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2021 DIGILAW 187 (UTT)

Sanjay Kumar v. Vikash Kukreti

2021-03-23

SHARAD KUMAR SHARMA

body2021
JUDGMENT Sharad Kumar Sharma, J. - The revisionist is a tenant of the premises in dispute, which is a shop, which admittedly was under the ownership of the respondent/landlord and which was the subject matter of the proceedings of the SCC Suit No.01 of 2006, Vikash Kukreti vs. Sanjay Kumar. As per the plaint averment, the shop in question is situated at village Maganpur, Post Office Kishanpur, Tehsil Kotdwar, District Pauri Garhwal, having a total area of 20 x 10.7 feet, the precients of which was more appropriately described in para 1 of the plaint. 2. The landlord/respondent had specifically come up with the case, that the shop in question over which the tenancy was created, was on a month to month tenancy basis and it was carrying a rent of Rs.3,080/- per month, but on account of the fact that since August 2015, the default was committed by the tenant/revisionist in the remittance of rent, herein his tenancy was terminated by virtue of a notice which was issued under Section 106 of the Transfer of Property Act, on 08.01.2016, wherein para 4 of the said notice reads as under :- 3. If the notice Paper No.7 Ga, itself is taken into consideration, which admittedly was issued by the landlord and was served on the revisionist, it finds place on record as an exhibit Paper No.7 Ga, wherein the plea of default for the period from August, 2015 and the fact that the tenement was carrying a rent of Rs.3,080/- per month, the issuance of notice under Section 106 of the Transfer of Property Act, and as a consequence thereto terminating the tenancy was a fact, which was reflected from the contents of the notice itself, which finds place on record. The notice thus issued by the landlord/respondent on 08.01.2016, was denied and controverted by the revisionist by filing objection to it i.e. Paper No.9 Ga, denying the aspect pertaining to the default and if the averments itself is taken into consideration, particularly that as contained in para 3 of the reply, the case of the revisionist as pleaded was that the tenancy, which was created, was carrying a rent of Rs.2,800/- and hence the demand raised by the landlord/respondent, in the notice at the rate of Rs.3,080/- per month, was on a higher side and the notice itself was defective. 4. 4. The revisionist/tenant had filed the written statement and in the written statement thus filed particularly, a reference, which has been made by the revisionist, during the course of argument of the present revision, is to the contents of para 15 of the written statement, where he contends that the claim of arrears of rent and the determination, which was made by the landlord/respondent in the notice and the default period as narrated therein was per-se false because the determination was made by the landlord/respondent at the rate of Rs.3,080/- per month though in fact, according to the version of the revisionist, his case was that the rent ought to have been determined at the rate of Rs.2800/- per month. He submits that in view of the fact that he had remitted the entire defaulted amount and for which he relied upon Paper No. 15 Ga i.e. the details of deposit made by him, before the Judge Small Causes Courts on 07.04.2016, he contends that he has remitted a total amount of Rs.24,250/- and hence that itself would be a sufficient and complete compliance made in the spirit of the provisions contained under Order 15 Rule 5, to be read with Section 20(4) of Act No. 13 of 1972, and thus the termination of his tenancy, by the notice of 08.01.2016, it ought not to have been given effect, in view of the fact that on the first date of hearing he claims that he had remitted the rent before the court below. 5. In order to answer the said argument, which has been extended by the learned counsel for the revisionist, pertaining to the compliance of the deposits, which was to be made, for the provisions contained under Order 15 Rule 5 if it is taken into its consideration to the extent of its applicability to the State of Uttar Pradesh, which subsequently stood applicable in State of Uttarakhand, as in view of the provisions contained under the U.P. Re-Organization Act, 2000, the striking of a defence of the tenant/revisionist, in an event of failure to deposit admitted rent to the lessor for the eviction of the lessee, as a consequence of which it was resulting into determination of the lease. The expression used therein i.e. the entire admitted amount due, therewith as contained in its Explanation 2, would be treated as to be the entire amount, which was reflected to be claimed by the landlord/respondent, in the notice of 08.10.2016, which has calculated the defaulted amount, at the rate of Rs.3,080/-. Hence, the contention that he would be entitled for benefit of Section 20(4) of Act No. 13 of 1972, is yet again not available to be argued by the learned counsel for the revisionist; for the reason being that even if the provisions contained under Section 20(4) of Act No. 13 of 1972, is taken into consideration in harmony, with the provisions contained under Order 15 Rule 5 of the C.P.C. for the purposes of making its applicability to the proceedings under Section 15 of the Provincial Small Causes Courts Act, Section 20(4) of Act No. 13 of 1972, uses the word, that "on the first date of hearing", the tenant/revisionist deposits the rent claimed in the notice "un conditionally" and the legislature has used the word "un conditionally" it would as per my view would always infer to a demand raised by the landlord/respondent of the defaulted rent, as it has been reflected in the notice itself and this un-conditionally interpretation cannot be given to the rent, which was deposited by the tenant/revisionist according to his own perception determining, it to be payable @ Rs.2,800/-per month and hence, the contention of the revisionist, that he is protected by the provisions contained under Sub Section (4) of Section 20 of Act No. 13 of 1972 and the notice of termination of tenancy should not be given effect to, is not sustainable because of scrutiny of Paper No. 15 Ga. I am of the view that depositing the rent by the tenant/petitioner at the rate of Rs.2800/- per month and that too without there being any basis or evidence on record to establish that the rent settled between the parties was payable @ Rs.2800/- per month and not at the rate of Rs.3,080/- which was claimed by the landlord/respondent, it would be deemed that the terms of termination of tenancy as contained in para 4 of the notice of terminating the tenancy dated 08.01.2016, will have a prevailing effect and a liability on petitioner to the deposit made by the revisionist on 07.04.2016. Hence, the protection as provided under Section 20(4) of the Act No. 13 of 1972 and that Order 15 Rule 5, which though it relates to striking of the defence under the condition of non fulfillment of depositing the rent and continuance of deposit of rent during the pendency of proceedings, is not available to the revisionist as not made out and hence, his argument is not acceptable. 6. The second argument, which has been extended by the learned counsel for the revisionist, is that the notice itself i.e. Paper No.7 Ga, which was issued on 08.01.2016, was not in consonance to the provisions contained under Section 106 of the Transfer of Property Act. The Transfer of Property Act, in its Section 106 provides that a lessor by issuance of notice of termination of a lease, in the absence of a written contract to the contrary, has always got a right to terminate the rights of a lessee, in relation to an immovable property and in the absence of contract, it will be treated to be a month to month tenancy, which is terminable on part of the lessor. The provisions contained under Section 106 of the Transfer of Property Act, is extracted hereunder:- "[106. Duration of certain leases in absence of written contract or local usage.(1) In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months' notice; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days' notice. (2) Notwithstanding anything contained in any other law for the time being in force, the period mentioned in sub-section (1) shall commence from the date of receipt of notice. (3) A notice under sub-section (1) shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under that sub-section, where a suit or proceeding is filed after the expiry of the period mentioned in that sub-section. (3) A notice under sub-section (1) shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under that sub-section, where a suit or proceeding is filed after the expiry of the period mentioned in that sub-section. (4) Every notice under sub-section (1) must be in writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property.]" 7. The argument of the learned counsel for the revisionist is that the notice under Section 106 of Transfer of Property Act, was bad because it was not terminating the tenancy as contemplated under Section 106 of the Transfer of Property Act. In order to deal with this limb of argument, the lower court record was gone through and the same was also placed before the counsel for the revisionist also to be scrutinized by him, particularly the contents of notice of 08.01.2016, during the course of the proceedings of hearing of this revision and after going through the contents of para 4 of the said notice, which has already been referred to above, the counsel for the revisionist in principle has submitted that para 4 specifically, terminates the tenancy, on the expiry of a period of 30 days, as given therein and hence, his argument from the prospective that the notice of 08.10.2016, was not in consonance to the provisions contained under Section 106 of the Transfer of Property Act as the tenancy was not terminated. According to his own arguments and the contents of the notice, is not sustainable and hence, the second argument is also turned down. 8. The counsel for the revisionist lastly submitted that if the impugned judgment of the Judge Small Causes Courts, is given effect too, it would be prejudicing his right of livelihood and hence, a pragmatic view should be taken by this Court while deciding the present SCC Revision. 8. The counsel for the revisionist lastly submitted that if the impugned judgment of the Judge Small Causes Courts, is given effect too, it would be prejudicing his right of livelihood and hence, a pragmatic view should be taken by this Court while deciding the present SCC Revision. In response to it, the respondent's counsel has placed reliance on a supplementary counter affidavit, which was filed by her on 08.07.2019, wherein he has placed on record certain documents to substantiate, that the revisionist has already procured two shops in the market place, from where he is already running his business. As far as the procurement of the two shops and the conduct of business from the said place is concerned is a principle, which in fact, stands admitted by the revisionist, since being a document, which was proved and placed on record by placing the sale deeds, where the procurement of two shops is a fact established. In order to carve out a distinction, the argument which has been extended by the counsel for the revisionist, is that the said shop, which was purchased by the revisionist is outside the market area and may not be feasible for the nature of business, in which he is engaged, that in itself cannot be an aspect, which could be considered for the purposes of the proceedings under Section 15 of the Provincial Small Causes Courts Act, where the termination of a tenancy by a lessor to a lessee, which is based upon an unwritten terms of tenancy which is contemplated to be terminated under Section 106 of the Transfer of Property Act, hence the location of a shop of the revisionist, and his argument that it is not viable looking to the nature of business, which he is carrying may not be a ground, which could be considered in the revision, which has been preferred by the revisionist, under Section 25 of the Provincial Small Causes Courts Act. 9. Ultimately, on conclusion of the aforesaid arguments, the learned counsel for the revisionist has later confined his plea that he may be granted a reasonable period to vacate the premises. 9. Ultimately, on conclusion of the aforesaid arguments, the learned counsel for the revisionist has later confined his plea that he may be granted a reasonable period to vacate the premises. The said plea in the absence of there being any specific instructions presently available with the counsel for the respondent/landlord, was strongly opposed and it was contended by the counsel for the respondent that a month's time, would suffice the purpose in order to enable the revisionist to vacate the shop in question. 10. After having heard the tenacity of the argument and considering the fact that according to the documents on record, the tenancy itself was created in 2011, which stood terminated by virtue of a notice of 2016 and during this period, the proceedings of the SCC Suit was being carried. This Court is of the view that if six months period is granted to the revisionist to vacate the premises from today, that would meet the ends of justice, as this Court cannot be oblivious of the fact that the revisionist/tenant has already got two shops under his ownership, which is a fact admitted by him. Hence, six months period is granted to the revisionist to vacate the premises subject to the following conditions:- i. That the revisionist would, by way of an undertaking given in the shape of an affidavit, before the Judge Small Causes Courts, would undertake to vacate the premises within six months from today, and would hand over the vacant and peaceful possession to the respondent/landlord. ii. During this period of extended occupancy in pursuance to today's judgment, the revisionist would continue to remit the rent, which was settled to be paid by virtue of the interim order which was passed by the Coordinate Bench of this Court on 03.04.2019 and it would be ensured that the rent, as directed therein is paid by the revisionist to the respondent/landlord by 10th of each month. iii. During this period of extended occupancy of six months as granted by Clause 1, the revisionist/tenant, would not change or alter the nature of the property in question in any manner whatsoever, except without a prior written consent of the respondent/landlord. iv. During this period of extended occupancy, he would not create any sub tenancy or induct an outsider over the tenement in questions. iv. During this period of extended occupancy, he would not create any sub tenancy or induct an outsider over the tenement in questions. v. In an event, if there is a default in compliance of any of the conditions as given herein above, it would be open for the landlord/respondent to put the decree of the judgment Small Causes Courts, to an execution as per law. 11. Subject to the above, the revision lacks merits and the same is dismissed.