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2014 DIGILAW 55 (UTT)

Rajendra Singh v. Seesh Pal Singh

2014-02-25

SUDHANSHU DHULIA

body2014
Judgment : 1. This is the landlord’s second appeal. A suit No. 12 of 1999 was filed before the Civil Judge (J.D.), Tehri Garhwal by the landlord/plaintiff for getting a decree of eviction against the defendant/respondent, which was dismissed vide order dated 27.04.2006. Aggrieved by the said order, the appellant, preferred an appeal before the District Judge, Tehri Garhwal, which was also dismissed vide order dated 13.09.2007. 2. This Court admitted the appeal vide order dated 29.08.2013 on the following substantial questions of law:- 1. Whether the courts below have erred in law in taking the view that only because the plaintiff/appellant (landlord) had given undertaking to the Bank that he would not evict the tenant (defendant) till the loan is cleared by him, the notice served by the plaintiff under Section 106 of the Transfer of Property Act, 1882, terminating the tenancy of the defendant is not valid? 2. Whether the courts below have erred in law in not taking harmonious construction of Clause (b), and Clause (h) of Section 111 of the Transfer of Property Act, 1882? 3. Before the trial court, following issues were framed:- 1. Whether the UP Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 is applicable to the shop in suit? 2. To what amount of arrears of rent and damages, if any, is the plaintiff entitled? 3. Whether the tenancy of question has been validly terminated? 4. To what relief, if any, is the plaintiff entitled? 4. Regarding first issue, it was decided by the trial court that the provisions of UP Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 are not applicable in the matter. However, regarding second issue giving of rent and damages is concerned, the trial court was of the view that the petitioner has already depositing the rent in the court, therefore, there were no dues of rent from the tenant. However, regarding second issue giving of rent and damages is concerned, the trial court was of the view that the petitioner has already depositing the rent in the court, therefore, there were no dues of rent from the tenant. Regarding third issue, the trial court came to the conclusion that although there was no agreement between the parties for tenancy and the defendant had taken a loan from the Bank in which a guarantee was given by the plaintiff/appellant saying that till he deposits the entire loan to the Bank, he (appellant) will not evict the tenant (defendant) from the premises in question, as such it came to the conclusion that such an undertaking given by the plaintiff, the notice given by the plaintiff to terminate the tenancy is not a valid notice to terminate the tenancy of the defendant. 5. The first appellate court came to the conclusion regarding issue Nos. 1st and 2nd that there is no dispute i.e. applicability of the provisions of UP Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 and regarding the amount of rent and damages payable to the plaintiff. The only issue before the appellate court was that the notice was validly given for determining the tenancy of the defendant on which first appellate court came to the conclusion that the notice were bad for two reasons firstly the plaintiff had given an undertaking before the Bank that he shall not evict the defendant till the entire loan is not cleared and secondly the tenancy can be terminated by giving 15 days valid notice whereas in the present case it was 30 days notice. 6. Learned counsel for the appellant submits that the finding of the appellate court to this effect is wholly erroneous as what was relied upon by the two courts is not a rent agreement, but an agreement between the plaintiff and the Bank. Moreover, there seems to be lot of uncertainity vagueness in that agreement as well and it also cannot restrict the plaintiff from invoking court proceedings as that would be violative of Section 28 of the Indian Contract Act, 1872 which reads as under:- “28. Moreover, there seems to be lot of uncertainity vagueness in that agreement as well and it also cannot restrict the plaintiff from invoking court proceedings as that would be violative of Section 28 of the Indian Contract Act, 1872 which reads as under:- “28. Agreements in restrain of legal proceedings, void Every agreement- (a) by which any party thereto is restricted absolutely from enforcing his rights under or in respect of any contract, by the usual legal proceedings in the ordinary tribunals, or which limits the time within which he may thus enforce his rights, or (b) which extinguishes the rights of any party thereto, or discharges any party thereto, from any liability, under or in respect of any contract on the expiry of a specified period so as to restrict any party from enforcing his rights, is void to the extent. Exception 1 : Saving of contract to refer to arbitration dispute that may arise. This section shall not render illegal a contract, by which two or more persons agree that any dispute which may arise between them in respect of any subject or class of subjects shall be referred to arbitration, and that only and amount awarded in such arbitration shall be recoverable in respect of the dispute so referred. Exception 2: Saving of contract to refer question that have already arisen - Nor shall this section render illegal any contract in writing, by which two or more persons agree to refer to arbitration any question between them which has already arisen, or affect any provision of any law in force for the time being as to reference to arbitration. 7. Further such an undertaking given by the plaintiff to the Bank cannot be called a “contract” as inter alia it would be void in view of the apparent uncertainty in the matter and in view of Section 29 of the Indian Contract Act, which reads as under:- “29. Agreements void for uncertainty Agreements, the meaning of which is not certain, or capable of being made certain, are void.” 8. On the second ground the appellate court further relied upon Section 106 of the Transfer of Property Act in which the period of notice is 15 days, however, the notice which was given by the plaintiff to the defendant, in the present case, was of 30 days. Hence it was bad in the eye of law. On the second ground the appellate court further relied upon Section 106 of the Transfer of Property Act in which the period of notice is 15 days, however, the notice which was given by the plaintiff to the defendant, in the present case, was of 30 days. Hence it was bad in the eye of law. Section 106 of the Transfer of Property Act reads as under:- “106. Duration of certain leases in absence of written contract or local usage - In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months' notice; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee by fifteen days’ notice.” 9. First of all the finding recorded by the appellate court is wholly erroneous and against the law in view of the fact that Section 106 of the Transfer of Property Act was amended in Uttar Pradesh way back in the year 1954 in which the words ‘fifteen days notice’, the words ‘thirty days notice’ was substituted by an UP Act of 12 of 1954, Section 2, moreover even earlier the requirement was for 15 minimum days. 10. In view of the above both the substantial questions of law, on which the present second appeal was admitted (the substantial questions of law have been referred in para 2 of this judgment) are answered in affirmative. 11. To the first question of law, the answer is clear that both the courts below have erred in law in taking the view that because the plaintiff i.e. the landlord appellant had given an undertaking to the Bank, he could not evict the tenant (defendant) till the defendant paid his entire loan taken from the Bank and that undertaking being wholly in violation of Sections 28 and 29 of the Indian Contract Act, particularly in view of Section 29 of the Indian Contract Act is no undertaking or contract in the eyes of law. It could not have been relied upon by the courts below and therefore, there was absolutely no wrong when the plaintiff landlord terminated the tenancy of the defendant by giving him appropriate notice under Section 106 of the Transformer of Property Act. 12. The second substantial question of law is answered in affirmative and in view of the discussion above, it is clear that the courts below have undertaken a harmonies construction on clause (h) of Section 111 of the Transfer of Property Act. In fact in view of the above, and particularly in view of Section 29 of the Indian Contract Act, the condition prescribed being uncertain was no condition in the eyes of law and hence, in fact, Section 111 (b) of the Transfer of Property Act is not applicable in the present matter. 13. In view of the above it is further decided that as far as Section 111 (h) of the Transfer of Property Act is concerned, 30 days notice was given, which is the period prescribed under the law, and therefore, the tenancy was rightly determined after the notice period has come to an end. 14. In view of the above fact, the findings recorded by the appellate court are wholly erroneous and incorrect. The suit of the plaintiff is decreed. Accordingly the appeal is allowed. The judgment and order dated 27.04.2006 passed in 12/1999 by the Civil Judge (J.D.), Tehri Garhwal as well as the judgment and order dated 13.09.2007 passed in Civil Appeal No. 8 of 2007 by the District Judge, Tehri Garhwal are hereby set aside.