Rajesh Tandon, J.@mdashHeard Sri L.P. Naithani, Sr. Advocate, assisted by Sri B. P. Nautiyal, counsel for the revisionist and Sri H.C. Bisht, counsel for the Respondent.
2. By the present civil revision filed u/s 25 of the Provincial Small Cause Courts Act, 1887, the revisionist has prayed for setting aside the judgment and decree dated 16-10-2006 passed by the District Judge/Judge SCC Garhwal in S.C.C. Suit No. 4 of 1998 by which the decree for eviction has been passed against the revisionist.
3. Judge Small Cause Court has decreed the suit of the Plaintiff on 16th October, 2006. The operative portion of the decree is quoted below:
This S.C.C. Suit No. 4/98 is decreed with cost throughout. The Defendant is directed to vacate the building in question within a month and he will also pay the rent to the Plaintiff from April 1997 to November, 1997 @ Rs. 2190/-per month in cash in front of the court. Further he will pay the compensation from 4-5-98 till the date of actual delivery of possession @ Rs. 5000/- per month in cash to the Plaintiff in front of the court along with 9% compound interest half yearly rest will also be leviable on entire amount which will come out after subtracting the amount already paid by the Defendant(c) Rs. 2190/-per month.
Factual Matrix of the Case
4. Briefly stated, Plaintiff-Respondent is the owner and landlord of building known as House No. 33 situate at Mauhalla Agency, Pauri Garhwal of which the Defendant is a tenant of a shop situate on the ground-floor and Hotel situate on the first floor of the building of the Plaintiff on a monthly rent of Rs. 2,190/- besides the rent the Defendant is also liable to pay water tax at the rate of 12.5% of the basis rent.
5. According to the case of the Plaintiff, the Defendant is running a sweet-shop and restaurant in the name of Garhwal Sweet and Coffee House in the disputed tenanted premises and since the rental is more than Rs. 2,000/-, therefore, UP. Act No. 13 of 1972 has no application to the building in dispute.
6. The Plaintiff has stated that the Defendant has not paid the rent and water tax from 1st April, 1997 and since the UP. Act No. 13 of 1972 is not applicable to the building in dispute, therefore, the tenancy of the Defendant was terminated through registered notice dated 17th March, 1998, which was posted by registered post No. 2839 dated 21-3-1998. Through the aforesaid notice, the Plaintiff has demanded the arrears of rent from 1 -4-1997 and possession of the tenanted premises. The said notice was served upon the Defendant on 4th April, 1998. The tenancy, therefore, stands terminated after 30 days of the receipt of the notice. Despite service of notice, the Defendant has neither paid the arrears of rent nor has vacated the premises.
7. The Plaintiff has claimed the following amount from the Defendant along with the interest to the extent of 18% p.a.:
10. That the following amount of rent and taxes has become due against the Defendant in respect of said disputed premises.
1. Rent from 1-4-1997 to 19-5-98 @ 2190.00 per month 29,857.00
2. Water tax @ 121/2% from 1-4-1997 to 19-5-98
3,732.00
33,589.00
The Defendant is also liable to pay interest @ 18% p.a. on the above amount. The same rate of interest is prevalent in the market and is being charged by commercial schedule banks. Defendant is further liable to pay damages for use and occupation @ Rs. 5000/- per month in respect of the above disputed tenanted premises from the date of the suit till date of ejectment and actual delivery of possession of the said premises in occupation of the Defendant, to the Plaintiff. However, now a days the rate of rent is much higher this amount.
8. A written statement was filed by the Defendant denying the averments contained in the plaint. It was denied that he has not paid the rent from 1st April, 1997. So far as the monthly rent of Rs. 2,190/- is concerned, rate of rent was admitted. The notice dated 17-3-1998 was denied by the Defendant only on the ground that no member of his family has received the notice.
9. A replication was filed by the Plaintiff, where in paragraph 5, it has been stated that the notice was received by Sanjay Negi-Manager of the Defendant.
10. Counsel for the revisionist Sri L.P. Naithani, Sr. Advocate, assisted by Sri BP. Nautiyal, Advocate has made following submissions:
(1) The notice was not served upon the Defendant and as such the suit was not maintainable.
(2) About the applicability of the Act.
(3) Defendant is entitled for the benefit of Section 114 of the Transfer of Property Act.
(4) The imposition of damages/mesne profits are wholly exorbitant.
Submission About Service Of Notice
11. So far as the point regarding notice is concerned, counsel for the revisionist has denied the service of notice. According to the Plaintiff, the notice was sent on 31 -3-1998.
12. According to the case of the Defendant notice was not served in accordance with the provisions of Section 106 of the Transfer of Property Act.
13. Plaintiff has filed his own affidavit and has deposed in paragraph 7 to the following effect:
That the deponent did not want the tenancy of the Defendant to continue, hence the same was terminated through registered A.D. Notice u/s 106 of the Transfer of Property Act, 1882 dt. 17-03-1998. Through that notice, the Defendant was called upon to pay arrears of rent etc. from 1 -4-1997 within thirty days for the receipt of notice and a peaceful possession of the premises in question was also demanded from the Defendant after thirty days for the service of the said notice. The said notice bearded true and correct address of the Defendant and was prepaid with due postal stamps.
8. That the said notice was duly served on the Defendant on 4-1998 and was delivered to one Sh. Sanjay Negi who is/as long standing Manager/servant of the Defendant and used to look after the day to affairs of the business of the Defendant.
9. That thus the tenancy of the Defendant in respect of the disputed premises stands terminated after 30 days of service of the notice. However, in spite of the due service of the notice, the Defendant neither paid due arrears of rent etc. nor vacated the disputed premises under tenancy of Defendant. Due to this, the deponent had to file the present suit.
10. That the Defendant had full knowledge of the notice and after service of the said notice, the Defendant contacted the deponent and asked deponent to sell the property in question to him, which the deponent obviously refused. It is absolutely wrong to allege that the said notice was not duly served on the Defendant.
14. The Plaintiff has also come in the witness-box and has deposed that the notice Paper No. 6-Ga was received and signed by the Manager of the Defendant, who is running the hotel. The said statement is quoted below:
. 6 ? ? ? ? , . 8 ? ? ? ? ? ? , ? ? ? ? ? ? ? , ? ? ? ? ? , ? ? ? ? |
? . 6 ? ? ? ? ? ? ? ? ? ? ? ? ? ? |
? ? ? ? ? ? ? ? ? ? ? |
15. The revisionist has also filed his own affidavit denying that Sanjay Negi was servant/Manager. He was also cross examined.
16. Counsel for the Plaintiff-Respondent has filed a counter affidavit, where, he has annexed the affidavit filed by the Applicant in Civil Revision No. 19 of 1999, where the service of the notice was admitted to the following effect:
4. That in order to brow beat the deponent and stab him in the back the Plaintiff-opposite party filed a suit for his ejectment on the ground of arrears of rent since April 1997 and obtaining report of service upon servant left by the deponent during his absence for the treatment of his wife in Delhi and Dehradun be produced and order for service by publication which he effected in an obscure News Paper "Daink Jayant" which has absolutely no circulation in the placed where deponent resides and it is not been a recognized news paper for the purpose of ...publication.
17. Section 106 of the Transfer of Property Act reads as under:
106. Duration of certain leases in absence of written contract or local usage.
In the absence of a contract or local law or usage to the contrary a lease of immovable property for agricultural or manufacturing purpose shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months'' notice expiring with the end of a year of the tenancy; 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 expiring with the end of a month of the tenancy.
Every notice under this section 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 conspicuous part of the property.
18. Legal position regarding the notice has been settled by the Apex Court in various decisions.
19. Counsel for the Applicant has relied upon the judgment of Dharam Pal Tyagi v. Anil Kumar 1986 AWC 584 regarding requirement of notice. Paragraph 8 is quoted below:
8. In the instant case it has not been disputed before me on behalf of the Respondent that the address on which the notice u/s 106 of the Transfer of Property Act is said to have been sent to the Applicant was not the address of his residential house out was the address of the shop where the Applicant was carrying on his business. In view of the definition in this behalf contained in Section 3(c) even if it is accepted as stated in the letter of the Senior Superintendent of Post Offices that the registered letter was delivered to the addressee, it does not rule out the possibility of the said letter being delivered not to the Applicant personally but to some ''servant or agent or other person considered to be authorized to receive the article according to the usual manner of delivering postal articles to the addressee''. The said delivery shall be deemed to be delivery to the addressee. The said letter of the Senior Superintendent of Post Offices does not conclusively prove that the registered letter containing the notice u/s 106 of the Transfer of Property Act was served to the Applicant personally. Section 106 of the Transfer of Properly Act inter alia provides:
Every notice under this section 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 members or servants, at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property.
20. Counsel for the Applicant has laid emphasis that in view of the proposition of law laid down by the Allahabad High Court that since the notice was sent at the address of the shop, where he was carrying on the business, therefore, it will not be sufficient service of the notice as contemplated by Section 106 of the Transfer of Property Act.
21. In Ranjit Singh v. Nirbhayanand 1970 ALJ 455, it has been held as under:
9. In view of the law laid down in the aforesaid decision even if the registered letter containing the notice dated 13th March, 1985 sent not at the address of the Applicant''s residence but sent at the address of the shop where he was carrying on his business was served on a servant or agent of the Applicant and not personally on him it would be deemed to have been delivered to the addressee within the meaning of Section 3(c) of the Post Office Act.
22. In the aforesaid case law, it has been held that notice at the shop shall be treated to be sufficient service.
23. In
6. We are of opinion that the conclusion arrived at by the Courts below is correct and should be upheld. It is true that the proviso to CL (i) of S. 11(1) and the proviso to S. 12(3) are intended for the protection of the tenant. Nevertheless it will be easy to see that too strict and literal a compliance of their language would be impracticable and unworkable. The proviso insists that before any amount of rent can be said to be in arrears, a notice has to be served through post. All that a landlord can do to comply with this provision is to post a prepaid registered letter (acknowledgment due or otherwise) containing the tenant''s correct address. Once he does this and the letter is delivered to the post office, he has no control over it. It is then presumed to have been delivered to the addressee u/s 27 of the General Clauses" Act. Under the rules of the post office, the letter is to be delivered to the addressee or a person authorized by him. Such a person may either accept the letter or decline to accept it. In either case, there is no difficulty, for the acceptance or refusal can be treated as a service on, and receipt by, the addressee. The difficulty where the postman calls at the address mentioned and is unable to contact the addressee or a person authorized to receive the letter. All that he can then do is to return it to the sender. The India Post Office Rules do not prescribe any detailed procedure regarding the delivery of such registered letters. When the postman in unable to deliver it on his first visit, the general practice it on the next one or two days also before returning it to the sender. However he has neither the power nor the time to make enquiries regarding the whereabouts of the addressee; he is not expected to detain the letter until the addressee chooses to return and accept it; and he is not authorized to affix the letter on the premises because of the Assessee''s absence. His responsibilities cannot, therefore, be equated to those of a process server entrusted with the responsibilities of serving the summons of a Court under O.V of the CPC The statutory provision has to be interpreted in the context of this difficulty and in the light of the very limited role that the post office can play in such a task. If we interpret the provision as requiring that the letter must have been actually delivered to the addressee, we would be virtually rendering it a dead letter. The letter cannot be served where, as in this case, the tenant is away from the promises for some considerable time. Also, as addressee can easily avoid receiving the letter addressed to him without specifically refusing to receive it. He can so manipulate matters that it gets returned to the sender with vague endorsement such as "not found", "not in station", "addressee has left" and so only, it is suggested that a landlord, knowing that the tenant is away from station for some reasons, could go through the motions of posting a letter to him which he knows will not be served. Such a possibility cannot be excluded. But, as against this, if a registered letter addressed to a person at his residential address does not get served in the normal course and is returned, it can only be attributed to the addressee''s own conduct. If he is staving in the premises, there is no reason why it should not be served on him. If he is compelled to be away for some time, all that he has to do is to leave necessary instructions with the postal authorities either to detain the letters addressed to him for sometime until he returns or to forward them to the address where he has gone, or to deliver them to some other person authorized by him. In this situation, we have to chose the more reasonable, effective, equitable and practicable interpretation and that would be to read the word "served" as "sent by post", correctly and properly addressed to the tenant, and the word "receipt" as the tender of the letter by the postal peon at the address mentioned in the letter. No other interpretation, we think, will fit the situation as it is simply not possible for a landlord to ensure that a registered letter sent by him gets served on, or is received by, the tenant.
24. As will appear from the aforesaid judgment of the Apex Court that presumption of service of notice has been drawn u/s 27 of the General Clauses Act and u/s 114 of the Evidence Act if the registered letter has been sent to the addressee on the correct address.
25. In D. Vindo Shivappa v. Nanda Belliappa 2006 CLJ 2897, the Apex Court has referred the rule of Heydon. It acts as rule of purposive construction and mischief rule. Relevant portion of the judgment is quoted below:
11. The question is whether in a case of this nature, where the postal endorsement shows that the notice could not be served on account of the non-availability of the addressee, a cause of action may still arise for prosecution of the drawer of the cheque on the basis of deemed service of notice under Clause (c) of proviso to Section 138 of the Act. In our view this question has to be answered by reference to the facts of each case and no rule of universal application can be laid down that in all cases where notice is not served on account of nonavailability of the addressee, the court must presume service of notice.
12. It is well settled that in interpreting a statute the court must adopt that construction which suppresses the mischief and advances the remedy. This is a rule laid down in Heydon''s case (76 ER 637) also known as the rule of purposive construction or mischief rule.
26. In view of the aforesaid, notice sent by the registered post u/s 106 of the Transfer of Property Act cannot be defeated on more technicalities, that it was not sent on the residence of the addressee.
27. The Apex Court has also taken the view that the presumption of service arises where the registered letter has been sent to correct address. In the present case, the notice was sent at the premises, which is the subject matter of litigation for which the eviction has been sought and therefore, the notice having been sent on the premises, which is in dispute. The presumption applies with all force.
28. The Apex Court has taken this view in Green View Radio Service v. Laxmi Ramji and Anr. 1990 SCC (4) 497. The observations are quoted below:
4. In the present case it is an admitted position that the notice by registered post had been sent at the proper address. Similar address appeared in the earlier notice given to the Defendant and the same is admitted to have been received by the Defendant. It has come on record that the Defendant proprietor Amarjeet Singh signs his name differently at different times. This is borne out from his signatures on the receipt of summons in the suit, vakalatnama of his former advocate Mr. Mattai and the written statement on the suit which have been signed by him in English in three different ways. It may be further noted that Amarjeet Singh had deposed that he had paid rent for April 1963 to the Gurkha employee of the Plaintiffs but no rent receipt was brought to him. He also produced a copy of letter dated June 5, 1963 addressed by him to Plaintiffs together with a certificate of posting as Ex. 7 (Col.1). The Plaintiffs in this regard did not admit the receipt of this letter and their case was that the copy of letter and certificate of posting Ex. 7 (Col.1) have been fabricated by the Defendant of the original written statement. The trial Court while dealing with this matter arrived at the conclusion that the copy of the letter dated June 5,1963 and the certificate of posting were not genuine documents and no reliance could be placed upon them. The above matter was also examined by the High Court in detail and it recorded the finding that the Appellant (Defendant) had made an unsuccessful attempt by inserting on record a suspicious document in order to make out a case of payment of rent for the month of March 1963. The High Court observed that the learned trial Judge had rightly disbelieved this evidence and it found no reason to differ from him on this point. The above conduct of the Defendant goes to show that no reliance can at all be placed on the bald denial of Amarjeet Singh that he did not receive the notice dated September 3,1963 sent to him by registered post. He was capable of introducing certificate of posting (Ex.7) in support of his case which was found to be not genuine. As already mentioned above, Amarjeet Singh was singing in different manner and his above conduct of relying on a fabricated document clearly goes to show that no credence can be given to his statement that he had not received the notice in question.
5. In view of these circumstances, we hold that the mere denial by Amerjeet Singh that he did not receive the notice cannot be believed and as such there is no rebuttal of the presumption drawn against him u/s 114 of the Evidence Act.
6. Hence, we cannot fault the reasoning of the courts below. In the circumstances, we dismiss this appeal.
29. Similar controversy with regard to the presumption has also been settled in Kulkarni Patterns Pvt. Ltd. and Ors. v. Shri Vasant Baburao Ashtekar and Ors. 1992 (1) JT 194, where it has been observed as under:
Learned Additional District Judge further held that when the notices are sent by registered post it is presumed to have been served and mere denial by the tenants had no value, unless they proved some extraordinary happenings or events which prevented following of usual course of business. Learned Additional District Judge further held that the notice was sent on the address given in the plaint and it was admitted by the Defendant in his statement that it contained the correct address. A presumption of service of notice was drawn u/s 27 of the General Clauses Act and Section 114 of the Evidence Act.
30. The word "residence"has been interpreted in
If a person has no established home and is compelled to live in hotels, boarding houses are houses of others, his actual and physical habitation is the place where he actually or personally resides.
13.... The word "resides" is a flexible one and has many shades of meaning, but it must take its colour and content from the context in which it appears and cannot be read in isolation.
31. It is evident from Section 106 of the Transfer of Property Act that the notice has to be signed 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 members or servants at his residence, the word "resides", therefore, cannot be read in isolation and once registered letter has been sent on the correct address, the presumption lies for its service at the place it has been subject of the litigation and the servant, who has received the notice shall be treated to be sufficient service u/s 106 of the Transfer of Property Act.
32. In view of the aforesaid, point No. 1 is decided in favour of the Plaintiff and itshai: be presumed that the notice was duly served upon the Defendants.
Applicability of the Act
33. So far as the applicability of the Act is concerned, the rent is more than Rs. 2000/-per month and therefore, the matter is fully protected u/s 2(1)(g). It reads as under:
(g) any building, whose monthly rent exceeds two thousand rupees;
34. In Mahendra Pal Agarwal v. Prescribed Authority/Civil Judge and Ors. 2000 (2) ARC 296 the Apex Court has laid down that where the rent is more than Rs. 2000/ - the premises is fully exempted from the operation of the Act. It has been held as under:
While the aforesaid writ petition was pending, U.P. Amendment Act 5/95 came into force whereby the premises which were fetching rent above Rs. 2,000 were exempted from the provisions of the Act.
35. In view of the aforesaid statutory provision, the arrears of rent are wholly immaterial and the notice terminating the tenancy simpliciter u/s 106 of the Transfer of Property Act is sufficient for filing the suit.
Benefit of Section 114 of the Transfer of Property Act
36. Counsel for the revisionist has submitted that the Defendant is entitled for the protection u/s 114 of the Transfer of Property Act.
37. So far as the benefit of Section 114 of the Transfer of Property Act is concerned, the Plaintiff has submitted that the said benefit is not applicable in the present case.
38. In order to get the benefit of Section 114 of the Transfer of Property Act, there must be a forfeiture as contained u/s 111(g) of the Transfer of Property Act. Section 114 of the Transfer of Property Act is quoted below:
114. Relief against forfeiture for non-payment of rent. - Where a lease of immovable property has 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 pays or tenders to the lesser 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 of 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.
111.(g) by forfeiture; that is to say, (1) in case the lessee breaks an express condition which provides that, on breach thereof, the lessor may re-enter 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 adjudicated an insolvent and the lease provides that the lessor may re-enter on the happening of such event; and in any of these the lessor or his transferee gives notice in writing to the iessee of his intention to determine the lease.
39. In Kishan Lai Agarwal v. National Insurance Company Ltd. 2004 (1) ARC 101, this Court has observed as under:
APPLICABILITY OF SECTION 111 OF THE T.P. ACT
Section 111. (y) provides mode of determination of lease.
Clause (g)reads as under:
(g) by forfeiture; that is to say, (1) in case the lessee breaks an express condition which provides that, on breach thereof, the lessor may re-enter 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 adjudicated an insolvent and the lease provides that the iessor may re-enter on the happening of such event; and in any of these the iessor or his transferee qives notice in writing to the lessee of his intention to determine the lease.
APPLICABILITY OF SECTION 114 OF THE T.P. ACT
16. So far as the Sections 114 and 114-A of the Transfer of Property Act is concerned, it is not applicable in the present case. Section 114 of the Transfer of Property Act reads as under:
114. Relief against forfeiture for non-payment of rent.-Where a lease of immovable property has 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 pays or tenders to the lesser 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 of making a decree for ejectment, pass an order relieving the lessee against the forfeiture; and Thereupon the iessee shall hold the property leased as if the forfeiture had not occurred.
17. Since there is no forfeiture as alleged by the Defendant, therefore, there is no application of Section 114 of the Transfer of Property Act.
18. Further, neither there is a lease deed containing any forfeiture clause, nor there is any averment in the written statement to that effect, as such, no benefit can be claimed by the Defendant u/s 114 of the Transfer of Property Act.
19. The revision is also covered by the judgment of the Uttaranchai High Court teuorted in 2003 (2) ARC 290 where this Court has taken view to the following effect:
24. In the case Shiv Shanker v. Additional District Judge reported in 2002 (1) ARC 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 period mentioned in this Section. In the case of forfeiture only this expression used in the said Section 114. Transfer of Property Act "Where a iease 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 quite the properly lease, duly given by one party to the other, as contemplated u/s 111(h) of Transfer of Property Act.
40. In Mohamad Nasir v. District Judge, Nainital and Ors. 1999 (1) ARC 202, 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 quite 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 P.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).
41. 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 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.
42. In
43. From the aforesaid decisions there is no doubt that if a building is not (sic) governed by the State Rent Act the tenant cannot claim, benefit of provisions of Section 114 of the Transfer of Property Act.
44. Similar observations have been taken in Kumaun Plaza Pvt. Ltd. v. Dr. Arvind Sharma [2003(2) ARC 290]*. In the said judgment it has been observed as under:
33. 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 fall 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 the Transfer of Property Act. Section 38 reads as under: "This provision 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).
Submission With Regard to Damages/Mesne Profits
45. The suit was filed as back as in the year, 1998 and since then the Defendant is lingering the matter. The matter has come up to this Court earlier and a direction was made for disposal of the case at an early date.
46. In
13. In
47. Relying upon the judgment of
We make it clear that the Respondents shali be liable to pay the rent equivalent to mesne profits with effect from the date with which they are found to have ceased to be entitled to retain possession of the premises as tenant for such period the landlord''s entitlement can not be held pegged to the standard rent. Reference may be had to the law laid down by the Court in Atma Ram Properties (P) Ltd. V. Federal Motors (P) Ltd., JT2004 (1) SC 410: 2005 (10) SCC 705: 2005 SCFBRC 99.
48. Scope of interference u/s 25 of the Provincial Small Cause Court Act has been interpreted by the Apex Court from time to time. It is not an appellate jurisdiction and therefore, the findings of fact cannot be interfered.
49. In Harshvardhan Chokkani v. Bhupendra N. Patel 2002 SCFBRC 344, the Apex Court has observed as under:
Nonetheless, the High Court is exercising the revisional power which in its very nature is a truncated power. The width of the powers of the Revisional Court cannot be equated with the power of the Appellate Court. In examining the legally and the proprietary of the order under challenge, what is required to be seen by the High Court is whether it is in violation of any statutory provision or a binding precedent or suffers from misreading of the evidence or omission to consider relevant clinching evidence or where the inference drawn from the facts proved in such that no reasonable person could arrive at or the like, it is only in such situations that interference by the High Court in revision in a finding of fact will be justified. Mere possibility of a different view is no ground to interfere in exercise of revisional power. From the above discussion, it is clear that none of the aforementioned reasons exists in this case to justify interference by the High Court.
50. The tenancy was terminated in the year, 1998. Since then 9 years have already passed. Premises is not covered under the Rent Control Act. Taking into consideration the facts and circumstances of the case, the damages is fixed at Rs. 2500/- per month from the date of termination of tenancy upto the date of delivery of possession. So far as interest part is concerned, if the possession is not delivered on the due date, the Applicant will be liable to pay interest as awarded by the court below through-out from the date of termination of tenancy.
CONCLUSION
51. In view of the above, the damages/mesne profits are modified to the extent of 2,500/- per month from the date of termination of tenancy.
52. However, in the interest of justice time is granted up to 31st October, 2007 to vacate the premises in dispute provided
(a) undertaking is furnished by 5th July, 2007 for vacating the premises in dispute.
(b) the revisionist pays entire damages/rent/mesne profits on or before 5lh July, 2007
(c) the revisionist goes on paying the regular damages/mesne profits at the rate fixed above in the first week of every month until and unless the premises in dispute is vacated.
(d) On failure of the aforesaid conditions, Respondents-landlord shall have liberty to execute the order forthwith.
53. Civil Revision is dismissed with costs.
