Rajesh Tandon, J.@mdashThe present revision has been filed u/s 25 of Provincial Small Cause Act, challenging the judgment and order dated 31.5.2000 in JSCC Case No. 3 of 1999, Kumaun Plaza Limited Bajpur Road, Kashipur, District Udham Singh Nagar v. Dr. Arvind Sharma.
2. The facts giving rise to the present revision are that the Plaintiff No. 1 Kumaun Plaza Pvt. Ltd; Kashipur is a private limited company of which the applicant No. 2 Sri Anand Gopal Badhwar is the Managing Director. It was stated in the plaint that Kumaun Plaza Pvt. Ltd; is the landlord of the premises, the premises was constructed in the year 1990 and during that period nine shops were constructed. The first assessment according to Plaintiff was made by Nagarpalika Kashipur in the year 1991-92.
3. According to the Plaintiff the Defendant opposite party is a tenant at the rate of Rs. 2,100/- per month. The tenancy according to the Plaintiff was started from 19.2.1993 for a period of three years.
4. According to the averment made in the plaint since the first assessment was made in the year 1991-92 and further the rent was more than rupees two thousands, therefore, provisions of U.P. Act 13 of 1972 are not applicable to the building in dispute.
5. According to Paragraph 5 of the plaint, the Plaintiff and Defendant both agreed to continue the tenancy for a further period of three years after enhancing the rent to 20% i.e. Rs. 2,520/ - and the tenancy of the extended period also expired on 19.2.1999 but the Defendant opposite party failed to vacate the premises. The Plaintiff has further alleged that when the tenancy had commenced, the Defendant deposited a sum of Rs. 21,000/-, the same was refundable after the period of tenancy is over. The Plaintiff, therefore, after deducting the amount of rent of January 1999 to the extent of Rs. 2520/- as well as the rent from 1.2.1999 to 19.2.1999 amounting to Rs. 1680/-, total Rs. 4,200/- from the security deposit of the Defendant a sum of Rs. 16,800/- was refunded to the Defendant vide cheque No. 614903 dated 21.2.1999. It was stated by the Plaintiff that inspite of the fact that rest of the security amount has been refunded to the Defendant and the period of tenancy was also expired the Defendant failed to vacate the premises, therefore, the Plaintiff has sent a notice on 6.4.1999 terminating the tenancy simpliciter u/s 106 of the T.P. Act and after expiry of the period of notice, the suit was filed.
6. The Defendant opposite party has filed a written statement and in Paragraph 3 of the written statement, it was admitted that the tenancy was started on 19.2.1999 for a period of three years on a sum of Rs. 2100/-. Further in Paragraph 5 of the written statement the Defendant has admitted that the rent was enhanced to Rs. 2520/ - however, it was not admitted that the tenancy stands only up to 19.2.1999. It appears that by way of amendment the Defendant has introduced Paragraph 8 (Aa) by which according to the Defendant the tenancy stands up to 1.8.2001 on a monthly rent of Rs. 2,800/- per month. According to the Defendant he was given a right to remain in possession after a period of three years on an enhanced amount of 20% and as such the Defendant has stated in his written statement that he is not liable to be evicted.
7. Paragraph 4 of the written statement is quoted below:
8. Further in Paragraph 14 of the written statement, the Defendant has stated that the original deed between the Plaintiff and Defendant dated 19.2.1993 is not admissible in evidence and it is not properly stamped. The Defendant has further stated in Paragraph 15 that he has deposited the entire amount of arrears of rent, Counsel''s fee, etc. and as such no decree for eviction can be passed.
9. The Plaintiff has denied the amended Paragraph 8-Aa and has stated that tenancy expired on 19.2.1999. Further no agreement was executed between the parties on 18.3.1999 and the original tenancy has already expired on 19.2.1999 and the Defendant has no right to remain in possession after 19.2.1999. Neither any oral agreement nor written agreement was executed by the Plaintiff and the amount of Rs. 2800/- was never settled by the parties.
10. The parties were also examined oath before the Judge Small Cause Court.
11. The learned Additional District Judge, (Judge Small Cause Court), Kashipur has dismissed the suit of the Plaintiff after giving the benefit of Section 114 of the T.P. Act, hence the present revision has been filed.
12. I have heard the Counsel for the applicant Smt. Tehmina Punwani and Sri Jagdish Prasad Counsel for the Defendant at great length.
13. I have perused the record of the case, oral evidence as well as pleading of the parties.
14. The lease agreement dated 19.2.1993 is on the record. Clauses a, b, c, d, e, f and g are quoted below:
(a) Upon the lessee paying rent as hereby agreed and observing and performing, terms and conditions herein contained in the lease the lessee shall quietly and peacefully hold possession and enjoy the said shop during the terms of this tenancy as mentioned in the deed without any disturbance and interruption.
(b) The lessee shall maintain the internal structure of the shop properly and the furnishing of the shop shall be at his cost.
(c) The lessee during terms of agreement shall carry out business of dispensary only.
(d) The lessee shall not have provision for any air conditioning in the premises rented.
(e) The lessee shall pay of electricity used in shop shown by separate meter every month.
(f) The lesser reserves the right to inspect the shop at any time during working hours to enforce terms and conditions agreed upon or on their violation in the agreement.
(g) That at the end of lease i.e. August 2001 the lessee shall give up quite and peaceful vacant possession of the shop executed on 18.4.1999, contains a Clause (1) to the following effect:
In consideration of monthly rent agreed and the terms and conditions hereinafter mentioned in this Deed and Lesser hereby granted transfer demise by way of lease dated 18th March 1999 shop in Kumaun Plaza Hotel Building on ground Floor consisting one shop area 15:10'' x 16 ''6'' -257 Sq. ft. approximately for a period of 2 1/2 (two and half year) years from 1st March 1999 at a monthly rent of Rs. 2800/- (Rupees two thousand eight hundred only) inclusive of all taxes payable on 7th day of each month.
15. The Plaintiff has denied the same in his rejoinder affidavit in Paragraph 5 as forged and fabricated. Paragraph 5, 6, and 8 are quoted below:
5. That the contents of the Paragraph 4 of the counter affidavit denied in the manner stated and the contents of Para 5 of the supplementary affidavit are reiterated. The forged agreement dated 18.3.1999 was mentioned for the first time in the reply dated 8.4.1999 sent by the Respondent in response to the revisionist notice for vacation dated 6.4.1999. The same was fabricated and concocted as an after thought by the Respondent to circumvent and avoid his eviction from the premises in question the tenancy of which had expired on 19.2.1999.
6. That the contents of Paragraph 5 of the counter affidavit need to reply as the contents of Para 6 of the supplementary affidavit have not been denied. Without admitting the same, but if for the sake of argument it is presumed that the forged agreement dated 18.3.1999 is genuine even then the alleged creation thereby of the tenancy with effect from 1.3.1999 for a period of 2 and a 1/2 years has expired on 1.8.2001. This has not been denied by the Respondent.
8. That the contents of Paragraph 6 of the counter affidavit are denied and the contents of the Para 7 of the supplementary affidavit are reiterated.
16. A perusal of the record shows that the parties are alleging the following lease agreements:
a. Lease agreement dated 19.2.1993 for a period of three years.
b. The extension of the same for another period of three years expiring on 19.2.1999.
c. The so called agreement alleged to have been fabricated by the Defendant dated 18.3.1999.
17. The learned Judge Small Cause Court has recorded a finding that it is admitted to both the parties that on 19.2.1999 the parties entered into an agreement for a period of three years on a sum of Rs. 2100/- and further the same was extended for another period of three years. However, the Plaintiff has denied the further extension as alleged on 19.2.1999 by the Defendant that is paper No. 37-Ga/3 and 37-Ga/4. The Plaintiff has also argued before the trial Court that the document dated 19.2.1999 is inadmissible in evidence, as the same is not registered. The learned Judge Small Cause Court although has come to the conclusion that the documents alleged by the Defendant although unregistered but still he can save his eviction as he has deposited the entire amount on the first date of hearing and as such he is entitled u/s 114-A of Transfer of Property Act.
18. Smt. Tehmina Punvani has argued that the Judge Small Cause Court has acted illegally by accepting the unregistered documents which was for a period of more than 11 months and required compulsorily registration and further without giving any opportunity to lead evidence of Hand-writing Expert it was not possible for the Court below to accept the said document a extension of lease for another period of three years. Further the photocopy of the document was not admissible in evidence.
19. On the other hand Sri Jagdish Prasad, Advocate has supported the judgment of Judge Small Cause Court on the ground that he having deposited the amount of lawyer''s fee arrears etc. he is entitled of the benefit of Section 114A of the Transfer of Property Act.
20. To my mind the Judge Small Cause Court has not examined the case in the light of the pleadings of the parties and has relied upon a document which was wholly inadmissible. Reference may be made to the observations of the Apex Court in Satish Kumar v. Zarif Ahmed and Ors. 1997 (3) A.W.C. 1841 (SC). Their Lordships have held as under:
A conjoint reading of the first part of Section 107 read with Section 17(1)(d) of the Registration Act, as extracted hereinbefore, does indicate that a lease of immovable property from year to year, or for any term exceeding one year or reserving a yearly rent should be made only by a registered instrument and all other instruments though reduced to writing and possession is delivered thereunder, are not compulsorily registrable instruments.
21. Further no benefit of Section 53A of the Transfer of Property Act can be extended to the tenant without examining the ingredients of Section 53A of T.P. Act, as unregistered document are not covered u/s 54 of Transfer of Property Act.
22. The lease agreement executed in the year 1993 in the year 1999 or thereafter as alleged and the Defendant admittedly was on a rent of more than of Rs. 2000/- and further the first assessment being made in the year 1991-92, the building was fully exempted under the provisions of U.P. Act No. 13 of 1972. The averments made in Paragraph 4 of the plaint has also not been controverted by the Defendant. Section 2(g) of U.P. Act No. 13 of the 1972 as amended reads as under:
Nothing in this Act shall apply to the buildings whose monthly rent exceed rupees two thousands.
23. None of the parties have stated that the provisions of U.P. Act 13 of 1972 are applicable or the building is an old one so as to cover under the Rent Control Act. Thus admittedly the building in dispute is outside the purview of the Rent Control Act. Act No. 13 of 1972 being inapplicable, the deposit of the rent, cost of the suit etc. are wholly immaterial. No benefit can be extended to the tenant under the provisions of Act No. 13 of 1972. This aspect of the matter has not been considered by the Judge Small Cause Court and straight away benefit of Section 114 of the Transfer of Property Act has been given to the Defendant.
24. So far as applicability of Section 114A of Transfer of Property Act, the Judge Small Cause Court has not examined the relevant provisions of said section so as to give benefit to the tenant. Section 114A of Transfer of Property Act reads as under:
Where lease of immovable property has been determined by forfeiture for non payment of rent, and the lessor sues to eject the lessee, if at the hearing of the suit, the lessee pay or tenders to the lessor the rent in arrear, together with interest thereon and his full costs of the suit, or gives such security as the Court thinks sufficient for making such payment within fifteen days, the Court may in lieu making a decree for ejectment, pass an order relieving the lessee against the forfeiture and thereupon the lessee shall hold the property leased as if the forfeiture had not occurred.
25. The aforesaid provision of the Transfer of Property Act contained a clause ''where a lease of immovable property has been determined by forfeiture'' the forfeiture has been defined u/s 111(g). It reads as under:
by forfeiture that is to say (1) in case the lessee breaks an express condition which provides that on breach thereof the lessor may reenter; or (2) in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself or (3) the lessee is adjudicate an insolvent and the lease provides that the lessor may re-enter on the happening of such event; and in any of these cases the lessor or his transferee given notice in writing to the lessee of his intention to determine the lease.
26. In the case Shiv Shanker v. Additional District Judge reported in 2002 (1) A.R.C. 13, it has been held that Section 114 of Transfer of Property Act is applicable only where the lease of immovable property has been determined by forfeiture. Relevant observations of Allahabad High Court are quoted below:
Section 114, Transfer of Property Act quoted above, gave an option to a tenant to make deposits contemplated therein within the prescribed period mentioned in this section. In the case of forfeiture only the expression used in the said Section 114, Transfer of Property Act, "Where a lease of immovable property has been determined by forfeiture..." leaves no doubt that right of lessee to avoid suit for ejectment can be resorted to only in a case where a lease of immovable property determines by forfeiture and not otherwise. Consequently, Defendant Petitioner cannot take advantage of the aforesaid Section 114, Transfer of Property Act in a case where lease of a transferee determine only itself or to quit the property leased, duly given by one party to the other, as contemplated u/s 111(h) of Transfer of Property Act.
27. I have examined the lease agreement made in the year 1993 as well as the lease agreement alleged to have been brought by way of amendment made in Paragraph 8 of the written statement by the Defendant, although both of them are unregistered and has been executed for the period of three years. In absence of registration both are inadmissible. Alternatively there being no forfeiture clause in either of the agreements and Section 114A is wholly inapplicable and the Judge Small Cause Court has illegally given the benefit to the Defendant u/s 114A of the Transfer of Property Act.
28. The Counsel for the Respondent has referred the judgment of Allahabad High Court in Surjeet Singh v. Addl. District Judge, Hardwar, 1993 (2) ARC 470, the case law is wholly inapplicable in as much as already stated above the lease agreement was wholly inapplicable for want of registration as well as for want of any forfeiture clause in the agreement. The case of Surjeet Singh (supra) has further been distinguished in Mohamad Nasir v. District Judge, Nainital and Ors. 1999 (1) ARC 202. In the case of Mohd. Nasir (Supra) it has been held as under:
In order to claim benefit under this Section, it has to be shown by the tenant that one of the terms of the lease was that the landlord will have a right of re-entry if the rent for any specified period remained unpaid and he has to show further that forfeiture has been incurred as provided u/s 111(g) Section 114 T.P. Act thus postulates existence of determination of lease by forfeiture as a condition precedent and provisions contained in this section will have no application where the lease has been determined by serving a notice to quit u/s 106 T.P. Act. The relief u/s 114 T.P. Act is confined to those cases only which are strictly covered u/s 111(g) and not to those cases which fall u/s 106 T.P. Act. A monthly tenancy is determinable by one month''s notice by either party and if the tenancy is terminated by serving one month''s notice u/s 106 T.P. Act, there is no forfeiture of tenancy and in that event Section 114 cannot be applied. Thus a notice u/s 106 T.P. Act by no means could be treated as one u/s 111(g).
29. In Surendra Kumar v. A.D.J. Nainital, 2002 (2) ARC 106, the case of Surjeet Singh (supra) has been distinguished. The observations in the case of Chandra Sekhar Prasad v. Special Judge Balia and Anr. 2000 (2) ARC 160, are quoted below:
Section 114 of the Transfer of Property Act is applicable when three conditions are satisfied, Firstly there is an agreement of lease between the parties, secondly there is a condition in the lease deed that the lease will be forfeited if the rent is not paid to the lessor in accordance with the conditions mentioned in the lease deed and thirdly the lease is forfeited by the lessor on the ground that the lessee has not complied with the terms of payment of rent as contained in the lease deed.
Learned Counsel for the Petitioner has placed reliance upon the decision Surjeet Singh v. Additional District Judge, Haridwar and Ors. 1993 (2) ARC 470, where the Court granted relief against eviction were the tenancy was forfeited on the ground on nonpayment of rent. This case has no application, as in this case there was an agreement of forfeiture of lease on the ground of non-payment of rent.
30. I do not find any express condition that in case of non-payment of rent the landlord shall have a right of re-entry. I have also examined the notice it was a simple notice u/s 106 of the Transfer of Property Act, stating therein in the following words:
APKO APAKE CHIKITSA KE BYWASAY HET Rs. 2100/- MASIK KIRAYE PER........APKO YAH BHI SUCHIT KTYA JATA HAI KI NIMAN DUKAN KA NIRMAN BARSH 1990 ME HUA HAI TATHA NIMN DUKAN U.P. ACT No. 13/1972 KI PARIDHI MEN NAHI AATI HAI.
31. In the case Mohd. Nasir v. District Judge Nainital question of notice was also considered and relying upon the judgment of Apex Court it has been held as under:
The mere fact that while terminating this tenancy u/s 106 of the TP. Act the landlord also made demand of arrears of rent and possession will not convert the notice as one given u/s 111(g). For this view I am supported by a Supreme Court decision in the case of
32. Similarly in Laxman Deo v. District Judge, Nainital, 2000 (2) ARC 32, it has been held as under:
It has been found that the Petitioner is not entitled to the benefit of Section 114 of the Act as the lease not determined on the ground that it has a right to re-enter the premises under the forfeiture clause under the tenancy. Respondent No. 1 rightly decreed the suit.
33. Similarly in Ram Bali Pandey v. 2nd Addl. District Judge, Kanpur, 1998 (2) ARC 362, it has been held that for the applicability of Section 114, the existence of an agreement containing a stipulation empowering the landlord to re-enter is essential. Relevant observations are quoted below:
For the applicability of Section 114, existence of an agreement containing a stipulation empowering the landlord to re-enter in the demised premises in case of breach of a condition regarding payment of rent is essential. In the present case there was no such agreement and as U.P. Act No. 3/ 47 was not applicable to the premises, there was simpliciter termination of tenancy u/s 106 T.P. Act serving a notice there under. The mere fact that the notice stated about non payment of rent also besides by exercising the power under Clause (h) of Section 111 of the T.P. Act. No authority is required for the proposition that where there is simpliciter termination of tenancy u/s 106 of the T.P. Act and not u/s 111(g) of the T.P. Act then provision of Section 114 of the T.P. Act, cannot be attracted.
34. Thus in absence of any stipulation with regard to re-entry, in my opinion the tenant is not entitled for the benefit of Section 114A of Transfer of Property Act and the findings of the learned Judge Small Cause Court while giving the benefit of Section 114A of Transfer of Properties Act cannot be sustained.
35. Apart from the aforesaid it has been held in Vannattankandy Ibrayi, 2001 (1) ARC 325, where the reliance has been made of,
In
From the aforesaid decisions there is no doubt that if a building is governed by the State Rent Act the tenant cannot claim benefit of the provisions of Section 106, 108 and 114 of the Act.
36. In the light of the judgment of the Apex Court since the special Act i.e. Rent Control Act gives benefit to the landlord in cases which falls under the exemption from operation of the Act and, therefore, in view of provisions of Section 38 of U.P. Act No. 13 of 1972, it will exclude the applicability of Section 114 of Transfer of Property Act. Section 38 reads as under:
The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Transfer of Property Act, 1882 (Act No. IV of 1882), or in the Code of Civil Procedure, 1908 (Act No. v. of 1908).
37. No further arguments have been raised from either side.
38. In my opinion, therefore, the order passed by the Judge Small Cause Courts dated 31.5.2000 giving benefit u/s 114 of Transfer of Property Act to the tenant and thereby dismissing the Plaintiff''s suit cannot be sustained for any of the reasons as stated aforesaid.
39. The revision, therefore, is allowed. The case is remanded to the trial Court for deciding it afresh in the light of the observations made above within a period of one month from today.
