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Uttarakhand High Court · body

2013 DIGILAW 791 (UTT)

SURENDRA SINGH v. M. S. TOMAR

2013-12-11

ALOK SINGH

body2013
JUDGMENT Hon’ble Alok Singh, J. (Oral) For the reasons stated, delay condonation application (CLMA No. 12890 of 2013) is allowed. Delay in filing the revision by landlord/plaintiff is condoned. 2. Both these revisions are interconnected arising out of common judgment dated 19.08.2013 passed by Judge S.C.C./3rd A.D.J., Dehradun whereby suit filed by the landlord being SCC No. 01 of 2009 for eviction of the tenant and for recovery of the arrears of the rent was decreed with the stipulation that tenant shall pay the rent to the landlord for the period of three years prior to filing of the suit @ Rs. 600 per month with enhancement @ 10% per annum; with further stipulation that amount deposited by the tenant shall be adjusted. 3. With the consent of both the parties, both the revisions were heard together and are being disposed of by this common judgment. 4. I have heard Mr. T.A. Khan, learned Senior Advocate for the tenant and Mr. V.K. Kohli, learned Senior Advocate for the landlord and have carefully perused the lower court’s record with the help of learned Senior Advocates for the parties. 5. Undisputedly, shop, in question, was let out to the defendant/tenant w.e.f. 01.11.1995 on the rent of Rs.600/- per month. Plaintiff/landlord issued one notice under Section 106 of the Transfer of Property Act through his counsel by registered post A.D on 21.07.2008 to the defendant/tenant terminating his tenancy on the expiry of 30 days from the receipt of the notice and calling the tenant to pay arrears of rent of Rs.59,224/- at the enhanced rate of rent @ Rs.1714/- per month as per clause in lease agreement within a period of thirty days from the date of receipt of notice and asking the tenant to hand over peaceful vacant actual physical possession of the shop to the landlord after vacating the shop on expiry of 30 days period after receipt of notice. 6. Undisputedly, tenant received notice dated 21.07.2008 and sent his reply dated 20.08.2008 through his Advocate Mr. Shyam Sunder Lal Verma specifically stating therein that alleged lease agreement is not a registered, therefore, it is not enforceable, consequently, there was no question of payment of enhanced rent, as demanded by the landlord. He further stated that as on day, rent of the shop was @ Rs. Shyam Sunder Lal Verma specifically stating therein that alleged lease agreement is not a registered, therefore, it is not enforceable, consequently, there was no question of payment of enhanced rent, as demanded by the landlord. He further stated that as on day, rent of the shop was @ Rs. 900/- per month, which was mutually enhanced by the parties and no amount is outstanding towards the tenant/defendant. 7. Landlord/plaintiff got issued another notice to the tenant/defendant through his counsel by registered post AD on 17.11.2008 thereby informing the tenant that he made some alterations in the shop thereby diminishing the value of shop and demanded the balance rent of Rs. 79,100/-, as per correct calculations and asked the tenant to handover peaceful vacant possession of the tenanted shop to the landlord on expiry of thirty days after service of notice. Tenant refused to receive the second notice on 22.11.2008. Thereafter, plaintiff filed the plaint for eviction of the tenant and for recovery of the arrears of rent and mesne profit w.e.f. 23.12.2008 till the day actual possession is handed over to the landlord at the rate of Rs. 3500 per month. Defendant/tenant filed his written statement. 8. Both the parties admitted that tenancy was monthly tenancy and was at will. Both the parties also admitted that shop, in question, was let out in the year 1995. There is no evidence to the effect what was the year of construction of the shop. There is no averment made by the defendant/tenant to the effect that who was occupying the shop prior to the date it was let out to the defendant/tenant, therefore, construction is not proved having being raised prior to 1987, therefore, as per proviso 2 of Section 2 of the U.P. Act No. 13, 1972, Rent Act does not have any application in the present case. Since building is not covered by the UP Act No. 13 of 1972 and tenancy was monthly tenancy and at will, therefore, tenancy can be terminated by giving valid notice under Section 106 of the Transfer of Property Act. 9. Service of first notice dated 21.07.2008 is not denied rather admitted. However, service of second notice dated 17.11.2008 is in dispute, which was allegedly effected through refusal. 9. Service of first notice dated 21.07.2008 is not denied rather admitted. However, service of second notice dated 17.11.2008 is in dispute, which was allegedly effected through refusal. It appears that second notice dated 17.11.2008 was sent by the landlord because he wanted to correct calculation of outstanding amount and to bring into notice to the tenant that due to some alteration made by the tenant in the building value of the property stood diminished. 10. Second registered notice dated 17.11.2008 was sent on the same address of the tenant, on which first notice was sent to the tenant and was received by the tenant. Therefore, endorsement made by the postman to the effect that tenant had refused to accept the registered notice cannot be doubted. I find that second notice dated 17.11.2008 was served on the tenant by refusal. Therefore, tenancy of the defendant/tenant stood terminated on expiry of thirty days after 22.11.2008 when second notice was refused to have been accepted. It means tenancy stood terminated on 22.12.2008. 11. Although, both the parties admitted that rent agreement dated 23.11.1995 was executed between them and as per clause 4 of the said agreement, there would be 10% enhancement in the rent every year, therefore, it can safely be said that lease agreement was for the period more than eleven months. Therefore, as per Section 107 of the Transfer of Property Act, it ought to have been registered. Since it is not a registered document, therefore, it cannot be read in evidence in view of Section 49 of Registration Act. 12. Now, I have to examine what was the rate of rent and as to whether any rent was outstanding against the tenant. 13. Defendant has placed on trial court record paper no. 55C and cross-examined the landlord PW1 on paper no. 55C. Landlord, in his statement on oath, during the cross-examination has admitted that paper no. 55C is in his handwriting. Both the parties are not disputing correctness and genuineness of paper no. 55C. Rather paper no. 55C is admitted by both the parties. 14. Perusal of paper no. 55C reveals that tenant has paid rent at the rate of Rs.1500/- per month and has paid rent for the month of January and February, 2008 to the landlord and Rs. 2600/- remained outstanding against the tenant. It is, thus, proved that agreed rent between the parties was Rs. 14. Perusal of paper no. 55C reveals that tenant has paid rent at the rate of Rs.1500/- per month and has paid rent for the month of January and February, 2008 to the landlord and Rs. 2600/- remained outstanding against the tenant. It is, thus, proved that agreed rent between the parties was Rs. 1500/- per month and Rs. 2600/- were outstanding against the tenant. There is nothing on record to say that tenant has paid rent from 01.03.2008 till tenancy was terminated. Although, it is argued by the learned counsel for the tenant that entire rent was deposited in the court. Therefore, suit is liable to be decreed for arrears of rent w.e.f. 01.03.2008 till 22.12.2008 when tenancy stood terminated. Landlord is entitled for the mense profit w.e.f. 23.12.2008 till actual possession is delivered to the landlord. 15. Now, I have to examine what amount of the mesne profit should be fixed to be paid by the tenant to the landlord after termination of tenancy till actual possession is handed over to the landlord. It is settled position of law that mesne profit, ordinarily, shall be at the prevailing market rate of rent. 16. I have carefully examined the record but there is absolutely no evidence to the effect what would be the prevailing market rate of rent on 23.12.2008 and thereafter. However, in view of the fact that initially shop was let out @ Rs. 600/- per month in the year 1995 and in the year 2008, agreed rate of rent was Rs.1500/- per month, therefore, mesne profit @ of Rs. 2000/- per month seems to be justified. 17. Suit filed by the landlord for eviction of the tenant was rightly decreed. However, decree for the recovery of rent for the last three years prior to the filing of suit is liable to be set aside and decree for recovery of rent at the rate of Rs.1500/- per month from 01.03.2008 till 22.12.2008 and for outstanding amount of Rs. 2600/- total Rs.14600/- seems to be justified. 18. Both the revisions, thus, stand disposed of with the direction that tenant shall handover actual physical possession of the disputed shop to the landlord within 30 days from today. Tenant shall also pay to the landlord arrears of rent amounting to Rs.14600/- within thirty days from today and shall also pay mesne profit to the landlord at the rate of Rs. Tenant shall also pay to the landlord arrears of rent amounting to Rs.14600/- within thirty days from today and shall also pay mesne profit to the landlord at the rate of Rs. 2000/- per month from 23.12.2008 till the actual physical possession is handed over to the landlord. Amount deposited by the tenant in the court shall be withdrawn by the tenant enabling him to pay the decreetal amount to the landlord. Landlord shall also be entitled cost throughout from the tenant.