IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA. No.: 364 of 2010. Reserved on: 04.01.2011. Decided on: 21.02.2011. __________________________________________________________ Central Bank of India and others. … Appellants. Versus Surinder Kumar Sood and another. … Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 No. For the Appellants : Mr. Ashok Kumar Sood, Advocate. For the Respondents : Mr. Ramakant Sharma, Advocate. Rajiv Sharma, Judge. This regular second appeal is directed against the judgment and decree dated 28.4.2010 passed by the Additional District Judge (1), Kangra at Dharamshala in Civil Appeal No.46-G/2006. 2. Material facts necessary for adjudication of this regular second appeal are that the respondents/plaintiffs (hereinafter referred to as “the plaintiffs” for convenience sake) have filed a suit against the appellants/defendants (hereinafter referred to as “the defendants” for convenience sake) for possession and recovery of ` 1,28,480/-. The case of the plaintiffs, in a nutshell, is that they are owners in possession 1 Whether the reporters of Local Papers may be allowed to see the judgment? No. - 2 - of the premises denoted by the letters “ABCD” with red lines situate in village (Garh) Pragpur, Mauza Garli, Tehsil Dehra, District Kangra. The building was constructed by raising loan from the defendant/Bank and according to their specifications, premises in question was taken on rent at the rate of ` 1.75 per square feet with 10% enhancement after every five years. The building was taken on rent on 1st August, 1989 and the execution of the lease deed was delayed by the defendants on one pretext or the other. On 1.8.1989 further area of about 200 square feet was added in the tenancy of the defendants as per specification provided by the Bank after spending a sum of ` 40,000/-. The Branch Manager of the Bank started crediting the rent in the joint saving bank account No.5863 of the plaintiffs with effect from 17th September, 1999. The matter qua 10% increase was delayed by the defendants. The tenancy was terminated by issuing a notice under Section 106 of the Transfer of Property Act on 27th September, 1999. The premises were not vacated. It is in these circumstances that a suit for eviction and payment of use and occupation charges at the rate of ` 15,000/- per month with effect from 1st November, 1999 was filed. The suit was contested by the defendants. The defendants have admitted the lease in their favour and rent at the rate of ` 1.75 per square feet. It is also claimed that there was no increase agreed at the rate of 10% after every five years. Initially, the rent was ` 1.25 per square feet with covered area with two options of increase for 10% in the interval of five years. However, according to defendants, the rent was increased at the rate of ` 1.75 per square feet on the basis of letter dated 28th October, 1988. The proposal of the plaintiffs was accepted by the Bank for 10% increase with effect from 1st August, 1994 and 1st August, 1999 subject to execution of lease - 3 - deed. The plaintiffs avoided the execution of lease deed and, as such, they were not entitled to any increase whatsoever. They were asked to execute the lease deed on 6.6.1990, 11.2.1991, 17.6.1991, 22.8.1991, 21.11.1994 and 5.1.1995. The notice, according to the defendants, was wrongly issued. The trial Court framed the issues on 7.12.2002. The trial Court partly decreed the suit on 31.12.2005 whereby the plaintiffs were held entitled for possession of the suit premises. They were also held entitled to recovery of rent at the rate of 10% increase on ` 3951.50 (which came to ` 4346.65, rounded off figure ` 4347/-) from 1st August, 1994 till 31st July, 1999 and further increase of 10% on this amount from 1st August, 1999 onwards till 31.10.1999 alongwith interest at the rate of 6% per annum. They were also held entitled to recover ` 4,781/- on monthly basis for unauthorized use and occupation charges of the suit premises from the defendants till the realization with interest at the rate of 6% per annum. The defendants preferred an appeal before the learned Additional District Judge (1), Kangra at Dharamshala. He dismissed the same on 28.4.2010. Hence, this regular second appeal. 3. Mr. Ashok Kumar Sood, learned counsel for the appellants has strenuously argued that the judgments and decrees passed by both the Courts below are contrary to the settled principles of law. He has also argued that both the Courts below have mis-read the oral as well as documentary evidence. Mr. Ramakant Sharma, learned counsel for the respondents has supported the judgments and decrees passed by both the Courts below. 4. I have heard the learned counsel for the parties and gone through the pleadings carefully. - 4 - 5. The defendants have admitted the receipt of notice Ex.P-A. It was also not disputed by the defendants before the learned trial Court that the tenancy was from month to month. Defendants had filed reply to the notice Ex. P-A on 20.11.1999. However, despite issuance of notice under Section 106 of the Transfer of Property Act, defendants have not vacated the suit premises. The case of the defendants before the Courts below was that at least six months notice prior to ejectment was required to be served. In the present case, the rent was calculated on monthly basis and it was a monthly tenancy. In view of this, six months’ notice was not required to be issued to the defendants. It was not even the case of the defendants before the Courts below that the tenancy was from year to year and not on monthly basis. In fact, the tenancy stood terminated on the expiry of one month on 31st October, 1999. PW-1, Manohar Lal has admitted that the rent was credited with saving bank account No.58631. According to him, the lease deed was not executed as necessary stamp was not available with the Bank. DW-1, M.L. Singh has admitted the termination of tenancy of demised premises. He has also admitted that the increase was admissible with effect from 1st August, 1994, but qualified that it was payable on execution of the lease deed. The Bank had agreed to increase the rent at the rate of 10% with effect from 1st August, 1994 and further increase was also payable with effect from 1st August, 1999. The Bank had started crediting the increase of 10% without obtaining the registered lease deed and in view of this it has waived the condition of registration of lease deed. The plea of the plaintiffs was also supported for 10% increase on the basis of Ex. D-15 and Ex.D-21. - 5 - 6. Accordingly, in view of the observations made hereinabove, the tenancy has rightly been terminated and the plaintiffs were entitled to 10% increase as ordered by the learned trial Court and up-held by the first appellate Court. Consequently, the regular second appeal fails and the same is dismissed. (Rajiv Sharma), Judge. February 21, 2011. (sck).