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Gautamchand B. Dige Vs. Dhondiram D. Gurav - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberCivil Rev. Appln. Nos. 208 and 209 of 1985 (Bom.)
Judge
Reported in(1986)88BOMLR5
AppellantGautamchand B. Dige
RespondentDhondiram D. Gurav
DispositionApplication allowed
Excerpt:
.....was given by the landlord, the tenant did not send any reply thereto setting up the claim of yearly tenancy and in the suit for eviction, for arrears of rent and future mesne profits filed by the landlord against the tenant, the tenant does not set up the case that registered instrument of lease in respect of the yearly tenancy of the building was executed in respect of the yearly tenancy claimed by him and no rent receipts in respect of the yearly rent claimed paid by him upto a certain year are forthcoming, the conclusion is irresistable that the tenancy is a monthly tenancy.;when the tenancy is admitted and the dispute in the suit for eviction, arrears of rent and future rent is only as regards whether tenancy is monthly tenancy or yearly tenancy, order xv-a of civil p.c...........of arrears and future rent. the respondent filed his reply dated november 8, 1984 setting up yearly tenancy on a rent of rs. 480/- and pleading that he had paid rent upto december 1983, he neither produced rent receipts nor receipts evidencing payment of yearly rent 'upto december, 1983 on the plea that in view of the cordial relations between the parties he did not take any receipt from the petitioner-landlord. the petitioner filed an application dated september 13, 1984 under order xv-a rule 1 of the code of civil procedure for directing the respondent to deposit, the arrears of rent and future mesne profits at rs. 200/- per month and praying for striking out the defence if he failed to pay. in reply to this application, the respondent once again pleaded yearly tenancy and.....
Judgment:

K. Madhava Reddy, C.J.

1. The short question that arises for consideration in these two revision petitions is, whether the respondent who is admittedly a tenant should be directed to deposit the arrears of rent and future rent or mesne profit during the pendency of the suits for eviction and recovery of rent.

2. These two revision petitions arise out of two civil suits. Civil Suit No. 104 of 1984 in respect of one room admeasuring 40 ft. X 6 ft. on the eastern side of CTS No. 55 situated in Vadagaon forms the subject-matter of Civil Revision Application No. 208 of 1985, Suit No. 105 of 1984 in respect of one room on the northern side of C.T.S. No. 55 and two rooms on the eastern side of CTS No. 55 situated in Vadagaon forms the subject-matter of the Civil Revision Application No. 209 of 1985. For appreciating the contentions suffice it to mention the facts of Civil Suit No. 104 of 1984 out of which Civil Revision Application No. 208 of 1985 arises.

3. The suit premises were let out to the respondent in 1973 on a monthly rent of Rs. 200/-. The respondent paid rent upto October, 1980 and failed to pay from November 1, 1980 to July 31, 1984. Inspite of notice dated June 1, 1984 terminating his tenancy with effect from June 30, 1984 and calling upon him to pay the arrears, he failed to pay the rent and vacate the premises. The respondent replied on June 30, 1984 denying the allegations made in the notice. Hence the suit for eviction and recovery of arrears and future rent. The respondent filed his reply dated November 8, 1984 setting up yearly tenancy on a rent of Rs. 480/- and pleading that he had paid rent upto December 1983, He neither produced rent receipts nor receipts evidencing payment of yearly rent 'upto December, 1983 on the plea that in view of the cordial relations between the parties he did not take any receipt from the petitioner-landlord. The petitioner filed an application dated September 13, 1984 under Order XV-A Rule 1 of the Code of Civil Procedure for directing the respondent to deposit, the arrears of rent and future mesne profits at Rs. 200/- per month and praying for striking out the defence if he failed to pay. In reply to this application, the respondent once again pleaded yearly tenancy and payment of rent upto December 31, 1983 but failed to adduce any evidence. In the other suit (No. 105 of 1984) while the petitioner claimed that two rooms and one room were leased out to the respondent in 1976 on a monthly rent of Rs. 100/- and Rs. 50/- respectively and the respondent did not pay the rent since October 1983, the respondent pleaded yearly tenancy on a rent of Rs. 600/- and that he had paid the rent upto the end of December 1983. The applications under Order XV-A Rule 1 C.P.C. filed by the plaintiff-petitioner were rejected by the learned trial Judge by his order dated December 20, 1984.

4. The tenancy in question is in respect of a building; it is not an agricultural tenancy and ordinarily such tenancies are monthly and not yearly. Under Section 106 of the Transfer of Property Act, a lease of immoveable 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 expiring with the end of a year of the tenancy, while 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. When the notice of termination was given, the respondent-tenant did not choose to send any reply. That is, at that stage he did not set up the claims of yearly tenancy. Under Section 107 of the Transfer of Property Act, a lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent, can be made only by a registered instrument. Any yearly tenancy of a building can be granted only under a registered lease deed. It is not the case of the respondent that any such registered instrument was executed in respect of the tenancy set up by him. All other leases of immovable property are made by a registered instrument or by oral agreement accompanied by delivery of possession. Obviously, it was a tenancy from month to month and not a tenancy from year to year. If yearly rent was paid, the tenant would have obtained receipts. By producing those receipts he could have established that in fact yearly lease was granted. No such receipt has been produced. The conclusion is, therefore, irresistible that the tenancy is a monthly tenancy. So also, if in fact rent was-paid earlier by him upto the end of December 1983, nothing prevented him from producing these receipts. His explanation that in view of cordial relations between the petitioner and the respondent receipts were not obtained is unacceptable. Order XV-A of the Rules made by the High Court under Section 122 C.P.C. reads as under:

1.(i) In any suit by a lessor for eviction of a lessee or for the recovery of rent and future mesne profits from him, the defendant shall deposit such amount as the Court may direct on account of arrears upto the date of the order (within such time as the court may fix) and thereafter continue to deposit in each succeeding month the rent claimed in the suit as the Court may direct. The defendant shall continue to deposit such amount till the decision of the suit unless otherwise directed.

In the event of any default in making the deposit, as aforesaid, the Court may subject to the provisions of Sub-rule (2) strike of the defence.

(2) Before passing an order for striking of the defence, the Court shall serve notice on the defendant or his Advocate to show cause as to why the defence should not be struck off, and the Court shall consider any such cause, if shown in order to decide as to whether the defendant should be relieved from an order striking of the defence.

(3) The amount deposited under this rule shall be paid to the plaintiff lessor or his Advocate and the receipt of such amount shall not have the effect of prejudicing the claim of the plaintiff and it would not also be treated as a waiver of notice of termination.

5. The learned trial Judge in rendering his judgment dated December 20, 1984 relied on the decision of a Single Judge of this Court in Suresh Huribhau Admcme v. Purushottain Shankarrao Purohit [1982] M.L.J. 99 to hold that in a suit by landlord against tenant for possession of the premises on termination of tenancy as also for mesne profits for the period subsequent to the termination of tenancy with a prayer for enquiry into mesne profits under Order XX, Rule 12 C.P.C., the Civil Court has no jurisdiction to order the tenant under Section 151 C.P.C. to deposit the rent even of past and/or future mesne profits while the suit is pending trial. The learned trial Judge committed a grave error in ignoring the fact that this decision was rendered on June 23, 1980 before Order XV-A found a place on the statute book. That decision was rendered under Order XX, Rule 12 C.P.C. and under Section 151 thereof and not under Order XV-A with which we are concerned. He also committed another grave error in not noticing the fact that the said decision was specifically overruled by a decision of a Division Bench of this Court in Chandrakant v. Haribhau [1983] M.L.J. 88. Though 1 have grave doubts as to how far, in the absence of Order XV-A, the Court could direct deposit of arrears of rent and future mense profits pending a suit for eviction of the tenant and recovery of mesne profits in exercise of its powers either under Order XX, Rule 12 or under Order XXXIX, Rule 10 or under Section 151 C.P.C., I do not think that it is necessary to enter into that discussion, having regard to the specific provision contained in Order XV-A where tenancy is admitted and the dispute is only as regards whether the tenancy is monthly tenancy or yearly tenancy. In my view, Order XV-A C.P.C. applies to the facts of this case. In the absence of any proof that the lease in respect of the building is a yearly lease which can be granted only under a registered instrument, where no such registered instrument is forthcoming, the Court is bound to regard such tenancy as monthly tenancy. And when there is no proof of payment of rent, as pleaded by the tenant upto the end of 1983 and the tenant has also failed to respond to the notice claiming arrears of rent and terminating tenancy, the petitioner's application for directing the respondent to deposit the arrears of rent from November 2, 1980 to July 31, 1984 at the rate of Rs. 200/- p.m. and continue to deposit at that rate pending the suit should have been allowed.

6. In the other case, the petitioner made an application for directing the respondent-tenant to deposit the arrears of rent from October 1, 1983 till July 31, 1983 at the rate of Rs. 600/- p.m. and a further direction to deposit at that rate during the pendency of the suit. The Court below has erred in rejecting the said application too. The orders of the trial Court will have to be set aside in both the cases.

7. There shall be a direction to the tenant to deposit the arrears of rent pending the suit at the rate mentioned above in each of these suits. The tenant is given two months' time from today to deposit the amount and in default the trial Court may proceed, subject to the provisions of Sub-rule (2) of Order XV-A, to strike of the defence. The amount, if any, deposited in pursuance of this order shall be paid over to the concerned landlord. The receipt of such amount shall not have the effect of prejudicing the claim of the plaintiff-petitioner nor shall it be deemed to be a waiver of notice of termination.

8. These two revision applications are accordingly allowed. Rule in each of them is made absolute. As the respondent is unrepresented in both these matters, there will be no order as to costs of these petitions.


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