terminating the lease under sub-clause (1) and the word “receipt” includes the service of notice on defendants, if the same is merely despatched on the correctly given address by the Registered AD post. The relevant paras 6 and 7 of the said judgment is reproduced herein below for ready reference: “6. The relevant paras 6 and 7 of the said judgment is reproduced herein below for ready reference: “6. Sub-section (4) of Section 106 of the Transfer of Property Act envisages four modes of service terminating the lease under sub-clause (1) (i) notice must be in writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it, or (ii) notice must be tendered or delivered personally to such party, or (iii) it should be offered to any member of his family or servants at his residence, or (iv)- if such tender or delivery is not practicable, notice may be affixed to a conspicuous part of the property. 7. The word 'or' in these four different parts of sub-Section (4) of Section 106 of the T.P. Act makes these modes of service mutually exclusive and not dependent or connected with each other. In the present case, since the envelope of registered post containing such notice (Ex.3) was admittedly tendered by the postman at the correctly given address, which address, the defendant himself during the course of evidence, has admitted that given address on Ex.3 notice was the correct address and he usually received his posts/ “Dak” at this address, the courts below, therefore, cannot be said to be at fault in drawing the presumption of service/receipt of the notice by the defendant-tenant in view of aforesaid postal remark. The Hon'ble Apex Court clearly held in para 6, quoted above, that the postman is not expected to act as a process server and is not expected to do what process server does under O. V of CPC, and go to the extent of affixture of the notice or, either to find out the whereabouts of the addressee, or wait for his return, if not found available at that time when such post is tendered for service. The burden of proving the Issue No.2 in this regard was laid on the defendant-tenant, and upon the perusal of his statements, it does not even indicate that either he was permanently out from the said address or none of his family members or servants were available at the address given at that time. The provision of sub-Section (4) of Section 106 of the T.P. Act, speaks about service even on family members or servant at his residence. The provision of sub-Section (4) of Section 106 of the T.P. Act, speaks about service even on family members or servant at his residence. As per own showing of the defendant-tenant, he was running some ice factory at the given address and, therefore, it cannot be said that nobody was present at that time to take the notice. The defendanttenant can hardly take advantage of the aforesaid postal remark written on the envelope that he was not found available at the given moment. Mere tender of notice at his given address was thus sufficient to presume the “receipt” of the same or service of the same on the defendant-tenant. 13. Therefore, once the notice terminating the lease is properly served then the issue relating to default in payment of rent and other grounds of eviction available to the landlord/landlady under the provisions of Rent Control Act of 1950 are neither relevant nor germane to such termination of the lease in accordance with Section 106 of the Transfer of Property Act. The two Acts for eviction proceedings under the provisions of T.P. Act and under the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 operate in different fields altogether. Therefore, the contention of the learned counsel for the appellants-defendants, Mr. Usman Gani before this Court that since the rent in question stood paid by the defendants at Rs.1800/- per month as determined by the learned court below and which is continuously being paid even now, does not render the Notice Ex.3, dated 01.08.2003 terminating the lease, invalid or infructuous in any manner. The defendants actually did not even raise any objection in this regard and, therefore, Issue No.4 has rightly been decided in favour of the plaintiff in the present case. 14. Upon termination of the lease/tenancy by proper service of notice under Section 106 of the T.P. Act, status of the lessee/tenant converts into that of a trespasser and encroachee and occupation in the suit premises cannot be said to be valid under the lease agreement in question. Therefore, irrespective of deciding of Issues No.1, 2 and 3 in favour of defendants-appellants and against the plaintiff-landlady and that the plaintiff failed to establish that monthly rent was Rs.2300/- per month but it was only Rs.1800/- per month, does not invalidate the eviction decree based on the Notice to Quit Ex.3 dated 01.08.2003. Therefore, irrespective of deciding of Issues No.1, 2 and 3 in favour of defendants-appellants and against the plaintiff-landlady and that the plaintiff failed to establish that monthly rent was Rs.2300/- per month but it was only Rs.1800/- per month, does not invalidate the eviction decree based on the Notice to Quit Ex.3 dated 01.08.2003. For the same reason, the other contention raised by the learned counsel for the appellantsdefendants that annual rent being less than Rs.25,000/-, it would deprive the learned District Judge to try the said eviction suit, is liable to be rejected. The suit was filed as per the claim of the plaintiff above Rs.25,000/-, which in the absence of the same being proved, has been decided in favour of defendants that the rent as per rentnote would come to Rs.1800/- per month only but that does not take away the jurisdiction of the learned trial court of A.D.J. and this contention of the learned counsel for the appellants-defendantstenants is also liable to be rejected and the same is accordingly rejected. The contentions that the plaintiff herself did not appear in the witness box and her only and power of attorney holder, namely, Vijay Kular was examined and, therefore, eviction is not justified is also equally devoid of merits in view of validity of the Notice to terminate the lease/tenancy having been upheld, this contention is of no consequence. Hence, the same is also rejected. 15. Since, the question of validity of the notice terminating the lease has already been decided in favour of plaintiff-respondent by trial court and said findings are being upheld by this Court for the aforesaid reasons, the eviction decree passed by the learned court below deserves to be upheld and the present first appeal filed by the defendants-appellants is liable to be dismissed. The same is accordingly dismissed. No costs. 16. The same is accordingly dismissed. No costs. 16. The appellants-defendants-tenants shall hand over the peaceful and vacant possession of the suit premises to the respondents-plaintiffs (landlord) within a period of six months from today i.e. on or before 28.02.2013 and shall pay rent/mesne profit @ Rs.3,000/- per month commencing from September, 2012 and will further continue to pay the mesne profits each month by 15th day of the next succeeding month or in advance to the respondentplaintiff till the vacant possession is handed over to the plaintiffrespondent and in case there is any default in payment of mesne profit, the period of six months for eviction shall stand reduced and the decree of eviction would become executable forthwith. The appellant-tenant shall also clear all the arrears of the rent or mesne profit at Rs.1800/- up to the date of decree i.e. 17.03.2005 and thereafter with the increase of Rs.100/- rents per month after every two years as per rent-note viz. Rs.1900/- per month from 17.03.2007 till 16.03.2009, Rs.2000/- per month from 17.03.2009 till 16.03.2011 and Rs.2100/- per month from 17.03.2011 till August, 2012 within three months from today, otherwise the amount shall bear interest @ 9% and executing Court may quantify such amount and recover the same as a money decree. The appellants-defendants-tenants shall also not sub-let, assign or part with the possession of the suit premises or any part thereof in favour of any one else and would not create any third party interest in the same during the aforesaid period and the same would be treated as void. The appellants-defendants shall furnish a written undertaking incorporating the aforesaid conditions in the trial court within one month and one copy thereof along with affidavit, in this Court. It is made clear that if the peaceful and vacant possession of the suit premises is not handed over or rent or mesne profits are not paid to the respondentplaintiff/ landlady within a period of six months from today, besides expeditious execution of the decree in normal course, the respondents-plaintiffs shall also be entitled to invoke the contempt jurisdiction of this Court. Copy of this judgment be sent to the courts below and parties concerned forthwith.