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Gold Medal Rep. Sole Proprietor, Mohd Ali Arifi (Died) and ors. Vs. Smt. Ameena Begum, W/O. Habeeb HussaIn Ai-attas - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAndhra Pradesh High Court
Decided On
Case NumberSecond Appeal No. 1196 of 2001
Judge
Reported in2004(5)ALT542
ActsTransfer of Property Act - Sections 106 and 106(3); ;Transfer of Property (Amendment) Act, 2002; ;Code of Civil Procedure (CPC) - Sections 99
AppellantGold Medal Rep. Sole Proprietor, Mohd Ali Arifi (Died) and ors.
RespondentSmt. Ameena Begum, W/O. Habeeb HussaIn Ai-attas
Appellant AdvocateV. Venkataramana, Adv.
Respondent AdvocateVilas V. Afzulpurkar, Adv.
DispositionAppeal dismissed
Excerpt:
property - questions of law- sections 106 and 106 (3) of transfer of property act, transfer of property (amendment) act, 2002 and section 99 of code of civil procedure, 1908 - two issues based on question of law raised - whether action of plaintiff in executing power of attorney (poa) after institution of suit on basis of another poa would remove institutional defect - whether suit of eviction can be instituted without service of notice - held, institution of suit based on another poa was a curable irregularity and where 15 days notice was issued it was considered sufficient compliance under section 106 of transfer of property act. - - afzulpurkar had drawn the attention of this court to section 99 of civil procedure code and had submitted that even if the appellants' contention..........transfer of property act, particularly when the respondent - plaintiff had earlier issued ex-a5 suit notice and again issued ex-a3 under the said provision of law, when ex-a3 is not served in the required modes of service contemplated under section 106 of the transfer of property act ?3. the learned counsel for the appellants had taken me through the findings recorded by both the courts below and had commented that incorrect findings had been recorded relating to both the aspects. per contra, sri vilas v. afzulpurkar had drawn the attention of this court to section 99 of civil procedure code and had submitted that even if the appellants' contention relating to the institution of the suit, on the basis of the power of attorney ex-a1 and another power of attorney ex-a11, is to be.....
Judgment:

P.S. Narayana, J.

1. Heard Sri V. Venkata Ramana, the learned counsel representing the appellants and Sri Vilas V. Afzulpurkar, the learned Counsel representing the respondent.

2. Sri V. Venkata Ramana, the learned Counsel representing the appellants had raised the following substantial questions of law to be decided in the present Second Appeal.

a) Whether the action of the respondent - plaintiff in executing a power of attorney in Ex-A1 after institution of the suit on the basis of another power of attorney Ex-A11, would remove the institutional defect in the suit and whether it amounts to only a curable irregularity?

b) Whether a suit for eviction of defendants can be instituted without service of notice under Section 106 of the Transfer of Property Act, particularly when the respondent - plaintiff had earlier issued Ex-A5 suit notice and again issued Ex-A3 under the said provision of law, when Ex-A3 is not served in the required modes of service contemplated under Section 106 of the Transfer of Property Act ?

3. The learned Counsel for the appellants had taken me through the findings recorded by both the Courts below and had commented that incorrect findings had been recorded relating to both the aspects. Per Contra, Sri Vilas V. Afzulpurkar had drawn the attention of this Court to Section 99 of Civil Procedure Code and had submitted that even if the appellants' contention relating to the institution of the suit, on the basis of the power of attorney Ex-A1 and another Power of Attorney Ex-A11, is to be considered at the best, it would be only a curable irregularity, which would not touch the jurisdiction of the Court and hence the concurrent findings cannot be disturbed on that ground. The learned Counsel also submitted that the rigour of Section 106 of the Transfer of Property Act had been watered down by introducing amendment to the said provision and even otherwise, the learned counsel would contend that a clear finding had been recorded on the strength of Exs-A4 to A6 and hence the said finding cannot be disturbed. The learned counsel also had drawn the attention of this Court to a Judgment in S.A. Nos. 147, 148 and 176 of 2003, delivered by this Court on 26-09-2003, wherein, the provisions of Section 106 of the Transfer of Property Act as substituted by the Transfer of Property (Amendment) Act, 2002 (3 of 2003) had been considered.

4. Heard both the Counsel.

5. The respondent - Smt. Ameena Begum, represented by the G.P.A. had instituted O.S. No. 1353 of 1996 on the file of VIII Junior Civil Judge, City Civil Court, Hyderabad, represented by Mohammad Ali Arifi praying the Court for a decree for possession of the suit malgies and to direct the defendant to vacate and handover the vacant possession of the suit malgies and also to decree the suit for mesne profits. The defendant had moved a counter-claim, claiming relief of specific performance and for execution and registration of the lease deed with a renewal clause. The Court of first instance, on the respective pleadings of the parties after settlement of issues and after recording the evidence of P.W.1 and D.W.1 and marking Ex-A1 to A18 and Ex-B1 to B46, ultimately had dismissed the counter claim filed by the defendant and decreed the suit of the plaintiff as prayed for. Aggrieved by the same, the defendant carried the matter by way of A.S. 466 of 1998, on the file of XI Additional Chief Judge, City Civil Court, (Fast Track Court) Hyderabad. During the pendency of the appeal, Md. Ali Arifi - Defendant died on 4.10.1998, and his legal representatives were brought on record. The appellate Court, also dismissed the appeal confirming the Judgment and decree of the Court of first instance and hence the matter was carried by way of Second Appeal by the said legal representatives of the deceased Md. Ali Arifi. The plaintiff pleaded in the plaint as hereunder:

'The plaintiff is the absolute owner of the suit mulgies i.e. bearing No.3-5-782/65/E&D; situated at King Kothi, Hyderabad of which the defendant is in possession as a tenant on a monthly rent of Rs.2,200/- by executing a rental deed, dt. 11-5-1992 for himself as well as on behalf of the firm M/s. Gold Medal and two other partners. The said monthly rent is exclusive of water and electricity consumption charges as well as the MCH tax which the defendant orally agreed to pay. That the possession of the suit mulgies was delivered to the defendant on 2-8-1992 after completion of the construction, therefore for all practical purposes the tenancy of the defendant commences from 2nd of every month and ends with the 1st of each succeeding month. That the defendant failed to pay the rent from December, 1994 to the end of September, 1995 i.e. for 10 months' rent @ Rs.2,200/- p.m. amounting to Rs.22,000/- out of which he paid only Rs.4,400/- representing two months rent, leaving a balance of Rs.17,600/- as on the date of issuance of legal notice, dt. 24-9-1995 apart from the MCH property tax, water and electricity charges. That the plaintiff got issued legal notice on 24-9-1995 through registered post, ack/due terminating the tenancy and asking the defendant to vacate and deliver the possession of the suit mulgies to the plaintiff on 2-1-1996 or on such other date which the defendant thinks to be the date of commencement of the tenancy and further asking the defendant to pay the arrears of rent amounting to Rs. 17,600/- which was served on the defendant. That even after receipt of the said notice, the defendant neither replied it nor vacated the suit mulgies nor paid the arrears of rent. Hence the suit.'

6. The defendant filed a written statement denying all the material allegations of the plaint and pleaded as hereunder:

'As the possession of the suit mulgies were delivered to the defendant on 8-8-1992 after completion of the construction of the same, the tenancy of the defendant commenced from 8th day of each month and ended with 7th day of next month. The defendant denied the fact of liability to pay Rs.17,600/- as due as on the date of issuance of the alleged legal notice, dt. 24-9-1995. That the alleged registered acknowledgement due papers seem to have been fabricated by the plaintiff and the plaintiff is not entitled to terminate the tenancy. The plaintiff having received the rent from the month of December, 1994 to February, 1995 did not pass the receipts with oblique motive and malafide intention, hence the defendant sent the monthly rent for the month of March, 1995 by money order. That on 22-3-1995 when the defendant came with unsocial elements and rowdies to the suit property and attempted to remove the pan shop with other furniture of the suit property, the defendant filed OS. No.1096 of 1995 and obtained injunction and this court passed an order for deposit of rent into court and in OS No. 1096 of 1995, the plaintiff herein also filed written statement and the case is pending.

The defendant further submitted that the defendant constituted a partnership firm and obtained the premises on lease for the purpose of running a hotel under the name and style as 'Golden Gate Caf', and subsequently, other three partners retired and defendant continued and now he is the proprietor of the said firm M/s. Gold Medal. That the plaintiff has commenced the construction and raised the pillars and thereafter there were no money with the plaintiff, so this defendant has advanced an amount of Rs. 2,20,000/- to the plaintiff and it was agreed that the said amount shall be used for the purpose of construction and it was further agreed that there shall be a long lease, and as per the terms of the lease deed, the plaintiff is bound to renew the lease and he is bound to go on executing and registering fresh lease deeds for a period of three years with renewal clause at the option of the lessee, and that this defendant is entitled for the renewal of the lease deed for the further period of three years that the present lease was for the initial period of three years which is over on 7th August, 1995 and as such, the defendant is entitled for the execution and registration of lease deed for a further period of three years from 8-8-95 to 7-8-98 with renewal clause as stated in Clause No.1 of lease deed, dt. 11-5-1992 and hence, this counter claim Finally the defendant prayed to dismiss the suit of the plaintiff for possession as well as for recovery of mesne profits and allow his counter claim for specific performance and for execution and registration of the lease deed, directing the plaintiff to execute and register and renew the lease for a period from 8-8-1995 to 7-8-1998.'

7. On the strength of the respective pleadings of the parties, the Court of first instance had settled as many as six issues, which are as hereunder:

1. Whether the plaintiff is entitled for ejectment of the defendant and for possession of the suit mulgies as prayed for?

2. Whether the plaintiff is entitled for mesne profits from 3-1-1996 to 16-2-1996 at the rate of Rs.3,500/- per month coming to Rs.5,129/-?

3. Whether the plaintiff is entitled for mesne profits at the rate of Rs.3,500/- per month from the date of the suit till the date of delivery of possession of the suit mulgies?

4. Whether the notice u/s 106 of Transfer of property Act issued by the plaintiff is valid under law ?

5. Whether the defendant is entitled for specific performance of the contract of lease and for execution and registration of the lease deed by renewing the lease deed period from 8-8-95 to 7-8-98 ?

6. To what relief ?

8. As already referred to supra, P.W1 and D.W.1 were examined and Ex-A1 to A8 andEx-B1 to B46 were marked. Findings in detail had been recorded by the Court of first instance, commencing from para 7 to para 21 and ultimately, the relief as prayed for, was granted in favour of the appellant -plaintiff and the relief in the counter claim was negatived. The appellate Court at para 18 of the Judgment had framed the first point for determination as 'whether the notice dated 24.9.1995 is valid ?' and at para 25 of the Judgment had framed the next point for consideration as' whether the suit is void abintio on the ground that GPA holder had no authority to file the suit at the time of presenting the plaint on 16-2-96 ?' The third point was framed at para 29 of the Judgment, i.e., 'whether the vakalat filed by the learned Counsel for plaintiff - M.A. Rasheed Qureshi, under earlier GPA (Ex-A11) is invalid ?' and at para 33 of the Judgment, the 4th point relating to termination of tenancy and renewal of lease deed was framed. The appellate Court at para 45 of the Judgment again had taken up the point for consideration as 'whether there was renewal of tenancy or not ?' Ultimately, the appellate Court, after discussing all the above aspects in detail, had confirmed the findings of the Court of first instance.

9. As far as the aspect of the defect of the institution of the suit, through a power of attorney, Ex-A1, and on the strength of another power of attorney Ex-A11 is concerned, concurrent findings had been recorded and at any rate in view of Section 99 of the Civil Procedure Code, at the best it can be said that it is only a curable irregularity and definitely does not touch the jurisdiction of the Court. Hence in view of the concurrent findings recorded by both the Courts below, I am not inclined to disturb the said finding in this regard.

10. As far as the second question is concerned, no doubt there is some controversy relating to the actual service of notice. Both the Courts below had recorded findings in detail. Ex-A4 to A6 had been referred to in detail and especially in the light of the reply given by the postal department, Ex-A5, and the acknowledgement Ex-A6, concurrent findings had been recorded relating to the service of notice. Even otherwise, Section 106 of the Transfer of Property Act, 1882, deals with Duration of certain leases in absence of written contract or local usage, which reads hereunder:

(1) In the absence of a contract or local law or usage to the contrary, a lease of immovable 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; 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.

(2) Notwithstanding anything contained in any other law for the time being in force, the period mentioned in sub-section (1) shall commence from the date of receipt of notice.

(3) A notice under sub-section (1) shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under that sub-section, where a suit or proceeding is filed after the expiry of the period mentioned in that sub-section.

(4) Every notice under Sub-section(1) 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 a conspicuous part of the property.

11. It cannot be said that due to defect in the notice under Section 106 of the Transfer of Property Act, 1882, the plaintiff - appellant should be non-suited. On this aspect, reliance was placed on the Judgment of this court in S.A. Nos. 147, 148 and 176 of 2003, wherein, this Court held as hereunder:

'The matter can also be tested yet from another angle. Section 106 of Transfer of Property Act was substituted by the Transfer of Property (Amendment) Act, 2002 (3 of 2003) and the substituted Section was already extracted supra. Under Section 3 of the Amended Act, the transitory provisions were made and Section 3 of the Transfer of Property (Amendment) Act, 2002 ( 3 of 2003) reads thus:

'3. Transitory provision:- The provisions of Section 106 of the principal Act as amended by Section 2, shall apply to -

a) all notices in pursuance of which any suit or proceeding is pending at the commencement of this Act; and

b) all notices which have been issued before the commencement of this Act but where no suit or proceeding has been filed before such commencement.'

12. Therefore, by clause (a) of Section 3 amended will also apply to the pending proceedings. Admittedly, the proceedings are pending and therefore, the provisions of Amended Section 106 will come into play. Under the said provision, the lease of any immovable property for any other purpose other than agricultural or manufacturing purpose shall be deemed to be a lease from month to month terminable on either lessor or lessee by 15 days notice. Further under sub-section 3 of Section 106, the notice under sub-section 2 shall not be invalid and merely because, period fall short of period of that sub-section and that the period of notice shall commence from the date of receipt of the notice. Under those circumstances, the case squarely falls under the amended provision. In such an event, giving notice at the end of the lease period, would not arise and if 15 days notice is issued it would be sufficient compliance under Section 106 of Transfer of Property act. Thus, the notice issued by the plaintiff also fully conforms to the provisions contained in amended Section 106 of Transfer of Property Act. On this ground also, the Judgment of lower appellate Court is not sustainable and the same is liable to be set aside.'

13. Hence in the light of the clear evidence available on record, Ex-A4 to A6, and also in the light of the amended provision referred to supra, which had watered down the rigour of Section 106 of Transfer of Property Act, 1882 as it originally stood prior to the Amendment Act, I am of the considered opinion that this ground also cannot be sustained. In the light of the detailed reasons recorded by both the Courts below, they being concurrent findings, this Court does not see any reason to disturb the said findings and hence the said findings are hereby affirmed.

14. It is brought to the notice of this Court that the legal representatives of the deceased - original tenant are running in the suit premises business and taking all the facts and circumstances into consideration, the appellants are granted six months time to vacate the premises. Except granting the aforesaid direction, no other relief can be granted to the appellants.

15. Accordingly the Second Appeal stands dismissed. No costs. Equally cross-objections are also liable to be dismissed and accordingly dismissed. No costs.


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