Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (M/S) No. 245 of 2011 Manvendra Kumar Chatterjee, S/O Sri Manek Lal Chatterjee, R/O Shop No. 12, Veer Market, 103, Haridwar Road, Rishikesh, Dehradun. … Petitioner. Versus Shailendra Kumar Jain, S/O Late Sri Prakash Chandra Jain, R/O 103, Haridwar Road, Dehradun. … Respondent. Mr. Dharmendra Barthwal, Advocate, learned counsel for the petitioner. Mr. Piyush Garg, Advocate, learned counsel for the respondent. Date May 27, 2011. Hon’ble B.S.Verma, J. Learned counsel for both the parties have agreed that this writ petition may be disposed of at the admission stage. 2. By means of this writ petition, the petitioner has sought a writ in the nature of certiorari quashing the impugned judgment and decree dated 11-7-2008 passed by the Judge, Small Cause Court/Civil Judge (Senior Division) Dehradun (for short the J.S.C.C.) in S.C.C. Suit No. 42 of 2003 Shailendra Kumar Jain Vs. Manvendra Kumar Chatterjee and the judgment and order dated 13- 1-2011 passed by the Additional District Judge, Rishikesh in S.C.C. Revision No. 23 of 2008 Manvendra Kumar Chatterjee Vs. Sri Shailendra Kumar Jain (Annexure Nos. 1 and 2 to the writ petition). By the judgment and decree dated 11-7-2008, the learned J.S.C.C. has decreed the suit of the plaintiff-respondent for recovery of arrears of rent and eviction of the petitioner from the disputed shop as mentioned in the impugned order. By order 13-1-2011, the revision preferred by the petitioner against the judgment and decree passed by the J.S.C.C. has been dismissed upholding the impugned judgment and decree dated 11-7-2008. 2 3. Brief facts giving rise to the present writ petition, according to the petitioner, are that the respondent herein filed a suit against the petitioner in the court of the J.S.C.C. which was registered as S.C.C. Suit No. 42 of 2003 for recovery of arrears of rent and for eviction alleging therein that the petitioner is a tenant of shop no. 12 situate on the ground floor of his building no. 103, Haridwar Road, Rishikesh, district Dehradun on monthly rent of Rs. 622/- and he was also liable to pay other taxes @ 25.50% per annum. The plaintiff also alleged that the disputed shop is newly constructed and the first assessment of the building was effective from 1.4.1987. The provisions of U.P.Act No. 13 of 1972 are not applicable to the building in question. The plaintiff also alleged that the disputed shop was rented out to the petitioner on 15-9-1986 at the rate of Rs. 250/- per month and it was agreed between the parties that after every three years, the rent shall be increased by 20% automatically. It was also agreed that the rent shall be payable in advance. The rent of the disputed shop from 15-9-2001 was being paid by the defendant-petitioner at the rate of Rs. 622/- per month, but the petitioner defaulted in payment of rent from 1-4- 2003 which was payable with 20% increase. Ultimately the plaintiff-respondent sent a notice determining the tenancy of the petitioner and demanding the arrears of rent and asking the petitioner to vacate the disputed shop and to deliver its possession within 30 days. When the notice was not complied with, the plaintiff-respondent filed the S.C.C. Suit No. 42 of 2003 for recovery of arrears of rent and for eviction of the petitioner from the disputed shop. Plaintiff also claimed damages at the rate of Rs. 60/- per day from the date of filing of suit till delivery of possession. 4. The defendant-petitioner contested the suit by filing his written statement. He admitted the plaintiff to be the landlord of the disputed shop. He admitted in the written statement that an unregistered agreement was executed between the parties on 15-9- 1986 and the tenancy was created. The petitioner has asserted that 3 rent upto 31-3-2003 was paid. It was also pleaded that initially the plaintiff used to issue rent receipts but later on the rent was being paid through bank-draft. He denied arrears of rent from 15-9-2001 against him. It was also asserted that in the year 1994 on the demand of the plaintiff-respondent, the petitioner used to pay rent in lump-sum for many months upto the year 2003; that the plaintiff is not entitled to any relief. In the additional pleas, it was asserted that the rent was liable to be increased by 20% after every three years, which the defendant used to pay. The defendant sent a Money Order for the amount of Rs. 3,930/- on 20-9-2003, which was refused by the plaintiff. 5. The learned J.S.C.C. framed as many as four points for determination in the suit as follows:- 1.Whether the provisions of Uttar Pradesh (Uttarakhand) Act No. 13 of 1972 are applicable to the property in question? 2. Whether the defendant has committed default in payment of rent and taxes? 3. Whether the defendant is liable to be evicted from the property in question? 4. Whether the plaintiff is entitled to the relief sought in the plaint? 6. In support of his case, the plaintiff filed documentary evidence and has also his affidavit of examination-in chief and he was cross-examined as P.W.1. On the other hand, the petitioner- defendant filed some documentary evidence per list 16-C and also examined himself as D.W.1 on his affidavit. 7. Learned J.S.C.C. heard the learned counsel for the parties and perused the evidence led by the parties. On point no.1, it has been held that the defendant failed to establish that the building in question was question prior to 26th April 1985, therefore, the provisions of U.P. Act no. 13 of 1972 are not 4 applicable to the disputed shop. On Point No. 2, it has been held that the defendant-petitioner has defaulted in payment of rent. On Point No. 3, it has been held that that the tenancy was determined as per provisions of Section 106 of the Transfer of Property Act (hereinafter referred to as Act) and that the tenancy was not terminated for breach of any condition of lease/agreement or by forfeiture for non-payment of rent as provided under clause (g) of Section 111 of the Act, therefore, the petitioner-defendant is liable to be evicted. Consequently, the learned J.S.C.C. has decreed the suit of the respondent-plaintiff by judgment and decree datd 11-7- 2008. 8. Aggrieved, the petitioner filed revision before the Additional District Judge, Rishikesh. The revisional court after hearing the parties has found that the rent-deed filed by the plaintiff was not disputed by the petitioner-defendant, wherein it is mentioned that the disputed shop is newly constructed and the provisions of U.P. Act No. 13 of 1972 are not applicable to it. Accordingly, the finding of the learned J.S.C.C. on point no. 1 was upheld. On the point of default in payment of rent, the revisional court has held that the tenancy of the petitioner-defendant was month to month and this fact was admitted by the defendant in his evidence. The finding of the J.S.C.C. being finding of fact has been upheld. Before the revisional court, the revisionist-petitioner had taken a ground that the notice sent under Section 106 of the Act is defective. The revisional court has observed that the defendant has neither taken any plea in his written statement, nor pressed any issue on this point nor has led any evidence on that score nor has established that the notice is defective, therefore, the argument of the revisionist was turned down. The revisional court has also declined the contention of the revisionist-petitioner that the defendant-petitioner was entitled to the benefit of Section 114 of the Act. Ultimately, the revision of the defendant was dismissed by order dated 13-1-2011. 5 9. The main grounds of challenge raised in this writ petition are that the two courts below has wrongly held that the provisions of U.P. Act No. 13 of 1972 are not applicable to the present case and the finding to that effect is perverse; that the tenancy could have been determined only on the ground of non- payment of rent as per agreement between the parties; that the defendant-petitioner was entitled to the benefit of Section 114 of the Act and that the courts below failed in not considering the fact that the petitioner had deposited the requisite amount on the first date of hearing. 10. On behalf of the respondent, counter affidavit has been filed, wherein it has been stated that the petitioner never denied the non-applicability of the U.P. Act No. 13 of 1972 in his written statement. This Court in the order dated 7-12-2010 passed in Writ Petition (M/S) No. 72 of 2010 has recorded a finding that that the provisions of U.P. Act No. 13 of 1972 are not applicable. It has also been stated that the tenancy of the petitioner was determined under Section 106 of the Act therefore the question of forfeiture of lease/tenancy does not arise and the petitioner is not entitled to the benefit of Section 114 of the Act. It has also been stated that the respondent had terminated the tenancy of the petitioner under Section 106 of the Act after giving statutory notice of one month, but in the written statement the defence taken by the petitioner- defendant is that of default in payment of rent. 11. The petitioner has filed his rejoinder affidavit wherein the grounds taken in the memo of petition have been reiterated. It has been stated that the petitioner-tenant could only be evicted from the disputed shop in case of breach of any conditions of the rent deed and on no other ground. 12. I have heard learned counsel for the parties and perused the material placed on record including the memo of 6 petition, the counter affidavit and the rejoinder affidavit filed by the parties along with its annexures. 13. Learned counsel for the petitioner has vehemently contended that there has been a contract of rent between the parties and the tenant-petitioner could have been evicted in case of breach of the conditions of rent deed. Learned counsel has made a reference to the copy of the contract entered into between the parties (paper no. 11-C), which has been filed as Annexure-6 to the petition and submitted that there is an agreement clause no. 17 that the tenancy would be month to month and on payment of rent and on compliance of aforementioned conditions, the shop shall not be got vacated. Learned counsel also argued that in clause 19 of the rent deed it is specifically mentioned that in case the petitioner continues to be a tenant after the expiry of the lease period of three years, the tenant on fulfilling all other conditions of the rent deed shall have to pay increased rent of 20%, which the petitioner has been paying to the respondent. Learned counsel also argued that the landlord-respondent has demanded arrears of rent by the aforesaid notice, therefore, it shall be deemed that tenancy had been terminated for non-payment of rent and the benefit of Section 114 of the Act is accrued to the petitioner, as the petitioner had tendered the requisite amount as prescribed by Section 114 of the Act. 14. This Court in exercise of writ jurisdiction cannot sit like a court of appeal and cannot re-appreciate or reevaluate the evidence so as to arrive at a different conclusion. Only perversity in the impugned order can be seen to find out whether there is a case of mis-reading of evidence by the courts concerned. 15. In the case “Ranjeet Singh Vs. Ravi Prakash” [(2004) 3 S.C.C. page 682], the Apex Court has observed inter alia in paragraph 4 of the judgment that “An error which needs to be established by lengthy and complicated arguments or by indulging in a long-drawn process of reasoning, cannot possibly be an error 7 available for correction by writ of certiorari. If it is reasonably possible to form two opinions on the same material, the finding arrived at one way or the other, cannot be called a patent error. As to the exercise of supervisory jurisdiction of the High Court under Article 227 of the Constitution also, it has been held in Surya Dev Rai that the jurisdiction was not available to be exercised for indulging in reappreciation or evaluation of evidence or correcting the errors in drawing inferences like a court of appeal.” 16. The Apex Court in the case of Shamshad Ahmad and others Vs. Tilak Raj Bajaj (Deceased) through L.RS. and others [(2008) 9 Supreme Court Cases, 1] while dealing with Articles 226 and 227 of the Constitution of India as observed as under:- “38. Though powers of a High Court under Articles 226 and 227 are very wide and extensive over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction, such powers must be exercised within the limits of law. The power is supervisory in nature. The High Court does not act as a court of appeal or a court of error. It can neither review nor reappreciate, nor reweigh the evidence upon which determination of a subordinate court or inferior tribunal purports to be based or to correct errors of fact or even of law and to substitute its own decision for that of the inferior court or tribunal. The powers are required to be exercised most sparingly and only in appropriate cases in order to keep the subordinate courts and inferior tribunals within the limits of law.” 17. For a just decision of the case, a reference to the provisions of Sections 106, 111 and 114 of the Act is necessary. Section 106 of the Act reads as under:- “106. Duration of certain leases in absence of written contract or local usage.- In the absence of a contract or local law or usage to the contrary, a lease of immoveable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or 8 lessee, by six months’ notice expiring with the end of a year of the tenancy; and a lease immoveable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days’ notice expiring with the end of a month of the tenancy. Every notice under this section must be in writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property.” 18. Section 111 of the Act reads as follows:- “111. Determination of lease.- A lease of immovable property determines- (a) by efflux of the time limited thereby: (b) where such time is limited conditionally on the happening of some event-by the happening of such even: (c) where the interest of the lessor in the property terminates on, or his power to dispose of the same extends only to, the happening of any event-by the happening of such even: (d) in case the interests of the lessee and the lessor in the whole of the property become vested at the same time in one person in the same right: (e) by express surrender, that to say, in case the lessee yields up his interest under the lease to the lessor, by mutual agreement between them: (f) by implied surrender: (g) by forfeiture; that to say, (1) in case the lessee breaks an express condition which provides that, on breach thereof, the lessor may re-enter; or (2) in case the lessee renounces his character as such by setting up a title in a third person or by claiming 9 title in himself; or (3) the lessee is adjudicated as insolvent and the lease provides that the lessor may re-enter on the happening of such event; and in any of these cases the lessor or his transferee gives notice in writing to the lessee of his intention to determine the lease. (h) On the expiration of a notice to determine the lease, or to quit, or of intention to quit, the property leased, duly given by one party to the other.” 19. Section 114 of the Act reads as follows:- “114. Relief against forfeiture for non-payment of rent.- Where a lease of immoveable property has 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 his full costs of the suit, or gives such security as the court thinks sufficient for making such payment within fifteen days, the court may, in lieu of making a decree for ejectment, pass an order relieving the lessee against the forfeiture; and thereupon the lessee shall hold the property leased as if the forfeiture had not occurred.” 20. In support of his contention, the learned counsel for the petitioner has placed reliance upon the judgment of the Allahabad High Court in the case of Surjeet Singh Vs. Additional District Judge, Haridwar and others [1994 (1), A.W.C. Page 17] wherein the Allahabad High Court while considering the lease, determined by forfeiture for non-payment of rent, has held that the benefit of Section 114 of the Act can be extended to the lessee even at the appellate stage. In that case, the Apex Court verdict in the case of Pradumn Kumar Vs. Virendra Goyal [1969(3) SCR, page 950] was followed. The ratio of the case law cannot be disputed. In the case before the Allahabad High Court the petitioner claimed benefit of section 114 of the Act, but the respondent had contended that the ingredients of Section 114 of the Act were not fulfilled. In 10 the case at hand, since the tenancy of the petitioner has not been terminated by forfeiture for non-payment of rent as envisaged by clause (g) of Section 111, rather the tenancy was determined under clause (h) of Section 111 of the Act, therefore, this case law is of no help to the petitioner. 20. So far as the effect and import of the rent deed executed between the parties is concerned, it is not disputed the rent deed is not a registered document. It is provided in paragraph 1 of Section 107 of the Act that “a lease of immoveable property from year to year, or for any term exceeding one year or reserving a yearly rent, can be made only by a registered instrument.” 21. Learned counsel for the respondent has argued that since the rent/lease deed in question was for a period exceeding one year, therefore, it could have been extended by a registered instrument executed by both the lessor and the lessee. Learned counsel for the respondent has relied upon the case Burmah Shell Oil Distributing now known as Bharat Petroleum Vs. Khaja Midhat Noor and others [1988 SCR(3), 811], wherein the Apex Court has held that in the absence of registered instrument, the lease shall be deemed to be “lease from month to month.” 22. In the case at hand, admitted the lease/rent agreement was executed between the parties on 15-9-1986. It is mentioned in clause 2 of this agreement that the petitioner shall pay the rent of Rs. 250/- per month in advance. In clause 19, it is mentioned that the rent-deed is for a period of three years. The period of three years had already expired on 15-9-1989. Thus, in any view of the matter, since the rent-deed relied upon by the petitioner is an unregistered document, the tenancy shall be deemed to be month to month. That being so, the respondent had taken recourse to the provision of Section 106 of the Act read with clause (h) of Section 111 of the Act and has determined the tenancy of the petitioner by a registered notice. 11 23. It has been contended by the learned counsel for the petitioner that the terms and conditions contained in the alleged rent deed shall have to be considered in view of the Apex Court verdict in the case of Food Corporation of India and others Vs. Babulal Agrawal [(2004) 2 S.C.C., Page 712]. In that case, it has been held that in the absence of lease deed or registered lease deed, the nature of the lease would only be that of a monthly lease. 24. The ratio of the judgment cannot be disputed. This case-law does not help to the petitioner for the simple reason that the lease being treated monthly, the same has been rightly determined under Section 106 of the Act. It is not disputed that the lease was created for a fixed period of three years. Neither the rent deed/lease has been renewed nor the same has been got registered. 25. Learned counsel for the petitioner has also relied upon the case of Rajendra Pratap Singh Vs. Rameshwar Prasad [(1998) 7 Supreme Court Cases, 602]. In that case the Apex Court while considering the provisions of Section 107 of the Act has observed in paragraph 8 as under:- “8. Barring the proviso which enables the State Government to relax the conditions, the above section consists of 3 paragraphs. The middle paragraph contains an exception to the first paragraph. The wording of the first paragraph shows that it is mandatory that if a lease is to be created for any term exceeding one year, it can be made “only by a registered instrument”. If the instrument is not registered, the corollary is that no lease exceeding one year is created at all. Such an instrument if not registered cannot be admitted as evidence in view of Section 17 of the Registration Act, 1908 either for proving the terms of the lease or otherwise. (vide Satish Chand Makhan v. Govardhan Das Byas and Budh Ram v. Ralla Ram) 12 26. This case law Rajendra Pratap Singh (supra) does not help the petitioner, rather it helps the case of the respondent that the rent deed relied upon by the petitioner cannot be read in evidence. Following the dictum of the Apex Court, I am of the considered view that after the expiry of period of one year, the rent deed in question, which has been relied upon the petitioner, cannot be read in evidence and its terms and conditions are of no avail to the petitioner. 27. So far as the contention of the petitioner that the disputed shop is an old construction and comes within the purview of U.P. Act No. 13 of 1972 is concerned, this contention is not tenable. A perusal of the impugned orders passed by the two courts below shows that the first assessment of the building in suit was for the year 1987. Moreover, since it has been disputed by the petitioner that the disputed shop was constructed in the year 1987, the burden lay upon the petitioner to establish that the disputed shop was in fact constructed earlier and that the provisions of the U.P. Act No. 13 of 1972 were applicable. 28. On the other hand, the learned counsel for the respondent while supporting the impugned orders passed by the two courts below has placed reliance upon the following case-law:- 1. Sri Waheed Ahmad Vs. Additional District Judge/Judge, Small Causes (U.M.C.), Dehradun [2010(2) U.D., Page 49]. 2. Yashpal Lala Shiv Narain v. Allatala Tala Malik Waqf Ajakhan Mus [AIR 2006 Allahabad, 115]. 29. In case of Sri Waheed Ahmad (supra), this Court has held that where the tenancy had been determined by forfeiture under Section 111(g) of the Act, the tenant could claim benefit under Section 114 of the Act. Since the tenancy in the cited case had been terminated under Section 106 of the Act, relief under Section 114 of