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2015 DIGILAW 890 (ALL)

Mohd. Naimul Hassan v. Angad Singh

2015-04-18

ASHWANI KUMAR MISHRA

body2015
JUDGMENT Ashwani Kumar Mishra, J. Petitioner was inducted as tenant of the shop in question, pursuant to an agreement w.e.f. 1.6.1991, which lasted till 30.4.1992. The rent of the premises was fixed at Rs. 250/- per month. It is not in dispute that the term of the agreement was not extended thereafter. Petitioner, however, continued to remain in possession and the rent deposited by the petitioner was accepted by the landlord. Ultimately, a notice under Section 106 of Transfer of Property Act (hereinafter referred to as the 'Act'), determining the tenancy , was issued on 29.9.2005. Since the petitioner did not vacate the premises, proceedings for eviction before the Small Causes Court was initiated. The proceedings were contested by the petitioner-tenant on various grounds, including the ground that the petitioner has been depositing up to date rent, as such, no order of eviction could be passed. This was contested by the landlord by contending that the status of the petitioner-tenant, after expiry of the period of agreement was that of a tenant, holding over, in the premises and the same continued so long as notices under Section 106 oft he Act was not issued. However, once the notice under Section 106 of the Act was issued, thereafter the status of the petitioner was of a tenant in sufferance and, therefore, the benefit of Section 114 of the Act was not available.? The judge Small Causes Courts, vide order dated 7.7.2014 decreed the suit for eviction after recording a finding that the tenancy had been validly terminated, and vacant possession was to be handed over to the landlord within a period of one month, alongwith payment of arrears of rent. This order was challenged in revision, which has also been rejected vide order dated 8.1.2015. 2. Aggrieved by the said two orders, tenant-petitioner has filed the present petition. 3. Learned counsel for the petitioner submits that the petitioner had been depositing up to date rent and, therefore, the order of eviction , passed by the courts below, is illegal. This order was challenged in revision, which has also been rejected vide order dated 8.1.2015. 2. Aggrieved by the said two orders, tenant-petitioner has filed the present petition. 3. Learned counsel for the petitioner submits that the petitioner had been depositing up to date rent and, therefore, the order of eviction , passed by the courts below, is illegal. Learned counsel submits that as up to date rent had been deposited in proceedings before the court below, the petitioner was entitled to the benefit of Section 114 of the Act and no order of eviction could be passed.It is also contended on behalf of the petitioner that if the status of the petitioner is of a tenant in sufferance, then in law, his status would be that of a tress passer and a suit for eviction would lie before the civil court and not before the Judge Small Causes Court. 4. Learned counsel for the landlord-respondent, on the other hand, submits that in the facts of the present case, the notice determining the tenancy is one of Section 106 of the Act and once the tenancy stands terminated, the status of petitioner is of tenant in sufferance and in such circumstances provisions of Section 114 of the Act have no application. Learned counsel places reliance upon decisions of this Court in Mohammad Nasir Vs. District Judge, Nainital and others, reported in Allahabad Rent Cases, 1999 (1), 202, Ram Bali Pandey ( since deceased) through his LRs. Vs. IInd Additional Judge, Kanpur and others and the decision of the Apex Court in Kewal Chand Mimani Vs. S.K. Sen 2001 (6) SCC, 512 and also a decision of this Court in 2015 (1)ARC, 446 Ramji Vs. Vijay Krishna and 11 others. 5. On the strength of the aforesaid decisions, it is submitted that since the termination of tenancy is pursuant to a notice under Section 106 of the Act, therefore, status of the petitioner is that of a tenant in sufferance and in such view of the matter, the provisions of Section 111(h) of the Act would be applicable. Submission is that the provisions of Section 111(g) of the Act would not be attracted and, therefore, the benefit of Section 114 of the Act would not be available. 6. Submission is that the provisions of Section 111(g) of the Act would not be attracted and, therefore, the benefit of Section 114 of the Act would not be available. 6. Having considered the respective submissions, this court finds that induction of petitioner in property was, pursuant to an agreement, term of which already expired in April, 1992 and thereafter the continuance of the petitioner-tenant in the property was with the consent of the landlord as rent was being accepted. However, situation changed once a notice under Section 106 of the Act was issued to the tenant in the year 2005, in view of the law , which has been relied upon and referred to above. It is clear that in a case where tenancy is determined, pursuant to a notice under Section 106 of the Act, the provisions of Section 114 of the Act would have no application.In the present case, initial agreement of tenancy expired on 30.4.1992, which was not extended. Vide notice dated 29.9.2005 under Section 106 of the Act, it is clearly stated by the landlord that the tenancy is being terminated and that the premises be vacated within 30 days of the notice, failing which, action as per law, would be taken. This clearly shows that the tenancy was terminated on 29.9.2005 under Section 106 of the Act. There is nothing on record to show that there was any express or implied consent of the landlord to continue the tenancy of petitioner beyond 29.10.2005. In view of the aforesaid discussions, therefore, it is clear that the tenancy have been terminated pursuant to notice under Section 106 of the Act and thereafter, the continuance of tenant- petitioner is not entitled to protection under Section 114 of the Act. 7. The second limb of petitioner's submission about jurisdiction has been countered by learned counsel for the respondent, relying upon the Division bench Judgement of this Court in AIR 1984 Allahabad, 130 J.J. Pancholi Vs. Sridhar jee and others, wherein following observations have been made in para-26, which is being quoted below: - "26. The plaintiff filed the suit originally against defendant No. 1 and defendants Nos. 2 to 4 were impleaded on their request. After the surrender of the old lease by the defendants a lease had been granted in favour of the company and thereafter in favour of defendant No. 1 alone. The plaintiff filed the suit originally against defendant No. 1 and defendants Nos. 2 to 4 were impleaded on their request. After the surrender of the old lease by the defendants a lease had been granted in favour of the company and thereafter in favour of defendant No. 1 alone. His tenancy was duly determined by a notice under Section 106 of the T. P. Act, He became a tenant at sufferance thereafter. A tenant at sufferance is no better than a trespasser. Defendant No. 2 was the Manager of Plaza Theatres. The business was run by defendant No. 1 alone. Defendant No. 2 was in permissive possession of the residential accommodation as the Manager of the Cinema. As he was in possession with the permission of defendant No. 1, the sole tenant, his possession was also that of a trespasser. A suit for eviction of the tenant and any one in possession on his behalf after a notice under Section 106 of the T. P. Act lies on the small cause side. We are unable to accept the contention of Smt. Rama Devi Gupta and hold that the suit was maintainable on the small cause side". 8. The submission of the petitioner, in this regard, therefore, has been noticed merely to be rejected. The issue is no longer res integra. In view of the law laid down by the Division Bench in J.J. Pancholi (Supra), the proceedings for eviction in the facts and circumstances of the present case, would lie before the Judge Small Causes Court and, therefore, the decree passed by both the courts below, cannot be said to be without jurisdiction. This court finds no error of jurisdiction or perversity in the orders impugned, which may require any interference by this Court, and consequently, this petition fails. 9. However,at the last, learned counsel for the petitioner submits that the tenant may be given a reasonable time to vacate the premises. This prayer is not being seriously opposed. In the opinion of the court, a reasonable time to vacate the premises should be given. 9. However,at the last, learned counsel for the petitioner submits that the tenant may be given a reasonable time to vacate the premises. This prayer is not being seriously opposed. In the opinion of the court, a reasonable time to vacate the premises should be given. In such view of the matter, it is provided that in case the petitioner files an undertaking before the Judge Small Causes Court within a month from today,giving an undertaking that the vacant peaceful possession of the premises would be delivered to the landlord within a period of 6 months from today, alongwith deposit of rent, the petitioner would be allowed to continue in possession of the premises for a period of 6 months from today, whereafter possession would be transferred to landlord. However, if such an undertaking is not given within a month form today, the landlord would be free to proceed in accordance with law. 10. Subject to the observations aforesaid, this petition is consigned to records.