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2019 DIGILAW 1389 (RAJ)

Ramesh Chand Maru v. Premlata Dangi

2019-05-08

DINESH MEHTA

body2019
JUDGMENT : DINESH MEHTA, J. The above captioned two appeals arise from the judgment and decree dated 04.02.2019, passed by the learned Additional District Judge, Shahpura, District Bhilwara (hereinafter referred to as “the Appellate Court”) in Civil Appeal No. 1/2017 vide which the judgment and decree dated 23.11.2016, passed by learned Senior Civil Judge, Shahpura. Bhilwara in Civil Suit No. 72/2013 (93/2003) has been affirmed. By the same impugned judgment dated 04.02.2019, the Appellate Court has also allowed the cross-objections filed by the plaintiffs qua the findings in relation to issues No. 4 and 5. 2. The facts giving rise to the present appeal lie in a narrow compass, which are set out hereunder:— 2.1 Propositus of respondents No. 1 to 4 - Shatrushal Singh Dangi, the original plaintiff filed a suit for recovery of possession against the appellant-defendant No. 2 and propositus of defendant No. 1 (respondents No. 5 to 11 herein), inter-alia, indicating that he had let out a shop to defendant No. 1 Sita Ram on 30.03.1981 for a monthly rent @ Rs.80/-, in pursuance whereof, the plaintiff had written a rent note in favour of defendant No. 1. 2.2 When the defendant No. 1 Sita Ram grew old, defendant No. 2 Ramesh Chandra (appellant herein) also joined the defendant No. 1 in his business and subsequent thereto, started paying rent @ Rs.100/- per month to the plaintiff. 2.3 The plaintiff gave 15 days’ notice dated 21.04.2003 to the defendants and terminated their tenancy, however, giving an alternative option to pay increased rent @ Rs. 1,000/- per month, if they wanted their tenancy to continue. 2.4 It is not in dispute that despite receiving the notice dated 21.04.2003 on 23.04.2003, the defendants had neither handed over the possession of the shop in question nor had they increased the rent to Rs. 1,000/- per month, as claimed by the plaintiff. 2.5 The plaintiff thus filed a suit for recovery of possession, which was registered as Civil Original Suit No. 93/2003 (New No. 72/2013). 2.6 The defendants filed a written statement and while accepting the tenancy, contended that the plaintiff is having 5-7 shops in Shahpura itself and he is not in requirement of the shop. It was also alleged that the suit in question was essentially for getting the rent increased and not for eviction. While denying the plaintiffs right for getting the rent @ Rs. It was also alleged that the suit in question was essentially for getting the rent increased and not for eviction. While denying the plaintiffs right for getting the rent @ Rs. 1,000/- after 31.05.2003, the defendants requested to dismiss the suit. 2.7 On the basis of pleadings of the parties, the following issues came to be framed by the learned Trial Court:— ^^1- D;k oknh us fnukad 21-4-2003 dks 15 fnu dk uksfVl nsdj izfroknhx.k dh fdjk;snkjh fnukad 31-5-2003 dh v)Zjkf= dks fof/kor lekIr dj nh\ &&&oknh 2& D;k izfroknhx.k lu~ 1961 ls gh fookfnr nqdku ij O;olk; dj jgs gS o ges'kk fdjk;k le; ij vnk dj jgs gSA vr% oknh viuk eu ethZ ls fdjk;snkjh lekIr ugha dj ldrk gS\ &&izfroknh 3- D;k oknh ds ikl 'kkgiqjk esa dbZ nqdkus gksus ls og n[ky nqdku izkIr ugh dj ldrk gS\ 4- D;k oknh 1000@& :i;s egkokj n[ky nqdku rd nk;jh nkok ls oklykr ikus dk vf/kdkjh gS\ 5- D;k oknh dk izfroknhx.k esa fnukad 31-5-2003 rd nl ekg ds 1000@& :i;s oklykr ds 1000@&:- tqeys 2000@& :- nk;jh ukfy'k rd cdk;k gS\ &&&oknh 6- vuqrks"k\^^ 2.8 The learned Trial Court decided issue No. 2 partially against the defendants and held that the plaintiff was justified in terminating the tenancy after issuing requisite statutory notice. Issue No. 3 was decided against the defendants by holding that the fact that the plaintiff was having other shops does not preclude him from seeking recovery of possession of the shop in question. Issues No. 4 and 5 were however decided against the plaintiff, yet in wake of finding of issues No. 1, 2 and 3, the suit filed by the plaintiff was decreed and the defendants were directed to hand over peaceful vacant possession of the shop in question to the plaintiff. The plaintiff was held entitled to mesne profit @ Rs. 1,000/- per month from the date of decree till the recovery of possession. 2.9 Feeling aggrieved with the judgment and decree aforesaid, the appellant preferred an appeal before the Appellate Court, which was registered as Civil Appeal No. 1/2017. 2.10 On receipt of notice of the appeal, the plaintiffs (respondents No. 1 to 4 herein) filed cross-objection challenging the adjudication of issues No. 4 and 5, inter-alia, contending that they were entitled for recovery of amount of rent calculated @ Rs. 2.10 On receipt of notice of the appeal, the plaintiffs (respondents No. 1 to 4 herein) filed cross-objection challenging the adjudication of issues No. 4 and 5, inter-alia, contending that they were entitled for recovery of amount of rent calculated @ Rs. 1,000/- per month from 31.05.2003; the date when the tenancy was terminated. 2.11 The Appellate Court after appreciating the evidence on record not only affirmed the findings of fact recorded by the Trial Court qua issues No. 1 to 3 but also decided issue No. 4 in plaintiffs favour. The cross-objection filed by the respondents No. 1 to 4 came to be allowed partly. 2.12 The Appellate Court while affirming the decree with respect to recovery of possession, held the plaintiff entitled for a sum of Rs.500/- per month as mesne profit w.e.f. 31.05.2003 till the date of decree while also holding them entitled for a sum of Rs. 1,000/- as mesne profit from the date of decree of the Trial Court till 30.09.2017; and further for a sum of Rs.2,500/- per month from 01.10.2017 till the recovery of possession as mesne profit. 3. Laying challenge to the judgment and decree dated 04.02.2019, passed by the Appellate Court, the appellant has preferred these two separate appeals. The first one (Civil Second Appeal No. 78/2019) is against the confirmation of the decree of the Trial Court, whereas the second one (Civil Second Appeal No. 83/2019) has been preferred against the modification of the decree as aforesaid in wake of the finding recorded in relation to issue No. 4. 4. Mr. Toshniwal, learned counsel for the appellant contended that the notice dated 21.04.2003, issued by the plaintiff under Section 106 of Transfer of Property Act was not in order. As a matter of fact, the same was a notice requiring the defendants to enhance the rent, rather than being a notice bringing an end to the tenancy. 5. He submitted that the present appeals involve a substantial question of law regarding interpretation of the subject notice dated 21.04.2003, particularly as to whether the notice dated 21.04.2003 can be treated to be a notice under Section 106 of Transfer of Property Act, bringing an end to the monthly tenancy between the plaintiff and the defendants. 5. 5. He submitted that the present appeals involve a substantial question of law regarding interpretation of the subject notice dated 21.04.2003, particularly as to whether the notice dated 21.04.2003 can be treated to be a notice under Section 106 of Transfer of Property Act, bringing an end to the monthly tenancy between the plaintiff and the defendants. 5. Before adverting to the submissions made by learned counsel for the appellant, it would not be out of place to reproduce the notice dated 21.04.2003, which reads as under:— 6. Reading the notice ad-verbatim, learned counsel laid much-emphasis on the following expression contained therein: Learned counsel for the appellant argued that the intention of the plaintiff was to get the increased rent of Rs. 1,000/- per month and such notice cannot be treated to be a requisite notice under Section 106 of Transfer of Property Act, 1882. He contended that both the Courts below have failed to understand the true import and purport of the contentious notice and passed the order of eviction, treating the same to be a notice to terminate lease. 7. Learned counsel further argued that the date of terminating the tenancy has not been mentioned in the notice and if the appellant had paid a sum of Rs. 1,000/- as rent, as demanded by the plaintiff, tenancy could not have come to an end. According to him, such contingent notice, depending upon the fulfillment of the conditions of notice, cannot be treated to be a notice terminating the tenancy. 8. Apart from the above, learned counsel urged that the Appellate Court had erred in allowing the cross-objection filed by the respondents No. 1 to 4 and in deciding issue No. 4 in their favour. According to him, the cross-objectionists had failed to prove that the shop in question could fetch Rs. 1,000/- per month rent. The Appellate Court has decided the issue No. 4 simply on conjecture as there was no oral or ocular evidence in support of the cross-objection submitted Mr. Toshniwal. According to him, since the issue Ne.4 has wrongly been decided, the issue No. 5 followed the suit. 9. Mr. 1,000/- per month rent. The Appellate Court has decided the issue No. 4 simply on conjecture as there was no oral or ocular evidence in support of the cross-objection submitted Mr. Toshniwal. According to him, since the issue Ne.4 has wrongly been decided, the issue No. 5 followed the suit. 9. Mr. Narendra Thanvi, learned counsel for the respondents, on the other hand, supported the judgment and decree dated 04.02.2019, passed by the Appellate Court and submitted that both the Courts below have concurrently held the notice dated 21 04.2003 to be a valid notice, vide which the tenancy stood terminated w.e.f. 31.05.2003. He argued that the Rent Control Act is not applicable to Tehsil Shahpura and as such the fact that the plaintiff had other 3 or 4 shops available in Shahpura was wholly irrelevant. According to him such being the situation, the plaintiff could very well secure possession of the let-out property simply by way of serving a notice under Section 106 of Transfer of Property Act, 1882. 10. In response to the argument advanced by learned counsel for the appellant with respect to issue No. 4, he contended that as a matter of fact there was enough material/evidence available with the Courts below conclude that the fair rent/market rent of the shop in question was Rs. 1,000/ yet the Appellate Court considerately determined the rent of Rs.500/- pe month for the period between 31.05.2003 and the date of passing of the decree by the Trial Court. 11. I have heard learned counsel for the parties and given my thoughts consideration over the matter. 12. It is not in dispute that the notice dated 21.04.2003 had been server upon the defendants, who were having possession of the demised shop. It is settled proposition that a document has to be read in its entirety, if a Court required to decipher intention of the parties to the document. If the notice dated 21.04.2003 is read in its entirety, it leaves no room for ambiguity that the same is a notice bringing an end to the tenancy. The initial part of the notice unequivocally terminates the tenancy, inasmuch as the plaintiff had stated that the tenancy is being terminated w.e.f. 30.05.2003/31.05.2003. 13. It is true that the notice in question makes a reference of Rs. The initial part of the notice unequivocally terminates the tenancy, inasmuch as the plaintiff had stated that the tenancy is being terminated w.e.f. 30.05.2003/31.05.2003. 13. It is true that the notice in question makes a reference of Rs. 1,000, per month, as a fair/expected rent of the shop; but the same was with condition that if the defendants wanted to continue with the tenancy. In other words there was a fresh offer/intention to continue the tenancy, albeit with the condition that the defendants-noticee agreed to pay a monthly rent of Rs. 1,000/-. 14. Concededly, the defendants did not pay the demanded rent of Rs. 1,000/- per month and hence new tenancy never came into existence and the earlier contract of landlord - tenant dated 30.03.1981 stood aborted of came to an end on 31.05.2003, by consequent to the notice dated 21.04.2003 This being the position, the plaintiff was legally entitled to secure possession of the shop. 15. The Trial Court and so also the Appellate Court have, therefore committed no error of law in deciding issues No. 1, 2 and 3 in favour of the plaintiffs and against the defendants (appellant). 16. Adverting to the arguments of learned counsel for the appellant que issue No. 4, suffice it to note that the defendant No. 1, the appellant in his cross examination had admitted that if any other shop, which is equal to the disputed shop is offered for tenancy, the same could fetch rent of Rs. 1,000/- per month. Apart from the defendant's such admission, the plaintiffs had filed an affidavit and asserted that the fair rent of the shop in question was Rs. 1,000/-. 17. The Appellate Court after giving due weightage to the evidence of the plaintiffs while also considering the response of the respondent Ramesh Chand in pursuance of the suggestions made to him, has arrived at the conclusion that the fair rent of the shop in question in 2003 was Rs.500/- per month. 18. I do not find any error or perversity in the conclusion so arrived at by the Appellate Court, particularly keeping in view the fact that admittedly the tenancy of the shop in question was Rs.80/- in the year 1981 and in the era of inflation, the fair rent of the shop in question would increase to Rs.500/- per month in the year 2003. Consequently no interference is called for in the order dated 04.02.2019, passed by the lower Appellate Court as far as the issues No. 4 and 5 decided by it are concerned. 19. As an upshot of discussion aforesaid, it is clear that both the Courts below have appreciated the evidence and material available on record in its correct perspective. No question of law, much less a substantial question of law arises for consideration of this Court, so as to warrant interference under Section 100 of the Code of Civil Procedure. 20. The appeal thus fails. No order as to costs.