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2014 DIGILAW 2898 (ALL)

SOM NATH SEHGAL v. ARVIND KUMAR SETHI

2014-09-17

P.K.S.BAGHEL

body2014
JUDGMENT Hon’ble P.K.S. Baghel, J.—This civil revision under Section 25 of the Provincial Small Cause Courts Act, 1887 (for short, the “Act”) has been preferred by the tenant-defendant against the judgment and order dated 18th February, 2013 passed by the Additional District Judge, Court No. 11, Moradabad in Small Cause Suit No. 21 of 2011 (Sri Arvind Kumar Sethi and another v. Sri Somnath Sehgal), whereby the suit filed by the landlords-respondents has been decreed for eviction and arrears of rent for a sum of Rs. 40,950/- and damages at the rate Rs. 2,250/- per month till the vacation of the suit premises. 2. Briefly stated the facts are that the landlords-respondents have let out the suit premises, which comprises of three rooms, one kitchen and toilet on the first floor, to the tenant-revisionist at the monthly rent of Rs. 2,250/-. The accommodation is residential. The landlords-respondents issued a notice to the tenant-revisionist on 27th August, 2010 on the ground that the tenant has made default in payment of rent since 01st April, 2009. It was also stated in the notice that two sons of landlord-respondent No. 2 are unemployed and they need the demised premises for their personal use. The tenancy was also determined and six months’ time was granted to the tenant to vacate the premises. Said notice is state to be served on the tenant-revisionist on 06th September, 2010. Despite aforesaid notice when the accommodation was not vacated, the landlords-respondents instituted Small Cause Suit No. 21 of 2011 (Sri Arvind Kumar Sethi and another v. Sri Somnath Sehgal) in the Court of Judge, Small Cause for eviction of tenant and arrears of rent. 3. In the said suit, landlords’ case was that the demised portion is a part of the accommodation mentioned in the schedule of the plaint and the said portion is newly constructed and the first assessment of the demised premises was made in the year 1987. It is stated that major portion of the premises is covered under the provisions of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act No. 13 of 1972) but the portion which has been let out to the tenant-revisionist is exempted from the provisions of the U.P. Act No. 13 of 1972 as its monthly rent was above Rs. 2,000/-. 2,000/-. It was stated in the plaint that since the provisions of the U.P. Act No. 13 of 1972 are not applicable to the demised premises, the tenancy has been determined by the notice dated 27th August, 2010. The landlords have demanded the arrears of rent from 1st April, 2009 to 6th October, 2010, which comes to Rs. 40,950/- and the damages to a tune of Rs. 19,800/- for use and occupation. 4. The tenant-revisionist filed a written statement in the said suit. The suit was contested by the tenant inter alia on the ground that the tenancy started from 1976 and the allegation of the landlords regarding arrears of rent was denied. A further stand was taken that on 7th May, 2009 the tenant had sent the rent for the month of April, 2009, which was refused by the landlords. Thereafter the tenant had sent the rent by money order which has also been refused by the landlords. Therefore, the tenant has deposited the amount of rent under Section 30 of the U.P. Act No. 13 of 1972 in Misc. Case No. 21 of 2009 (Somnath Sehgal v. Arvind Sethi). In the written statement it is further stated that the rent upto March, 2011 has been deposited by the tenant. It is also stated that the tenant has filed a civil suit for permanent injunction in the Court of Civil Judge (Junior Division), Moradabad, which has been registered as Original Suit No. 340 of 2009 (Somnath Sehgal v. Arvind Sethi and others), wherein his application for interim injunction is pending. 5. The landlord-plaintiff No. 1, Sri Arvind Kumar Sethi, has got himself examined as witness and the tenant has also given his oral testimony. Both the sides have filed certain documents before the Court below. 6. The Judge, Small Cause Court, has framed the following issues for determination: (I) Whether the provisions of the U.P. Act No. 13 of 1972 are applicable to the premises in question? (II) Whether the tenant has made default in payment of rent since 01st April, 2009? (III) Whether the notice sent by the landlords is valid? 7. The Judge, Small Cause Court, has found that as the rent of the demised premises was Rs. (II) Whether the tenant has made default in payment of rent since 01st April, 2009? (III) Whether the notice sent by the landlords is valid? 7. The Judge, Small Cause Court, has found that as the rent of the demised premises was Rs. 2,250/-, therefore, in view of Section 2(g) of the U.P. Act No. 13 of 1972 the provisions of the U.P. Act No. 13 of 1972 are not applicable to the demised premises. The Court below has also found that the tenant has admitted that after March, 2009 the rent has not been paid on account of refusal of the landlords. Thus, the amount has been deposited under Section 30 of the U.P. Act No. 13 of 1972, but the Court below has recorded a finding that the tenant-defendant has not adduced any evidence to establish that the rent was sent by the tenant-revisionist to the landlords by money-order and it was refused by them. No such document was filed by the tenant, therefore, the Court below took the view that the tenant-revisionist is not entitled for the benefit of Section 30 of the U.P. Act No. 13 of 1972. The Court below has further recorded a finding that the notice determining the tenancy of the tenant-revisionist was valid. Accordingly, the suit of the landlords was decreed by the Court below by impugned judgment and order dated 18th February, 2013. 8. I have heard Sri Kshitij Shailendra, learned Counsel for the tenant-revisionist, and Ms. Rama Goel Bansal, learned Counsel for the landlords-respondents. 9. Learned Counsel for the revisionist Sri Kshitij Shailendra submits that the landlords have filed the release application setting up bona fide need of the property for their son and sent a notice dated 27th August, 2010 to the tenant-revisionist six months’ before proposed filing of the release application. The notice sent by the landlords was invalid as the provisions of the U.P. Act No. 13 of 1972 were applicable and the tenancy did not stand determined through the said notice. As regards the default, learned Counsel for the revisionist submits that after refusal by the plaintiffs-landlords the tenant-revisionist had deposited the rent under Section 30 of the U.P. Act No. 13 of 1972. Learned Counsel for the revisionist has placed reliance on the judgment of this Court in the case of Abdul Jalil v. Haji Abdul Jalil, AIR 1974 All 402 . 10. Learned Counsel for the revisionist has placed reliance on the judgment of this Court in the case of Abdul Jalil v. Haji Abdul Jalil, AIR 1974 All 402 . 10. It is next contended by the learned Counsel for the revisionist that under Section 111 of the Transfer of Property Act, 1882 the words ‘determine the lease’ find specific mention. Therefore, in absence of determination of lease the suit was not maintainable either under Section 20(2) of the U.P. Act No. 13 of 1972 or under Section 106 read with Section 111 (g) & (h) of the Transfer of Property Act; the notice dated 27th August, 2010 was not a notice under Section 106 of the Transfer of Property Act, inasmuch as the said provision contemplates fifteen days’ notice in a month to month lease and six months’ notice is required for determining the lease for agricultural or manufacturing purposes. Lastly it was urged that the tenant-revisionist was entitled for the benefit of Section 30 of the U.P. Act No. 13 of 1972 as there is no other provision under the law except Section 30 of the U.P. Act No. 13 of 1972 to make deposit prior to institution of the suit. Moreover, it was the landlords-respondents who made the defendant to believe that U.P. Act No. 13 of 1972 was applicable, therefore, the revisionist would be entitled to the benefit of the deposit made. Reliance has been placed on the Full Bench judgment of this Court in the case of Mst. Indrasani v. Din Ali, 1968 AWR 167 (FB), which has been approved by another Full Bench in the case of G. Singh v. A.D.J., 2000 (1) ARC 653 (FB). 11. Ms. Rama Goel Bansal, learned Counsel for the landlords-respondents, submitted that the landlords sent a registered notice dated 30th August, 2010, which is a composite notice under the proviso to Section 21(1)(a) of the U.P. Act No. 13 of 1972 and under Section 106 of the Transfer of Property Act. By the said notice the landlords-plaintiffs terminated the tenancy of the tenant-defendant. The notice was served on the tenant-defendant on 06th September, 2010, but the tenant did not vacate the demised premises, therefore, the suit was instituted by the landlords. It is submitted that when the plaintiffs-landlords purchased the premises in question on 05th December, 2008 the rent thereof was Rs. The notice was served on the tenant-defendant on 06th September, 2010, but the tenant did not vacate the demised premises, therefore, the suit was instituted by the landlords. It is submitted that when the plaintiffs-landlords purchased the premises in question on 05th December, 2008 the rent thereof was Rs. 2,100/- and it was later on enhanced to Rs. 2,250/-. This fact is admitted to the tenant. Therefore, in view of the said admission of the tenant and as per Section 2(g) of the U.P. Act No. 13 of 1972, the provisions of the U.P. Act No. 13 of 1972 are not applicable as the rent has exceeded from Rs. 2,000/-. 12. Learned Counsel for the landlords-respondents has submitted that the landlords have clearly stated in paragraphs 4, 5 and 6 of the plaint that the portion of the building, in which the revisionist is in occupation as tenant, is not governed by the U.P. Act No. 13 of 1972 as the rent is more than Rs. 2000/-, whereas on the remaining portion of the premises the provisions of the U.P. Act No. 13 of 1972 are applicable. It has further been contended that it is admitted position that the provisions of the U.P. Act No. 13 of 1972 are applicable in the demised premises, therefore, the tenancy is governed by the general law and the same has become tenancy at will and there is no requirement that in the event any default is committed by the tenant, the landlord may file a suit for eviction on the ground of said default. Under the general law it is only sufficient that the landlord should inform the opposite party/tenant that he did not want to keep him as tenant. Therefore, there is no necessity for any ground to initiate the eviction proceeding against the tenant nor any benefit can be claimed by the tenant in the special statute, namely, the U.P. Act No. 13 of 1972. It is further contended that the provisions of Section 114 of the Transfer of Property Act also do not give any benefit to the tenant-revisionist as there are some requirements to be fulfilled under the said Section and in the present case the provision of said Section is not applicable. 13. Learned Counsel for the landlords-respondents has lastly urged that the plea raised by the tenant-revisionist in respect of validity of the notice is totally misconceived. 13. Learned Counsel for the landlords-respondents has lastly urged that the plea raised by the tenant-revisionist in respect of validity of the notice is totally misconceived. The landlords sent a registered notice dated 30th August, 2010 and have determined the tenancy of the revisionist. Said notice was admittedly served on the tenant on 06th September, 2010 and thereafter the suit for eviction was filed. Learned Counsel for the landlords has drawn the attention of the Court to the initial pleadings in the written statement, wherein a general and vague objection has been taken by the tenant-defendant about the validity of the notice and in the similar fashion a vague objection was made in a casual way in the affidavit filed before this Court also. 14. It was submitted that the notice under Section 106 (1) of the Transfer of Property Act has to be a formal declaration of the lessor’s intention to end the lease and a mistake in the period of notice will not be fatal. The aim of the interpretation should be only to ascertain whether the person receiving the notice has understood the same. Moreover, if a tenant has not taken any specific objection about the validity of the notice in his initial proceedings, then it would be deemed that he has waived his right to object the validity of the notice. Ms. Bansal has placed reliance on the judgments of the Supreme Court in the cases of Parwati Bai v. Radhika, 2003 SCFBRC 346; Shyam Lal v. Rasool Ahmed (Dead) by L.Rs., 2002 SCFBRC 479; and Dharam Pal v. Harbans Singh, (2006) 9 SCC 216 . 15. She has also relied on a judgment of the Supreme Court for the proposition that if the tenancy is covered by the general law, then there is no necessity or the legal requirement for issuance of notice under Section 106 of the Transfer of Property Act before institution of the suit for eviction. It was further urged that a composite notice under Section 21(1)(a) and under Section 20 of the U.P. Act No. 13 of 1972 is also legal notice and the suit cannot be dismissed on the ground that the notice was served under the proviso to Section 21(1)(a) and the suit was filed for eviction. She has placed reliance on the judgment of this Court in the case of Misri Lal v. IXth Addl. She has placed reliance on the judgment of this Court in the case of Misri Lal v. IXth Addl. District Judge, Gorakhpur and others, 1992 (2) ARC 546. Lastly, she urged that under Section 25 of the Provincial Small Cause Courts Act this Court has very limited jurisdiction and no interference is called for by this Court in this revision. 16. I have considered the rival submissions advanced by the learned Counsel appearing for the parties and perused the record. 17. The first question, which needs to be determined, is whether the provisions of the U.P. Act No. 13 of 1972 are applicable to the demised premises or not. It is admitted case of the tenant that the rent of the demised premises is above Rs. 2,000/-. This fact has been admitted in paragraph-15 of the written statement. Thus, in view of Section 2(g) of the U.P. Act No. 13 of 1972 the provisions of the U.P. Act No. 13 of 1972 are not applicable. In case the U.P. Act No. 13 of 1972 is not applicable, the tenancy can be determined by a simple notice to the tenant. In the instant case, admittedly a notice dated 27th August, 2010 has been served on the tenant and he has replied to the said notice. To appreciate the submission of the learned Counsel for the revisionist that by the notice dated 27th August, 2010 the tenancy has been determined, it is necessary to consider the notice dated 27th August, 2010. From a perusal of the said notice following facts are established:- (i) the tenant has made default since 01st April, 2009, which he has failed to deposit inspite of several requests and reminders; (ii) the landlords needs the demised premises for their personal use; (iii) the tenant may find out alternative accommodation within six months from the date of this judgment and after vacating the premises the vacant possession may be given to the landlords, failing which the landlords shall take legal recourse; and, (iv) it is also mentioned in the notice that in the previous notice due to inadvertence the landlords have mentioned that the provisions of U.P. Act No. 13 of 1972 are not applicable. 18. 18. From the aforesaid facts it is demonstrably established that the intention of the landlords was clear and unambiguous that they want the tenant to vacate the demised premises and give the possession to the landlords. Said intention is clear from the following words: Þvr% bl uksfVl }kjk vkils ekax dh tkrh gS fd vki bl uksfVl dh izkfIr ds N% ekl ds vUrxZr dky esa viuh oSdfYid O;oLFkk djdj mDr vof/k ds i’pkr mDr ‘kSM;wy&d&nqdku fjDr djdj esjs i{knkjksa ds vkf/kiR; esa ns nsaAÞ 19. In view of the said fact the submission of the learned Counsel for the revisionist that the tenancy remained protected and it was not determined by the said notice, is misconceived and the said submission is liable to be rejected. 20. In case the U.P. Act No. 13 of 1972 is not applicable, then a simple notice indicating the intention of the landlord to get the possession of the accommodation is sufficient. From a perusal of the recital contained in the notice there is no doubt that the landlords’ intention that they do not want to keep the revisionist as tenant, is very clear. 21. In addition to above, the issue with regard to validity of the notice should be taken specifically and at the initial stage. In the present case, the tenant-revisionist in the written statement as well as in the affidavit has not taken specific plea and only general and vague allegation has been made about the validity of the notice. The Supreme Court in the case of Parwati Bai (supra) while considering the similar issue has observed as under: “5. The singular question to be examined in the present case is whether the tenancy was terminated in accordance with the provisions of Section 106 of the Transfer of Property Act. The receipt of notice by the defendant is admitted in the written statement. The defendant has not raised any specific objection as to the validity of the notice. An objection as to invalidity or infirmity of notice under Section 106 T.P. Act should be raised specifically and at the earliest; else it will be deemed to have been waived even if there exists one. It cannot, therefore, be said that the notice in the present case suffered from any infirmity. A copy of the notice was exhibited and proved by the plaintiff as Exh. P4.” 22. It cannot, therefore, be said that the notice in the present case suffered from any infirmity. A copy of the notice was exhibited and proved by the plaintiff as Exh. P4.” 22. Similar view has been taken in the case of Shyam Lal (supra) and Dharam Pal (supra). In the case of Dharam Pal (supra) the Supreme Court held that if a specific plea is not taken in the written statement, the plea as to insufficiency of notice should be deemed to have been waived and cannot be allowed to be urged at a late stage. 23. From the perusal of the impugned order it is evident that the Counsel for the revisionist-tenant before the Court below has submitted that the notice is invalid on the ground that it has not used the words to the effect that the tenancy is determined. No other submission in respect of the notice was raised before the Court below. As stated above, from the perusal of the notice the intention of the landlords is very much clear and absence of use of the words that the tenancy is determined, would not invalidate the notice on this ground. 24. Next submission of Sri Kshitij Shailendra is that the principal of holding over the property under Section 114 and 116 of the Transfer of Property Act would be applicable. In support of the said submission, he has failed to show any plea or evidence that there was any registered agreement between the parties. Thus, the provisions of Sections 114 and 116 of the Transfer of Property Act are not applicable in the facts of the present case. 25. As regards the submission that the deposit made by the tenant under Section 30 of the U.P. Act No. 13 of 1972 has not been considered, it is pertinent to mention that if the provisions of the U.P. Act No. 13 of 1972 are not applicable to the demised premises, the question of any deposit is totally irrelevant. This Court in the case of Waqf Alial Aulad/ Waqf Alkhair Allahtala, Dr. Ziaui Haq, Bijnor and another v. Ist ADJ, Bijnor and another, 2008 (3) ARC 428, has taken the view that if the U.P. Act No. 13 of 1972 does not apply then the tenant is liable to eviction simply by termination of tenancy. The default or no default is wholly immaterial. Ziaui Haq, Bijnor and another v. Ist ADJ, Bijnor and another, 2008 (3) ARC 428, has taken the view that if the U.P. Act No. 13 of 1972 does not apply then the tenant is liable to eviction simply by termination of tenancy. The default or no default is wholly immaterial. Relevant part of the judgment reads as under: “6. If Rent Control Act does not apply, then tenant is liable to eviction simply after termination of tenancy. Default or no default is wholly immaterial. Revisional Court itself held that building in dispute belonged to Waqf-allal-aulad and was beyond the purview of U.P. Act No. 13 of 1972. Thereafter, there was absolutely no sense in holding that the notice of termination of tenancy was invalid on the ground that tenant was not defaulter when notice was given. The view taken by the lower Revisional Court is quite strange and utterly untenable. Even if Rent Control Act applies and in the notice wrong period of default and wrong rate of rent is mentioned, still notice does not become invalid vide Full Bench authority of Gokaran Singh v. Ist Additional District and Sessions Judge, Hardoi and others, 2000 (1) ARC 653 .” 26. The Court below has recorded a finding that the tenant has not filed any document to prove that he had sent the rent to the landlords and it was refused by them. No documentary evidence was filed by the tenant. Learned Counsel for the revisionist could not satisfy the Court that said finding is incorrect. The tenant has also failed to establish that the Court has permitted him to deposit the amount of rent under Section 30 of the U.P. Act No. 13 of 1972. 27. Learned Counsel for the landlords-respondents has submitted that under Section 25 of the Provincial Small Cause Courts Act this Court cannot set aside the findings of fact recorded by the Court below. 28. Learned Counsel for the tenant-revisionist has failed to satisfy the Court that various findings of fact recorded by the Court below are in any manner perverse or illegal. Thus, under Section 25 of the Provincial Small Cause Courts Act this Court finds that there is no jurisdictional error in the impugned judgment. 28. Learned Counsel for the tenant-revisionist has failed to satisfy the Court that various findings of fact recorded by the Court below are in any manner perverse or illegal. Thus, under Section 25 of the Provincial Small Cause Courts Act this Court finds that there is no jurisdictional error in the impugned judgment. Reference may be made to the judgment of a Division Bench of this Court in the case of Laxmi Kishore and another v. Har Prasad Shukla, 1981 ARC 545, which has been consistently followed by this Court. Paragraph-3 of the judgment reads as under: “3. This provision confers a supervisory and not a appellate power. The record can be called for seeing that the decree is according to law. If it is not, the Revisional Court can pass such order with respect thereto as it may think fit. This power is conditional on the Revisional Court finding that the decree or order sought to be revised was not according to law. The phrase ‘pass such orders with respect thereto as it thinks fit’ has come up for consideration before the Supreme Court in several decisions. In Arbind Kumar Singh v. Nand Kishore Prasad, AIR 1968 SC 1227 it was held that the clause was wide enough to give power to the Revisional Court to admit additional evidence. In Manganlal Chhotabhai Desai v. Chandrakant Motilal, AIR 1979 SC 37, it was held that the expression authorised the Revisional Court to issue directions to the parties to the case. In the State of Kerala v. K.M. Charia Abdulla, AIR 1965 SC 1585 it was observed that the Revisional Court has power to pass such orders for rectifying the defect as the Revisional Court considers, in the circumstances of the case, just and proper.” 29. Similar view has been taken by this Court in the case of Sukhanand v. IV Additional District Judge, Bulandshahr and another, AIR 1994 All 59 ; and, Ramesh Chandra Rana v. Shanti Devi, 1992 (1) ARC 52. 30. In view of the aforesaid facts, I do not find any error in the impugned judgment and order of the Court below. Hence, the revision is liable to be dismissed and it is, accordingly, dismissed. 30. In view of the aforesaid facts, I do not find any error in the impugned judgment and order of the Court below. Hence, the revision is liable to be dismissed and it is, accordingly, dismissed. The tenant-revisionist is granted three months’ time to vacate the demised premises subject to following conditions: (I) The tenant shall deposit the entire decreetal amount within two months; (II) The tenant shall pay the rent regularly on or before 07th day of each month and continue to pay till the vacation of the demised premises; and, (III) The tenant shall handover the peaceful and vacant possession to the respondents-landlords on or before 20th December, 2014 without creating any third party interest in the premises. 31. No order as to costs. —————