Shri Vikas Budhwar, learned counsel for the appellants, Shri M. D. Singh Sekhar, learned Senior Advocate assisted by Shri Khitij Shailendra, learned counsel for respondent and perused the record.
Factual controversy involved in the present case is that in the city of Moradabad, there is a land situated at Rampur Road near Miglani Cinema, Moradabad measuring 45.72 x 23.78 m (BCMH) (hereinafter referred to land in dispute) which belongs to plaintiff/respondent, let out by way of lease deed to Hindustan Petroleum Corporation Limited in order to set up a retail outlet. The last lease deed was executed on 2.12.1999 w.e.f. 1.11.1997 for a period of 10 years on the lease rent of Rs.5500/- per month and Clause 3 (g), the deed provides as under :-
"That the lessor shall on the written request of the lessee made before the expiry of the term hereby created grant to it a lease of the demised premises for a further term of ten years from the expiration of the said term i.e. from 1.11.2007 to 31.10.2017 at Rs.6050/- per month and containing the like covenants and provisions as are herein contained so as to give the lessee in its possession and aggregate of one renewal of ten years. Upon such exercise of the right of renewal a fresh lease deed may or may not be executed and registered by both the parties to these presents. In the event no such lease deed is executed or registered the lessor shall not be entitled to seek eviction of the lessee and the lessee shall have sole discretion to extend or renew the term of the lease by simple paying the enhanced rental of Rs.6050/- per month. Further in the event no such enhanced rental is paid the lessee reserves its right to pay the arrears and claim renewal or extension of the lease period for the extended time as stated above."
As per case of the plaintiff/respondent, after expiry of period of lease deed, the appellants/defendants have not exercised their option for renewal of the lease deed as per Clause 3(g). So by notice dated 17.11.2007 under Section 106 of the Transfer of Property Act, the same has been terminated, thereafter, filed a suit for eviction from the land in question and recovery of the rent to the tune of Rs.48,125/- along with the cost of the suit being Rs.2500/- be paid to the plaintiff/respondent registered as Original Suit No.5 of 2008 in the Court of Civil Judge, Senior Division, Moradabad.
In the said suit, the defendants/appellants taken a defence that after expiry of period of lease deed as per Clause 3(g), they have exercised their option for renewal by sending a letter dated 18.10.2007 written by Sri Subhodh Batra, Chief Regional Manager & Duly Constituted Attorney for a further period of ten years.
On the basis of the pleadings and material on record, the trial court has framed 10 issues in order to decide the controversy involved in the case. Sofaras the issue nos.1 and 2 are concerned, they are as follows:-
"(1) क्या विवादित की विवादित सम्पत्ति में बतौर किरायेदारी अवधि दि.31.10.2007 को समाप्त हो चुकी है ?
(2) क्या प्रतिवादी विवादित सम्पत्ति का दि.31.10.2007 के बाद से किरायेदार नहीं है ?
The trial court on the basis of the material on record had given a finding that the plaintiff/respondent has not able to establish his case. On the other hand, the defendants/appellants after expiry of the lease deed has exercised their option for renewal by sending a letter dated 18.10.2007, in this regard, relevant finding given as under :-
कागज संख्या १२९ ग पर वादी का वाही पता अंकित है जो वादी ने वादपत्र में अंकित किया है । यधपि वादी ने अपने वर्तमान पता नदविहार बताया है परन्तु यह नहीं माना जा सकता कि कागज़ सं. १२९ ग में दर्शित पता वादी का पता नहीं है । इसी प्रकार कागज सं. १३० ग यधपि मनीऑर्डर की रसीद पर लिखी गयी इबारत है परन्तु उस पर हस्तलेख में (२२) अंकित है जो कि पंजीकृत डाक का शुल्क है । अतः यह नहीं मन जा सकता कि प्रतिवादी ने लिखित में लीज के नवीनीकरण हेतु कोई आवेदन नहीं किया हो परन्तु यदि काल्पनिक रूप से यह मान लिया जाए कि प्रतिवादी ने अपने प्रथम दायित्व को पूरा नहीं किया है और लीज नवीनीकरण के लिए लिखित आवेदन नहीं किया है तो भी वादी को प्रतिवादी की बेदखली हासिल करने का अधिकार नहीं है क्योकि प्रतिवादी द्वारा बढे हुए किराये की दर से टेंडर न्यायालय में प्रस्तुत किये गए है जिनके द्वारा प्रतिवादी ने अपने दूसरे दायित्व को पूरा कर दिया है । कागज़ सं. १२९ ग एवं 130 ग को लेकर पी. डब्लू. १ के बयान में कोई बिसंगति है तो यह महत्वपूर्ण नहीं है एवं प्रलेखिए साक्ष्य के विरुद्ध मौखिक साक्ष्य को महत्व नहीं दिया जा सकता । इस प्रकार सम्पत्ति अंतरण अधिनियम की धारा १११ ए के अंतर्गत लीज को समाप्त नहीं माना जा सकता | Issue no.8 framed by the trial court is as under :-
"क्या विवादित सम्पत्ति भूखण्ड की शक्ल में है अथवा भवन की परिभाषा में आती है ?"
In respect to the same, the relevant finding given by the trial court quoted herein below :-
"न्यायालय के मतानुसार स्वीकृत रूप से पक्षकारों के मध्य पेट्रोल पम्प के संचालन हेतु लीज विलेख का निष्पादन हुआ है। लीज विलेख के पृष्ठ सं. २ में यह स्पष्ट उल्लेख है की दि. 14.04.1965 से विवादित सम्पत्ति प्रतिवादी के आधिपत्य में है तथा उस पर प्रतिवादी कम्पनी का (retail outlet)संचालित हो रहा है । सामान्य प्रज्ञा के अंतर्गत भी यह नहीं माना जा सकता कि पूर्ण रूप से खली भूमि पर पेट्रोल पम्प का संचालन संभव है । पेट्रोल पम्प कम्पनी के (retail outlet) के संचालन के अंतर्गत कम से कम छत, लैटरीन, बाथरूम एवं ऑफिस आदि का निर्माण आवश्यक है अतः यह स्पष्ट है कि विवादित सम्पत्ति में रिहायश वाले कमरो का निर्माण न हो परन्तु उसे भूखंड नहीं माना जा सकता | Accordingly, it is held by the trial court that the suit filed by the plaintiff/respondent is not maintainable, dismissed the same.
Aggrieved by the said fact, the plaintiff/respondent filed a Civil Appeal No.101 of 2011, allowed by judgment and decree dated 24.04.2012 and reversed the finding given by the trial court in respect of the issue nos.1 and 2, relevant portion quoted as under :-
"दिनांक 17.11.2007 को एक नोटिस बद्रीनाथ खन्ना द्वारा भारत पेट्रोलियम को भेजा गया जिसमे प्रतिवादी की किरायेदारी समाप्त की गयी । उक्त नोटिस की प्राप्ति प्रतिवादी को स्वीकार है । उक्त नोटिस के जबाब में कोई पत्र प्रतिवादी को भारत पेट्रोलियम के द्वारा नहीं लिखा गया। यदि वास्तव में वादी के उक्त नोटिस दिनांकित 17.11.2007 से पूर्व प्रतिवादी ने कोई अनुरोध पत्र दिनांक 18.10.2007 में प्रेषित किया था तो प्रतिवादी को जबाब में यह अवश्य बताना चाहिए था कि उसके पूर्व में ही किरायेनामे की अवधि बढ़ाने के लिए अनुरोध कर दिया है और उसकी किरायेदारी समाप्त नहीं की जा सकती परन्तु प्रतिवादी ने वादी के नोटिस का कोई जबाब नहीं दिया और विधिक नोटिस से पूर्व अनुरोध पत्र १२९ ग प्रस्तुत करना युक्तियुक्त प्रतीत नहीं होता । यदि वास्तव में किरायेदारी समाप्ति से पूर्व प्रतिवादी ने अनुरोध पत्र प्रस्तुत कर दिया था तो वह दावा दायर होने से पूर्व वादी को यह सूचित करता कि उसके द्वारा किरायेनामे की अवधि बढ़ाने हेतु अनुरोध किया जा चूका है । ऐसी स्थिति में किरायेनामे की अवधि १० साल के लिए स्वतः बढ़ी नहीं मानी जाएगी । नोटिस प्राप्ति के वावजूद भी प्रतिवादी मौन रहा । इससे यही निष्कर्ष निकलता है कि प्रतिवादी ने लीजडीड की अवधि समाप्त होने से पूर्व किरायेनामे की अवधि बढ़ाने के लिए कोई नोटिस नहीं दिया । अवर न्यायालय द्वारा उक्त बिंदु पर कोई स्पष्ट निष्कर्ष नहीं दिया गया है । अतः म इस मत में हूँ कि किरायेदार द्वारा किरायेनामे की अवधि अग्रिम १० साल के लिए बढ़ाये जाने के लिए कोई अनुरोध पत्र किरायेदार द्वारा मालिक मकान को नहीं भेजा गया | So far as issue no.8, the finding given by trial court is also reserved by the appellate court, relevant finding reads as under :-
"अपीलार्थी के विद्वान अधिवक्ता की ओर से यह तर्क प्रस्तुत किया गया है कि वादग्रस्त सम्पत्ति भूखंड है उस पर अस्थाई निर्माण है जो पेट्रोल पम्प व्यवसाय से सम्बन्ध रखता है तथा भवन की परिभाषा में नहीं आता है । इसके विपरीत रेस्पोंडेंट के विद्वान अधिवक्ता का तर्क है कि उक्त मामले में तेल का टैंक और इमारत बनी होना बताया गया है । ऐसी स्थिति में इसे भवन ही माना जायेगा । पत्रावली पर उपलब्ध अनुबन्ध पत्र १२ग के अवलोकन से स्पष्ट है कि उक्त अनुबन्ध पत्र में भूखण्ड किराये पर देना अंकित है जिसकी लम्बाई- चौड़ाई 45.72x23.78 मीटर अंकित की गई है । दावे में भी वादी ने वादग्रस्त सम्पत्ति को भूखण्ड बताया है जिसकी चर्तु सीमाये वादपत्र के अंत में दर्शाई गई है | उक्त भूखण्ड पर व्यवसाय की सुविधा के लिए टीन शैड डालना तथा कर्मचारियों की सुविधा के लिए शौचालय आदि का प्रबन्ध करना भी आवश्यक है । ऐसी स्थिति में वादग्रस्त सम्पत्ति का निर्माण अस्थाई रूप से माना जायेगा जो भवन की परिभाषा में नहीं आएगा । उक्त सम्बन्ध में अवर न्यायालय द्वारा दिए गए निष्कर्ष विधिसम्मत नहीं है | Thereafter, the present second appeal has been filed by the appellants/defendants before this Court, admitted on the following substantial questions of law :-
"Whether in view of the express provisions contained under Section 27 of the General Clauses Act, any adverse inference can be drawn that the defendants-appellants did not opt for renewal for a period of 10 years on 18.10.2007 particularly when the description of the addressee address were correct and appropriate charges had been paid for registry to the plaintiff/respondent ?
Whether the Lower Appellate Court erred in law in holding that the defendants/appellants did not seek renewal of the lease particularly in view of the fact that there has been no serious rebuttal of the same as no documentary evidence had been produced before the court below ?
Whether the defendants/appellants were entitled to the relief against forfeiture for not payment of rent under Section 114 of the Transfer of Property Act, 1882 as admittedly the defendants/appellants had paid the entire arrears as well as current rent ?
Whether the Section 114 of the Transfer of Property Act, 1882 stood attracted in the present case particularly when the entire arrears of rent was paid in the Trial Court in compliance of the order passed in Writ Petition No.64543 of 2010 in which initially interim order was passed in favour of the defendants/appellants and subsequently the writ petition was disposed of on 7.1.2011 ?
Whether the suit was not maintainable in regular civil court by virtue of Section 16 of the Provincial Small Causes Courts Act, 1887 as admittedly on the date of issue there was a building in existence constructed by the tenant under the written consent of the land-lord ?
Whether, the court below possessed the jurisdiction to alter the covenants in the lease deed in question wherein after exercise the option for renewal of the lease, the lease stood automatically renewed on the discretion of the lessee, defendants/appellants ?
Learned counsel for the appellant while pressing appeal submits that by means of application dated 26.05.2011 supported by an affidavit of Sri Vikas Kumar Kori, working as Sales Officer, Hindustan Petroleum Corporation Limited, two documents, namely, letter dated 18.10.2007 by which the option has been exercised for renewal of the lease as per clause 3(g) written by Sri Subhodh Batra, Chief Regional Manager & Duly Constituted Attorney as well as postal receipt by which the said letter has been sent to the plaintiff/respondent at his address of Shri Badri Nath Khanna, Mohalla Atai, Moradabad annexed as Anneuxre Nos. 1 and 2 to the affidavit have been brought on record.
Accordingly, it is submitted by Shri Vikas Budhwar, learned counsel for the appellants that once the said documents were taken on record by the appellate court by order dated 24.04.2012. So, in view of the said facts, it is categorically proved that after expiry of the period of lease deed, the defendants/appellants had exercised their option for renewal of the lease deed for a further period of 10 years as per Clause 3(g) of lease deed by letter dated 18.10.2007 sent by the competent authority of HPCL, as such, keeping in view the said facts, once the option has been exercised by the defendants/appellants for renewal of the lease deed. The finding given by the appellate court that no option has been exercised by the defendants/appellants for renewal of the lease deed and reversed the finding given by the trial court is contrary to the facts on record, liable to be set aside.
Next argument advanced by learned counsel for the appellants is that in the present case in view of the provisions as provided 114 of the Transfer of Property Act, the appellants/defendants had paid the entire area of rent. So, the judgment and decree passed by the appellate court is liable to set aside.
The last argument advanced by learned counsel for the appellants is that in the present case, as per terms of the lease deed as well as the provisions as provided under Section 29-A of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, the suit filed by the plaintiff/respondent for eviction of the defendants/appellants is not maintainable in the original side, but the same has to be filed under the provisions of Provincial Small Causes Court Act. In support of his argument, he has placed reliance on the judgment given by the Apex Court in Civil Appeal No.5314 of 2008 "Hindustan Petroleum Corp. Ltd. vs. Diwan Bahadur Visheshwar Nath Trust" as well as M/S. Bharat Petroleum Corporation Ltd. and another vs. Smt. Indira Pandey and another 2013 (6) ADJ 653. So, the judgment and decree passed by the appellate court is perverse in nature and contrary to law, liable to be set aside and the present appeal may be allowed.
Shri M. D. Singh Sekhar, learned senior counsel, in rebuttal, submits that sofaras the first contention raised by learned counsel for appellants in respect of exercising of option for renewal of the lease deed by sending a letter dated 18.10.2007 to the plaintiff as per Clause 3 (g) is concerned, the same is contrary to the facts of the case, no such option has been exercised by HPCL within stipulated period as per Clause 3(g) of the lease deed. On the other hand, as per the terms of lease deed as per Section 106 of Transfer of Property Act, by notice dated 17.11.2007, the lease was terminated and suit has been filed. Further, there is no cogent evidence available on record that the letter dated 18.10.2007 has been sent by the defendants/appellants for renewal of the lease deed. Accordingly, the plaintiff/respondent as per terms of lease deed, has rightly terminated the lease by sending a notice under Section 106 of the Transfer of Property Act. In this regard, the appellate Court has given a finding on the basis of material on record which is perfectly valid and needs no interference by this Court under Section 100 CPC.
Learned Senior Counsel further submits that the provisions of Section 29-A of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 is not applicable as no permission has been sought by the defendants/appellants for raising the constructions on the land in question and the judgment cited by learned counsel for the appellants in support of the applicability of Section 29-A of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 is concerned, are not applicable in the facts and circumstances of the case. As in the present case, the lease in respect of the land has been terminated as per terms of the lease deed and in the instant matter, no prior permission has been sought by the defendants/appellants for making any construction on the land from the plaintiff/respondent. In support of his argument, he has placed reliance on the judgment given by this Court in the case of Roshan Lal Mittal vs. Rent Control and Eviction 2007 (4) AWC 3174, Sardar Gurcharan Singh vs. Additional District Judge, 1st Kanpur and others 504 AWC 1994 and Bharat Petroleum Corpn. Ltd. (M/S) vs. Smt. Ramavati Devi & Ors. 2007(1) ARC 560. He further submits that said argument in question advanced on behalf of the defendants/appellants has got no force as the lease rent of the property in dispute is Rs.5500/- per month. So, the provisions of Section 29-A of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 is not applicable as per the provisions of Section 2(g) of the said act. Accordingly, the present second appeal is liable to be dismissed.
I have heard learned counsel for parties and gone through the records.
As per undisputed facts of the present case, the land in dispute has been let out by way of lease to the plaintiff/respondent in order to set up its retail out let for a period of 10 years w.e.f. 01.11.2007 and as per terms of Clause 3(g) of the lease deed, appellants/defendants have to exercise an option for renewal of the same. So, the first point which is to be considered and decided in the present case is whether the defendants/appellants have exercised their option for renewal of the lease as per terms of lease deed by sending a letter dated 18.10.2007 prior to termination of the lease by the defendants/appellants by sending a notice dated 17.11.2007 under Section 106 of Transfer of Property Act.
From the material on record, the position which emerges out is that during the pendency of the litigation before the trial court, an application dated 26.5.2011 supported by an affidavit of Sri Vijay Kumar Kori, Sales Officer of Hindustan Petroleum Corporation Limited has been moved in order to bring two documents on record, namely, letter dated 18.10.2007 written by Sri Subhodh Batra, Chief Regional Manager & Duly Constituted Attorney exercising option for renewal of the lease deed as well as a receipt (money order). The said application has been allowed by order dated 27.05.2001 on reproduction reads as under :-
"Head. Allowed.
Keeping in view the relevancy of papers with the subject matter of suit, papers are taken on record with a cost of Rs.4000/- only."
In the present case, a letter dated 18.10.2007 is a office copy on the basis of which it has been argued on behalf of the appellant/defendant that the option for renewal of the lease has been exercised as per the terms of the clause 3(g) for a further period of 10 years w.e.f. 1.11.2007. However, Sri Subhodh Batra, Chief Regional Manager & Duly Constituted attorney has not been produced as a witness to establish the said fact nor any cogent evidence has been given that letter has been sent to the plaintiff/respondent, on the one hand and on the other hand, Sri Vijay Kumar Kori, Sales Officer of Hindustan Petroleum Corporation Limited has been examined as a witness on behalf of the appellant/defendant and as per the facts admitted by the learned counsel for the appellants that the job of Sri Vijay Kumar Kori, Sales Officer of Hindustan Petroleum Corporation Limited is to promot the business of company and he has no concerned in respect to the maintenance of record in the office of the HPCL.
Further, Vijay Kumar Kori, Sales Officer of HPCL in his cross examination in respect to the postal receipt/money order issued by the post office on the basis of which a defence taken for sending a letter dated 18.10.2007 has stated that "मै नहीं कह सकता की कम्पनी के रिकॉर्ड पर इस payment की बाबत कागजात मौजूद है या नहीं ".
He further stated that Shri A. K. Jain Sahab, Chief Regional Manager has categorical submitted that " इस दावे के सम्बन्ध में उन्हें कितनी जानकारी है मै नहीं बता सकता | इसके पहले भी बत्रा रीजनल मैनेजर थे इस मुकदमे में कोई भी ऑफिसर गवाही को तैयार नहीं है".
Thus, the office copy of the letter dated 18.10.2007 cannot be a primary evidence. Accordingly, now it is to be considered; whether it can come within the definition of secondary evidence.
As prescribed in Section 65 of the Evidence Act, secondary evidence includes (1) certified copies ; (2) copies made from original by mechanical process which in themselves insure the accuracy of the copy and copies compared with such copies : (3) copies made from a compared copy and compared with the original. These have been illustrated thereunder as (a) a photograph of an original even if not compared with original may be a secondary evidence if what was photographed was the original : (b) a copy compared with a copy made by a copying machine from the original is a secondary evidence ; (c) a copy transcribed from a copy and compared with original is a secondary evidence, but the copy not so compared with the original, though copied from a copy so compared with the original is not a secondary evidence ; (d) either an oral account of a copy compared with the original, nor an oral account of a photograph or machine copy of the original is secondary evidence of the original.
In the present case, there is nothing to indicate on record that any step has been taken by the appellants to summon the original from plaintiff/respondent. In the absence of such material, it cannot be treated to be a secondary evidence.
Further, secondary evidence is permitted only in certain circumstances. It cannot come in automatically as in the case of primary evidence. In order to allow secondary evidence, certain tests as provided in Section 65 and procedure as provided in Section 66 of the Evidence Act are to be satisfied and complied with, as the case may be. Inasmuch as Section 64 of the said Act prescribes that documents must be proved by primary evidence. Exception to this rule is permitted only in cases as provided in Section 65 read with Section 66 of the said Act.
Section 65 of the Act permits secondary evidence (a) when the original is shown or appears to be in the possession or power of (i) the person against whom the document is sought to be proved, or (ii) any person out of reach of, or not subject to. the process of the Court, or (iii) any person legally bound to produce it. and when after the notice mentioned -in Section 66 such persons mentioned in (i), (ii), (iii) does not produce it ; (b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest ; (c) when the original has been destroyed or lost, or when the party offering is unable to produce it in reasonable time for reason not arising from his own default or neglect ; (d) when the original is such that it is not easily movable ; (e) when the original is a public document Within the meaning of Section 74 ; (f) when the original is a document of which certified copy is permitted to be given in evidence either by Evidence Act or by any other law in force in India : (g) when the original consists of numerous accounts or other documents which cannot be conveniently examined by the Court, and the fact to be proved is the general result of the whole collection.
The present case does not fit in clause (d). (e), (f) and (g). It. however, could come within clause (a), (b) and (c). But as observed earlier. In the facts and circumstances of the case, it does neither fit in clause (a) nor (b) nor (c). The applicant has not made out any case which could come within the scope and ambit of either of the clauses (a), (b) and (c) of Section 65 of the Act. Therefore, the photocopy cannot be relied upon even as a secondary evidence.
Further sofaras the postal receipt is concerned, the same is a money order receipt filed along with an application dated 26.05.2011 is concerned, the same is on record (Paper No.130 ga) on which the number is mentioned as 1225 and in hand writing, it has been mentioned as 22, Shri Badri Nath Khanna, Mohalla Atai, Moradabad. However, no date has been mentioned on the said receipt. Hence, on the basis of which, argument advanced on behalf of the defendants/appellants that the same is receipt in regard to sending a letter dated 18.10.2007 for exercising the option for renewal of the lease cannot be held due to lack of cogent evidence. Because Rule 53 of the General Rules (Civil)1957 provides as follows :
"The Court shall Inspect and consider all documents as soon as practicable after they have been produced and deal with them as follows :
(a) Documents which are proved or admitted by the party against whom they are produced in evidence shall be admitted in evidence and marked as exhibits in the manner prescribed in Rule 57 and the fact shall be noted in the record.
(b) Documents which are not proved (or admitted by the party against whom they are produced in evidence) shall be kept on the record pending proof and shall be rejected at the close of the evidence, if not proved or admitted.
(c) Documents that are found to be irrelevant or otherwise inadmissible in evidence shall be rejected forthwith."
The above rule prescribes the manner how the Court is supposed to deal with documents filed in suit. When a document is produced, as soon as possible, the Court shall inspect, consider and deal with them according to clauses (a) and (b) of the above Rule or reject the same under clause (c), if it cannot be dealt with under clauses (a) and (b) and the said proposition goes to show that no reliance can be expected on a document which is otherwise inadmissible in a Court and. that whenever "document" is referred in an order or is required to be produced, it must satisfy the test of admissible documents viz. original or secondary as provided in Sections 64, 65 and 66 of the Evidence Act. In the case of Shrikant vs. State of U.P. and others 1997 (30) ALR 608, this Court held as under :-
"Section 37 of the Act gives power of the Civil Court in respect of procedure laid down under the Code of Civil Procedure. The Code of Civil Procedure confers the powers on a court to summon the witnesses and take evidence. If a person raises an objection and wants to establish its title, rights or privileges, he has to adduce evidence in accordance with the provisions of the Evidence Act. He has not only to produce the document but also to prove it in accordance with law. The photostat copies filed by the petitioner were not admissible in evidence. The view taken by the respondent No. 1 does not suffer from any manifest error of law. It will be, however, open to the petitioner to move an application to recall the order if it satisfies by giving reasons as to why the original documents could not be filed by the counsel. The writ petition is dismissed subject to the observation made above."
In view of the above said facts, the appellants/defendants had failed to prove and establish that the letter dated 18.10.2007 has been sent as per terms of the lease deed for renewal of the lease by way of any cogent evidence and in this regard, the finding given by the appellate court that the appellants/defendants have failed to establish by way of any material is perfectly valid and needs no interference.
Sofaras the argument raised by learned counsel for the appellants taking into consideration the shelter of Section 114 of the Transfer of Property Act is concerned, the same has got no force because in the present case, lease deed has been terminated by the plaintiff/respondent as per terms of lease deed by sending a notice under Section 106 of the Transfer of Property Act, as such, argument advanced by learned counsel for the appellants/defendants in the aid of Section 114 of Transfer of Property Act are not applicable in the present case, on the basis of the same the appellants cannot derive any benefit and the same cannot be a substantial questions of law for consideration by this Court under Section 100 CPC.
Sofaras the argument argument advanced by learned counsel for the appellants that is concerned, in the present case, as per the provisions of Section 29-A of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, the suit for eviction of area of rent filed by the plaintiff/respondent is not maintainable in the original side is concerned, in order to decide the said controversy involved, it will be appropriate to go through the provisions of said section of U.P. Act 13 of 1972, quoted herein below :-
"29A. Protection against eviction to certain classes of tenants of land on which building exists.--(1) For the purposes of this section, the expressions 'tenant' and 'landlord' shall have the meanings respectively assigned to them in Clauses (a) and (j) of Section 3 with the substitution of the word 'land' for the word 'buildings'.
(2) This section applies only to land let out, either before or after the commencement of this section, where the tenant, with the landlord's consent has erected any permanent structure and incurred expenses in execution thereof.
(3) Subject to the provisions hereinafter contained in this section, the provisions of Section 20 shall apply in relation to any land referred to in Sub-section (2) as they apply in relation to any building.
(4) The tenant of any land to which this section applies shall be liable to pay to the landlord such rent as may be mutually agreed upon between the parties, and in the absence of agreement, the rent determined in accordance with Sub-section (5).
(5) The District Magistrate shall on the application of the landlord or the tenant determine the annual rent payable in respect of such land at the rate of ten per cent per annum of the prevailing market value of the land, and such rent shall be payable, except as provided in Sub-section (6) from the date of expiration of the term for which the land was let or from the commencement of this section, whichever is later.
(6)(a) In any suit or appeal or other proceeding pending immediately before the date of commencement of this section, no decree for eviction of a tenant from any land to which this section applies, shall be passed or executed except on one or more of the grounds mentioned in Sub-section (2) of Section 20, provided the tenant, within a period of three months from the commencement of this section by an application to the Court, unconditionally offers to pay to the landlord, the enhanced rent of the land for the entire period in suit and onwards at the rate of ten per cent per annum of the prevailing market value of the land together with costs of the suit (including costs of any appeal or of any execution or other proceedings).
(b) In every such case, the enhanced rent shall, notwithstanding anything contained in Sub-section (5), be determined by the Court seized of the case at any stage.
(c) Upon payment against a receipt duly signed by the plaintiff or decree holder or his counsel or deposit in Court of such enhanced rent with costs as aforesaid being made by the tenant within such time as the Court may fix in this behalf, the Court shall dismiss the suit, or, as the case may be, discharge the decree for eviction, and the tenancy thereafter, shall continue annually on the basis of the rent so enhanced.
(d) If the tenant fails to pay the said amount within the time so fixed (Including any extended time, if any, that the Court may fix or for sufficient cause allow) the Court shall proceed further in the case as if the foregoing provisions of this section were not in. force.
(7) The provisions of this section shall have effect, notwithstanding anything to the contrary contained in any contract or instrument or in any other law for the time being in force.
It may be recalled that the provisions of 'the Act' are applicable basically to the urban buildings. However, Section 29A of the Act carves out an exception by providing that the provisions of 'the Act' shall also be applicable to such land where the tenant, with the landlord's consent, has erected any permanent structure and incurred expenses in execution thereof.
The Act' came into force w.e.f. 15.7.1972 and was enacted with a view to provide, in the interest of general public, for the regulation of letting, rent and the eviction of tenants from certain classes of buildings situated in urban areas, and for matters connected therewith. The said Act, like other similar Rent Control Acts, has been enacted with a view to protect the interest of the tenants, to restrict charging of excessive rent and, their, rampant eviction at will. The Act, as It was originally enacted, did not contain Section 29A. It was inserted subsequently by way of amendment by U.P. Act No. 28 of 1976. The aims and objects of insertion of Section 29A are as follows:
In some districts, the landlords are trying to evict the lessees of the land who have built factories and other buildings for the purposes of industry. It is being provided that the lessees of such land would also get protection of the Act like tenants of buildings."
The aforesaid quotation from the statement of objects and reasons discloses the mind of the Legislature for enacting Section 29A. Eviction of a lessee of a land is possible only after determination of the lease. The statement of objects and reasons for insertion of Section 29A is indicative of Legislature's intent that Section 29A was enacted with a view to provide protection to such lessees of the land who have built factories and other buildings for the purposes of industry and the landlords are trying to evict such lessees.
Eviction of a lessee presupposes determination of lease either by the act of a party or according to the procedure known to law. This is indicative of the fact that Section 29A was inserted to protect such tenants whose leases have come to an end.
Hon'ble the Apex Court by means of judgment dated 26.08.2008 passed in Civil Appeal No. 5314 of 2008 (Hindustan Petroleum Corp. Ltd. Vs. Diwan Bahadur Visheshwar Nath Trust) after taking into consideration the provisions as provided under Section 29-A read with Section 20 of the U.P.Act 13 of 1972 held as under:-
"At the outset, it may be noted that Section 29A was inserted by U.P. Act 28 of 1976. What was the reason for the said insertion ? Prior to 1976 the Act was not applicable to the vacant lands let out to tenants by the landlord. This gave rise to litigation. In order to curb litigation, Legislature inserted Section 29a by which protection against eviction to certain classes of tenants of land on which building exists is given. Section 29A(2) inter alia states that the said Section shall apply to the lands let out, where the tenant, with the landlord's consent has erected any permanent structure and incurred expenses in execution thereof. To such tenants, protection of the Rent Act is extended."
Hon'ble Apex Court in the case of Trust Jama Masjid Waqf No. 31 Vs. Lakshmi Talkies and Ors., 2010 (9) SCC 78, while interpreting the provisions of Section 29-A of U.P. Act 13 of 1972, held as under:-
"For applicability of Section as provided by Sub-section (2), two conditions must be satisfied, namely, (one) that land alone has been let out and (two) that permanent structure has been constructed by the tenant with landlord's consent incurring his own expenses. It is not important whether the land has been let out either before or after the commencement of Section Sub-section (4) provides for the liability of the tenant to pay to the landlord mutually agreed rent and in the absence of such agreement, the rent as may be determined under Sub-section (5). The District Magistrate is empowered under Sub-section (5) to determine the annual rent payable in respect of such land at the rate of 10% per annum of its prevailing market value. Such determination of annual rent can be made by the District Magistrate at the instance of the landlord or the tenant and the rent so determined is payable from the date of expiration of the lease period or from the commencement of Section whichever is later. By virtue of Sub-section (7), the provisions contained in Section override any term to the contrary in the contract between the landlord and tenant or instrument or any other existing law."
In the case of M/s. Bharat Petroleum Corporation Ltd. And another Vs. Smt. Indira Pandey and another, 2013 (6) ADJ 653, this Court held as under:-
"A bare reading of Section 20(1) shows that no suit for eviction of a tenant from the building can be instituted, even if the tenancy rights have come to an end, either by efflux of time, or after determination or as a result of determination of tenancy, by giving him notice to quit by the landlord, or in any other manner. The last phrase "in any other manner" is very wide and covers all residuary situations and circumstances, in which, a landlord may require a tenant to be evicted from a building by instituting a suit. The only permissible way in which such a suit can be instituted is only when it satisfies the requirements of sub-section (2) of Section 20. In other words, if suit is instituted for ejectment of a tenant, if he has suffered or incurred liability and satisfies any of the grounds mentioned in Clauses (a) to (g) of sub-section (2) of Section 20, in such a case, on such ground(s) a suit for ejectment/eviction of a tenant from the building may be instituted by the landlord in respect of a land which is covered by Section 29-A. A cumulative reading of sub-sections (1) and (2) of Section 20 make it clear that, where tenancy rights comes to an end, either by efflux of time or otherwise, still a tenant cannot be evicted from the building, or let out premises, by instituting a suit for eviction, unless the ground(s) mentioned in clauses (a) to (g) of sub section (2) of Section 20 is/are available to the landlord. The status of tenant in such a case has been recognized in various authorities of this Court, as that of a "statutory tenant".
26. In the light of Section 29-A(1) the term "building' will be read as land and, therefore, what is applicable to a building under Section 20, equally applies to "land" if such "land" satisfies requirements of Section 29-A(2). This is one crucial benefit conferred by Section 29-A to a lessee/tenant of a land over which, of course, with consent of the landlord, he has raised a permanent structure by incurring his own expenses.
27. The legislature, however, simultaneously has not left the landlord in lurch but he is also provided some consolation. For his benefit, sub-section (4) provides that the tenant shall continue to pay such rent as mutually agreed upon between parties and in absence of such an agreement, rent as determined in accordance with sub-section (5) of Section 29-A. Sub-section (5) gives a right to get annual rent determined in respect of a land that falls under sub-section (2) of Section 29-A by making an application before the District Magistrate. The application can be filed by either of parties, namely, lessor/landlord or the lessees/tenant. The only restriction under sub-section (5) is that such application could have been entertainable by the District Magistrate, either after expiration of the term of the agreement, for which, the land was let out or from the commencement of Section 29-A, i.e. 5.7.1976, whichever is later. Meaning thereby, if the term of agreement expires before 5.7.1976, application for determination of rent under sub-section (5) would not be admissible for a period before 5.7.1976, but where the term of agreement has expired subsequently and, there is no other agreement, the rent shall/can be determined for the period subsequent to the expiration of the term of the agreement.
28. Sub-section (5) of Section 29-A excludes such matters, where before commencement of Section 29-A, any suit or appeal or other proceedings were pending. It is a transitional provision, permitting a tenant of a land, to which, Section 29-A, applies, to protect his eviction, provided the same is not founded on one or more grounds mentioned in sub-section (2) of Section 20. It further provides a benefit to such a tenant by satisfying that within three months from the date of commencement of Section 29-A, i.e., 4.10.1976, he can make an application to the Court, unconditionally offering to pay to landlord, the enhanced rent for the entire period of the suit and onwards @ 10% per annum of the prevailing market value of the land together with cost of the suit, or as the case may be, the cost of appeal, or execution or other proceedings.
29. In cases covered by Section 29-A(6), rent shall have to be determined by the Court which is seized of the matter. Sub-section (6) clearly has no application in the case in hand, again being a transitional provision, applicable for a limited period, commencing from the date of commencement of Section 29-A
30. Then I find, sub-section (7) of Section 29-A giving an overriding effect over entire Section 29-A as well as anything to the contrary, contained in any contract or instrument, or any other law, for the time being in force. In view thereof, the provisions of Section 29-A shall prevail over any provision of contract, agreement or even any other statutory provision, like Transfer of Property Act, 1882 etc.
31. The above discussion leaves no doubt that a suit for eviction in respect of a land, which falls within the ambit of sub-section (2) of Section 29-A, having satisfied the requirements thereof, would not lie for eviction of the tenant from such land, unless one or more grounds specified in sub-section (2) of Section 20 exist(s), available, and invoked, by the landlord and for that purpose only a suit would lie and not otherwise.
32.A bare perusal of plaint in the case in hand clearly shows that no such ground, as provided in sub-section (2) of Section 20 of Act 1972 has/have been pleaded or made the basis for seeking eviction of defendant appellant from the land in dispute. Ex face, the suit in question was not maintainable, in view of Section 29-A(3) read with Section 20(1) of Act 1972. Both the Courts below having completely failed to appreciate the above provisions as also the import thereof, render the judgments and decree of lower Courts, patently without jurisdiction and a nullity in law."
In the case of Ahsan Vs. Mohammed Husain, 2005 (2) ARC 692, this Court held as under:-
"I am of the view that the finding that there was no consent of landlord for making constructions over the land in suit is a finding of fact and does not suffer from any perversity. There is no material on record to support the argument of Sri B. D. Mandhyan, learned Senior Advocate appearing on behalf of appellant, that there was consent of landlord or protection of Section 29-A of the U.P. Act of 13 of 1972 was available to the Defendant-appellant. The finding of lower Appellate Court that protection of Section 29-A (3) of U.P. Act No.13 of 1972 is not available to the Defendant-appellant in view of the fact that there is no evidence on record that construction was made by Defendant-appellant with the consent of land-lord does not suffer from any perversity and is based on evidence on record. This Court in Second Appeal cannot set aside any finding of fact arrived at on appraisal of evidence."
Thus, it cannot be said that Sub-section (2) of Section 29-A of the Act provides that this Section applies only to land let out, either before or after commencement of this Section, where the tenant, with the landlord's consent has erected any permanent structure and incurred expenses in execution thereof with the landlord's consent. It is significant to note that it requires that the tenant has to show that the structure has been raised after obtaining permission of the landlord. If the consent was not there, the provision of sub-section (2) would not be attracted.
Therefore, for application of Section 29-A, the essential conditions are, namely, (1) that the tenant has erected any permanent structure and incurred expenses in execution thereof and (2) such permanent construction should be raised on the consent of the landlord. If any of the condition lacks, then Section 29-A of the Act does not apply. In the present case, the defendant/appellant failed to establish that the landlord has given any consent to raise any permanent structure. The said fact has not been disputed by learned counsel for the appellants, but he submits that there is no permission was needed for raising permanent construction on the land in dispute as per terms of the lease deed. So, taking into consideration the said facts as well as the provisions of Section 29-A of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, the suit filed by the plaintiff/respondent in the original side is not maintainable and the same has to be filed under the Provincial Small Causes Court Act, from the said argument, no benefit can be derived by the appellants because it is rightly submitted by learned counsel for the plaintiff/respondent that the lease rent which was paid by the defendants/appellants in respect of the land in dispute is Rs.5500/-. So, in view of the provisions as provided under Section 2(g) of U.P. Act 13 of 1972, the same is not applicable. Thus, in view of the above said facts, the argument in question advanced by learned counsel for the appellants that suit filed by the plaintiff/respondent in the original side after terminating the lease by sending a notice under Section 106 of the Transfer of Property Act, is not maintainable, has got no force, rejected and finding recorded by the appellate court in this regard is perfectly valid and needs no interference.
Accordingly, as per the facts stated above, the argument advanced by learned counsel for the appellants are factual in nature and by no stretch of imagination can constitute substantial questions of law. Re-appraisal of evidence is not permissible. Interference of the facts from recital or content of the document or after shifting oral evidence does not leave any scope of re-appraisal in exercise of jurisdiction under section 100 C.P.C.
It is well settled by a long series of decisions of the Judicial Committee of the Privy Council and of this Court, that a High Court, in second appeal, cannot go into questions of fact, however, erroneous the findings of fact recorded by the court below of fact may be, the learned counsel for the appellant did not and could not contend that the High Court was competent to go behind the findings of fact concurrently recorded by the two court below of fact. (See Mustafa Vs. Vakil @ Iqbal and another 2008 (105) RD 392).
The Apex Court depreciated the liberal construction and generous application of provisions of section 100 C.P.C. Hon'ble Supreme Court was of the view that only because there is another view possible on appreciation of evidence that can not be sufficient for interference under section 100 C.P.C. For ready reference, extract of paragraph No.7, of the case of Veerayee Ammal V. Seeni Ammal reported in 2002 (1) SCC 134=2001(45) ALR 691 (SC) is quoted below: -
"7......We have noticed with distress that despite amendment, the provisions of section 100 of the Code have been liberally construed and generously applied by some judges of the High Courts with the result that objective intended to be achieved by the amendment of section 100 appears to have been frustrated. Even before the amendment of section 100 of the Code, the concurrent finding of facts could not be disturbed in the second appeal."
In the case of Santosh Hazari V. Purshottam Tiwari reported in 2001 (92) RD 336 (SC) had held that a point of law which admits of no two opinions may be preposition of law but cannot be a substantial question of law. To be 'substantial' a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, in so far as the rights of the parties before it are concerned. If will, therefore, depend on the facts and circumstances of the each case whether a question of law is substantial one and involved in the case or not. The same view has been expressed again by the Apex Court in the case of Govinda Raju Vs. Marriamman 2005 (98) RD 731.
For the fore-going reasons, no substantial question of law involved in this appeal. The judgment and decree passed by the appellate court under challenged in the present case is perfectly valid and needs no interference.
In the result, the second appeal lacks merit and is dismissed.
Order Date :- 22.09.2014 Mahesh