IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Civil Revision No. 17 of 2011 Amar Tex Industries Limited ….. Applicant/revisionist Versus Mr. Pramod Sekhri and others ..… Respondents Hon’ble Tarun Agarwala, J. Heard Shri M.C. Pande, the learned Senior Counsel assisted by Mr. B.D. Pande, the learned counsel for the revisionist and Shri D. Barthwal, the learned counsel for the respondents. The plaintiff is the owner and landlord of the property in question and had let out the premises to the applicant through a lease deed for a period of two years at a monthly rent of Rs.84,892/-. The lease deed contemplated that the tenancy in the first instance would be of two years which would be renewed twice for a further period of two years. Accordingly, the lease started from 16th March, 2004 which was renewed in the year 2006, again in 2008 and, eventually, it expired on 16th March, 2010. Prior to the expiry of the period, the plaintiff served a notice dated 18th January, 2010 which was served on 21st January, 2010 intimating the defendant about the expiry of lease period and called upon the defendant to vacate and hand over the vacant possession of the tenanted accommodation after the expiry of 30 days from the receipt of the notice and latest by 16th March, 2010, i.e., when the renewal of the lease was going to an end. It is alleged that the defendant undertook to vacate the premises by 16th March, 2010. It transpires that the plaintiff again sent a notice dated 8th February, 2010 reminding the defendant that the lease would not be extended beyond 16th March, 2010 and, consequently, requested the defendant to comply with the notice dated 18th January, 2010. Since the defendant did not vacate the premises in question, a suit for eviction was filed. In paragraph 8 of the plaint, it was contended that the premises is situated in a 2 posh commercial area in Dehradun which could easily be let out at Rs.20,000/- per day and, consequently, the plaintiff is entitled for mense profit @ Rs. 20,000/- per day w.e.f. 17th March, 2010 onwards. It was also alleged that the defendant had paid the rent upto 31st March, 2010 and that the rent for the period 1st March, 2010 to 16th March, 2010 amounting to Rs.45,275/- was due and payable. The plaintiff, consequently, prayed for the eviction of the defendant and further prayed for the recovery of the rent and damages during the pendency of the suit. The defendant resisted the suit and denied the plaint allegation and admitted the receipt of the notice but contended that he did not undertake to vacate the premises by 16th March, 2010 or had telephonically assured the plaintiff with regard to the vacating the premises in question. On these pleadings, the trial court framed the following issues :- “1. Whether the notice dated 18.01.2010 had been served upon the defendant and further, whether any notice is required to terminate the tenancy. 2. Whether the plaintiffs are entitled to mense profits if so, at what rate.” The trial court on the basis of the evidence found that the notice dated 18th January, 2010 was duly served upon the defendant and that the notice was in accordance with the provision of Section 106 of the Transfer of Property Act. The Court below found that since the rent was more than Rs.2,000/- p.m., consequently, the Rent Control Act was not applicable and that the notice determining the tenancy had to be issued to the defendant which was issued in accordance with the provision of law. The trial court further found that since the notice was a valid notice, the tenancy was validly terminated and that the defendant was liable to be evicted from the premises in question. The Court 3 further found that 15 days rent from 1st March to 16th March was due and payable and that for use and occupation after 16th March, 2010, the defendant was liable to pay @ Rs. 6129/- per day. The trial court came to the said conclusion on the basis of the Government approved valuer’s report which indicated that the rent is Rs.9,429/- per day but the Court below in its discretion came to the conclusion that the appropriate market rate would be Rs.6,129/- per day as mense profit. The defendant, being aggrieved by the aforesaid decision, has filed the present revision u/S 25 of the Provincial Small Cause Court Act. The learned Senior Counsel for the applicant in the first instance contended that the plaintiff admittedly sent two notices and that the second notice waived the first notice. Consequently, in that light since rent till 31st March, 2010 was admittedly paid by the defendant, a valid notice as per the provision of Section 106 of the Transfer of Property Act was not issued. The learned counsel further contended that the Court committed a manifest error in holding that a valid notice u/S 106 had been issued terminating the tenancy. The learned Senior Counsel further submitted that the lease deed executed between the parties was not registered and, therefore, the lease deed cannot be considered in evidence. On the other hand, the defendant would be treated as a monthly tenant after the expiry of one year. In this regard, the learned Senior Counsel tried to impress upon the Court upon the various terms and conditions mentioned in the lease deed. The learned Senior Counsel further submitted that the mense profit determined by the Court below was wholly excessive, inasmuch as, as per the sale deed filed by the plaintiff which is on the record, the valuation of the property comes to approximately Rs. 1.20 crores and a reasonable rent @ 10% would make the rental value at Rs.1,20,000/- p.m. On the other hand, mense profit determined by 4 the trial court at Rs.6,129/- per day which amounts to approximately Rs.1,83,870/- per month was wholly excessive. Having heard the learned counsel for the parties at some length, the Court finds that there is no such averment as to whether the lease deed was registered or not and, in the absence of such averments being raised, this Court is not inclined to dwell into this matter. In any case, the Court below has found that a valid notice u/S 106 of the Transfer of Property Act was given. The Court found that the ingredients of Section 106 of the Transfer of Property Act existed in the notice, which was duly received by the defendant. The defendant did not vacate the premises after the expiry of the 30 days and even after 16th March, 2010 when the alleged lease term came to an end. In so far as the contention raised by the counsel that the second notice waived the earlier notice sent by the plaintiff, the Court is of the opinion that the argument is patently misconceived. There was only one valid notice dated 18th January, 2010 which determined the tenancy and directed the defendant to vacate the premises after the expiry of 30 days. The second notice dated 8th February, 2010 was not a fresh notice contemplated u/S 106 of the Transfer of Property Act but was only a reminder to the defendant to ensure that he should vacate the premises after the expiry of the period. Consequently, the contention raised by the learned counsel for the applicant that the second notice dated 8th February, 2010 waived the first notice is misconceived. In so far as the third submission with regard to mense profit is concerned, the Court finds that the Court below has determined the mense profit @ Rs.6,129/- per day on the basis of the approved Government Valuer’s report. The contention of the learned counsel for the applicant that the said valuer’s report was not proved and, therefore, no cognizance of the said report could be taken and that apart from the valuer’s report, there was no other 5 evidence with regard to the valuation. The Court finds from the impugned order that no objection was raised by the applicant on the valuer’s report and an endorsement was made by the counsel for the applicant that formal proof is dispensed with. In the light of the aforesaid endorsement made by the defendant’s counsel, the question of proving the document did not arise since the same was admitted by the applicant. This Court also finds that the defendant did not raise any plea nor filed any evidence to show that the rental value of the premises was something else. In the light of the aforesaid, the Court is of the opinion that no evidence was led by the defendant on the valuation. However, considering the facts and circumstances that there is 100% jump in the valuation of the rent as damages, the Court is of the opinion that substantial justice would be met between the parties, if the damages is reduced from Rs.6,129/- to Rs.5,000/- per day. The impugned order is accordingly modified to that extent. The revision is partly allowed to that extent. It has also been brought to the knowledge of the Court that the defendant/applicant had deposited the decreetal amount before this Court. The said amount can be withdrawn by the landlord upon an application being filed before the Registrar General duly endorsed by the learned counsel for the opposite party. (Tarun Agarwala, J.) Dated 16th December, 2011 Shiv