Syed Sugara Zaidi vs Laeeq Ahmad (Dead) Thr. Lrs. on 6 December, 2017

                                                                 REPORTABLE

                   IN THE SUPREME COURT OF INDIA
                    CIVIL APPELLATE JURISDICTION

                  CIVIL APPEAL NO. 20915 OF 2017
                [Arising out of SLP(C) No.27765 of 2010]

Smt. Syed Sughra Zaidi                                 …Appellant

                                   Versus

Laeeq Ahmad (Dead) Through LRs.  Ors.                  ....Respondents


                              JUDGMENT

R. BANUMATHI, J.

Leave granted.

2. This appeal arises out of the judgment dated 09.10.2009

passed by the High Court of Allahabad in Revision Petition No.543 of

1989 dismissing the revision petition filed by the original

plaintiff/landlord thereby affirming the judgment of the trial court

dismissing the ejectment suit of the plaintiff/landlord.

3. Brief facts of the case are that the suit property No.37(old), 17

and 18 (new numbers) situated at Beli Bazar, Meerut was let out by

the original plaintiff/landlord (Nazar Mohammad Zaidi) to the original

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defendants (Abdul Qayuum and Hazi Anvaruul Haq) by way of

registered rent agreement dated 12.08.1968 for a period of ten years

at the rent of Rs.750/- per month. There was a specific term in the

rent agreement which envisaged renewal of the rent agreement by

execution of a separate registered agreement for a further period of

five years at enhanced rent from Rs.750/- to Rs.800/- per month.

After expiry of the original term of lease, landlord (Nazar Mohammad

Zaidi) filed ejectment suit in SCC Suit No. 2 of 1981 for eviction of

defendants/tenants inter alia on the pleas:- (i) that the period of lease

has expired; the defendants/tenants have failed to get the fresh lease

deed executed at the enhanced rent of Rs.800/- per month; (ii) the

defendants/tenants have put up construction of shops in the suit

premises and let out the same to third party in violation of the terms of

the rent agreement; and (iii) default in payment of rent and municipal

tax by the defendants.

4. Respondents-tenants contested the suit stating that they have

taken every possible step to get the lease deed renewed for a further

period of five years and also sent the rent @ Rs.800/- per month as

per the terms of the lease deed dated 12.08.1968 to the original

plaintiff who refused to receive the same. The tenants further pleaded

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that the entire arrears of rent, damages along with interest etc. have

been deposited in the court under Section 20(4) of the Uttar Pradesh

Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972

(for short ‘U.P. Act 13 of 1972′) and the suit for eviction is liable to be

dismissed.

5. Upon consideration of the pleadings and evidence, the trial

court framed eleven issues and dismissed the suit on the ground that

the plaintiff/landlord has not been able to establish any of the grounds

for eviction specified under Section 20 of the U.P. Act 13 of 1972.

Insofar as the issue of construction by defendants/tenants allegedly in

violation of terms of rent agreement was concerned, the trial court

held that the construction was in consonance with the terms of the

rent agreement and there was nothing in the rent agreement which

restricted the right of defendants/tenants to raise construction in the

premises. So far as non-renewal of the rent agreement is concerned,

the trial court held that there was reluctance on the part of the

plaintiff/landlord to renew the rent agreement. The trial court further

held that there was no default in payment of rent and the tenants

continued paying the rent even after lapse of lease period at the

enhanced rate of rent. Being aggrieved, the plaintiff/landlord

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approached the High Court by way of revision and the same came to

be dismissed by the impugned order.

6. Mr. V. Shekhar, learned senior counsel for the appellant

contended that the lease deed dated 12.08.1968 was for a fixed

period of ten years and it can further be extended for five years on

executing fresh deed and since the defendants-tenants failed to get

any fresh deed executed, their continuance in possession had

become illegal after service of legal notice for eviction. It was further

contended that the courts below failed to appreciate that the

respondents defaulted many times in payment of rent and payment of

house tax to municipality and even on the plea under Section 20(4) of

the U.P. Act 13 of 1972, the tenants defaulted in regularly depositing

the admitted amount and therefore, the respondents-tenants are

liable to be evicted.

7. Reiterating the findings of the High Court and the trial court, the

learned counsel for respondents-tenants submitted that the courts

below recorded concurrent findings that every possible step was

taken by the respondents-tenants and it was the plaintiff-landlord who

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failed to renew the rent agreement and the concurrent findings so

recorded cannot be interfered with.

8. Upon consideration of the rival contentions and materials on

record, the question falling for consideration is whether after expiry of

the lease period and the determination of the tenancy whether the

respondents-tenants can continue in possession of the suit property,

when the lease was not renewed?

9. The suit property was let out to the respondents-tenants by a

registered rent agreement dated 12.08.1968 for a period of ten years

on rent @ Rs.750/- per month. There was a specific term in the rent

agreement which envisaged renewal of the rent agreement by

execution of a separate rent agreement for a further period of five

years at enhanced rent from Rs. 750/- to Rs.800/- per month. The

lease was not renewed and thereafter the landlord issued a notice to

the respondents-tenants on 09.04.1979 seeking vacant possession of

the suit property on account of determination of lease due to efflux of

time.

10. The trial court was of the view that there was no violation of the

terms of the lease deed as they had put in sufficient efforts in getting

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the rent agreement renewed. For arriving at such conclusion, the trial

court and the High Court placed reliance upon Ex. A-18 (13.06.1978)

a notice allegedly issued by the plaintiff’s advocate Gulzar Mohd.

intimating the tenants that they are willing to renew the lease as per

the terms of the rent agreement provided the tenants pay enhanced

rent @ Rs.800/- per month. This piece of evidence was categorically

denied by the landlord. The trial court did not keep in view the denial

of the appellant-landlord regarding issuance of Ex. A-18 notice

(13.06.1978). In the light of denial of issuance of Ex. A-18 notice, it

was necessary to adduce evidence to prove that Ex. A-18 notice was

actually issued on instructions by the landlord. The burden was upon

the respondents-tenants to prove that the said notice was issued by

advocate Gulzar Mohd. on the instructions of the landlord. The trial

court pointed out that the respondents-tenants had taken steps to

examine the said advocate; but he had not appeared before the court.

From the materials on record, it is not known as to what steps were

taken by the tenants to examine the said advocate Gulzar Mohd. The

trial court, in our view, could have very well exercised its power under

Order XVI Rule 14 CPC and summoned the said advocate as

witness. In the absence of examination of the said advocate Gulzar

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Mohd., the trial court ought not to have placed reliance upon Ex.

A-18 notice alleged to have been issued on the instructions of the

landlord.

11. Ex. A-18 notice (13.06.1978) is said to have been issued on the

instructions of the landlord. As pointed out earlier, the landlord issued

eviction notice on 09.04.1979 seeking vacant possession of the

premises. If really Ex. A-18 notice dated 13.06.1978 was issued at

the instance of the landlord offering to renew the lease, there was no

requirement of issuance of eviction notice on 09.04.1979 calling upon

the respondents-tenants to hand over the vacant possession of the

suit property. The courts below erred in ignoring landlord’s denial of

issuance of Ex. A-18 notice (13.06.1978) and non-examination of

advocate Gulzar Mohd. The High Court was not right in holding that

the respondents-tenants have taken steps to get renewal of rent

agreement and there was reluctance only on the part of the landlord.

Be it noted, the tenants have not approached the court to get renewal

of lease agreement beyond 12.08.1978.

12. As pointed out earlier, on 09.04.1979, the landlord issued a

notice to the respondents-tenants seeking vacant possession of the

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demised premises on account of determination of lease due to efflux

of time. After lapse of lease period, if a lessee continues in

possession of the demised premises in absence of an assent by

lessor, then he is a tenant by sufferance and exposes himself to be

sued for ejectment at any time without any prior notice or demand of

possession.

13. The term in the lease agreement for renewal of lease deed does

not ipso facto extend the tenure or term of the lease. So far as the

clause for renewal in the lease deed is concerned, it was held in Delhi

Development Authority v. Durga Chand Kaushish (1973) 2 SCC 825

that such covenant only entitled a lessee to obtain a fresh lease in

accordance with and in due satisfaction of the law governing the

making of leases. In the absence of renewal of rent agreement, in

our considered view, the possession of the respondents-tenants in the

demised premises has become unlawful and they are liable to be

evicted.

14. Yet another ground for eviction is construction of shops in the

suit premises by the tenants and sub-letting the same in violation of

terms of rent agreement. Though, there is a clause in the rent

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agreement enabling the tenants to put up construction, there is no

clause in the lease agreement permitting the tenants to transfer his

interest of tenancy to third party. It is the case of the appellant that in

violation of the rent agreement, Anwar Ul Haq who was one of the

original tenants, transferred his interest of tenancy in favour of third

respondent Mohd. Ilyas alias Chaman. The appellant-landlord

specifically denied that such transfer of interest in the tenancy was

with the consent of the original landlord. On the other hand, the

respondents-tenants in support of their claim submitted that such

transfer of interest in tenancy had taken place with the consent and

knowledge of the original landlord, relied upon Exs. A1 to A7 which

are the receipts said to have been signed by the original landlord

issuing to Mohd. Ilyas alias Chaman as one of the tenants. In view of

specific denial by the appellant-landlord that they have permitted such

transfer of interest, the receipts Exs. A1 to A7 ought to have been

proved by adducing evidence. The respondents-tenants, though

relied upon the said documents, had not taken steps to prove those

documents.

15. On those issues, the courts below recorded findings that the

rent agreement nowhere prohibited any of the tenants from

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transferring their interest in tenancy and therefore, there was no

violation of any of the terms of the rent agreement. In noting so, the

trial court lost sight of the fact that in the rent agreement, parties

specifically incorporated clause (9), permitting sub-letting by tenants.

Had the parties agreed to create or transfer of interest in the tenancy

in favour of third party, they would have added a specific term in that

regard in the rent agreement. Though, sub-letting of the premises for

commercial purpose was agreed to by the original parties, transfer of

interest in tenancy leading to creation of third party interest in the suit

property could not have been done in the absence of a specific term

in the rent agreement. Thus, the respondents-tenants are liable to be

evicted on the ground of violation of terms of rent agreement by

transfer of interest in tenancy to respondent No. 3 – Mohd. Ilyas alias

Chaman.

16. So far as the default in payment of rent and the deposit arrears

of rent by the defendants and whether the respondents are entitled to

the benefits of Section 20(4) of the U.P. Act 13 of 1972, the courts

below recorded concurrent findings that Section 20(4) of the U.P. Act

13 of 1972 has been complied with. According to the

appellant-landlord, the respondents have failed to regularly deposit

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the rent in the trial court and there was no compliance of Section

20(4) of the U.P. Act 13 of 1972. Since we have held that the

respondents-tenants are liable to be evicted on the ground of

non-renewal of rent agreement and determination of tenancy and

transfer of tenancy right in violation of terms of rent agreement, we

are not proposed to go into the ground of default in payment of rent

and compliance of Section 20(4) of the U.P. Act 13 of 1972.

17. The courts below did not properly appreciate that after service

of eviction notice on 09.04.1979 continuance of respondents’

possession in the demised premises had become illegal. The High

Court did not appreciate that the respondents have sub-let the

property to third party and are earning huge profits by simply paying a

meager rent of Rs.800/- per month. The respondents-tenants cannot

squat on the property and make a profit for themselves at the cost of

the appellant-landlord and the judgment of the High Court cannot be

sustained.

18. In the result, the impugned judgment is set aside and this

appeal is allowed. The respondents-tenants and the sub-tenants

inducted by them and any other person claiming through them are

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directed to hand over vacant possession of the suit premises within a

period of one year from today, failing which the respondents-tenants

and their sub-tenants or other persons claiming through them shall be

liable for contempt of Court in addition to other proceedings. No order

as to costs.

…….……………………J.

[KURIAN JOSEPH]

…………….……………J.

[R. BANUMATHI]

New Delhi;

December 06, 2017

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Article source: Supreme Court

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