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Allahabad High Court · body

2016 DIGILAW 3308 (ALL)

RAMDEV YADAV v. B. K. SINGH

2016-09-28

PANKAJ MITHAL

body2016
JUDGMENT Hon’ble Pankaj Mithal, J.—The judgment and order dated 19.5.2016 passed by the Additional Sessions Judge, Gautam Budh Nagar decreeing SCC Suit No. 14 of 2013 (Dr. B.K. Singh v. Ramdev Yadav) is the subject-matter of revision under Section 25 of the Provincial Small Causes Court Act, 1887 (hereinafter referred to as the Act). 2. The dispute is about the first and the second floor portions of the building A-528A, Sector-19 NOIDA, District Gautam Budh Nagar. 3. The plaintiff respondent Dr. B.K. Singh claims himself to be the owner and landlord of the said property and alleges that the defendant revisionist Ramdev Yadav is a tenant of the first and second floor at the rent of Rs. 25,000/- and Rs. 21,000/- respectively. 4. The plaintiff respondent after determining the lease of the defendant revisionist vide notice dated 14.5.2013 instituted the aforesaid suit for arrears of rent and eviction on 31.5.2013 alleging that the tenancy of the defendant revisionist commenced w.e.f. 2.6.2012 under a registered rent agreement. The said tenancy came to an end on 30.4.2013 but the defendant revisionist failed to vacate it despite letters informing him that the lease has expired and that he does not want to extend the same. A notice dated 14.5.2013 under Section 106 of the Transfer of Property Act, 1882 (in short referred to as the T.P. Act) was also sent to the defendant revisionist but in vain. In the suit he claimed eviction of the defendant revisionist and damages @ Rs. 60,000/- per month. 5. The defendant revisionist contested the suit admitting himself to be the tenant of the first floor portion but denying the tenancy of the second floor. It was contended that he never took the second floor portion on rent of Rs. 21,000/- as alleged rather one Raja Ram is a tenant occupying the same. The notice issued under Section 106 of the T.P. Act is not legal and valid. It has not been served upon him. 6. On the basis of the above pleadings of the parties, the Court of first instance formulated as many as 11 issues. The main issues were issue Nos. 1,4,6,9 and 11. The notice issued under Section 106 of the T.P. Act is not legal and valid. It has not been served upon him. 6. On the basis of the above pleadings of the parties, the Court of first instance formulated as many as 11 issues. The main issues were issue Nos. 1,4,6,9 and 11. The said issues were whether the defendant revisionist is not the tenant of the second floor; whether his tenancy has been validly determined; whether the notice issued under Section 106 of the T.P. Act is valid; whether the tenancy of the defendant revisionist was extended from 1.5.2013 to 30.4.2014; and to what relief, if any, the plaintiff respondent is entitle to. 7. The suit was decreed holding that the defendant revisionist is tenant of the first and second floor portions of the building at a rent of Rs. 25,000/- and Rs. 21,000/- respectively, total Rs. 46,000/- per month. The tenancy of the defendant revisionist was for a fixed period and it expired by efflux of time. It was also held that the tenancy was never extended as alleged and the defendant revisionist was liable to eviction from the property on the expiry of the lease period. Therefore, no notice under Section 106 of the T.P. Act was necessary. Thus, the question of determination of tenancy and the validity of notice was left undecided. Accordingly, a decree of eviction was passed with damages @ Rs. 56,000/- for the period 1.5.2013 to 30.4.2014 @ Rs. 55,660/- from 1.5.2014 to 30.4.2015 and @ Rs. 60,160/- thereafter till the vacation of the property. The amount deposited by the defendant revisionist as security and during pendency of the suit was directed to be adjusted towards the damages. 8. The aforesaid judgment and order has been impugned herein in this revision. 9. Sri Ravi Kiran Jain, Senior Counsel contends that the defendant revisionist has not complied with the interim order passed by this Court on 28.7.2016 and as such is not even entitle to be heard. Preliminary Objection : 10. 8. The aforesaid judgment and order has been impugned herein in this revision. 9. Sri Ravi Kiran Jain, Senior Counsel contends that the defendant revisionist has not complied with the interim order passed by this Court on 28.7.2016 and as such is not even entitle to be heard. Preliminary Objection : 10. First, taking the preliminary objection that the defendant revisionist is not entitled to any audience as he has not complied with the conditions of the interim order, it may be relevant to quote the relevant portion of the interim order dated 28.7.2016 : “Till the next date of listing, the dispossession of the revisionist from the two tenanted portions in dispute shall remain stayed provided he deposits the entire arrears of rent in respect of both the portions within a period of two weeks from today and continues to deposit damages/monthly rent for the use and occupation w.e.f. 1st August 2016 @ Rs. 61,160/- per month by the 7th of each succeeding month.” 11. The aforesaid order required that the defendant revisionist shall deposit the entire arrears of rent in respect of both the first and second floor portions within two weeks and would continue to deposit damages/monthly rent for its use and occupation w.e.f. August 2016 @ Rs. 61,160/- per month which was the amount of damages awarded by the Court below w.e.f. 1.5.2015. 12. The defendant revisionist pursuant to the above interim order had deposited the entire arrears of rent with regard to first floor portion but not in respect of the second floor portion though the damages/rent for both portions for the month of August 2016 is @ Rs. 61,160/- has been deposited. 13. Sri Anurag Khanna in this regard submits that as there was serious dispute as to whether the defendant revisionist is a tenant of the second floor portion he was advised not to deposit any arrears in respect thereof. He has bonafidely not deposited the arrears of rent of the second floor portion. The default, if any, in complying with the interim order would only result in bringing to an end the stay of his eviction and nothing more. 14. He has bonafidely not deposited the arrears of rent of the second floor portion. The default, if any, in complying with the interim order would only result in bringing to an end the stay of his eviction and nothing more. 14. In Prestige Lights Limited v. State Bank of India, (2007) 8 SCC 449 , in paragraph 24 of the said reports it has been observed that “an order passed by the competent Court, interim or final has to be abided without any reservation. If such order is disobeyed or not complied with, the Court may refuse the party violating such order to hear him on merits.” 15. The Court further observes therein that it does not however mean that in each and every case in which the party has violated the interim order he has no right to be heard at all and the Court will not refuse to hear him in all circumstances. 16. The aforesaid authority does not lay down any absolute rule that a party violating the interim order has no right to be heard in all circumstances. Whether a party should be heard or not depends upon the facts and circumstances of the case at the discretion of the Court. 17. The present case is not one of those cases where there is violation of the interim order with impunity and the party had taken advantage of it for a long time. Thus, when the interim order was passed only on 28.7.2016 and the parties have agreed for final hearing of the matter, no delaying tactics were adopted and the admitted part of the amount in respect of the first floor was deposited bonafidely leaving the other part as it was seriously in dispute, I do not consider it to be a fit case to deny hearing to the defendant revisionist for the default committed by him in complying with the conditions of the interim order. 18. Sri Anurag Khanna, Senior Advocate assisted by Sri Nipun Singh learned counsel for the defendant revisionist submitted that the finding on issue No. 1 that the defendant revisionist is a tenant of the first and second floor portion both is perverse and illegal. He is only the tenant of the first floor. The tenancy is not for a fixed period but on month to month basis. He is only the tenant of the first floor. The tenancy is not for a fixed period but on month to month basis. The agreement of tenancy is only in respect of first floor portion and in the absence of any agreement regarding second floor, the tenancy of the said portion is not fixed time tenancy. Since the tenancy was not for a fixed term, the suit for eviction cannot be maintained without determining the tenancy in accordance with the provisions of Section 106 of the T.P. Act which provides for 30 days notice. In the present case notice was given on 14.5.2013 and the suit was filed on 31.5.2013 before the expiry of the notice period and as such was not maintainable. 19. Sri Ravi Kiran Jain, Senior Advocate assisted by Sri Amitabh Agrawal, learned counsel for the plaintiff respondent to counter the submissions advanced on behalf of the defendant revisionist submits that the tenancy of the first floor was under a written agreement but that of the second floor was oral in nature but both were fixed time tenancies which expired with the efflux of time in accordance with Section 111 of the T.P. Act and required no notice for their determination as contemplated by Section 106 of the T.P. Act. 20. Besides the preliminary question as to whether the defendant revisionist should be given any audience despite non compliance with the conditions of the interim order of this Court, the main points which arises for consideration before me are : (i) Whether the finding that the defendant revisionist is a tenant of second floor portion suffers from any error of law or jurisdiction; (ii) Whether the tenancy in respect of both the portions is a fixed time tenancy and requires no notice under Section 106 of the T.P. Act for its determination; and (iii) Whether in case the tenancy has not come to an end by the efflux of time, it stood validly determined by the notice dated 14.5.2013 and the suit on its basis was maintainable. First Point: 21. The first point with regard to tenancy in respect of both the floors would not detain me much. 22. First Point: 21. The first point with regard to tenancy in respect of both the floors would not detain me much. 22. The Court of first instance in deciding issue No. 1 in that regard on the basis of the entire evidence on record which included the payment of rent and security deposit made by the defendant respondent and his own statement as DW-1 came to the conclusion that he is a tenant of both the floors. The payment of rent vide cheques dated 13.10.2012 and 1.12.2012 both for the sums of Rs. 46,000/- established that the defendant revisionist accepts himself to be the tenant of both the floors at the rent of Rs. 25,000/- and Rs. 21,000/- total Rs. 46,000/- per month. The defendant revisionist failed to submit any plausible explanation for payment of the aforesaid amount, if he was a tenant of the first floor only @ Rs. 25,000/- per month. 23. In addition to the above, the Court below has recorded that DW-1 in his cross-examination has accepted that the electricity bills of both the floors are raised on the basis of common electric meter and that he makes payment thereof which also proves that he is a tenant of both the portions. 24. The submission of Sri Anurag Khanna that there is a sub meter for the second floor portion and he realizes electricity dues of the said portion from its tenant and make the payment collectively is not wroth acceptance in the absence of any evidence of the alleged tenant of the second floor that he is an independent tenant using electricity from the electric connection of the defendant revisionist. 25. The cross-examination of DW-1 which is part of the supplementary-affidavit filed by him reveals that he has admitted that the way of the second floor is through his drawing room on the first floor. No one would permit any stranger to use his drawing room as a passage or staircase for going to his portion on the first floor. This also proves that the tenancy in respect of first and the second floor vests in a common person and there is no division of tenancy. 26. The finding that the defendant revisionist is a tenant of the first floor and the second floor both is based on material on record. This also proves that the tenancy in respect of first and the second floor vests in a common person and there is no division of tenancy. 26. The finding that the defendant revisionist is a tenant of the first floor and the second floor both is based on material on record. There is no perversity in the said finding which may warrant any interference in exercise of revisional jurisdiction. 27. In view of the aforesaid facts and circumstances, the opinion formed by the trial Court that the defendant revisionist is a tenant of the first and the second floor both is not perverse and does not suffer from any jurisdictional error. Point No. 2 : 28. The Court below has held that the tenancy of the defendant revisionist in respect of both the portions on the first floor and second floor was a fixed time tenancy which came to an end by efflux of time. 29. The issuance of notice dated 14.5.2013 is admitted to the plaintiff respondent, though it is contended that it was not necessary. Notwithstanding the necessity of notice, it mentions that the defendant revisionist had taken the first floor and the second floor on lease on monthly rent of Rs. 25,000/- and Rs. 21,000/- total Rs. 46,000/- per month. The lease is on month to month basis commencing from first day of English calender month and ending on the last day of the month. The lease had expired on 30th April 2013 as per the lease agreement as informed earlier. 30. The aforesaid notice no where states that the lease was for a fixed period and it come to an end on the expiry of the lease period. 31. The plaintiff respondent in paragraphs 3 and 4 of the plaint stated that rent agreement was written between the parties on 2.6.2012 which was duly registered under which the first floor portion of the building was let out to the defendant revisionist at a rent of Rs. 25,00/- per month. 31. The plaintiff respondent in paragraphs 3 and 4 of the plaint stated that rent agreement was written between the parties on 2.6.2012 which was duly registered under which the first floor portion of the building was let out to the defendant revisionist at a rent of Rs. 25,00/- per month. Paragraph 3 of the plaint is reproduced herein below : ^^;g fd izfroknh o oknh ds e/; ,d fdjk;k vuqca/k fnukad 2-6-2012 esa fy[kk x;k Fkk] ftlesa vkoklh; lEifRr ,&528, lsDVj 19] uks,Mk dk izFke ry 25]000@& :i;s izfrekg dh nj ls fn;k tkuk fy[kk x;k Fkk] mijksDr vuqca/k ogh la[;k 1 ftYn la[;k 3381] i`"B la[;k 65&75 ij dzekad 3114] ij mifuca/kd r`rh;] uks,Mk ds dk;kZy; ij ntZ gSA** It clearly mentions that under the registered rent agreement only the first floor portion was let out. Paragraph 4 of the plaint states that on 2.6.2012 the second floor portion was also let out @ Rs. 21,00/- per month and in this way the defendant revisionist became the tenant @ Rs. 46,000/- per month. Paragraph 4 of the plaint reads as under : ^^;g fd fnukad 2-6-2012 esa Hkh f}rh; ry fookfnr lEifRr dk eq0 :i;sa izfrekg dh nj ls fdjk;snkjh ij izfroknh dks fn;k x;k FkkA bl izdkj izfroknh fookfnr lEifRr ij 46]000@& :i;sa izfrekg dh nj ls fdjk;snkj FkkA** The aforesaid averments made in paragraph 4 reveals that the plaintiff respondent has not pleaded any rent agreement in respect the second floor portion and that the tenancy of the second floor portion was separate from that of the first floor portion. 32. The plaint further vide paragraph 13 states that a notice dated 14.5.2013 under Section 106 of the T.P. Act was given to the defendant revisionist to handover possession of the disputed property on the expiry of the notice period. 33. The averments of paragraph 13 of the plaint amply demonstrates that the plaintiff respondent had consciously issued notice under Section 106 of the T.P. Act so as to determine the tenancy of the defendant revisionist accepting him to be a tenant on month to month basis and not a fixed time tenant. 34. The tenancy agreement in its recital very clearly spells out that the lessor had agreed to let out the first floor of the said property to the lease on monthly rent of Rs. 25,000/-. 34. The tenancy agreement in its recital very clearly spells out that the lessor had agreed to let out the first floor of the said property to the lease on monthly rent of Rs. 25,000/-. It further records that the lessor and lessee confirmed having taken over the premises from 1st June 2012 to 30th April 2013 and that it will be in force for a period of 11 months. 35. A plain reading of the rent agreement establishes that it was in connection with the first floor portion only and that the said tenancy was for a fixed period of 11 months only though the rent was payable on month to month basis. 36. There is no evidence on record to establish that the second floor portion was let out under any written agreement or that the terms of its tenancy were the same as were for the first floor portion. There is no material even to show that the tenancy of the second floor portion was also for 11 months only. 37. In view of the above, the tenancy of the first floor portion alone was covered by the aforesaid rent agreement and was for a fixed period of 11 months. The tenancy of the of the second floor portion was not within its fold. 38. In Satendra Singh v. Vimal Kumar Bhalotia, 2015 (2) AWC 1341 (SC), the tenancy was for 11 months under the rent agreement. It was held to be for a fixed period which required no notice under Section 106 of the Transfer of Property Act, 1882 for its determination. 39. The Court of first instance while deciding issue Nos. 4 and 6 regarding the period of the notice and the determination of tenancy simply recorded that as the rent agreement was for a period of 11 months from 1.6.2012 to 30.6.2013 the tenancy was for a fixed term for which no notice was necessary and therefore even if it is assumed that the notice under Section 106 of the T.P. Act was invalid and not served upon the defendant revisionist, it has no bearing on the matter. 40. The Court below had very easily brushed aside the relevant aspect of the rent agreement to the effect that it was only in respect of the first floor portion and not in connection with the second floor tenancy. 40. The Court below had very easily brushed aside the relevant aspect of the rent agreement to the effect that it was only in respect of the first floor portion and not in connection with the second floor tenancy. Thus, it committed a manifest error in holding the tenancy of both portions to be for fixed period. 41. In the absence of any evidence to establish that the tenancy in respect of second floor portion was also covered by the aforesaid rent agreement and was for a fixed period, the Court below also erred in holding that no notice determining tenancy was required for both the tenaments. 42. In view of the above, in the light of the above rent agreement only the tenancy of the first floor portion can be recognized as a fixed term tenancy which came to an end on the expiry of the lease period requiring no notice for its determination whereas the tenancy of the second floor portion was at will determinable on notice under Section 106 of the T.P. Act. Point No. 3 : 43. A notice determining tenancy is a condition precedent for instituting a suit for eviction of the tenant at will. The notice to quit contemplated by Section 106 of the TP Act is a technical rule but it should not be construed in a pedantic and impracticable way so as to find fault with it. The Courts have always preferred to construe notice to quit in a liberal way but any construction of it which deprives the tenant of the minimum period of notice stipulated under Section 106 of the TP Act is not permissible in law. 44. In the instant case as far as the tenancy of the second floor portion is concerned, it may be said to have been determined vide notice dated 14.5.2013. The said notice to quit calls upon the defendant revisionist to deliver possession of both the portions including the second floor portion on the expiry of the notice period. However, the notice by itself does not specify any period. Under Section 106 of the TP Act a tenancy which is on month to month basis is determinable vide notice of 30 days. However, the notice by itself does not specify any period. Under Section 106 of the TP Act a tenancy which is on month to month basis is determinable vide notice of 30 days. The tenancy of the second floor portion is accepted to be on month to month basis and as such in the absence of any notice period it will be deemed to be 30 days. There is no material to show the date of service of notice. Therefore, taking the notice to have been served on the date of the notice itself the notice period would expire on 14.6.2013. 45. In the aforesaid facts and circumstances of the case, the defendant revisionist had the time to vacate the second floor portion under his tenancy by the aforesaid date ie. 14.6.2013 but the suit was filed on 31.5.2013 even before the statutory period of the notice had expired. 46. In this factual background the defendant revisionist was deprived of the minimum notice period. The cause of action for the suit for eviction in respect of second floor portion was not even complete on the date it was filed. It would have matured only on the expiry of the statutory period of the notice. 47. In this view of the matter, the aforesaid notice to quit in so far as the second floor portion is concerned, could not have been made the basis or the cause of action for the suit for eviction of the defendant revisionist. 48. In Shree Ram Urban Infrastructure Limited v. Court Receiver, AIR 2014 SC 2286 , the Apex Court held that if the notice under Section 106 of the TP Act falls short of the statutory period but the suit is filed after the expiry of the statutory period of notice it would not be bad in law. 49. I myself in SCC Revision No. 585 of 2014 (Union Bank of India v. Priyugi Narain Tripathi and 5 others) decided on 28.11.2014 considering the provisions of Section 106 (3) of the T.P. Act held that even if the notice period falls short of the statutory period provided, it will not be defective and the suit on its basis would not be bad when it is filed after the expiry of the statutory period of the notice. 50. 50. The aforesaid two authorities are of no assistance in the present case as here the suit has been filed not after the expiry of the notice or statutory period of notice but before the expiry of the statutory period of notice. In other words, notwithstanding the insufficient period of notice mentioned in the notice when the suit is filed after the expiry of the statutory period neither the notice would be treated as defective nor the suit to be bad in law but the position the other way round is not the same where the suit is filed before expiry of the notice period or the statutory period of the notice. 51. In view of the above, the suit for eviction of the defendant revisionist from the second floor portion was instituted prematurely without allowing the notice period to expire rendering it to be bad in law. 52. Thus, in the over all facts and circumstances of the case, the judgment and order dated 19.5.2016 and the consequential decree passed by the Court below is partly upheld, in so for as, it decrees the suit for eviction of the defendant revisionist from the first floor portion and is set aside in respect of the eviction from the second floor portion. The plaintiff respondent is entitle to damages/rent for the first floor portion from the date of the expiry of the lease period at the 10% enhanced rent on annual basis i.e., for the period 1.5.2013 to 30.4.2014 @ Rs. 25,000/- +2,500/- = 27,500/- per month; for the period 1.5.2014 to 30.4.2015 @ Rs. 27,500/- +2,750 /- = 30,250 per month; and after 1.5.2015 till the date of possession @ Rs. 30,250/- + 3,025/- = 33,275/- per month. The aforesaid amount is adjustable against the security of Rs. 50,000/- deposited in respect of first floor portion or any amount paid in the suit or these proceedings. 53. The revision is allowed in part as above and the judgment and order of the Court below stands modified to the extent indicated above. The revision is accordingly allowed in part.