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Allahabad High Court · body

2013 DIGILAW 1457 (ALL)

STATE OF U. P. v. BEENA BHARGAWA

2013-05-17

S.U.KHAN

body2013
Sibghat Ullah Khan, J. On 26.4.2013 delay in filing revision was condoned and learned standing counsel for the applicant and Sri Siddharth, learned counsel for landlord respondent who had appeared through caveat were heard on merit of the revision. This revision is directed against judgment and decree dated 22.10.2012 passed by J.S.C.C./A.D.J. Court no.7, Varanasi in S.C.C. Suit no.1 of 2011, Smt. Beena Bhargava Vs. State of U.P. through Collector and another. Through the said decree suit for eviction of the tenants applicants from tenanted accommodation has been decreed and rent/damages for use and occupation w.e.f. 1.2.2011 till the date of the filing of the suit @ of Rs.2734/- per month have been directed to be paid along with 12% annual interest. Damages for use and occupation pendente lite and future till actual eviction @ of Rs.100/- per day have also been awarded by the decree. Accommodation in dispute is doubled storied containing six rooms two bath rooms, two store rooms, garrage and Varanadaha. Defendant applicant no.2 is District Cane Development Officer Bulandshahar who took the building in dispute on rent for establishing its office. A rent note was also executed on 30.7.2001 signed by plaintiff landlord and District cane officer Bulandshahar copy of which is Annexure 1 to the affidavit filed in support of the stay application. The tenancy was continuing since much before i.e. from 1.10.1986 as mentioned in Clause 1 of the rent note it was stipulated that rent would be Rs.2104/- per month. In Clause 9 it was mentioned that the agreement would be for three years and in case the tenant continued to retain the tenanted building in his tenancy thereafter rent would be enhanced by 10%. In the plaint it was stated that rate of rent was Rs.2734/- per month which was not denied. Tenancy was terminated through notice dated 27.10.2010 receipt of which was admitted by the tenant applicant. Admittedly even after the notice rent uptil January 2011 was paid by the tenant and accepted by the landlord. The main question argued before the court below was regarding waiver of notice which was covered by issue nos. 2 and 4. The court below placing reliance upon several authorities including the Supreme Court authority reported in Sarup Singh Gupta Vs. Admittedly even after the notice rent uptil January 2011 was paid by the tenant and accepted by the landlord. The main question argued before the court below was regarding waiver of notice which was covered by issue nos. 2 and 4. The court below placing reliance upon several authorities including the Supreme Court authority reported in Sarup Singh Gupta Vs. S. Jagdish Singh AIR 2006 SC 1734 :2006( 4) SCC 205 held that mere acceptance of rent after notice, even if rent control Act does not apply does not amount to waiver of notice or creation of tenancy by holding over in terms of Section 113 and 116 of Transfer of Property Act. One sentence of para 8 of the said authority is quoted below: "We can not ignore the fact that in any event, even if rent was neither tendered nor accepted, the landlord in the event of success would be entitled to the payment of the arrears of rent." In the said case notices to quit were given on 10.2.1979 and 17.3.1979. Suit was filed on 2.6.1979. However, rent for the months of April and May was accepted by the landlord and even thereafter during pendency of the suit rent was continued to be accepted by the landlord still the Supreme Court held that it did not amount to waiver of notice. Accordingly, there is no error in the finding of the court below that acceptance of rent did not waive the notice. As the rate of rent was more than Rs.2000/- per month ( Rs.2734/- per month) hence U.P. Urban Building Regulation of Letting Rent and Eviction Act 1972 did not apply by virtue of its Section 2( 1)( g). Accordingly, the court below rightly held that even though tenant was not defaulter when notice was given or when suit was filed. however, tenant was liable to eviction after termination of tenancy. Even though rent note dated 30.7.2001 was neither registered nor filed before the court below ( only photo state copy was filed) still even after taking the rent note into consideration no different result can follow. There is nothing in the agreement/rent note which makes the lease perpetual at the option of the tenant by virtue of its clause 9. On a correct interpretation of the rent note dated 30.7.2001 it is clear that after three years tenancy became terminable by notice. There is nothing in the agreement/rent note which makes the lease perpetual at the option of the tenant by virtue of its clause 9. On a correct interpretation of the rent note dated 30.7.2001 it is clear that after three years tenancy became terminable by notice. Accordingly, there is no merit in the revision hence it is dismissed. Tenants-petitioners are granted one year's time to vacate provided that :- 1. Within two months from today tenant applicant no.2 files an undertaking before the J.S.C.C. to the effect that on or before the expiry of aforesaid period of one year tenants will willingly vacate and handover possession of the property in dispute to the landlord-respondent. 2. For this period of one year, which has been granted to the tenants-applicants to vacate, they are required to pay Rs.60000/-( at the rate of Rs.5000/- per month) as rent/damages for use and occupation. This amount shall also be deposited within two months before the J.S.C.C. and shall immediately be paid to the landlord-opposite party. 3. Within two months from today tenant shall deposit entire decreetal amount due till date ( after adjusting any amount already deposited) before J.S.C.C. for immediate payment to landlord-respondent. In case of default in compliance of any of these conditions tenants-applicants shall be evicted through process of Court after two months. It is further directed that in case undertaking is not filed or amount of Rs.60000/- is not deposited within two months then tenants-applicants shall be liable to pay damages at the rate of Rs.7000/- per month since after two months till the date of actual vacation. Similarly if after complying with the above conditions property in dispute is not vacated on the expiry of one year then since after one year till actual vacation tenants applicants shall be liable to pay rent/ damages for use and occupation @ Rs.7000/- per month. It is needless to add that this direction is in addition to the right of the landlord to file contempt petition for violation of undertaking and execution application.