Research › Search › Judgment

Madhya Pradesh High Court · body

2012 DIGILAW 359 (MP)

Manohar v. Central Bank of India

2012-03-29

ALOK ARADHE

body2012
JUDGMENT 1. This appeal has been filed by the plaintiff. This Court vide order dated 15.4.1996 while admitting the appeal had formulated the following substantial question of law :- “A. Whether in absence of any express agreement to make a new tenancy could it be held by the Court below that a new tenancy was created by mere acceptance of rent?” B. Whether the lower Appellate Court was right in reversing the finding recorded by the trial Court that it was not proved that acceptance of rent by withdrawing the amount deposited by the bank was in respect of arrears of rent after the tenancy was terminated?” 2. Facts giving rise to filing of the appeal briefly stated are that the plaintiff filed a suit for possession on the ground that plaintiff is the owner of double storied building, which was let out to defendant on a monthly rent of Rs. 725/-. The suit house was leased out vide registered lease deed dated 11.8.1981 for a period of five years (Ex.P/2). The lease deed did not contain any clause for renewal. By notice dated 8.7.1985 (Ex.P/1), the lease was determined w.e.f. 31.12.1985. Thereafter, on 11.1.1988, the plaintiff filed a suit for possession. The defendant filed the written statement in which inter alia it was pleaded that after termination of the tenancy, the rent was deposited in the account of the plaintiff which was withdrawn by him and, therefore, the lease stood renewed. 3. The trial Court vide judgment and decree dated 4.1.1995 inter alia held that by mere deposit of rent, the lease is not renewed. It was further held that no particulars of the payment of rent were mentioned by the defendant and there is no specific pleading with regard to deposit of the amount of rent as well as the period for which the rent has been deposited. It was found by the trial Court that though on 31.3.1986, 28.4.1986 and 8.8.1986, a sum of Rs. 7000/-, Rs. 7420/- and Rs. 9100/- was withdrawn by the plaintiff yet by mere withdrawal of the amount of rent, the lease is not renewed. The trial Court also held that the lease of the defendant in respect of the accommodation in question has been determined. Accordingly, the suit of the plaintiff was decreed. The defendant challenged the validity of the aforesaid decree in an appeal. The trial Court also held that the lease of the defendant in respect of the accommodation in question has been determined. Accordingly, the suit of the plaintiff was decreed. The defendant challenged the validity of the aforesaid decree in an appeal. The Appellate Court vide judgment and decree dated 3.5.1995 allowed the appeal preferred by the defendant and dismissed the suit filed by the plaintiff. The lower Appellate Court held that since the plaintiff had withdrawn the amount of rent which was deposited after determination of the lease, therefore; the lease has been renewed and the plaintiff is not entitled to decree for possession. 4. Learned counsel for the appellants submitted that the Appellate Court grossly erred in reversing the well reasoned judgment and decree of the trial Court. It was further submitted that the lower Appellate Court grossly erred in holding that new tenancy came into existence by merely acceptance of rent by the plantiff. It was also urged that the lower Appellate Court grossly erred in reversing the finding recorded by the trial Court when it was not proved that acceptance of rent by the plaintiff was for a period after the tenancy was terminated. In support of his submissions, learned counsel for the appellant has placed reliance in Balwant Rai Agrawal vs. Bharat Petroleum Corporation, 2010(2) MPLJ 436 and a decision of Supreme Court in Shanti Prasad Devi and another vs. Shankar Mahto and others, 2005(II) MPJR 263. 5. On the other hand, learned counsel for the respondent-Bank submitted that the lower Appellate Court on the bssis of material available on record has recorded a finding that after termination of the tenancy, the rent was deposited by the Bank which was withdrawn by the plaintiff and, therefore, it has rightly been held by the Appellate Court that appellant is not entitled to decree for possession. 6. I have considered the submission made by learned counsel for the parties and have perused the records. 6. I have considered the submission made by learned counsel for the parties and have perused the records. Section 116 of the Transfer of Property Act, 1882 provides that - “if a lessee or under-lessee of property remains in possession thereof after the determination of the lease granted to the lessee, and the lessor or his legal representative accepts rent from the lessee or under-lessee, or otherwise assents to his continuing in possession, the lease is, in the absence of an agreement to the contrary, renewed from year to year, or from month to month, according to the purpose for which the property is leased, as specified in section 106”. 7. It is pertinent to mention here that in the lease deed (Ex.P/1), there is no clause of renewal. Thus, the mode of renewal of lease has not been prescribed in the lease deed. In paragraph 11 of the statement, the plaintiff who has been examined as plaintiff witness No.1 has admitted that after the termination of the lease, the rent has been deposited in his account and copy of his statement of account is Ex.D/1. It has further been admitted by the plaintiff that he has withdrawn an amount of Rs. 7,000/-, 7,420/- and Rs. 9,100/- respectively on 31.3.1986, 28.4.1986 and 8.8.1986. In paragraph 13 of the statement, plaintiff has further admitted that after 1986, he has not withdrawn the amount from his account. The statement of account Ex.D/1 clearly shows that after determination of the lease, the rent has been deposited in the account of the plaintiff. Thus, in view of admission made by the plaintiff in his statement, it was for the plaintiff to prove that he did not withdraw any amount which was deposited after the determination of the lease. The plaintiff has failed to state in specific terms that he has not withdrawn any amount which was deposited after determination of the lease in his account. The plaintiff who has obtained LL.B. Degree, after determination of lease ought to have given written instructions to the Bank not to deposit the amount of rent in his account, as has been admitted by him in para 11 of his statement. The plaintiff who has obtained LL.B. Degree, after determination of lease ought to have given written instructions to the Bank not to deposit the amount of rent in his account, as has been admitted by him in para 11 of his statement. Thus, the finding recorded by the lower Appellate Court that the plaintiff has withdrawn the amount of rent which has been deposited after determination of the lease cannot be said to be perverse or based on no evidence. 8. If the lease deed contains the renewal clause, the renewal of the lease has to be sought in the manner provided under the clause. In such a case, the lessee cannot claim that merely because the lessor has accepted the rent, “he is holding over”. However, in the instant case, it is pertinent to mention here that the lease deed does not contain any clause of renewal. Therefore, the decision relied upon by learned counsel for the appellant in the case of Shanti Prasad Devi another, (supra) is of no assistance to the appellant. Similarly, the ratio laid down by this Court in Balwant Rai Agrawal, (supra) that renewal of lease cannot be automatic, is of no assistance to the appellant as the same is distinguishable on facts and section 116 of Transfer of Property Act has not been noticed. The appellant has accepted the rent after determination of the lease, therefore, under section 116 of the Transfer of Property Act, the lease is renewed. Accordingly, the first substantial question of law is answered. For the reasons which have already been assigned in the preceding paragraphs, the second substantial question of law is answered in the affirmative and against the appellant. 9. In the result, the appeal fails and is hereby dismissed. However, there shall be no order as to costs.