Varun Kuamr Goel vs Mitthan Lal Jayant
2013 Latest Caselaw 2513 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

								AFR
 
Court No. - 4
 

 
Case :- CIVIL REVISION No. - 246 of 2013
 
Petitioner :- Varun Kumar Goel
 
Respondent :- Mitthan Lal Jayant
 
Petitioner Counsel :- Shesh Kumar
 

 
Hon'ble Abhinava Upadhya,J.

Heard Sri Shesh Kumar, learned counsel for the revisionist and Sri Rahul Mishra, learned counsel for the respondent.

This is a revision filed against the judgment and order of the Small Cause Court dated 18.4.2013 by which SCC Suit No. 35 of 2011 for ejectment and arrears of rent has been allowed.

The brief facts are that the plaintiff let out on rent his residential premises no. 26/6 Shastri Nagar, Meerut consisting of three rooms, one varandah, toilet, kitchen and parking area at a monthly rent of Rs. 4500/- in favour of respondent-defendant from October, 2009. The notice dated 20.4.2011 was sent determining the tenancy of the applicant-defendant after the expiry of one month, i.e., 23.5.2011 through registered post, which was received on 24.4.2011. The said notice is said to have been issued under Section 106 of the Transfer of Property Act, 1882 (in short the Act).

It is not disputed between the parties that the provisions of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (in short the Act No. 13 of 1972) are not applicable.

The contention of the learned counsel for the defendant-applicant is that the defendant was admitted to tenancy by an oral agreement from October, 2009 with the condition that after every three years upon enhancement of Rs. 500/- he will continue to be the tenant and the landlord will not press for his eviction. Learned counsel for the defendant-applicant submits that there arose no dispute between the parties and the defendant was peacefully residing in the premises and was paying due rent on due dates. Thereafter, in the year 2011 the landlord asked for enhancement of rent to the tune of Rs. 9000/- and threatened to evict the defendant from the rented premises. Against the oral agreement of October, 2009 the defendant tried to deposit agreed rent of Rs. 4500/- which was refused by the landlord and, therefore, the rent was sent through money orders.

It is submitted that the rent of month April, 2011, which was sent through money order, was accepted by the landlord. However, the rent for the month of May and June, 2011 was refused. Thereafter, the rent was deposited in court on every due date. Upon the aforesaid facts it is submitted that there is no arrears of rent. It is also alleged that the notice dated 20.4.2011 stood waived off, upon the landlord accepting the rent for the month of April, 2011, i.e., after issuance of notice. It is further submitted that in view of the acceptance of rent after issuance of notice under Section 106 of the Act, there was no determination of lease under Section 111(h) of the Act as such in view of Section 113 of the Act notice to quit stood waived off. It is further alleged that once the notice to quit having waived of and the defendant was allowed to remain in possession of the property, the lease continued and the principles of holding over as contemplated under Section 116 of the Act, would be applicable. Therefore, the suit was not maintainable and the order impugned deserves to be set aside.

Learned counsel for the revisionist, however, refuted the allegation of the defendant-applicant stating firstly; there was no agreement oral or written that the tenancy would continue for a period of three years subject to enhancement of rent by Rs. 500/- for a further period of three years and so on. The plaintiff issued a valid notice under Section 106 of the Act and determined the tenancy after the expiry of thirty days from the date of receipt of the notice. Undisputedly, the notice was received on 24.4.2011 and consequently, after expiry of thirty days the tenancy was determined. It is further submitted that merely by accepting the rent of one month, in which notice was issued, would not mean to waiver of notice. The intention was clear that the tenancy would be determined after expiry of one month. It is further alleged that the provisions of Section 106 of the Act would be applicable. No further action or deed on the part of the landlord can possibly give any impression that he in any manner gave assent to the tenant to continue in possession. It is further submitted that the findings arrived at by the trial court is unexceptionable and the revision deserves to be dismissed.

I have heard learned counsel for the parties and have perused the judgment and decree.

The undisputed fact that emerges is that the plaintiff is the owner of the premises in question. The said premises were given on rent to the defendant in October, 2009 at a monthly rent of Rs. 4500/-. Notice to quit dated 20.4.2011 under Section 106 of the Act was served and received by the defendant-tenant on 24.4.2011. The notice would become effective on expiry of 30 days, i.e., 23.5.2011. It is undisputed that the defendant sent the rent through by separate money orders for the month of April, May and June, 2011. It is not disputed that the money orders of the rent for the month of April,2011 was accepted. It is not disputed that the rent for the months of May and June, 2011 sent through money orders was refused by the landlord. It is also not disputed that the rent thereafter was being deposited in the court.

The contention of the learned counsel for the defendant-applicant is that by virtue of accepting the rent for the month of April, 2011 after the issuance of notice would amount to waiver of notice to quit, as contemplated under Section 113 of the Act.

The Hon'ble Supreme Court in the case of Sarup Singh Gupta Vs. S. Jagdish Singh and others, reported in (2006) 4 SCC 205 in paragraph 8 of the said judgment has held as under:

"8. In the instant case, as we have noticed earlier, two notices to quit were given on 10th February, 1979 and 17th March, 1979. The suit was filed oh June 2, 1979. The tenant offered and the landlord accepted the rent for the months of April, May and thereafter. The question is whether this by itself constitute an act on the part of the landlord showing an Intention to treat the lease as subsisting. In our view, mere acceptance of rent did not by itself constituted an act of the nature envisaged by Section 113, Transfer of Property Act showing an Intention to treat the lease as subsisting. The fact remains that even after accepting the rent tendered, the landlord did file a suit for eviction, and even while prosecuting the suit accepted rent which was being paid to him by the tenant It cannot, therefore, be said that by accepting rent, he intended to waive the notice to quit and to treat the lease as subsisting. We cannot ignore the fact that in any event, even if rent was neither tendered nor accepted, the landlord in the event of success would be entitled to the payment of the arrears of rent. To avoid any controversy, in the event of termination of lease the practice followed by courts is to permit the landlord to receive each month by way of compensation for the use and occupation of the premises, an amount equal to the monthly rent payable by the tenant. It cannot, therefore, be said that mere acceptance of rent amounts to waiver of notice to quit unless there be any other evidence to prove or establish that the landlord so Intended. In the instant case, we find no other fact or circumstance to support the plea of waiver. On the contrary the filing of and prosecution of the eviction proceeding by the landlord suggests otherwise."

From the judgment impugned or from the averments made on behalf of the defendant, it does not appear that there was any intention on the part of the landlord to waive off the notice issued under Section 106 of the Act. Not only this but for the subsequent months, i.e., for the month of May and June and thereafter no rent was accepted by the landlord and the landlord actually went on to file the present suit for eviction under the provisions of Transfer of Property Act.

So far as Sections 113 and 116 are concerned all that is to be seen whether by any action of the landlord or any subsequent act a conclusion can be drawn that the landlord intended to waive off the notice. The provisions of Transfer of Property Act apparently appears to be in contra distinction with the provisions of the Rent Control Act, which is a beneficial piece of legislation granting protection to the tenant. Whereas under Sections 106 and 111 of the Transfer of Property Act all is required is 30 days notice to quit even if the notice is not in any format yet if the intention is culled out that the landlord does not wish to continue the tenancy of the defendant, should be sufficient to determine the tenancy after expiry of 30 days as contemplated under Section 106 of the Act.

The contention of the learned counsel for the defendant is that the tenancy was not month to month but in fact it was a lease for 3 years extendable further upon enhancement of rent by Rs. 500/- at the end of every three years, cannot be accepted in view of clear cut provisions of Section 107 of the Act. Section 106 of Act provides that any lease for a term exceeding one year or reserving yearly rent can be made only by a registered instrument. Admittedly, there is no registered instrument but only an oral agreement therefore, the lease even if by oral agreement has to be treated month to month. Such month to month lease can be terminated by a 30 days notice as provided under Section 106 of the Act.

Learned counsel for the defendant-applicant then submitted that Rs.200/- damages as determined by the court below could not have been done as the damages cannot exceed the agreed monthly rent.

The contention of the learned counsel for the petitioner cannot be accepted as agreed monthly rent is Rs. 4500/- and, therefore, damages of Rs. 200/- does not exceed the monthly rent.

Considering the facts and circumstances and discussions made above, I see no error in the order impugned and the revision deserves to be dismissed.

Learned counsel for the defendant-applicant then, however, prayed that some further time may be allowed to vacate the premises considering the hardship of the defendant. No material has been brought on record to indicate the hardship. However, a further period of three months is allowed over and above the period granted by the trial court to hand over peaceful possession of the property in question to the landlord-plaintiff. It is further provided that an appropriate application be made before the court below with regard to extension of time as granted by this Court and the court below will thereafter proceed to pass appropriate orders accordingly.

The revision is dismissed.

Order Date :- 22.5.2013

SKM