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Janki Prasad Hanuman Prasad Vs. Pt. Harish Chandra Tewari and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad High Court
Decided On
Case NumberSpecial Appeal No. 16 of 1958
Judge
Reported inAIR1960All211
ActsTransfer of Property Act, 1882 - Sections 106; Uttar Pradesh (Temporary) Control of Rent and Eviction Act, 1947 - Sections 3
AppellantJanki Prasad Hanuman Prasad
RespondentPt. Harish Chandra Tewari and anr.
Appellant AdvocateIqbal Ahmad and ;V.N. Seth, Advs.
Respondent AdvocateS.D. Misra, ;A.N. Trivedi and ;R.R. Sahai, Advs.
DispositionAppeals dismissed
Excerpt:
.....had been given and therefore the suit is bad jin law. 4 dated 5-12-1953 and it was urged that the rent control and eviction officer had in fact granted permission to sue on that date and, therefore the notice of 19-12-1954 could not be said to be a bad notice, because it was given after the permission had been obtained and in the alternative it was contended that it was not necessary to give a notice under section 106 after the permission had been obtained. chapter v of the transfer of property act deals with the leases of immoveable property and in section 105 a lease has been defined as follows :a lease of immoveablc property is a transfer of a right to enjoy such property, made for a certain time express or implied, or in perpetuity, in consideration of a price paid or promised, or..........no. 1 was his tenant and defendant no. 2 was the sub-tenant, that he obtained permission from the rent control and eviction officer to eject the defendants and also gave notice under section 106 of the transfer of property act but since the defendants have not vacated the premises hence the suit. the plaintiff further alleged that the defendants were in arrears of rent and defendant no. 1 had sublet to defendant no. 2 and on that ground also they were liable to ejectment. the defence on behalf of defendant no. 1 was that he was not liable to ejectment on the ground of sub-tenancy of on the ground of arrears of rent, that the notice given under section 106 was invalid and since the plaintiff refused to accept the rent, he was not entitled to any decree on the basis of arrears of rent......
Judgment:

V.D. Bhargava, J.

1. These are two connected special appeals against the judgment of a learned single Judge of this Court by the plaintiff of two different suits. They were connected because common questions of law arose. Both the appeals were disposed of by the learned single Judge by one judgment.

2. The facts of the case arising out of Regular Suit No. 165 of 1955 are as follows : The plaintiff claimed to be the owner of house No. 288/63 Aishbagh Yahiyaganj Ward, Lucknow, by means of a purchase dated 29-6-1953, Ex. 9. He alleged that defendant No. 1 was his tenant and defendant No. 2 was the sub-tenant, that he obtained permission from the Rent Control and Eviction Officer to eject the defendants and also gave notice under Section 106 of the Transfer of Property Act but since the defendants have not vacated the premises hence the suit. The plaintiff further alleged that the defendants were in arrears of rent and defendant No. 1 had sublet to defendant No. 2 and on that ground also they were liable to ejectment. The defence on behalf of defendant No. 1 was that he was not liable to ejectment on the ground of sub-tenancy of on the ground of arrears of rent, that the notice given under Section 106 was invalid and since the plaintiff refused to accept the rent, he was not entitled to any decree on the basis of arrears of rent. Defendant No. 2 pleaded that he had been unnecessarily impleaded. The trial Court framed the following six issues :

1. Whether defendant 1 committed default in payment of rent and if so its effect?

2. Whether defendant 1 was served with a valid notice?

3. Whether plaintiff obtained permission to eject the defendant No. 1?

4. Whether defendant 1 has spent Rs. 30-10-6 as repairs and is he entitled to deduct the same?

5. Whether defendant 2 is unnecessary party?

6. To what relief if any is plaintiff entitled? Issues Nos. 1, 4 and 5 were actually not pressed in the trial Court and the two important issue in the case were only issues Nos. 2 and 3. The learned Munsif held that the notice given by the plaintiff wag a valid notice and the permission to eject the defendant had been obtained by the plaintiff and that had been confirmed by the State Government, and, therefore, the suit was a proper suit and he accordingly decreed the plaintiff's suit with costs against the; defendants. The defendant went up in appeal to the District Judge of Lucknow. The only point that was argued before the learned District Judge was, whether the notice, under Section 106 of the Transfer of Property Act, was a valid notice or not.

The learned District Judge held that the notice was invalid and, therefore, the suits for ejectment were dismissed. Similarly in the second suit also it was held by the trial Court that the notice was a valid notice and, therefore the suit was decreed but the learned District Judge had upset that finding and held that the notice under Section 106 was invalid, and, therefore, he dismissed the suits. Against the above two decisions there were two second appeals which came up before Hon. Gurtu, J., who by his common judgment dated 23-4-1958, allowed both the appeals and decreed the plaintiff's suit with costs. As the question involved was an important question of law, he gave leave for special appeal in both the cases and these appeals have been listed before us for final hearing.

3. In order to appreciate the real point involved in the appeal, it is necessary to give a few facts. In suit No. 165 of 1955, as we have already mentioned, the plaintiff became the owner by means of a purchase dated 29-6-1953. After the purchase he wanted possession himself. Therefore, he sought permission of the Rent Control and Eviction Officer to eject the defendant, who by an order dated 5-12-1953 Ex. 4, decided in the following terms :

'Considering all the facts in view, I hereby allow eight months' time to the opposite party No. 1, and 6 months' to the opposite party No. 4, from the date of making this order to find out premises for themselves. The applicant will be permitted if the oppositeparty Nos. 1 and 4 do not vacate the house withinthe given time.'

After this opposite party No. 1 who is defendant-appellant and was opposite party No. 1 in the proceedings before the Court did not vacate within eight months, and therefore, a notice dated 19-12-1954, purporting to be under Section 106 of the Transfer of Property Act, was served upon defendant No. 1 on 21-12-1954, in which he was asked to vacate the premises by 31-1-1955.

4. In between on 20-12-1954, the respondent filed an application for permission under Section 3 for filing a suit. On 19-2-1955 permission was granted by the Rent Control and Eviction Officer and on 14-4-8955 after obtaining permission the suit was filed.

5. The defendant-appellant went up in appeal against the order of the Rent Control and Eviction Officer under Section 3 to the Commissioner and the appeal was allowed on 11-8-1955 with the result, that there was then no existing permission. The plaintiff-respondent filed a revision against the appellate order of the Commissioner to the State Government and on 7-1-1956 before the suit was disposed of the State Government allowed the revision, set aside the order of the Commissioner and restored the permission granted by the Rent Control and Eviction Officer on 19-2-1955.

6. In the present case the plaintiff was actually a purchaser and not an original owner and immediately after the purchase he had applied for pennissian to sue. One of the question that arises is whether such a purchaser should have been allowed per-mission or not but that question is not justiciable and was within the exclusive jurisdiction of Rent Control and Eviction Officer. It is true that the original owners may not be requiring the premises let out for their personal use, and, therefore, may not be entitled to ask for permission but by transferring the property, the original owner thereby gives a right to the purchaser to evict a tenant, who might be residing in 'the premises or carrying on business for a pretty long time and by thus selling and authorising a new purchaser to evict, the object of the Control of Rent and Eviction Act to a very great extent is frunstrated. As the preamble of the Act shows that due to shortage of accommodation, it was considered expedient to provide for the continuance of the powers to 'control the letting and the rent of such accommodation and to prevent the eviction of tenants therefrom. In this way though the tenant may not have any apprehension of being evicted by the original owner a new purchaser may harass the tenant by his ejectment.

7. That matter as we have said is not within our jurisdiction to consider. It is for the State Government either to frame rules to the effect that a new purchase for a limited period of five or ten years will not be entitled to ask for ejectment on the ground of his own personal need or to issue directions to the Rent Control and Eviction Officer to see that the tenants are not harassed by the purchasers, but if they do not choose to do so, we do not think that the tenant can get any assistance from this Court.

8. On behalf of the appellant, it was contend-ed that 'the notice under Section 106 of the Transfer of Property Act dated 19-12-1954 was given prior to the obtaining of permission, which had been granted on 19-2-1955, and, therefore the notice under Section 106 was ineffective. According to the contention of the learned counrsel for the appellant Section 106 of the Transfer of Property Act stood amended by Section 3 of the Control of Rent and Eviction Act.

9. Section 106 of the Transfer of Property Actbegins with the words, 'in the absence of a contract of local law or usuage to the contrary' and itwas argued on behalf of the learned counsel for theappellant that the use of the words 'local law' makesit clear that Section 106 was subject to Section 3 of the Controlof Rent and Eviction Act. Therefore, unless require-ments of Section 3 of Control of Rent and Eviction Acthad been fulfilled i.e. the permission had been obtained, it was not open to the plaintiff-respondent togive a notice under Section 106 of the Transfer of Property Act and any notice given prior to 19-2-1955was an invalid notice and admittedly after the permission no notice under Section 106 terminating thetenancy had been given and therefore the suit is bad jin law.

10. Further it has been argued that as soon as a notice under. Section 106 had been given after the expiry of the period mentioned in the notice the tenancy would terminate and, therefore, the appellant could be a tenant. On the other hand, by virtue of the provisions of Control of Rent and Eviction Act he continues to be a tenant and, therefore, there would be an inconsistency if we were to hold that a tenancy could be terminated prior to permission having been given by the Rent Control and Eviction Officer for filing a suit for ejectment, and on this ground it was urged that the judgment of the learned single Judge was not correct.

11. On behalf of the respondent besides the permission granted on 19-2-1955 reliance was also placed on Ex. 4 dated 5-12-1953 and it was urged that the Rent Control and Eviction Officer had in fact granted permission to sue on that date and, therefore the notice of 19-12-1954 could not be said to be a bad notice, because it was given after the permission had been obtained and in the alternative it was contended that it was not necessary to give a notice under Section 106 after the permission had been obtained.

12. We have considered the arguments of the learned counsel for the parties and we think that the judgment of the learned single Judge is correct.

13. We might first deal with the notice dated 19-2-1955. In our opinion that is a permission though it is a conditional permission. Learned counsel for the appellant has argued that it was really not a permission because the order had said that the applicant 'will be permitted' which means that he needed a second application. Reading the order as a whole we think that the permission had been granted at that time and under the circumstances the other question does not arise; but for the sake of argument if we suppose that really no permission had been granted, and possibly that might have also been the impression of the plaintiff, because he had applied for a fresh permission, we think, that it was permissible for the plaintiff to give a notice under Section 106, even prior to permission having been granted under Section 3 of the Control of Rent and Eviction Act.

14. The Transfer of Property Act has in no way been repealed by the Control of Rent and Eviction Act and therefore we have to interpret as if both the Act are existing. Chapter V of the Transfer of Property Act deals with the leases of immoveable property and in Section 105 a lease has been defined as follows :

'A lease of immoveablc property is a transfer of a right to enjoy such property, made for a certain time express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered, periodically or on specifiedoccasions to the transferor by the transferee, who accepts the transfer on such terms.'

From the above definition it is clear that a lease as contemplated under the Transfer of Property Act is a bilateral act where in effect the transferor agrees to let and the transferee agrees to take a premises on lease on payment of a certain rent. The word 'tenant' has not at all been used. Similarly Section 111 of the Transfer of Property Act also uses file word 'lease' and there it has been said that a lease of immoveable property determines, amongst other grounds, on the expiry of a notice to determine the lease, or to quit or of intention to quit the property leased, duly given by one party to the other. This would be a notice under Section 106 of the Transfer of Property Act. Therefore what the Transfer of Property Act contemplates is the relationship of a lessor and a lessee between the so-called landlord and the tenant. The definition of a landlord and a tenant in the Control of Rent and Eviction Act is a little different. A 'landlord' has been defined in Sections 2 (c) as follows :

' 'Landlord' means a person to whom rent is payable by a tenant in respect of any accommodation and includes the agent, attorney, heir or assignee of such person.' A, tenant has been defined in Clause (g) of the same section as follows :

' 'Tenant' means the person by whom rent is, or but a contract express or implied would be payable for any accommodation.'

The necessity of this definition was on account of the fact that by virtue of Section 7 a tenant, even without the consent of the landlord, could be imposed upon him, A landlord and tenant may not have seen each other and yet the relationship of the landlord and tenant would come into being by virtue of the Act.

15. Under these circumstances when a notice under Section 106 of the Transfer of Property Act is given there may be an intention of termination of a lease and that may be deemed to have been terminated with the expiry of the term of that notice, yet the relationship of the landlord and the tenant under the Control of Rent and Eviction Act would not cease till the tenant is liable to be evicted under Section 3, either when the landlord has obtained permission to sue or any of the conditions mentioned in Clauses (a) to (g) of Section 3 (1) of the said Act come into being. Thus in our opinion a notice under Section 106 will not be dependent on the existence of permission. It can be given before the permission simultaneously on the same date when the permission is sought, and accorded, or after the permission has been granted.

16. Even though a lease may be terminated what Section 3 of the Control of Rent and Eviction Act says is that the tenant would not be liable 'to eviction' unless the conditions mentioned in Section 3 are satisfied. Section 3 of the Control of Rent and Eviction Act does not impose any restrictions on the landlord's right of termination of the lease but it imposes restrictions on his eviction, i.e. actual turning out of the tenant from the premises. There is no provision in the whole of the Control of Rent and Eviction Act whereby a tenancy could be determined and for the purpose it will be only the Transfer of Property Act which will be looked into.

17. The whole object of the Control of Rent and Eviction Act, as we have already said is 'to control the letting and the rent of such accommodation and to prevent the eviction of tenants therefrom due to the shortage of accommodation in Uttar Pradesh. The emphasis in the preamble is on the actual eviction.

18. There has been no direct case so far, dealing with the point, which is directly in issue so the: present cases, but there have been cases where a tenant had been in default and a notice simultaneously under Section 106 of the Transfer of Property Act and Section 3 of the Control of Rent and Eviction Act had been given. This Court had held that such a notice was a valid notice. It was not necessary in such cases to wait for the expiry of the notice under Section 3 before a notice under Section 106 could be given. Two of the cases on this point are Smt. Baddey. v. Smt. Mahadevi, 3954 All LJ 35 and Ram Pratap v. Sri Pauna Lal. 1956 All LJ 787. In the fonner case Malik, C. J. and Roy, J. held as follows.:

'A notice under Section 106 of the Transfer of Property Act and a notice under Section 3 of the U. P. (Temporary) Control of Rent and Eviction Act can be given simultaneously. Because if the tenant makes payment within one month of the service of notice of demand, the landlord will have no right to file a suit by reason of the provisions of Section 3 of the Control of Rent and Eviction Act.'

In the 1956 case a Bench consisting of Agarwala and Beg, JJ. had held :

'It is not necessary that a notice under Section 106 of the Transfer of Property Act should be given after the expiry of one month as required by Section 3 (1) (a) of the U. P. (Temporary) Control of Rent and Eviction Act. The notice under Section 106, Transfer of Property Act can be combined with the notice of demand of arrears within one month under Section (1)(a) of the U. P. (Temporary) Control of Rent and Eviction Act.'

In this case a notice was given under Section 106 of the Transfer of Property Act which required 15 days notice, while a notice under Section 3 of the Control of Kent and Eviction Act gave one month's time to the tenant to pay off the arrears of rent, and it was argued, that since the tenancy would be terminated earlier on account of the notice under Section 106 of the Transfer of Property Act, there would be an anormaly because the tenant will cease to be a tenant by virtue of clause (g) of Section 111 of the Transfer of Property Act after 15 days whereas he will not cases to be a tenant under Section 3 (1) (a) of the U. P, (Temporary) Control of Rent and Eviction Act, unless one month had expired and therefore, it was contend-ed that this anomaly can be removed only if the notice under Section 106 of the Transfer of Property Act is given after the expiry of one month as required under Section 3 (1) (a) of the U. P. (Temporary) Control of Rent and Eviction Act.

19. This argument was very similar to the argument urged before us and it was repelled by the Bench in the fallowing words :

'We do not think that this is a necessary conclusion upon a reading of the provisions of the two Acts together. The Transfer of Property Act is the general law of the land. The U. P. (Temporary) Control of Rent and Eviction Act is a special and local enactment, and as such overrides the provisions of the general Act so far as it is in conflict therewith. The two Acts have to be read together and the provisions of the general Act will stand amended to the extent of the inconsistency with the special Act, Section 3 of the U. P. (Temporary) Control of Rent: and Eviction Act creates a bar to the ejectment of a tenant.

Unless the bar is removed, no tenant is liable to be ejected. It follows therefore, that although the notice under Section 106 of the Transfer of Property Act has been given, the tenant is not liable to be ejeeted until one of the conditions laid down in Section 3 of theU. P. (Temporary) Control of Rent and Eviction Act is fulfilled. Thus in spite of the expiry of the notice given under Section 106 of the Transfer of Property Act, and in spite of the provisions of Section 111 of the Transfer of Property Act, the tenant does not cease to be a tenant till the bar to his ejectment laid down in Section 3 of the U. P. (Temporary) Control of Rent and Eviction Act is lifted.'

We respectfully agree with the above observations and they fully apply to the facts of the present case. It has been held in the Full Bench case of Bhagwan Dass v. L. Pyare Lal, 1954 All LJ 638: (AIR 1955 All 197), that the permission of the District Magistrate for the eviction of a tenant from an accommodation must be taken to be one of the grounds mentioned in Section 3 of the Act and therefore, though by a notice under Section 106 of the Transfer of Property Act read with Section 111 of the same Act, a lease may be terminated but the tenant is not liable to ejectment as one of the conditions i.e. the permission of the District Magistrate having not been obtained he would not be liable to ejectment. To the same effect is the decision of a Bench of this Court in Devi Prasad v. Janki Prasad, 1953 All LJ 403: (AIR 1953 All 732).

20. The facts of the other case from which the other appeal arises may also be mentioned. The plaintiff claimed to be the landlord of a house situate at Naubasta, Lucknow, and alleged that the defendant was- his tenant on payment of Rs. 11-4-0 per month as rent. He served a notice under Section 106 of the Transfer of Property Act on 31-3-1955, to quit and vacate the plaintiff's house within one month from the date of receipt of the notice. He also applied for permission of the District Magistrate to file a suit. On 7-6-1955 the permission to file a suit after the expiry of six months from the date of the said order was accorded to him.

This period was to expire on 7-12-1955, but the Control of Rent and Eviction Officer extended the period till 30-6-1956. There was a stay order as an application in revision was pending before the State Government under Section 7-F of the Control of Rent and Eviction Act but the State Government by its order dated 2-8-1956, rejected the representation of the defendant and discharged the stay order. The plaintiff served another notice on 5-9-1955 under Section 106 of the Transfer of Property Act. A suit was filed on. 4-8-1956 which was numbered as Suit No. 349 of 3956.

The actual order of the discharge was set aside by the Rent Control and Eviction Officer on 13-8-1956, and therefore the plaintiff filed another suit, which has given rise to the appeal before us on 13-8-1956, lest there may be a technical plea of the suit being premature. In the present case the notice dated 5-9-1955, had been served after the permission had been granted though the permission was conditional and it was not open to the landlord to file a suit for ejectment yet permission had already been given. Thus the present case of the defendant stands on much weaker grounds.

21. Considering all the facts and circumstances of the case we think that the decision of the learned single Judge is correct and we accordingly dismiss both the appeals with costs.

22. Learned counsel for the appellant in Special Appeal No. 16 of 1958 has urged before us that the appellant had been carrying on their business in the premises for a pretty long time, which is of a very extensive nature. On account of dearth of accommodation it may not be possible immediately to get another accommodation, therefore, some time maybe granted to the appellant during which they might be able to arrange for another accommodation. Ordinarily one month's time would have been enough as provided under Section 106 of the Transfer of Property Act, but considering the dearth of accommodation, we think six months' time may be given to the appellant during which they should vacate the premises.

In case the premises are not vacated within sixmonths it will be open to the decree-holder to applyfor the execution of the decree for ejectment butduring the period of six months the decree againstappellant of Special Appeal No. 16 of 1958 shall notbe executed. With this modification as already ordered the appeal stands dismissed.


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