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2015 DIGILAW 3545 (ALL)

Hisamul Islam Siddiqui v. Mohd. Javed Barki

2015-11-16

MAHENDRA DAYAL

body2015
JUDGMENT Mahendra Dayal,J. Heard Shri M.A. Siddiqui, learned counsel for the revisionists and Shri Madhur Kant Srivastava, learned counsel, who has appeared on behalf of the opposite parties. 2. The revisionists have assailed the order dated 23.09.2015 passed by the Additional District and Sessions Judge (P.C. Act), Lucknow in S.C.C. Suit No.0000226 of 2014, whereby the learned court below has allowed the application under Order 15 Rule 5 CPC filed by the opposite parties and has struck off the defence of the revisionists-defendants. 3. The facts giving rise to this revision are that the opposite party-plaintiff filed a suit against the defendants-revisionists for recovery of arrears of rent and ejectment on the ground that the plaintiff-opposite party had purchased the house in question from Smt. Rehana Javed vide sale-deed dated 17.08.2009 and the defendants-revisionists were tenant on the ground floor of the said house on a monthly rent of Rs.7,500/-. The plaintiff-opposite party initially issued a notice in the year 2014 requiring the defendants-revisionists to pay the rent to him and it was also mentioned in the notice that on failure to pay the rent the tenancy would stand terminated. When the defendants-revisionists neither paid any rent nor vacated the premises, the suit was filed by the plaintiff-opposite party. The defendants-revisionists instead of filing the written statement, moved an application under Order 7 Rule 11 CPC for rejection of the plaint on the ground that there was no relationship of lessee and lessor between the parties and as such the tenancy could not have been terminated and the suit was not maintainable in the Court of Small Causes. This application was dismissed by the learned court below vide order dated 07.05.2015. 4. Feeling aggrieved by the rejection of their application under Order 7 Rule 11 CPC, the defendants-revisionists preferred a revision before this Court, which was also dismissed by a Coordinate Bench of this Court on 04.09.2015. This Court while dismissing the revision held that the plaintiff-opposite party became entitled to receive the rent from the date of transfer. In view of Section 8 of the Transfer of Property Act, the transfer of property passes forthwith to the transferee with all the interest which the transferor is capable of passing in the property and in the legal incidents thereof. In view of Section 8 of the Transfer of Property Act, the transfer of property passes forthwith to the transferee with all the interest which the transferor is capable of passing in the property and in the legal incidents thereof. The right of a lessee would be include to have been transferred in the terms of the provisions contained in Section 8 of the Transfer of Property Act. 5. So far as the relationship of landlord and tenant between the parties is concerned, this Court in the aforesaid order observed that it will be open for the Court of Judge Small Causes to consider the same at the time of hearing of the case. With this observations, the revision was dismissed and the trial court was directed to expedite the proceedings of the suit considering all the pleadings which may be available to the parties. After the dismissal of their revision, the defendants-revisionists moved another application before the court below with the prayer that the Court may consider the question of maintainability of the suit as the suit was not maintainable without notice for termination of tenenacy. This application is still pending. Meanwhile the plaintiff-opposite party moved an application under Order 15 Rule 5 CPC stating therein that the defendants-revisionists have failed to file any written statement and deposit any rent on the first date of hearing as required under Order 15 Rule 5 CPC. They have also failed to deposit monthly rent in the Court as required by the aforesaid provision. This application was decided by the order impugned in this revision and the learned court below found that since the defendants-revisionists have failed to comply with the provisions of Order 15 Rule 5 CPC, therefore, their defence was liable to be struck off. 6. Learned counsel for the defendants-revisionists, Shri M.A. Siddiqui has argued that admittedly the provisions of U.P. Act No.13 of 1972 are not applicable to the present case and, therefore, the alleged tenancy would be governed by the provisions of the Transfer of Property Act. Under this Act, the legislature has nowhere used the term landlord and tenant. Instead the term "lessor" or "lessee" has been used. The meaning of the words "lessor" and "landlord" is different. There has never been any relationship of lessor and lessee between the parties. Under this Act, the legislature has nowhere used the term landlord and tenant. Instead the term "lessor" or "lessee" has been used. The meaning of the words "lessor" and "landlord" is different. There has never been any relationship of lessor and lessee between the parties. The defendants-revisionists never attorned the plaintiff-opposite party as their landlord and also never paid any rent to them. The provision of Order 15 Rule 5 CPC applies in case of lessor and lessee. It has nowhere been stated in the plaint that the plaintiff-opposite party is the lessor and the defendants-revisionists are lessees. In these circumstances, the benefit of Order 15 Rule 5 CPC was not available to the plaintiff-opposite party. 7. Another submission on behalf of the defendants-revisionists is that under Section 109 of the Transfer of Property Act even if the lessor transfers the property to a third person, he would not became the lessor of the lessee, who was already in possession unless the lessee attorn him to be his lessor. Since the defendants-revisionists never attorned the plaintiff-opposite party as their lessor, therefore, even if it is held that the plaintiff-opposite party purchased the house in question, he will not became lessor of the defendants-revisionists unless they attorn him to be his lessor. It has also been submitted on behalf of the defendants-revisionists that it has been held in a series of decisions that in the case where a tenant denies his status as tenant and does not admit the plaintiff-opposite party as his landlord, his defence cannot be struck off. In support of his argument, reliance has been placed upon three cases, reported in 2001 (2) ARC Page 278 - Rakesh & Company (M/s.) and others vs. M/s. Hira Lal and Sons; 1990 (1) ARC Page 438 - Ashma Bibi vs. Ahsan Ali and another and . In all the aforesaid cases, it has been held that for attracting the provisions of Order 15 Rule 5 CPC, the relationship of lessor and lessee is required to be established. Duty to deposit the rent is upon the lessee and not upon a person, who does not admit himself to be a tenant. Where a tenant has denied his status as tenant, the Court has to first examine the question of relationship and then consider the question of striking off the defence. Duty to deposit the rent is upon the lessee and not upon a person, who does not admit himself to be a tenant. Where a tenant has denied his status as tenant, the Court has to first examine the question of relationship and then consider the question of striking off the defence. On the strength of the aforesaid case laws, it has been argued that since the revisionists-defendants have not admitted anywhere that the plaintiff-opposite party is their landlord, therefore, their defence could not have been struck off under Order 15 Rule 5 CPC. 8. Shri Madhur Kant Srivastava, who has appeared on behalf of the opposite party-plaintiff has, on the other hand, submitted that it is not disputed that the plaintiff-opposite party purchased the house in question from its previous owner by means of a registered sale-deed dated 17.08.2009. It is also not disputed that a notice was issued to them to pay rent but the rent was not paid. When the suit was filed, the defendants-revisionists instead of filing their written statement moved an application under Order 7 Rule 11 CPC for rejection of the plaint, which was dismissed and on a revision being filed against the aforesaid order, this Court found that by virtue of Section 8 of the Transfer of Property Act, all rights in the property which was capable of being transferred, were transferred to the plaintiff-opposite party and as such it would be deemed that the plaintiff-opposite party became lessor of defendants-revisionists. However, it was kept open for the learned trial court to examine as to whether any relationship of landlord and tenant exists not not. The submission on behalf of the plaintiff-opposite party is that since the aforesaid observation has already been made by this Court in earlier revision, the same cannot be agitated again. Moreover, the defendants-revisionists have not yet filed their written statement and as such there is no denial from their side that they are not the tenants of plaintiff-opposite party. In the case laws cited by the defendants-revisionists, the defendant in those cases had already filed written statement denying his status as tenant and, therefore, this Court held that the provisions of Order 15 Rule 5 CPC was not attracted, but in the present case, the defendants-revisionists have not filed their written statement denying their status as tenant. 9. In the case laws cited by the defendants-revisionists, the defendant in those cases had already filed written statement denying his status as tenant and, therefore, this Court held that the provisions of Order 15 Rule 5 CPC was not attracted, but in the present case, the defendants-revisionists have not filed their written statement denying their status as tenant. 9. With regard to Section 109 of the Transfer of Property Act, learned counsel for the plaintiff opposite party has placed reliance on a recent decision of Hon'ble the Apex Court reported in 2015 (33) LCD Page 1734 - Ambica Prasad vs. MD. Alam and Another, in which Hon'ble the Apex Court has held that a perusal of Section 109 of the Transfer of Property Act makes it clear that after the transfer of lessor's right in favour of the tranferee, the latter gets all rights and liabilities of the lessor in respect of subsisting tenancy. The Section does not insist that transfer will take effect only when the tenant attorns. It is well settled that a transferee of the landlord's rights steps into the shoes of the landlord with all the rights and liabilities. The section does not require that the transfer of the right of the landlord can take effect only if the tenant attorns to him. Attornment by the tenant is not necessary to confer validity of the transfer of the landlord's right. It has further been held that since attornment by the tenant is not required, a notice under Section 106 of the Transfer of Property Act would be proper and so also the suit for ejectment. 10. In view of the law laid down by Hon'ble the Apex Court, it is clear that the defendants-revisionists are not required to attorn the plaintiff-opposite party as their landlord and lessor because by transfer of property and by operation of law, the opposite party plaintiff became the lessor having purchased the property from its previous owner. The defendants-revisionists have also not denied their status by filing written statement and have also not deposited any rent as required under Order 15 Rule 5 CPC. In these circumstances, the learned court below has rightly struck off the defence of the defendants-revisionists. 11. In view of what has been discussed above, I do not find any merits in this revision and the revision is hereby dismissed.