Smt. Aamna Khan vs Smt. Anita Burman
2017 Latest Caselaw 6332 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 
AFR
 
Court No. - 30
 

 
Case :- S.C.C. REVISION No. - 272 of 2017
 

 
Revisionist :- Smt. Aamna Khan
 
Opposite Party :- Smt. Anita Burman
 
Counsel for Revisionist :- Manisha Chaturvedi,Smt. Chandra Kala Chaturv
 

 
Hon'ble Vivek Kumar Birla, J.

1. Heard Ms. Manisha Chaturvedi, learned counsel for the tenant-revisionist and perused the record.

2. Present revision has been filed challenging the judgement and order dated 11.9.2017 passed by the Additional District Judge/Small Causes Court, Gautam Buddha Nagar in Small Cause Case No. 20/2015 (Smt. Anita Burman vs. Smt. Aamna Khan).

3. Facts, in brief, of the present case are that the revisionist-tenant is the tenant of the shop in question being Shop No. 100B, Sector 16 Noida, District Gautam Buddha Nagar. Originally she was tenant of Anoop Pal s/o Sri S.L. Pal and a rent agreement was executed between them, which is not in dispute. Subsequently the shop was transferred to Smt. Kamla Pal w/o Sri S.L. Pal and thereafter the revisionist-tenant became tenant of Smt. Kamla Pal. After the death of Kamla Pal on 29.8.2011, an agreement amongst her two sons and two daughters, including the present respondent-landlady Anita Burman, took place on 27.11.2014 and thereafter, pursuant to the decree dated 27.1.2015 passed in O.S. No. 1378 of 2013 (Anuradha Sondhi vs. Arun Kumar Pal) passed by the Delhi High Court, Smt. Anita Burman (respondent-landlady herein) became the sole owner of the shop in question and consequently, the revisionist-tenant became the tenant of Smt. Anita Burman (respondent-landlady herein) w.e.f. 27.1.2015. Her name was mutated in the records of NOIDA Development Authority and a letter dated 2.2.2015 to this effect was also issued by the authority. Subsequently a letter of attornment dated 9.2.2015 (filed as Annexure 2 to the affidavit filed in support of this revision) was issued to the revisionist jointly signed by the legal heirs of Smt. Kamla, namely, Arun Kumar Pal, Anoop Pal, Smt. Anuradha Sondhi and Smt. Anita Verman (respondent-landlady herein). Thereafter, the respondent-landlady sent a notice dated 26.3.2015 to the revisionist-tenant terminating her tenancy. In the agreement, it was also alleged that the revisionist-tenant is not paying rent since January, 2015. This notice was replied by the revisionist-tenant vide reply dated 9.4.2015. This reply was further replied by the respondent-landlady vide letter dated 29.4.2015 and thereafter a suit was filed claiming arrears of rent at the rate of Rs. 13,000/- per month w.e.f. 1.2.2015 to 15.5.2015 and damages at the rate of Rs. 1,000/- per day. Subsequently the present SCC suit was filed wherein pleadings between the parties were exchanged and six issues were framed.

4. Submission of the revisionist-tenant is that in view of the provisions of Sections 106, 107, 109 and 114 of the Transfer of Property Act, the notice is invalid and the notice dated 26.3.2015 did not fulfill the essential ingredients of Section 106 of the Transfer of Property Act. It was further submitted that alongwith notice dated 9.2.2015 (letter of attornment), records were not sent to the revisionist-tenant and that notice dated 26.3.2015 determining the lease was merely made for the reason of non-payment of rent w.e.f. 1.1.2015 to 31.3.2015. It was also submitted that the Court below failed to consider that the revisionist-tenant has protection under Sections 109 and 114 of the Transfer of Property Act and there was no default in making payment of rent due and that the rent for the month of January, 2017 was also demanded by the landlady whereas she acquired ownership in February, 2015 and that the present shop is the sole source of livelihood of the revisionist-tenant.

5. I have considered the submissions and perused the record.

6. Admittedly, the provisions of UP Act 13 of 1972 are not applicable in the present case as the rent of the shop in dispute is above Rs. 2,000/- per month. Paper 24 Ga (letter of attornment dated 9.2.2015) sent by registered post is also proved from the evidence. A notice dated 26.3.2015 (paper no. 7C ) terminating the tenancy of the revisionist-tenant was sent to him by speed post, which was duly replied by him vide letter dated 9.4.2015 wherein the ownership of the respondent-landlady was disputed and it was alleged that copy of settlement has not been sent to her, therefore, revisionist-tenant is not in a position to whom the rent is to be paid and that her brother is demanding rent and the change of ownership in the record of NOIDA Authority has not been intimated to her. This letter was replied by the revisionist-tenant vide letter dated 29.4.2015 and all the details were supplied. It has come on record that after the letter of attornment dated 9.2.2015, a cheque of the rent was sent to the respondent-landlady but she did not encash the same.

7. It is not in dispute that a letter of attornment dated 9.2.2015 was sent to the revisionist-tenant. It is also not in dispute that the notice dated 26.3.2015 terminating the tenancy of the revisionist-tenant was given to the revisionist-tenant, which was replied by her that the documents in support of the same are lacking and this reply was further replied by the landlady vide letter dated 29.4.2015 and all the necessary documents were supplied to the revisionist-tenant. From perusal of the lease deed, it is not in dispute that the terms and conditions clearly included that the tenant should vacate the premises as and when required by the owner. The lease is a monthly lease. It also provides that in case the tenant fails to pay rent for three months, tenancy shall automatically stand terminated. The letter of attornment, which is based on the decree of the Delhi High Court dated 27.1.2015, is not in dispute. It is also clear that the name of the landlady Smt. Anita Burman has been recorded as owner in the records of NOIDA Development Authority. There is no doubt that in paragraph 6 of the notice dated 26.3.2015 (annexure 3 to the affidavit filed in support of this revision), it has been mentioned that the revisionist-tenant is in arrears of rent w.e.f. January, 2015 onwards, however, paragraph 8 of the notice clearly indicates that the tenancy has been terminated under Section 106 of the Transfer of Property Act. Paragraph 8 of the notice dated 26.3.2015 is quoted as under:-

"8. That in view of the above I do not want to keep you as my tenant any more and hereby terminate your tenancy under Section 106 of the T.P. Act and the same shall stand terminated on the expiry of 30th April, 2015."

8. The provisions of UP Act 13 of 1972 are not applicable in the present case. As such, the tenant is not entitled for benefit of Section 114 of the Transfer of Property Act. A reference may be made in this regard to a judgement of this Court in State of UP & others vs. Registered Society, Braj Gram Sewa Mandal, Mathura, 2015 (2) ARC 741.

9. Insofar as the contention of learned counsel for the revisionist-tenant that the notice date 26.3.2015 determining the lease has been given for the reasons of non-payment of rent w.e.f. 1.1.2015 to 31.3.2015 is concerned, a reference may be made to a judgement of this Court in Ram Bali Pandey (Since deceased) through his LRs' vs. IInd Additional Judge, Kanpur and others, 1998 (2) ARC 362 wherein it has been held that the mere fact that the notice stated about non-payment of rent also besides termination of monthly tenancy and demand of vacant possession it would not be a case of forfeiture under clause (g) but one of determination of tenancy by exercising power under clause (h) of Section 111 of the T.P. Act, therefore, the contention of learned counsel for the revisionist-tenant is liable to be rejected and is rejected hereby.

10. Further, as quoted above, paragraph 8 of the notice dated 26.3.2015 clearly indicates that the notice has been consciously given under Section 106 of the Transfer of Property Act. The service of notice is not in dispute. The property under tenancy is a shop and would, therefore, be a lease from month to month terminable by giving 30 days notice as per UP amendment of the Act. The attornment of tenancy is also not in dispute. The lease deed also included a term that the tenant should vacate the premises as and when required by the landlady. Though not relevant for the controversy involved, it may be noticed that in paragraph 9 of the notice, it has also been mentioned that shop is required bona fidely by the landlady for her own use and for her son, therefore, notice being a valid notice admittedly having been served on the revisionist-tenant, the argument of the learned counsel for the revisionist-tenant in this regard also is liable to be rejected and is rejected hereby.

11. In such view of the matter, I do not find any legal infirmity or jurisdictional error in the judgement and order impugned herein. As such, no interference is called for in the impugned judgement and order.

12. Present revision is accordingly dismissed.

13. However, having considered the facts and circumstances of the case, subject to filing of an undertaking by the revisionist-tenant before the Court below, it is provided that:

(1) The tenant-revisionist shall handover the peaceful possession of the premises in question to the landlady-opposite party on or before 30.4.2018.

(2) The tenant-revisionist shall file the undertaking before the Court below to the said effect within two weeks from the date of receipt of certified copy of this order;

(3) The tenant-revisionist shall pay entire decretal amount within a period of two months from the date of receipt of certified copy of this order;

(4) The tenant-revisionist shall pay damages @ Rs. 15,000/- per month by 07th day of every succeeding month and continue to deposit the same in the Court below till 30.4.2018 or till the date he vacates the premises whichever is earlier and the landlady is at liberty to withdraw the said amount;

(5) In the undertaking the tenant-revisionist shall also state that he will not create any interest in favour of the third party in the premises in dispute;

(6) Subject to filing of the said undertaking, the tenant-revisionist shall not be evicted from the premises in question till the aforesaid period;

(7) It is made clear that in case of default of any of the conditions mentioned herein-above, the protection granted by this Court shall stand vacated automatically.

(8) In case the shop is not vacated as per the undertaking given by the tenant-revisionist, he shall also be liable for contempt.

Order Date :-6.11.2017

Abhishek