Research › Search › Judgment

Uttarakhand High Court · body

2012 DIGILAW 430 (UTT)

U. P. Handloom Corporation Ltd. v. Savitri Uniyal

2012-07-26

V.K.BIST

body2012
JUDGMENT : Heard learned counsel for the parties and perused the record. 2. Instant revision has been filed against the judgment and decree dated 25.06.2010 passed by Judge Small Cause Court/District Judge, Nainital in SCC Suit No. 6 of 2008 ‘Smt. Savitri Uniyal and another vs. UP Handloom Corporation Ltd. and another’ whereby the suit of the plaintiff for ejectment and mesne profit was decreed against the defendant/revisionists. 3. Brief facts, emerged out from the record, are that late Mr. B.D. Uniyal, husband of plaintiff no.1 and father of plaintiff no.2 (respondents herein) was the owner and landlord of the property no. 43, situate at Mall Road, Nainital, which is known as Uniyal Niketan, Mall Road, Nainital and after his death, the property is inherited by the plaintiffs. In the year 1985, late B.D. Uniyal let out two shops to the defendant no.1/petitioner no.1, having an area of 868 square feet, as single tenancy, for 20 years w.e.f. 16.05.1985 at the rate of Rs. 3/- per square feet. Accordingly, the rate of rent was Rs. 2,604/- per month apart from the liability of payment of taxes to the tune of Rs. 400/- per annum, subject to 10% enhancement in the existing rent after every 5 years. The tenancy was a fixed term tenancy for 20 years w.e.f. 16.05.1985 ending on 15.05.2005. The defendant no.1 started Handloom business in the shops in question in the name of defendant no.2. As the conduct of defendants has never been cooperative, because they never paid rent in time, and since the tenancy of defendant no.1 was likely to expire on 15.05.2005, the plaintiff no.1, before the said date, requested the defendant no.1 to vacate the property on the expiry of fix term i.e. on 15.05.2005, but despite requests, the property in suit was not vacated nor its possession was handed over to the plaintiffs. It is further asserted that even after the expiry of fix period of tenancy, the plaintiffs requested the defendants to vacate the property in dispute, but they paid no heed to it. It is further asserted that the property in question is highly needed by the plaintiffs. It is further asserted that since the rent of disputed property was more than Rs. 2000/-, the U.P. Act no. 13 of 1972 is not attracted to it. It is further asserted that the property in question is highly needed by the plaintiffs. It is further asserted that since the rent of disputed property was more than Rs. 2000/-, the U.P. Act no. 13 of 1972 is not attracted to it. It is further asserted that the defendants’ possession over the disputed property, after expiry of fixed period i.e. on 15.05.2005, is illegal and unauthorized and they have no right to retain the same in any manner, as the tenancy of defendant no.1 automatically came to an end on 15.05.2005 by efflux of time. It is asserted that the plaintiffs are entitled to a decree for ejectment of the defendants from the property in dispute and for recovery of its actual possession, inasmuch as, the plaintiffs are entitled to the recovery of mesne profits and damages for illegal use and occupation of the property in dispute. Rescinding the contents of the plaint averment, the defendants filed their written statement with the averment that two shops, situate in the ground floor of Uniyal Bhawan, were taken on rent in the year 1985 at the rate of Rs. 3/- per square feet per month and the rent of both the shops were separately fixed. It is stated that the shops are in separate tenancy of the defendants. It is pleaded that the defendants always paid the agreed rent in time, on the contrary, the plaintiffs in order to harass the defendants, refuge to take the rent and often returned the drafts of rent sent by the defendants. It is asserted in the written statement that no fixed terms tenancy had taken place between the predecessor of the plaintiffs and the defendants, therefore, no question arises of expiry of the tenancy of defendants on 15.05.2005. It is also stated that rent of each of the shops is less then Rs. 2,000/-, hence the property in question is governed by the provisions of U.P. Act No. 13 of 1972. It is further stated that possession of the defendants in the property in suit on 15.05.2005 or any other date, is legal and authorized and the defendants have every right to retain the property in question and even after 15.05.2005 the tenancy of the defendants will not come to an end. It is further stated that possession of the defendants in the property in suit on 15.05.2005 or any other date, is legal and authorized and the defendants have every right to retain the property in question and even after 15.05.2005 the tenancy of the defendants will not come to an end. It is stated that the plaintiffs are only entitled to receive the rent of the premises in suit, to which they already refused, therefore no question arises of any mesne profit or damages against the defendants for alleged illegal use and occupation of the suit property. It is lastly averred in the written statement that the plaint is liable to be rejected under Order VII Rule 11 of the Code of Civil Procedure. The parties, in support of their claim, led oral as well as documentary evidence. The Court below framed necessary issues and, thereafter, after hearing learned counsel for the parties the learned Judge, SCC, Nainital vide order dated 25.06.2010 decreed the suit, which is the order impugned in this revision. 4. I have heard Mr. K. S. Bora, Advocate for the revisionists, Mr. M.C. Pandey, Senior Advocate assisted by Mrs. Prabha Naithani, Advocate for the respondents and perused the record. 5. Learned counsel for the revisionists submitted that no fixed term tenancy was created for a period of 20 years. Even if any correspondence to this regard was exchanged between the parties on 27.03.1985 (19c/13) and 06.06.1985 (19C/14), the same is of no avail as a fix term tenancy for more than one year, reserving the rent can only be created by way of registered document otherwise the correspondence in this regard cannot be read in evidence. He submitted that the trial Court, in considering this correspondence as an agreement of fix term tenancy for the period of 20 years, has committed manifest error in law. He submitted that the trial Court failed to appreciate that agreement cannot be signed by one person. He argued that existence of valid deed is must and in absence of registered instrument, no valid lease for a term exceeding one year, can be created. In support of his submission, he relied upon the case of Hutchison Essar South Ltd. vs. Union Bank of India and anr, reported in AIR 2008 Karnataka 15. He argued that existence of valid deed is must and in absence of registered instrument, no valid lease for a term exceeding one year, can be created. In support of his submission, he relied upon the case of Hutchison Essar South Ltd. vs. Union Bank of India and anr, reported in AIR 2008 Karnataka 15. He also submitted that the learned trial Court also erred by not considering the fact that the tenancy was month to month, which is substantiated by the Civil Suit No. 46 of 1985 filed by the original owner/predecessor in interest of respondent B.D. Uniyal against the revisionists in the Court of Munsif, Nainital wherein in paragraph no. 1 of the plaint, the plaintiff had clearly stated that the revisionists are monthly tenant in the premises/shop in question. He also submitted that the notices issued on behalf of respondent no.1 are not valid notices as these notices were illegal and no ingredients to the provisions of Section 106 of the Transfer of Property Act are satisfied. Learned counsel for the revisionists also argued that the learned trial Court has wrongly and erroneously held that the tenancy has been expired by efflux of time on 15.05.2005, whereas as per the own admission of the respondents, the tenancy was month to month and rent was paid on month to month basis. Learned counsel for the revisionists also argued that the learned trial Court has erroneously and without evidence awarded mesne profit of Rs. 10,000/- per month whereas, the agreed rent of that period is Rs. 3,466/- per month. Mr. K.S. Bora, Advocate for the revisionist further submitted that in fact, there were two shops rented out to the revisionists, in which respect two separate tenancy were there and in view of the fact that rent of one shop was less than Rs. 2000/-, provisions of U.P. Act No. 13 of 1972 were applicable in the premises in question. 6. Mr. M.C. Pandey, learned Senior Advocate for the respondents, on the other hand, submitted that there are two letters on record, one written by the landlord predecessor of the respondents regarding tenancy and another written on behalf of the revisionist, by which the revisionist agreed for the terms. 6. Mr. M.C. Pandey, learned Senior Advocate for the respondents, on the other hand, submitted that there are two letters on record, one written by the landlord predecessor of the respondents regarding tenancy and another written on behalf of the revisionist, by which the revisionist agreed for the terms. He submitted that 20 years period is mentioned in the letters, and thereafter the parties by their conduct agreed for the terms and thus, it is clear that the tenancy was for a fixed period of 20 years i.e. from 16.05.1985 to 15.05.2005. He also submitted that from the conduct of the revisionist and also the manner in which payment was made by the revisionist, it is clear that tenancy was for a fixed period. Learned Senior Advocate for the respondents further admitted that two separate letters written by B.D. Uniyal and not by the revisionist, in fact, cannot be said to be an agreement and such type of letters do not require registration, but seeing the conduct of the parties, it can easily be said that the parties agreed for fix term tenancy of 20 years. Learned Senior Advocate for the respondents further submitted that even assuming that there was no fix term tenancy and tenancy was on month to month basis, in that event also the tenancy of the revisionist for determination of tenancy, suit was filed. 7. Learned Senior Advocate for the respondents also submitted that there is no illegality in the notice given to the revisionists, as it is a settled principal of law that there is no specific language provided for the notice under Section 106 of Transfer of Property Act and in the present case, the ingredients of notice are very clear by which tenancy of the revisionists was determined. Learned Senior Advocate for the respondents also replied that it is wrong to say that there has been two tenancies in respect of the property in dispute, and in fact, there was only one tenancy of two shops and it is clear from the letter given by the revisionist that area of the shop is also combined, payment of the rent of two shops is also combined. He submitted that had there been two tenancies, two separate receipts would have been issued to the tenants by the landlord. He submitted that had there been two tenancies, two separate receipts would have been issued to the tenants by the landlord. Learned Senior Advocate for the respondents also invited my attention to the letter written by the revisionist (19c/22) by which the revisionist requested the landlord for extension of tenancy for a period of fifteen years w.e.f. 16.05.1985 to 15.05.2005. He submitted that in such circumstances, it is clear that fix term tenancy is also admitted to the revisionist and undisputedly fix term tenancy came to an end in the year 2005 which is evident from the fact that the revisionist wrote letter for extension of time for a further period of five years, which was refused by the landlord. Learned Senior Advocate for the respondent lastly submitted that when after expiry of fix period tenancy, the revisionists did not vacate the premises in question, the landlord was bound to file suit for eviction. He submitted that, in case, where tenancy was for a fix term and rented property is not vacated after expiry of fix term, it is open for the landlord to file suit for eviction without issuing any notice to the tenant. Learned counsel for the respondents referred Section 111 of Transfer of Property Act with the submission that tenancy will be determined by efflux of time, and in case, property is not vacated after expiry of fixed term, the landlord has rightly filed the suit for eviction. In support of his arguments learned counsel for the respondent relied on the judgment of Hon’ble Supreme Court, reported in AIR 1978 Supreme Court 1518, AIR 1981 Supreme Court 1550, 1985 (1) ARC 75, 2010 (79) ALR 495 and 2010 (79) ALR 511. 8. I have considered the rival arguments advanced by the learned counsel for the parties, have examined the impugned judgment passed by the Court below and have also gone through the law cited by the learned counsel for the parties. 9. The learned Judge SCC, while deciding the issue no.1 has concluded that there is no rent deed in existence in between the parties. According to paper No. 19-c/13 written by B.D. Uniyal, the shops were let out by the plaintiffs to the defendants for 20 years and according to paper No. 19-c/14 written by the General Manager of the revisionists, the disputed shops were taken by the defendants for 20 years. Though, paper no. According to paper No. 19-c/13 written by B.D. Uniyal, the shops were let out by the plaintiffs to the defendants for 20 years and according to paper No. 19-c/14 written by the General Manager of the revisionists, the disputed shops were taken by the defendants for 20 years. Though, paper no. 19-c/13 does not have signatures of the defendants and paper no. 19-c/14 does not bear signature of the plaintiffs, however from the documentary evidence paper no. 19-c/50 to 19-c/57, 19-c/60 to 19-c/63, 19-c/69, which are the rent receipts, it illustrates that tenancy continued in pursuance of paper no. 19-c/13 and 19-c/14. The defendants, by producing cogent evidence, have not rescinded that the tenancy was for a fixed period of 20 years and incase, in absence of registration of rent deed, the conditions of rent be ignored, the evidence led by the parties itself indicate that the tenancy was commenced w.e.f. 06.04.1985 for a period of five years and there is no requirement of registration of paper no. 19-c/13 and 19-c/14, not being the bipartite document. The learned Court below reached to the conclusion that the respondent no.2 in his testimony has categorically stated that on 16.05.2005 the defendants wrote letter paper no. 19-c/22 to the landlord for extension of tenancy for a further period of five years, after expiry of tenancy on 15.05.2005, which is sufficient to establish that the tenancy was for a fix period of 20 years. The finding recorded by the Court below is based on the material evidence led by the parties. So far the issue no.2 is concerned, oral evidence of DW-2 Nisar Ahmad has been emphasized, who in his cross-examination has accepted that only one receipt was being given as well as one rent was being paid for both the shops. Attention was invited to the statement of DW-1 O.P. Sharma, who has accepted that the shops were taken on rent according to the conditions contained in rent deed dated 06.06.1985 and the defendants sent proposal for alteration of the conditions that separate rent be fixed for each shop, but their proposal was turned down by the landlord, which itself illustrate that the tenancy was one in respect of both the shops. So far the findings recorded in issue no.3 is concerned, the Court below has rightly reached to the conclusion that the suit is not barred by not sending notice under Section 106 of Transfer of Property Act, as the premises in suit was let out for a fixed period of 20 years commencing from 16.05.1985, which came to end on 15.05.2005 and after expiry of fixed period tenancy, no notice was required to be sent. This finds support from the case law reported in AIR 1978 SC 1518 and AIR 1981 SC 1550 . This documentary evidence paper no. 19-c/96 and 19-c/97 are on record, which show that on 21.04.2005 the landlord wrote letter to the defendants that their tenancy will be ended on 15.05.2005 and they are required to vacate the property in suit before due date, after making payment of entire rent and other dues. Paper no. 19-c/93 written by the defendants shows that the defendants accepted the letter dated 21.04.2005, being the notice, as by this document they have requested to let out again the premises in question for a further term of five years at 10% enhanced rate. Therefore, no notice under Section 106 of Transfer of Property Act, having specific wordings, was required to be sent. In respect of issue no.4 it has been held out that tenancy of the premises in question is not disputed in between the parties and in view of fixed term tenancy, the tenancy of the defendants has automatically come to an end by efflux of time, the Judge Small Cause Court have ample jurisdiction to hear and try the suit. On assessment of the assertions made by the parties, the oral and documentary evidence led by the parties, the rival arguments advanced by the learned counsel for the parties and after taking into consideration the law cited by the learned counsel for the parties, essence is nothing than that findings recorded by the learned Court below are correct. This Court does not find any illegality, infirmity or perversity in the order impugned. I concur with the findings recorded by the Court below, which does not warrant any interference by this Court. Consequently, the revision fails and deserves to be dismissed. 10. Accordingly, the revision is dismissed. No order as to costs.