JUDGMENT Rakesh Tiwari, J.
1. Invoking extraordinary jurisdiction of this Court under Article 226 of the Constitution, this petition takes an exception to the Judgment and decree dated 21.8.2003 in S.C.C. Suit No. 1 of 1998 passed by Civil Judge (Senior Division), Small Causes Court, Banda affirmed in S.C.C. Revision No. 15 of 2003 by judgment and order dated 29.4.2005 passed by Special Judge, (S.C./S.T. Act), Small Causes Court, Banda appended as Annexures-6 and 7 respectively to the writ petition.
2. Concise facts are as under:
Respondent-landlord filed S.C.C. Suit No. 1 of 1998 against the tenant-petitioner, inter alia, on the ground that the shop, in question, was constructed in 1990. Rent of the shop in May, 1997 was Rs. 535.50 P. per month. He further claimed that shop No. 7 was constructed in 1987 and the shop in dispute as well as the entire building was assessed for the first time on 17.11.1992 which became effective from April, 1993. The landlord demanded rent from May, 1997 from him by means of notice dated 7.10.1997 and when the petitioner failed to pay the rent from May, 1997, landlord instituted aforesaid suit.
3. The petitioner-tenant contested the suit by filing written statement denying the plaint allegations, pleading that since the shop, in question was constructed in 1990 and provisions of U.P. Urban Buildings (Regulation of Lettings, Rent and Eviction) Act, 1972 (hereinafter referred to as 'the Act') were not applicable.
4. She set up a case that actual rent of the disputed shop was Rs. 510.30 P and not Rs. 535.50 P as claimed by the landlord and that the rent from May to June, 1997 was tendered by her through Money Order Receipt No. 1386 dated 7.10.1997 to the landlord which was refused. It was also alleged that rent from May, 1997 to July, 1997 was again tendered to the landlord through M.O. Receipt No. 1229 dated 16.10.1997 which too was refused by him.
5. She further claimed that disputed shop was constructed in 1984 and it was for the first time assessed w.e.f. 1.4.1985. She also stated that she had deposited entire arrears of rent together with interest and cost of the suit on the first date of hearing.
6. It was also pleaded by her that a sum of Rs. 10,000 was received by the landlord as a security money and had promised to return the same when the shop will be vacated and that amount of Rs. 10,000 was never returned by the landlord, therefore, he was not entitled to determine the tenancy of the petitioner ; that disputed shop was taken on rent by her in 1986 and agreement of tenancy was required to be submitted in 1991 to obtain licence for sale of medicines, therefore, after depositing a sum of Rs. 10,000 with the landlord an agreement dated 23.4.1991 was obtained. She alleged that her tenancy under Section 106 of the Transfer of Property Act was not determined as alleged by the landlord.
7. Subsequently, plaint was amended and the tenant-petitioner filed additional written statement, appended as Annexure-3 to the writ petition. The landlord also filed replication after amendment of written statement by tenant, appended as Annexure-4 to the writ petition. In paragraph 4 of the replication, landlord has admitted receipt of Rs. 10,000 as security money on 1.5.1991.
8. On the basis of pleading of the parties, following issues were framed by Judge Small Causes Court:
(i) Whether the provisions of U.P. Act No. 13 of 1972 were applicable to the disputed shop?
(ii) Whether the rate of rent from May, 1997 is Rs. 535.15 per month?
(iii) Whether the tenancy has not come to an end for want of return of Rs. 10,000 allegedly deposited by tenant with the plaintiff?
(iv) Whether the defendant is entitled to the benefit of Section 20(4) of U.P. Act No. 13 of 1972?
9. The suit was dismissed by the Judge, Small Causes Court vide judgment and order dated 9.1.2001 against which the respondent preferred Revision No. 10 of 2001, Hari Mohan Gupta v. Smt. Kiran Agrawal, which was remanded back to Judge Small Causes Court by order dated 27.11.2001 specifically directing to record a finding on issue Nos. 1 to 4 and to consider paper No. 80C.
10. The suit was thereafter decreed vide impugned judgment and decree dated 21.8.2003.
11. Aggrieved by judgment and decree dated 21.8.2003, the tenant preferred S.C.C. Revision No. 15 of 2003, which has also been dismissed by the impugned judgment and order dated 29.4.2005 which has been challenged in the instant writ petition.
Contentions of counsel for the petitioner
12. On issue No. 1 as to whether the provisions of the Act were applicable, counsel for the petitioner contended that the tenant filed certified copy of letter of intimation of completion of construction by the landlord in December, 1983 to the Executive Officer Nagar Palika, Banda wherein the landlord informed Nagar Palika Banda that 4 shops and residential house have already been constructed towards north of Banda Hospital Gate and that there is an endorsement on the said letter informing that three shops and one room over the shops have already been constructed. Report dated 5.1.1984 and order dated 7.1.1984 of Executive Officer is also endorsed thereon. This document being a public document within the meaning of Sections 74(2) and 77 of the Evidence Act, they may be produced in proof of the contents of public documents are part of public document of which they purport to be copies.
13. He urged that the landlord made a bald denial and stated that he never filed such application. Such bald denial was not sufficient. Burden was on him to rebut the statutory presumption.
14. He submitted that the landlord examined P.W. 3 Sri Anil Kumar and P.W. 4 Sri Krishna Gopal who are employees of Nagar Palika Banda but in their examination no question was asked from them regarding genuineness of the certified copy of paper No. 80C. He further submits that the Judge Small Causes Court committed manifest error of law by shifting burden of proof to obtain paper No. 80C on the tenant and recorded a perverse finding that it cannot be believed that paper No. 80C was moved by the landlord. The trial court also refused to rely on the statement of P.W. 1 specifically admitting that the disputed shop was constructed in 1984 and was assessed for the first time in 1988.
15. He urged that Explanation 1 of Section 2(2) of the Act provides that construction of building shall be deemed to have been completed on the date on which the completion thereof is reported to or otherwise recorded by the Local Authority having jurisdiction. It further provides that if dates are different then the construction of the building shall be deemed to have been completed on the earliest of the said dates.
16. The counsel for the petitioner states that the trial court further proceeded to consider paper Nos. 39Ka which was zerox copy and other documents, such a paper No. 40Ga, 79Ga and 98Ga and recorded a perverse finding that the shop was constructed after 1985. He assailed the judgment of the appellate court on the aforesaid issue on the ground that merely after considering the certified copy of intimation of completion of construction by the landlord to the Executive Officer, Nagar Palika, Banda, the appellate court affirmed the finding of the trial court. Thus, he urged, that both the courts below committed apparent error of law in deciding issue No. 1 on the basis of perverse finding holding that provisions of the Act were not applicable as the disputed shop was constructed after 1985.
It is submitted that both the courts below have also failed to consider the legal position that burden of proof regarding construction of building is on the landlord. In support of his contention, the counsel for the petitioner has placed reliance upon the decision in Ram Swaroop Rai v. Smt. Lilawati 1980 ARC 466 and Vijay Laxmi Jain v. Rameshwar Dayal Gupta 2001 (1) ARC 514 : 2001 (2) AWC 881, wherein it has been held that the provisions of Act applies to all buildings save where the exemption operates. Therefore, the landlord who seeks exemption must prove that exemption. The burden is on him to make out that notwithstanding the rent control legislation, his building is out of its ambit. It is not for the tenant to prove that the building has been constructed beyond a period of ten years, but is for the landlord/landlady to make out that the construction has been completed within 10 years of the suit.
17. On issue No. 2 as to whether rent from May, 1997 is Rs. 535.15 per month, he urged that according to the pleading of the landlord, the tenancy commenced from May, 1991. According to the terms of the agreement the tenancy commenced @ Rs. 400 per month and rent was to be increased by 5% every yea. The tenant denied such increase. The landlord also filed written agreement in the shape of paper No. 34Ka and in the said agreement, there is no mention regarding alleged 5% increase of rent after every year. The trial court though recorded finding that there is no mention of alleged increase of rent in paper No. 34Ka, but only on the basis of receipt showing increase of rent passed the impugned judgment in favour of the landlord.
18. He submitted that in his deposition, the tenant stated that rent was increased on the basis of oral agreement but she had refused to enhance the rent as far back as in 1997 as there was no such oral agreement as alleged and rent remained Rs. 510.30P. It is stated that the finding to the contrary by both the courts below are baseless and based on surmises and conjectures. They cannot be sustained in law.
19. On issue No. 3 as to whether for non-refund of security amount of Rs. 10,000 by the landlord to the tenant, the tenancy stood determined, the counsel for the petitioner contended that the landlord received a sum of Rs. 10,000 from the tenant on 23.4.1991 in contravention of Section 4 of the Act which prohibits the landlord to take or receive from the tenant any premium of additional payment over and above the rent and, therefore, acceptance of Rs. 10,000 as security money was illegal. In support of this contention, he placed reliance upon the decision of Hon'ble Apex Court in Model Hotel. Gudur v. K. Radha Krishnaniah and Anr. 1989 (2) ARC 202, wherein it has been held that such stipulation to refund excess amount after the expiry of lease is null and void and such amount in possession of the landlord was an amount held by him on account of the tenancy on the date of filing of the petition for eviction. It was further held that in such a case, the tenant cannot be evicted on the ground of default.
20. On issue No. 4 as to whether the tenant is entitled to benefit of Section 20(4) of the Act, he urged that S.C.C. Suit No. 1 of 1998 was filed on 6.1.1998 and the first date of hearing for which summons were issued by the Court was 26.3.1998. It is stated that the tenant in paragraph 28 of the writ petition has stated that he had deposited the entire amount of Rs. 7,799, as claimed by the landlord on 26.3.1998 by tender appended as Annexure-16 to the writ petition, which has been admitted by the landlord in paragraph 28 of the writ petition. It is urged that as the petitioner has specifically pleaded in paragraph 18 of her written statement that she has deposited the entire amount as required under Section 20(4) of the Act on the first date of hearing, in this view of the matter, the finding of the trial court that tenant is not entitled to benefit of Section 20(4) of the Act as the provisions of Act do not apply to the instant case, is perverse.
21. It is also further urged that the landlord had reported to the Nagar Palika Banda about completion of disputed building in 1983 which is established by paper No. 80C. Thus, the provisions of the Act are applicable to the present case and the petitioner is entitled to the benefit of Section 20(4) of the Act. Even if it is held that the provisions of the Act are not applicable to the present case in that event also the petitioner is entitled to the benefit of Section 114 of the Transfer of Property Act and order of eviction passed against the petitioner cannot be sustained.
22. In this regard, it is submitted that according to the landlord, the tenancy was determined by notice under Section 106 of the Transfer of Property Act as the tenant failed to pay rent at the enhanced rate of rent and sent rent through money order at the old rate of rent. From notice under Section 106 of the Transfer of Property Act, it is evident that provisions of Section 114 of the Transfer of Property Act were fully applicable even if provisions of the Act are not applicable to the present case. He urged that Section 114 of the Transfer of Property Act provides that where a lease of a immovable property has been determined by forfeiture for non-payment of rent and the lessor sues to eject the lessee, if, at the hearing of the suit the lessee pays or tenders to the lessor the rent, in arrear together with interest thereon and full cost of the suit, the Court will relieve the tenant from decree of eviction. He contended that a perusal of notice under Section 106 of the Transfer of Property Act makes it clear that tenancy has been determined since the tenant failed to pay the enhanced rent and sent the rent through money order from May to July, 1997 at the old rate of rent. Admittedly the landlord himself titled the lease deed dated 31.5.1991 as 'Qabuliatnama'. He vehemently urged that in the instant case, the lease was determined for non-payment of rent at the enhanced rate and there was an express condition in the lease deed to pay rent at the rate of Rs. 400 per month, hence the petitioner is certainly entitled to benefit of Section 20(4) of the Act and if it is held that provisions of Act do not apply to the present case, then the petitioner is entitled to Section 114 of the Transfer of Property Act.
He referred to the written submission submitted by counsel for the respondents wherein he has admitted that there was a written lease deed paper No. 34 Ga with regard to the applicability of Section 114 of Transfer of Property Act and there is a express condition in the lease deed that the lease will be forfeited if the rent is not paid and thus, Section 114 is not applicable to the case. He urged that the submission of counsel for the respondent is misconceived and the decisions relied upon by him are also not applicable to the facts and circumstances of the instant case as there was an agreement, in writing, which is contained in Annexures-C.A. 7 to the counter affidavit. He urged that since lease had been determined by notice dated 7.10.1997 under Section 106 of the Transfer of Property Act on the ground of nonpayment of enhanced rent whereas the tenant had admittedly paid the rent at the old rate, provisions of Section 114 of the Transfer of Property Act are fully applicable. He vehemently urged that in the instant case, the lease was determined for non-payment of rent at the enhanced rate and there was an express condition in the lease deed to pay rent at the rate of Rs. 400 per month, hence the petitioner is certainly entitled to benefit of Section 20(4) of the Act and if it is held that provisions of Act do not apply to the present case, then the petitioner is entitled to Section 114 of the Transfer of Property Act.
23. He referred to the written statement submitted by counsel for the respondents wherein he has admitted that there was a written lease deed paper No. 34Ga with regard to the applicability of Section 114 of Transfer of Property Act and there is a express condition in the lease deed that the lease will be forfeited if the rent is not paid and thus, Section 114 is not applicable to the case. He urged that the submission of counsel for the respondent is misconceived and the decisions relied upon by him are also not applicable to the facts and circumstances of the instance case as there was an agreement, in writing, which is contained in Annexure-C.A. 7 to the counter-affidavit. He urged that since lease had been determined by notice dated 7.10.1997 under Section 106 of the Transfer of Property Act on the ground of nonpayment of enhanced rent whereas the tenant had admittedly paid the rent at the old rate, provisions of Section 114 of the Transfer of Property Act are fully applicable.
24. Placing reliance on a decision of this Court in Azgar Ali v. Razzaq Hussain and Ors. 2004 (1) AWC 505, wherein it has been held that it is not necessary to plead Section 114 of the Transfer of Property Act specifically in case necessary plea of Section 20(4) of the Act are taken and the Court comes to the conclusion that provisions of Act are not applicable, in such case, the Court must record a finding regarding applicability of Section 114 of the Transfer of Property Act, he urged that the impugned orders are in teeth of law laid down by higher Courts of land. In this behalf, he also referred the decisions in Sujit Singh v. A.D.J. Hardwar and Ors. 1993 (22) ALR 482 and R.S. Lola Praduman Kumar v. Virendra Goel .
25. He lastly urged that since the courts below have not recorded any finding on the question of applicability of the provisions of Transfer of Property Act, in view of law laid down by Hon'ble the Apex Court in Ranjit Singh v. Ravi Prakash and Surya Deo Rai v. Ram Chander Rai , the impugned orders as unsustainable in the eyes of law and they are liable to be quashed.
Contentions of counsel for the respondent
26. Per contra, it has been contended by counsel for the respondent-landlord that the disputed shop was constructed in July, 1990 as a separate accommodation and on the north and south of the disputed shop, there were two other separate shops of the landlord. The whole building, including the disputed shop was first assessed for municipal taxes w.e.f. April, 1993 by order of Nagar Pallka, Banda dated 17.11.1992 and, thus, the building is outside the purview of the provisions of the Act.
27. It is submitted that the tenant occupied the disputed accommodation in May, 1991 at an agreed rent of Rs. 400/- per month with the condition that the rent would be enhanced every year by 5% and though the tenant continued to pay rent up to April. 1997 @ Rs. 510.30P per month with annual increase but despite repeated demands, she failed to pay rent @ Rs. 535.50P per month from May, 1997 hence the landlord was compelled to serve a notice dated 7.10.1997 upon the tenant terminating her tenancy and demanding arrears of rent w.e.f. May, 1997 @ Rs. 535.50P per month.
28. It is vehemently urged by the counsel for the respondent that it has been proved by municipal assessment registers (paper Nos. 98Ga and 79Ga) in the courts below that the disputed shop was first assessed in the Municipal register in 1986-87 hence according to him the disputed shop is exempted from the operation of the Act.
Conclusions:
29. Having heard the arguments advanced by counsels for rival parties and having gone through the records, it is apparent from perusal of paper Nos. 98Ga and 79Ga that the entire building of the landlord, including the disputed shop, was assessed by the Nagar Palika, Banda for the first time in 1986-87. In view of Explanation 1 to Section 2(1) of the Act, construction of the disputed shop would be deemed to have completed in 1986. It is further urged that in view of decision rendered by Hon'ble the Apex Court in Brahma Devi (Smt.) and Ors. v. Kali Charan Gupta and Ors. 2005 (3) ARC 253, the building, in question, having been constructed after 26.4.1985 would be exempt from operation of the Act for a period of 40 years.
30. From the facts of the case in hand, it is evident that the courts below have categorically recorded a finding of fact that the provisions of the Act do not apply to the disputed shop. Moreover, the tenant has candidly admitted in 'Kabuliyatnama' that the disputed shop was constructed in July, 1990 and that the provisions of the Act do not apply to the shop, in question. This admission of the tenant has a binding effect as has been held in Ashok Gupta v. Anand Prakash Garg 1992 (2) ARC 977 : 1992 (3) AWC 1347. In Smt. Prakash Rani alias Prakashwati v. VIth A.D.J., Bulandshahr 2006 (2) ARC 296, wherein it has been held that when provisions of Act do not apply after termination of tenancy, the tenant can be evicted and for such eviction, no default on the part of the tenant need be proved in suit.
31. In so far as contention of counsel for the petitioner that the revisional court failed to consider effect of paper No. 18Ga is concerned, a perusal of the said paper reveals that it is a certified copy of notice purported to have been given by the landlord to the Municipal Board informing about completion of building in 1983. The landlord in his evidence has challenged the validity of the said notice as original of paper No. 80Ga was neither summoned nor produced before the courts below. Even the Clerks of the Municipal Board, who were examined, also could not prove paper No. 80Ga in absence of original. However, from a bare perusal of records, it is evident that the landlord clearly proved that the building maps were sanctioned in 1984 and hence in this view of the matter, there remains no occasion for the landlord to have informed about completion of building in 1983 itself.
32. It is also apparent on the face of record that execution of 'Kabooliyatnama' was not only proved by landlord but even the tenant admitted its execution in paragraph 21A of the written statement.
33. From the order of the Judge, Small Causes Court it is evident that it has decided all the aforesaid issues specifically after appraisal of oral and documentary evidence and has recorded findings of fact in favour of the landlord. The relevant portion of the judgment and decree of the trial court is as under:
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ifjfLFkfr;ksa ds vk/kkj ij izfrokfnuh dks ,DV ua0 13 lu~ 72 dh /kkjk 20¼4½ dk ykHk ikus dh vf/kdkfj.kh gksuk ugha ekuk tk ldrk ,DV ua0 13 lu~ 72 ds izkfo/kku izHkkoh u gksus dh fLFkfr esa izfrokfnuh dks nhokuh izfØ;k lafgrk ds vkns'k 15 fu;e 5 ds izkfo/kkuksa ds varxZr vuqeU; fdjk;k odhy dh Qhl U;k;'kqYd vkfn dk Hkqxrku igyh lquokbZ frfFk ij fd;k tkuk ck/;dkjh gksrs gq;s ;g Hkh ck/;dkjh gS fd og fu;fer :Ik ls izR;sd ekl dk fdjk;k tek djrh jgs ijUrq izfrokfnuh dh vksj ls fu;fer fdjk;k tek ugha fd;k x;k rdZ dh vafre frfFk ij fnukad 19&8&2003 dks izfrokfnuh dh vksj ls tek fd;s x;s fdjk;s ds VsUMj dh izfrfyfi;k¡ 186&x&1 rk 191&x&1 izLrqr dh x;h ftuds vk/kkj ij bl rF; dh iqf"V gksrh gS fd izfrokfnuh }kjk ekpZ ,oa vizSy 98 vxLr ls fnlEcj 99 ,oa tqykbZ ,oa twu 2003 dk fdjk;k tek ugha fd;k x;k tcfd vxlr o flrEcj 98 ,oa tuojh 99 ls twu 99 rd dk fdjk;k foyEc ls tek fd;k x;k ifjfLFkfr ;g fl) djrh gS fd izfrokfnuh fdjk;k tek djus ds lEcU/k esa fMQkYVj jgh gS ,slh fLFkfr esas leLr ifjfLFkfr;ksa dks n`f"Vxr j[krs gq;s izfrokfnuh ,DV ua0 13 lu~ 72 dh /kkjk 20¼4½ dk ykHk ikus dh vf/kdkfj.kh ugha gSA 13- tgka rd fookfnr nqdku ij ,DV ua0 13 lu~ 72 ds izkfo/kku izHkkoh gksus dk fcUnq gS bl lEcU/k esa ;gka mfYyf[kr djuk vko';d gS fd izfrokfnuh dh vksj ls dkxt la0 80x&1 tks rFkkdfFkr oknh }kjk fuekZ.k dk;Z iw.kZ gksus dh uxjikfydk ckank dks lwpuk fn;s tkus dk dkxt gS ij fuHkZj djrs gq, rdZ fd;k fd oknh Lo;a us mDr izkFkZuk Ik= nsdj o"kZ 1983 esa uxjikfydk dks voxr djk;k gS fd mldh nqdku dk fuekZ.k dk;Z iw.kZ gks pqdk gS oknh us mDr izkFkZuk Ik= ls fof'k"Vrk bUdkj fd;k gS mDr lEcU/k esa oknh dh vksj ls uxjikfydk ckank ds deZpkjhx.k vfuy dqekj crkSj ih0 MCY;w0 3 ,oa d`".k xksiky ih0 MCY;q0 4 dks ijhf{kr Hkh djk;k x;k gS mDr lk{khx.k ds l'kiFk c;kuksa ,oa Ik=koyh ij miyC/k lk{;ksa dk vk/kkj ij ;g fdlh Hkh izdkj iq"V ugha gksrk gS fd mDr izkFkZuki= oknh us Lo;a fn;k Fkk rnFkZ oknh }kjk badkj fd;s tkus dh fLFkfr esa izfrokfnuh dk fof/kd nkf;Ro Fkk fd og mDr izkFkZuki= dh ewy izr U;k;ky; esa cyc djok dj ml ij fd;s x;s gfj eksgu xqIrk ds gLrk{kj ysdj fo'ks"kK dh vk[;k izkIr djds mlij gLrk{kj fgjeksgu ds gksuk iq"V djrh ijUrq izfrokfnuh dh vksj ls ,slk ugha fd;k x;k] ftlds vk/kkj ij ;g dnkfi ugha ekuk tk ldrk fd mDr izkFkZuki= oknh }kjk gh fn;k x;k FkkA 14- oknh gfjeksgu xqIrk crkSj ih0 MCY;w0&1 us U;k;ky; ds le{k ;|fi vius l'kiFk c;ku esa ;g Lohdkj fd;k fd fookfnr nqdku o"kZ 1984 esa cudj rS;kj gq;h Fkh rFkk o"kZ 1985 esa izFke vlslesaV gqvk Fkk oknh dh vksj ls izLrqr fd;s x;s vfHkysf[k; ,oa ekSf[kd lk{;ksa rFkk vU; leLr ifjfLFkfr;ksa dks n`f"Vxr j[krs gq;s ek= mDr l'kiFk c;ku ds vk/kkj ij fookfnr nqdku dk fuekZ.k o"kZ 1984 esa gksuk ugha ekuk tk ldrk lk{kh dk c;ku lk{; vf/kfu;e ds izko/kkuksa ds vUrxZr lEiw.kZ Ik<+k tk,xk ek= ,d iafDr ds vk/kkj ij lEiw.kZ c;ku dk izfrdwy vFkZ ugha fudkyk tk ldrkA 15- okLrfod :I ls fookfnr nwdku dk fuekZ.k lqfuf'pr djus gsrq Ik=koyh ij miyC/k vfHkysf[k; lk{; ds :Ik esa dkxt la0 39&d&rk 4&d&1 ,oa 79x&1 o 98x&1 ij fopkj fd;k tkuk vko';d gS 39&d&1 oknh dh vksj ls vf/k'kklh vf/kdkjh ckank dks 9&4&87 dks fn;s x;s izkFkZuk Ik= dh QksVks izfr gS ftl ij fujh{kd dh vk[;k vafdr gS vkSj mDr vk[;k ds vuqlkj edku esa ,d nqdku ,oa ek= ckMUMªh cuk gksuk ik;k tkrk gSA 40x&1 ds vuqlkj ckank fodkl izkf/kdj.k us 24&3&87 dks oknh dks uksfVl nsdj mls fuekZ.k dk;Z jksdus gsrq vknsf'kr fd;k Fkk rFkk 41 d 1 ds vuqlkj okanh }kjk fd;s x;s fuekZ.k dk mYys[k feyrk gS ftlesa ek= ,d dejk rFkk dqlhZ ,d uhoa dk fuekZ.k gksuk ik;k tkrk gSA 79x&1 uxj ikfydk }kjk fookfnr nqdku ds ,lsjLesaV dk vfHkys[k gS ftlesa fookfnr nqdku ds ,lslesaV o"kZ 86&87 ls 90&91 rd dk gksuk ik;k tkrk gS mDr vfHkys[k izfrokfnuh dh vksj ls izLrqr fd;k x;k gS mlh izd`fr ds ,lslesUV dh izfr 98x&1 oknh dh vksj ls izLrqr dh x;h gS mlesa Hkh fookfnr nqdku ds ,lsLesaV dk o"kZ 1986&87 ls 90&91 rd ekuk x;k gS] 98x&1 esa ,lsLesaV ij dh xbZ vkifRr;ksa dks fujLr fd;s tkus dk mYys[k gS mDr ,lslesaV ds vk/kkj ij x`gdj oknh }kjk tek fd;s tkus dh jlhnsa Hkh Ik=koyh ij 99x&1 ,oa 100x&1 miyC/k gSa Ik=koyh ij miyC/k la0 58x&1 ewy okn la0 [email protected] gfjeksgu xqIrk cuke m0 iz0 jkT; ds okn Ik= dh izfrfyfi 59x&1 mDr okn ds cknksRrj dh izfrfyfi ,oa 60x&1 mDr okn ds fu.kZ; dh izfrfyfi gS ftuesa Hkh bl rF; dh iqf"V gksrh gS fd fookfnr nqdku ij fuekZ.k ds lEcU/k esa oknh dk fookn m0 iz0 jkT; ,oa eq[; fpfdRlkf/kdkjh ls 1987 rd pyrk gh jgk ftlds lEcU/k esa jkT; dh vksj lafLFkRk dh xbZ9 flfoy vihy la0 [email protected]] m0 iz0 jkT; cuke gfjeksgu xqIrk fnukad 14&1&87 dks fujLr dh xbZ mDr fu.kZ; dh izfrfyfi Hkh Ik=ko 61x&1 gSA 16- mi;qZDr ds izdk'k esa mHk; Ik{kkssa ds vfHkdFkuksa ,oa mudh vksj ls izLrqr fd;s x;s lk{;ksa ds vk/kkj ij fookfnr nqdku dk fuekZ.k o"kZ 1985 ds ckn gh gksuk ik;k tkrk gS iznRr fof/k O;oLFkkvkssaa ds vk/kkj ij fookfnr Hkou dk fuekZ.k dk;Z iw.kZ gksuk mHk; Ik{kkssa dsa vfHkdFkuksa ,oa mudh vksj lss izLrqr fd;s x;s lk{;ksa ds vk/kkj ij lafnX/k gksus dh fLFkfr esa ,DV ua0 13 lu~ 1972 ds izkfo/kku izHkkoh gksuk lqfuf'pr djus gsrq fookfnr [email protected] dk izFke ,lsLesaV fof/kekU; vk/kkj gksxkA rnFkZ ekuuh; mPpre U;k;ky; }kjk iznRr fof/k O;oLFkk ,0 vkj0 lh0 1998 ¼2½ ¼lqizhe dksVZ½ I`k"B 617 lyhe cuke ftyk tt eqtQjuxj vkfn ds ekeys esa izfrikfnr fl)kUr gh iw.kZ#is.k izHkkoh gksxk fookfnr nqdku ds Åij rn~uqlkj mDr fof/k O;olFkk ds izdk'k esa izFke ,lsLesaV ¼dkxt la0 79x&1 ,oa 98x&1½ 1986&87 dk gksus dh fLFkfr esa ,DV la0 13 lu~ 72 ds izkfo/kku fdlh Hkh izdkj izHkkoh ugha ekus tk ldrsA fookfnr nqdku ij ,DV la0 13 lu~ 72 ds izkfo/kku izHkkoh u gksus dh fLFkfr esa oknh }kjk lEifRr gLrkUrj.k vf/kfu;e dh /kkjk 106 ds vUrxZr uksfVl nsdj izfrokfnuh dh fdjk;snkjh lekIr dh tk pqdh gSA izfrokfnuh rn~uqlkj fookfnr nqdku ij vc vukf/kdkj dkfct gS og ,DV ua0 13 lu~ 72 dh /kkjk 20¼54½ dk ykHk ikus dh vf/kdkfj.kh ugha gSA
34. The contention of counsel for the petitioner that tenant was entitled to protection of Section 114 of the Transfer of Property Act has no force as Section 114 of Transfer of Property Act does not apply to the facts and circumstances of the instant case. Section 114 of Transfer of Property Act applies on the fulfilment of three conditions : (1) there is a written agreement of lease between the parties (2) there is an express condition in the lease deed that the lease will be forfeited if rent is not paid to the lessor in accordance with the terms of the lease and (3) the lease is forfeited by the lessor on the ground that the lessee has not complied with the terms of payment of rent as contained in the lease deed as has been held in Yashpal v. Allahtala Malik Waqf Azakhan and Ors. 2005 (3) ARC 764 ; Arun Kumar v. VIIIth A.D.J., Badaun 2002 (20) LCD 822 : 2002 (2) AWC 1655. In Bhupendra Singh v. A.D.J. Dehradun 1994 (2) ARC 472. In these cases, it has been held that where there is no written or express agreement for forfeiture, provisions of Section 114 of the Transfer of Property Act do not apply. Likewise, in Ram Bali Pandey v. IInd A.D.J., Kanpur 1998 (2) ARC 362 : 1999 (1) AWC 413 and Mohd. Nasir v. District Judge Nainital and Ors. 1999 (1) AWC 550, it has been held that where tenancy is not forfeited for nonpayment of rent under the terms of the agreement but is terminated under Section 106 of the Transfer of Property Act, provisions of Section 114 of the Transfer of Property Act will not apply.
35. The case laws cited by the counsel for the petitioner are not applicable to the facts and circumstances of the instant case as in those cases, decisions have been rendered on different facts, which are altogether distinguishable from the facts and circumstances of the case in hand.
36. In the present case, there was no lease deed providing an express agreement for forfeiture for nonpayment of rent and the 'Kabuliyatnama' is a unilateral declaration which does not fall within the category of a lease agreement.
37. From perusal of records, particularly notice dated 7.10.1997, it is evident that the tenancy of the petitioner was terminated under Section 106 of Transfer of Property Act. Moreover, the tenant-petitioner never pleaded before the courts below that she was entitled to the benefit of Section 114 of the Transfer of Property Act hence she is estopped from raising such plea, for the first time, in writ jurisdiction before this Court as it is not a pure question of law but a mixed question of facts and law which requires to be proved by evidence also.
38. For the reasons stated above, the writ petition fails and is dismissed. Tenant-petitioner will handover peaceful possession of the disputed shop to the respondent-landlord within a month from today and make payment of arrears of rent, if any, within two months from today. In case the disputed shop is not vacated and payment of arrears of rent is not made within the aforesaid stipulated period, she will be evicted by assistance of Police and arrears of rent will be recovered as arrears of land revenue.
Cost:
39. In so far as cost is concerned, Hon'ble the Apex Court in Salem Advocate Bar Association, Tamil Nadu v. Union of India AIR 2005 SC 3353 : 2005 (3) AWC 2996 (SC), has held that:
So far as awarding of costs at the time of judgment is concerned, awarding of costs must be treated generally as mandatory inasmuch as the liberal attitude of the Courts in directing the parties to bear their own costs had led the parties to file a number of frivolous cases in the Courts or to raise frivolous and unnecessary issues. Costs should invariably follow the event. Where a party succeeds ultimately on one issue or point but loses on number of other issues or points, which were unnecessarily raised. Costs must be appropriately apportioned. Special reasons must be assigned if costs are not being awarded. Costs should be assessed according to rule in force. If any of the parties has unreasonably protracted the proceedings, the Judge should consider exercising discretion to impose exemplary costs after taking into account the expense incurred for the purpose of attendance on the adjourned dates.
40. Thus from the law laid down by the Hon'ble Apex Court in the aforesaid case of Salem Advocate Bar Association (supra) it is apparent that non-payment of cost is an exception for which special reasons have to be given by the Court and that in normal circumstances cost has to be awarded on the party according to the issue decided in favour of the party which was unnecessarily raised. The cost so imposed should be in accordance with rules and if the proceedings are unnecessarily protracted or adjournments have been sought it is upon the discretion of the Judge to impose exemplary cost taking also into account the circumstances etc. for the purpose of adjournment.
41. Following the ratio laid down in Salem Advocate Bar Association (supra), this Court in Civil Misc. Writ Petition No. 48752 of 2006, Nizamuddin v. Shakoor Ahmad, after considering provisions of Rule 9 of Chapter XXII and Rule 11 of Chapter XXI of the High Court Rules, 1951 and provisions of Sections 34, 35A and 35B of the Code of Civil Procedure has held that while awarding interest on a party by non-payment of principal amount or any dues should also be considered by the Court and not only interest but penal interest may also be awarded.
42. Since it is a frivolous petition, the cost is to be deterrent and exemplary. In the facts and circumstances of the case, it is directed that apart from payment of arrears of rent, the petitioner will also pay cost of Rs. 10,000 which shall be deposited by her before the District Judge, Banda within two months from today. The arrears of rent as well as the cost so deposited can be withdrawn by the respondent-landlord without furnishing any security within two months from the date of deposit. In case the petitioner fails to make payment of the aforesaid amount, the same shall be recoverable as arrears of land revenue.