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2020 DIGILAW 601 (RAJ)

Kamlesh Sharma v. Desbandhu Sharma

2020-08-14

ARUN BHANSALI

body2020
ORDER 1. This second appeal under Section 100 CPC is directed against judgment and decree dated 17.02.2014 passed by Civil Judge (Jr. Division), Abu Road, District Sirohi and judgment and decree dated 14.11.2018 passed by Additional District Judge No. 2, Abu Road, District Sirohi, whereby, the suit filed by the respondents has been decreed and the appeal filed by the appellant has been rejected, respectively. 2. Plaintiffs Pratap Singh & Ors. filed a suit for eviction, arrears of rent and mesne profit against the appellant in relation to a shop situated at Abu Road with the averments that the defendant has defaulted in payment of rent, a notice dated 05.04.2005 was issued terminating the tenancy w.e.f. last day of April, 2005,which notice was refused by the defendant. Based on the above averments, the relief as indicated was prayed. 3. The appellant-defendant filed written statement denying the averments made in the plaint. It was claimed that the appellant has deposited the rent in advance. The rent from October 2004 to December 2004 has been deposited in the account of plaintiffs. It was also claimed that on 01.11.2004, there has been an agreement to sale between the plaintiffs and the defendant, whereby, the consideration was fixed at Rs. 95,000/- and a sum of Rs. 5,000/- in cash and Rs. 5,000/- was paid through cheque, which amount of cheque was received by the plaintiffs on 20.11.2004. The plaintiffs were not executing the sale-deed. The defendant stopped making payment of rent from 01.01.2005 and was ready and willing to pay Rs. 85,000/-, the defendant is not a defaulter, the notice was not received by him and the notice given is not in accordance with law. It was claimed that after the agreement to sale and receipt of part consideration, the plaintiffs have no right to seek possession and, therefore, the suit be dismissed. 4. A replication was filed by the plaintiffs. The averments pertaining to the agreement to sale were denied. The allegations pertaining to receipt of part consideration were also denied. It was indicated that the amount of Rs. 5,000/- was deposited in the bank account without any intimation to the plaintiffs and after termination of tenancy on receipt of notice dated 12.07.2005, plaintiffs became aware that the amount has been deposited by the plaintiffs and, therefore, along with the reply to the notice, the cheque of Rs. It was indicated that the amount of Rs. 5,000/- was deposited in the bank account without any intimation to the plaintiffs and after termination of tenancy on receipt of notice dated 12.07.2005, plaintiffs became aware that the amount has been deposited by the plaintiffs and, therefore, along with the reply to the notice, the cheque of Rs. 5,000/- was sent to the counsel, who issued the notice, which was received by him. 5. A reply to the replication was filed claiming that the cheque was received by the plaintiffs. 6. Based on the pleadings of the parties, the trial court framed five issues. On behalf of the plaintiffs, statements of Pratap Singh was recorded and six documents were exhibited. On behalf of the defendant, two witnesses were examined and five documents were exhibited. 7. After hearing the parties, the trial court came to the conclusion that the notice terminating the tenancy was valid, the plaintiffs were entitled to mesne profit. The plea raised pertaining to the effect of alleged agreement to sale was decided under issue No. 3 and it was held that as the agreement is claimed to be oral, the same has no legal sanctity and that for lack of any credible evidence, the defendant failed to prove the issue. Under issue No. 4, again it was held that the notice issued was legal and valid. Ultimately, the suit was decreed. 8. Feeling aggrieved, the appellant filed first appeal. During the pendency of the first appeal, by order dated 31.03.2017 and 25.05.2018, the names of original plaintiffs, who were impleaded as respondent Nos. 1 to 7, were deleted from the array of parties and on account of transfer of the property in question, the present respondent was impleaded as sole-respondent. 9. After hearing the parties, the first appellate court, reiterated the findings recorded by the trial court and upheld the decree passed by the trial court. 10. It is submitted by learned counsel for the appellant that the two courts below committed grave mistake in decreeing the suit and dismissing the appeal filed by the plaintiffs-respondents. It is emphasized that the deletion of names of original plaintiffs by the first appellate court was wholly against the law and, therefore, on that count alone, the judgment impugned deserves to be set aside. 11. It is emphasized that the deletion of names of original plaintiffs by the first appellate court was wholly against the law and, therefore, on that count alone, the judgment impugned deserves to be set aside. 11. Submissions were made that during the pendency of appeal if the property had been transferred, the same was hit by provisions of lis pendens under Section 52 of the Transfer of Property Act, 1882 ("the Act'). 12. Further submissions were made that the purchaser of the suit property could be added as a respondent in the appeal and he could not replace the original plaintiffs and as the appellate court has deleted the original plaintiffs and has substituted the present respondent as sole-respondent in first appeal, the entire procedure stands vitiated and, consequently, the judgment impugned deserves to be set aside. 13. It was emphasized that once the appellant had taken the plea pertaining to agreement to sell in relation to suit property having been entered into between the parties, the suit was not maintainable, inasmuch as, a relation between plaintiffs and appellant ceased to be that of landlord and tenant and consequently issuance of notice under the provisions of Section 106 of the Act or filing of the suit for eviction was not at all maintainable and, therefore, the judgments impugned deserves to be quashed and set aside. 14. Further submissions were made that the notice given to the appellant under Section 106 of the Act was not valid and on that count also, the judgments impugned deserves to be set aside. 15. Reliance was placed on Sumtibai & Ors. v. Paras Finance Co. & Ors.: (2007) 10 SCC 82 ; Thomson Press (India) Limited v. Nanak Builders and Investors Pvt. Ltd. & Ors.: (2013) 5 SCC 397 and Vidur Impex and Traders Pvt. Ltd. & Ors. v. Tosh Apartments Pvt. Ltd. & Ors.: (2012) 8 SCC 384 . 16. Learned counsel for the respondent appearing on caveat vehemently opposed the submissions. It was submitted that both the courts below have concurrently found against the appellant and the appeal does not give rise to any substantial question of law and, therefore, the same deserves to be dismissed. 17. 16. Learned counsel for the respondent appearing on caveat vehemently opposed the submissions. It was submitted that both the courts below have concurrently found against the appellant and the appeal does not give rise to any substantial question of law and, therefore, the same deserves to be dismissed. 17. Further submissions were made that the Court has power under Order I, Rule 10(2) CPC for deleting the names of parties and under Order XXII, Rule 10 CPC for substitution of a party on transferring the suit property during the pendency of the appeal and, therefore, the order passed by the first appellate court deleting the names of the original plaintiffs on account of transfer of the suit property, cannot be faulted. 18. It was submitted that transfer of the property during the pendency of the present nature litigation would not be affected by provisions of Section 52 of the Act and in any case, the same is not void but remains valid subject to the result of the suit. The notice under Section 106 of the Act was duly served and that the entire plea raised regarding agreement to sale, is baseless. 19. Submissions were made that the plea raised pertains to an oral agreement to sale and, therefore, no indication has been made as to the terms of the contract and only the consideration and payment of part consideration has been alleged, which even if the plea is accepted would not terminate the landlord-tenant relationship between the parties and, therefore, the appeal deserves to be dismissed. 20. Reliance was place on A. Nawab John & Ors. v. V.N. Subramaniyam : (2012) 7 SCC 738 ; H.K. Sharma v. Ram Lal : (2019) 4 SCC 153 and Rajendra Baheti v. M/s. Quality Conduit Pvt. Ltd.: SBCW No. 4293/2013, decided on 01.10.2013. 21. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 22. So far as the plea raised by counsel for the appellant in relation to the deletion of the original plaintiffs from the array of parties is concerned, it is not in dispute that during the pendency of the appeal, the property was transferred by the original plaintiffs to the respondent. 22. So far as the plea raised by counsel for the appellant in relation to the deletion of the original plaintiffs from the array of parties is concerned, it is not in dispute that during the pendency of the appeal, the property was transferred by the original plaintiffs to the respondent. Provisions of Order XXII, Rule 10 CPC provides for procedure in case of assignment before final order in the suit, which provisions are equally applicable to appeals in terms of Order XXII, Rule 11 CPC. The provision clearly provides that in cases of assignment, creation or devolution of any interest during pendency of the suit/appeal, the same, by leave of the court, be continued by or against the person to or upon whom such interest has come or devolved. 23. Once the property in question stood transferred, the appeal filed by the appellant could very well be continued against the present respondent alone and, there was no necessity to continue to have the original plaintiffs as respondents in the appeal. 24. Besides the provisions of Order XXII, Rule 10 CPC, if in the estimation of the appellate court, the presence of original plaintiffs as respondents in the appeal was not necessary, by exercising powers under Order I, Rule 10(2) CPC, their names could be struck out and, therefore, the plea raised in this regard, has no substance. 25. So far as the reliance place on judgments in the case of Sumtibai (surpa), Thomson Press (supra) and Vidur Impex (supra) are concerned, none of the judgments deal with the aspect of deletion of parties and, therefore, the said judgments have no application to the facts of the present case. 26. The submissions made based on provisions of Section 52 of the Act have no substance. Section 52 of the Act deals with proceedings in which any right to immovable property is directly and specifically in question. A suit for eviction does not fall in the said category. 27. Insofar as the challenge laid to the validity of the notice under Section 106 of the Act is concerned, both the courts below have concurrently found that the notice issued to the appellant was valid. Learned counsel for the appellant failed to point out any perversity in the findings recorded by the two courts below except for a bald submission that the notice issued was not valid. 28. Learned counsel for the appellant failed to point out any perversity in the findings recorded by the two courts below except for a bald submission that the notice issued was not valid. 28. The submissions made that once the original plaintiffs entered into an agreement to sale with the appellant, the landlord-tenant relationship ceased between the parties and as such the suit was not maintainable for eviction, also apparently has no substance. 29. A bare look at the case set-up by the appellant reveals that only plea raised pertains to an agreement to transfer the property for a sum of Rs. 95,000/- and it is claimed that a sum of Rs. 5,000/- was given in cash as advance and cheque of Rs. 5,000/- was also given, which was accepted by the plaintiffs. 30. Other than the above facts regarding the oral agreement to sale and payment in cash and through cheque, no other condition has been indicated. 31. Hon'ble Supreme Court in the case of H.K. Sharma (supra) has dealt with the status of landlord-tenant relationship after entering into agreement to sale pertaining to the property by the tenant and even in a case where the agreement to sale was in writing, it was inter alia laid down as under:- "23. In other words, the question that arises for consideration is when the lessor enters into an agreement to sell the tenanted property to his lessee during the subsistence of the lease, whether execution of such agreement would ipso facto result in determination of the lease and severe the relationship of lessor and the lessee in relation to the leased property. 24. In our considered opinion, the aforementioned question has to be decided keeping in view the provisions of Section 111 of the TP Act and the intention of the parties to the lease - whether the parties intended to surrender the lease on execution of such agreement in relation to the tenanted premises or they intended to keep the lease subsisting notwithstanding the execution of such agreement. 25. Chapter V of the TP Act deals with the leases of Immovable property. This chapter consists of Section 105 to Section 117. 26. A lease of an immoveable property is a contract between the lessor and the lessee. Their rights are governed by Sections 105 to 117 of TP Act read with the respective State Rent Laws enacted by the State. This chapter consists of Section 105 to Section 117. 26. A lease of an immoveable property is a contract between the lessor and the lessee. Their rights are governed by Sections 105 to 117 of TP Act read with the respective State Rent Laws enacted by the State. Section 111 of the TP Act deals with the determination of lease. Clauses (a) to (h) set out the grounds on which a lease of an immoveable property can be determined. Clauses (e) and (f) with which we are concerned here provide that a lease can be determined by an express surrender; in case, the lessee yields up his interest under the lease to the lessor by mutual agreement between them whereas Clause (f) provides that the lease can be determined by implied surrender. 27. This Court in the case of Shah Mathuradas Maganlal & Co. vs. Nagappa Shankarappa Malage & Ors., considered the scope of clauses (e) and (f) of Section 111 of the TP Act and laid down the following principle in Para 19 as under: "19. A surrender under clauses (e) and (f) of section 111 of the Transfer of Property Act, is an yielding up of the term of the lessee's interest to him who has the immediate reversion or the lessor's interest. It takes effect like a contract by mutual consent on the lessor's acceptance of the act of the lessee. The lessee cannot, therefore, surrender unless the term is vested in him; and the surrender must be to a person in whom the immediate reversion expectant on the term is vested. Implied surrender by operation of law occurs by the creation of a new relationship, or by relinquishment of possession. It the lessee accepts a new lease that in itself is a surrender. Surrender can also be implied from the consent of the parties or from such facts as the relinquishment of possession by the lessee and taking over possession by the lessor. Relinquishment of possession operates as an implied surrender. There must be a taking of possession, not necessarily a physical taking, but something amounting to a virtual taking of possession. Whether this has occurred is a question of fact." 28. It is in the light of the aforementioned legal principle, the question involved in this case has to be examined. 29. Relinquishment of possession operates as an implied surrender. There must be a taking of possession, not necessarily a physical taking, but something amounting to a virtual taking of possession. Whether this has occurred is a question of fact." 28. It is in the light of the aforementioned legal principle, the question involved in this case has to be examined. 29. Perusal of Agreement to Sell dated 13.05.1993 (Annexure P-l) shows that though the agreement contains 9 conditions but none of the conditions provides much less in specific terms, as to what will be the fate of the tenancy. In other words, none of the conditions set out in the agreement 13.05.1993 can be construed for holding that the parties intended to surrender the tenancy rights. 30. A fortiori, the parties did not intend to surrender the tenancy rights despite entering into an agreement of sale of the tenanted property. In other words, if the parties really intended to surrender their tenancy rights as contemplated in clauses (e) or (f) of Section 111 of the TP Act while entering into an agreement to sell the suit house, it would have made necessary provision to that effect by providing a specific clause in the agreement. It was, however, not done. On the other hand, we find that the conditions set out in the agreement do not make out a case of express surrender under clause(e) or implied surrender under clause (f) of Section 111 of the TP Act." 32. Hon'ble Supreme Court laid down that if the parties intended to surrender their tenancy rights while entering into an agreement to sale, they have to make necessary provision to that effect by providing a specific clause in the agreement. 33. As already noticed hereinbefore, the agreement in the present case is oral only and as such the so called conditions between the parties, even if such an agreement existed cannot be deciphered so as to fulfill the requirements of law as laid down by Hon'ble Supreme Court pertaining to surrender of tenancy and as such the plea raised in this regard, cannot be countenanced. 34. No other point was argued by learned counsel for the appellant. 35. In view of the above discussion, there is no substance in the appeal, the same is, therefore, dismissed.