Madhubala Bhargava Vs Sri Abhishek Kumar Tiwari

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E Court

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Neutral Citation No. - 2025:AHC-LKO:3520

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Court No. - 7

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Case :- S.C.C. REVISION No. - 14 of 2024

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Revisionist :- Madhubala Bhargava Opposite Party :- Sri Abhishek Kumar Tiwari Counsel for Revisionist :- Suryansh Narula,Ankit Verma,Anurag Verma Counsel for Opposite Party :- Nilaya Gupta,P.R.S. Bajpai

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Hon'ble Pankaj Bhatia,J.

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1 . Heard Sri Anuraj Verma, learned counsel for the revisionist, Sri M.A. Khan, learned Senior Advocate assisted by Sri P.R.S. Bajpai, learned counsel appearing on behalf of the respondent-tenant and perused the material available on record.

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2 . The present revision has been filed by the revisionist under Section 25 of the Provincial Small Causes Courts Act, 1887 (herein after referred as to Act) assailing the judgment and decree dated 08.08.2024, whereby the SCC Suit No. 127 of 2015, filed by the revisionist landlord was dismissed.

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3 . The brief facts of the case are that the revisionist landlord had given the Flat No. 301, situated at 3rd Floor of a building known as Basera Plash Annexe, New Hyderabad, Lucknow through an unregistered lease agreement on 01.06.2012. The said agreement is on record as Annexure No. 2, which records that the lease was made on 02.05.2014 in between landlord and the tenantrespondent in respect of the flat in question, the lease period was 11 months and the rent agreed was Rs.17500/-. It transpires from the record that the tenancy was created firstly on 01.06.2012 for a term of 11 months thereafter another unregistered lease agreement executed in between the parties for a term of 11 months on 22.05.2013 and thereafter the last unregistered agreement was executed on 02.05.2014. After

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expiry of the said agreement, a notice was served by the landlord through the advocate on 04.08.2015, wherein it was indicated that the tenancy has come to an end on 01.04.2015 and 30 days time was granted to vacate the flat in question. Subsequently, when the flat was not vacated, a suit came to be filed at the instance of the revisionist seeking ejectment, arrears of rent and damages, the said suit was numbered as 127 of 2015.

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4 . In paragraph no. 6 of the said plaint, it was pleaded that the notice under Section 106 of the Transfer of Property Act was served on the respondent/tenant through the advocate on 04.08.2015 and the reply thereafter was given on 26.08.2015. The respondent filed a written statement to the said plaint and in reply para 6 of the written statement, the receipt of notice was accepted. After the exchange of pleadings and leading of the evidence as many as five points of determination were recorded by the trial Court. The first being what was the relationship of the landlord and tenant, a finding was returned in favour of the revisionist landlady. With regard to point of determination no. 2 to the effect as to whether, there was any violation of the lease agreement dated 02.05.2014, the same was decided along with point of determination no. 4, which was as to whether the suit was barred in terms of the mandate of order 15 Rule 5 CPC. The point of determination no. 2 and 4 were decided together by the JSCC Court, wherein with regard to notice, the trial Court returned the finding that there was no arrears of rent at the instance of the tenant. It further recorded that in the cross examination, it was admitted by the landlady that the tenancy was for a long tenure and the tenancy existed from 2011 upto 2015. She also admitted that the rent was being regularly paid. The JSCC Court also noticed that the tenancy in terms of the agreement had come to an end and the notice was served on 01.08.2015 without explaining the delay in sending the notice, when the tenancy had come to an end. It also recorded and appreciated the argument of the tenant that in the notice 01.08.2015, it was recorded that the flat should be vacated within 30 days, whereas in the suit, it was

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indicated that the flat in question had to be vacated within 15 days. Thus on both count, the point of determination no. 2 and 4 were decided in favour of the tenant and against the landlady. With regard to point of determination no. 3 which was framed in respect of the service of notice under Section 106 of the Transfer of Property Act, the same was decided against the landlady to the effect that the notice was not a valid notice under Section 106 of the Transfer of Property Act. With regard to the point of determination no. 5 as to what reliefs was the landlady entitled, the trial Court held that as the point of determination no. 2 and 4 were decided against the landlady and the notice served was not a valid notice as decided in point of determination no. 3, the suit was liable to be dismissed and the suit was accordingly dismissed.

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5 . The counsel for the revisionist while arguing the revision argues that the findings of the revisional court are wholly perverse and illegal in as much as after service of notice under Section 106 of the Transfer of Property Act, the suit was filed after more than one month. It further argues that in any event, the tenancy had come to an end by efflux of time. He further argues that merely because there was some inadvertence in the pleadings of the suit, the same would not go to the benefit of the tenant.

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6 . Reliance is placed by the counsel for the revisionist on the judgment of this Court in the case of Shiv Shankar Versus Addl. District Judge, Agra and others 2002 (1) AWC 126 with emphasis on para 4, which is quoted as under:

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"Second submission of the learned counsel for the petitioner is that the tenancy of the defendantpetitioner could not be determined or brought to an end in view of the relevant clauses contained in the agreement deed dated 1.8.1992/Annexure No. 1 to the petitioner inasmuch as, it contemplated a clause giving option to the tenant to review the lease after every three years."

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Reliance is also placed by the counsel for the revisionist on the judgment of this Court in the

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case of Smt. Aamna Khan Versus Smt. Anita Burman 2017 (6) AWC 6305 with emphasis on para 9, which is quoted as under:

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"Insofar as the contention of learned counsel for the revisionist-tenant that the notice date 26.3.2015 determining the lease has been given for the reasons of non-payment of rent w.e.f. 1.1.2015 to 31.3.2015 is concerned, a reference may be made to a judgement of this Court in Ram Bali Pandey (Since deceased) through his LRs' vs. IInd Additional Judge, Kanpur and others, 1998 (2) ARC 362 wherein it has been held that the mere fact that the notice stated about non-payment of rent also besides termination of monthly tenancy and demand of vacant possession it would not be a case of forfeiture under clause (g) but one of determination of tenancy by exercising power under clause (h) of Section 111 of the T.P. Act, therefore, the contention of learned counsel for the revisionist-tenant is liable to be rejected and is rejected hereby."

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Reliance is also placed by the counsel for the revisionist on the judgment of this Court in the case of Govind Saran Versus Shubhi Mishra, 2022 SCC Online All 1954 , with emphasis on para 24, 25 and 26, which are quoted as under:

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"The observations made by Supreme Court in Bhagabandas Agarwalla v. Bhagwandas Kanu [AIR 1977 SC 1120 : 1977 (3) ALR 40 (Sum) (SC).] , are also relevant:

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"The only question which arises for determination in this appeal is whether the notice to quit given by the appellant to the respondents was invalid as not being in conformity with the requirements of section 106 of the Act of 1882. The notice to quit, so far as material, was in the following terms:

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"You are hereby informed by this notice that you will vacate the said house for our possession within the month of October, 1962 otherwise you will be treated as trespassers from 1st November in respect of the said house."

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.........................................

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Now, it is settled law that a notice to quit must be construed not with a desire to find faults in it, which would render it defective, but it must be construed ut res magis valeat quam pereat. "The validity of a notice to quit" as pointed out by Lord Justice Lindley, L.J. in Side-botham v. Holland [(1895) 1 QB

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378.] , "ought not to turn on the splitting of a straw". It must not be read in a hyper critical manner, nor must its interpretation be affected by pedagogic pendantism or over refined subtlety, but it must be construed in a common sense way. See Harihar Banerji v. Ramsashi Roy [ 45 Ind App 222 : AIR 1918 PC 102.] . The notice to quit in the present case must be judged for its validity in the light of this well recognised principle of interpretation."

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(emphasis supplied)

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25. In Budh Sen v. Smt. Rahiman [1979 (5) ALR 299 : AIR 1978 Alld. 549.] , the language used in the notice sent under section 106 of the Act was very much similar to the language used in the notice sent in the present case. This Court observed that the tenancy was terminated on the expiry of thirty days and the relevant observations are as follows:

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"In the notice the appellant has already expressed an intention that he did not wish the respondent to continue in possession of the premises after the expiry of the period of one month. It is true that in notice in question it has not been stated that the tenancy of the defendant-respondent was being terminated. However, if an intention to terminate the tenancy can be clearly discerned by construing the words used in the notice as a whole, the mere fact that the expression that tenancy was being terminated is not used, would not render the notice invalid. The language which has been used in the notice given by the appellant to the respondent, does unmistakably evidenced an intention on the part of the plaintiff-appellant not to continue the tenancy of the respondent. The notice would validly terminate the tenancy of the respondent."

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(emphasis supplied)

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26. In Pyare Lal v. IIIrd Additional District Judge, Allahabad [ 1980 ALJ 643.] , this Court again observed:

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"As I have mentioned above, the notice under consideration clearly requires the tenant to vacate and deliver up possession to the lessor within thirty days of the notice, failing which, it states, the lessor would be constrained to file a suit for the ejectment of the petitioner. Such a notice is similar to the notice contemplated under illustration F mentioned in the case of Abdul Jalil [ 1974 ALJ 381.] . It accords with requirements of section 106 of the T.P. Act as regards the period. It will hence validly determine the tenancy on the expiry of the period of the notice under section 111 (h)."

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Reliance is also placed by the counsel for the revisionist on the judgment of the Supreme Court in the case of Sevoke Properties Ltd. Versus West Bengal State Electricity Distribution Company Limited, AIR 2019 SC 2664 , with emphasis on para 16, which is quoted as under:

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"In coming to this conclusion, we are fortified by the decision of this Court in R V Bhupal Prasad v State of A P7, where this Court held:

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“8.Tenant at sufferance is one who comes into possession of land by lawful title, but who holds it by wrong after the termination of the term or expiry of the lease by efflux of time. The tenant at sufferance is, therefore, one who wrongfully continues in possession after the extinction of a lawful title. There is little difference between him and a trespasser. In Mulla's Transfer of Property Act (7th Edn.) at page 633, the position of tenancy at sufferance has been stated thus:

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A tenancy at sufferance is merely a fiction to avoid continuance in possession operating as a trespass. It has been described as the least and lowest interest which can subsist in reality. It, therefore, cannot be created by contract and arises only by implication of law when a person who has been in possession under a lawful title continues in possession after that title has 7 (1995) 5 SCC 698 been determined, without the consent of the person entitled. A tenancy at sufferance does not create the relationship of landlord and tenant. At page 769, it is stated regarding the right of a tenant holding over thus:

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The act of holding over after the expiration of the term does not necessarily create a tenancy of any kind. If the lessee remains in possession after the determination of the term, the common law rule is that he is a tenant on sufferance. The expression “holding over” is used in the sense of retaining possession...”” In Park Street Properties Private Limited v Dipak Kumar Singh8, the appellant to whom premises had been let out with a right to sublet them entered into a sub-tenancy in favour of the respondent. The agreement by which the subtenancy was created was unregistered. The appellant issued a notice under Section 106 of the TP Act terminating the monthly sub-tenancy and then instituted a suit for recovery of possession. The trial court held that since the sub-lease was unregistered, it was inadmissible in evidence and none of its terms, including clause 6 which empowered the landlord to serve a notice upon

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default in the payment of rent could be looked into. Hence the notice under Section 106 was held to be valid. The High Court allowed the appeal and remanded the proceedings to the trial court. In appeal, this Court held that clause 6 of the agreement was contrary to Section 106. While Section 106 contains the phrase “in the absence of a contract to the contrary”, this must refer to a valid contract. This Court held that in the absence of a registered agreement, the court is not precluded from determining the factum of tenancy from other evidence on the record including the conduct of parties. However, in the absence of registration, Section 106 created a fiction of tenancy from month to month, the termination of which was governed by Section 106. Consequently, the judgment of the High Court was set aside and the judgment of the trial court was restored. The above judgment is clearly distinguishable. Since the agreement of sub8 (2016) 9 SCC 268 lease in Park Street Properties (supra) was unregistered, clause 6 which governed the sub-lease could not be looked into. In the present case, the indenture of lease being unregistered, the contents of the instrument are inadmissible in evidence. However, it is evident from the clear admission in the written statement that the appellant accepted and proceeded on the basis that the period of lease expired on 24 May 1996.

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Thereafter, the position of the appellant is of a tenant at sufferance. In Nopany Investments (P) Ltd v Santokh Singh (HUF)9, a two judge Bench of this Court has held :“22…In any view of the matter, it is well settled that filing of an eviction suit under the general law itself is a notice to quit on the tenant. Therefore, we have no hesitation to hold that no notice to quit was necessary under Section 106 of the Transfer of Property Act in order to enable the respondent to get a decree of eviction against the appellant.”

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7 . Controverting the said arguments, Sri M. A. Khan, Senior Advocate appearing on behalf of the respondent argues that in terms of the scope of Section 25, even if this Court finds any perversity with the order, the only recourse is open to remand the matter for trial afresh after the infirmities are recorded by the revisional court. He further argues that in the revision itself, the landlady has expressed that the rent is less and the entire intent of the suit was for enhancement of rent. He further argues that this Court may fix the rent at Rs.20,000/- per month, to which, the tenant has no objection.

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8 . In view of the submissions of the counsel for the parties, Section 25 of the Provincial Small Causes Courts Act provides for revision. The amended Section 25 in the State of Uttar Pradesh is as under:-

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STATE AMENDMENT -- Uttar Pradesh Amendment of Section 25 of Act IX of 1887.—In section 25 of principal Act, the following proviso thereto shall be inserted, namely :—

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“Provided that in relation to any case decided by a District Judge or Additional District Judge exercising the jurisdiction of Judge of Small Causes, the power of revision under this section shall vest in the High Court.”

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9 . The language used in Section 25 as applicable in the State of Uttar Pradesh is clearly separate and instinct from the language used under Section 115 of the CPC, although Section 25 uses the word revision, the powers are far wider than the normal revision as prescribed under Section 115 of the CPC, which has a restrictive meaning. There being no restriction in use of Section 25 as is used in Section 115 of the CPC, I have no hesitation in holding that the scope of revision under Section 25 is much wider.

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10 . Coming to the facts of this case, the reasons for dismissing the suit are being by means on the point of determination no. 2 and 4, the said findings I have no hesitation in holding are wholly perverse for the reasons that the service of notice was duly admitted in the written statement in para 6 and admittedly, the suit was filed after 30 days, thus there was no occasion for the JSCC Court to upheld the point of determination no. 2 against the landlady as has been done in the impugned order. The point of determination, itself demonstrates that there was lack of understanding of the JSCC Court inasmuch as under Order 15 Rule 5, it cannot determine whether the suit is maintainable or not, it is only an enabling provision conferring the powers of the Court to take strict action in case, the rent is not deposited in the time prescribed, the view taken by the JSCC Court is contrary to the settled norm and also the pleadings as such, the same cannot be sustained.

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In view of the finding recorded above, I have no hesitation in holding that the findings recorded by the JSCC Court are not only perverse, they are contrary to the pleadings and cannot be sustained, the order impugned is quashed. The suit is decreed in favour of the revisionist-landlady. The respondent shall vacate and hand over the vacant physical possession of the flat in question to the revisionist-landlady.

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11 . At the end, the counsel for the respondent says that some reasonable time may be granted to vacate the flat in question.

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12 . The respondent is permitted to vacate the flat in question on or before 30th September, 2025 subject to the respondent executing an undertaking before the JSCC Court within a period of three weeks from today that he shall hand over the vacant and physical possession of the flat in question to the revisionist-landlady and no one else. The respondent shall also pay month to month rent to the revisionist-landlady through banking channels. In the event of failure of rent or in the event of filing an undertaking as directed above, the revisionist would be at liberty to execute the decree in accordance with law.

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13 . In view of the aforesaid, the revision is allowed.

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Order Date :- 20.1.2025 Arun

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Digitally signed by :- ARUN KUMAR High Court of Judicature at Allahabad, Lucknow Bench

Madhubala Bhargava v. Sri Abhishek Kumar Tiwari

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