1 HIGH COURT OF MADHYA PRADESH AT JABALPUR SINGLE BENCH : JUSTICE J .K. MAHESHWARI FIRST APPEAL No. 788 OF 2005 M/s. Agrawal Medical Agencies -Versus- Govind Prasad _____________________________________________________ Shri Dileep Pandey, Advocate for the appellant-plaintiff. Shri Vishal Dhagat, Advocate for the respondent-defendant. ___________________________________________________ JUDGMENT (23/08/2011) Being aggrieved by the judgment and decree dated 21st April, 2005 passed by the 11th Additional District Judge, Bhopal in Civil Suit No.25-A/2002 decreeing the suit in part only for arrears of rent, the plaintiff has filed this appeal under Section 96 of the Code of Civil Procedure seeking decree of eviction and arrears @ 10% increase after every two year. 2. Plaintiff's case in brief is that plaintiff-appellant M/s. Agrawal Medical Agencies is a registered partnership firm, wherein Ashish Agrawal, Ramesh Agrawal, Shyamlal Ji Agrawal and Smt. Indira Bai Agrawal are the partners. The defendant is the tenant of M/s. Agrawal Medical Agencies of the Shop No.27, Jumerati, Bhopal 2 according to the lease deed executed on 12.4.1993 at the rate of Rs.2500/- per month. As per the terms of lease deed after every consecutive two years rent may be enhanced @ 10%. It is further said that w.e.f. 1.4.1999 rent at the rate of Rs.3327/- is due against defendant which has not been paid up-to 31.8.2000, total thereof comes to Rs.26567.50. Even after notice of demand, rent was not paid, however Rs.19137/- fell further due till the date of filing the suit. Thus decree of eviction and arrears of rent by increased rate along with mesne profits was prayed for. 3. The defendant by filing his written statement denied the existence of the registered partnership firm. It is said that the firm is not a registered one and the suit has been filed by the person who is authorised by the unregistered firm, which is not maintainable. The lease deed executed was only for the five years, thereafter it has been non-operational against defendant. It is also said, on account of the loss in business and poor financial status defendant was assured by Mr.Ramesh Agrawal, one of the partner to firm, that the rent shall not be enhanced from Rs.3025/-, however the defendant is the tenant by the said rate from 1999, and the rent by the said rate has been deposited on 22.4.2000, however he is not in arrears thus the decree of eviction may be refused. It is also stated that advance rent of three months deposited by the defendant is with the plaintiff which has not been adjusted. The notice for payment of rent has not been served, therefore, the suit asking 3 decree of eviction can not be decreed. 4. During course of hearing, not disputed facts are that the defendant is the tenant of Shop No. 27, Jumerati, Bhopal, as per the lease deed Ex.P-2. There is landlord-tenant relationship between them to the said shop w.e.f. 12.4.1993, and the period leased is for five years. The tenancy starts from 1st day of every English month and tenant has to pay the monthly rent of Rs.2,500/- and every after two year increase of rent shall be @ 10% till expiry of the period of lease i.e. five year. 5. On the pleading the trial Court has framed as many as 6 issues. Issue No.1 relates to service of the notice and payment of the rent within two months from the date of its service. While deciding Issue No. 2 the trial Court held that in terms of the lease deed Ex.P-2 tenancy was at the rate of Rs.2,500/- per month and after every two years 10% enhancement was agreed. The lease deed was not renewed and the period came to an end in 1998, On the said date rent was @ Rs.3,025/-. Due to non-renewal of lease, the plaintiff is not entitled to get 10% enhanced rate of rent after expiry of the period of five years w.e.f. 1st April, 1998. Issue No. 3 regarding assurance given by Ramesh Agrawal of not enhancing rate of rent from Rs.3025/- was not found prove in view of the pleadings in written statement and the evidence brought on record. Issue No. 4 relates to non-payment of arrears of rent from 31.8.2000 which is decided in favour of plaintiffs. The issue No.5 4 regarding service of notice of demand to pay rent from the date of the service and the effect of non-service. While deciding Issue Nos. 1,4 and 5 trial Court held that as per Rule 15 of M.P. Accommodation Control Rules, 1966 (in short the “Rules of 1966”) service of the demand notice has not been made effective over the person and in absence of acknowledgment due, decree of eviction has been refused. It has further been held that the plaintiff is unable to prove that the rent to the tune of Rs.26,567.50 was due while the finding of non-payment of the remaining rent has been recorded, but because notice was not found serve, therefore, the decree of eviction has been denied granting the decree of arrears of rent only. 6. Shri Dileep Pandey, learned counsel appearing on behalf of the appellant-plaintiff contends that the notice Ex.P-3 for recovery of arrears of rent was sent by registered post as per receipt Ex.P-4 on the address 27, Jawahar Chowk, Jumerati, Bhopal. On 4.9.2000 the defendant was not found on the said address and on the next day i.e. 5.9.2000 it was informed to the postman that receiver is out of station, however, the intimation was given. On 11.9.2000 summons were returned to the Court with the report that even on intimation notice has not been received. In the said fact as per Section 114 (f) of the Evidence Act as well as Section 27 of the General Clauses Act presumption of service of the notice must be drawn against the defendant, however, the trial Court committed an error to record the 5 finding of not having service of the notice on the person in light of Rule 15 of Rules of 1966. In support of the said contention reliance has been placed on the judgments of Jagdish Singh v. Natthu Singh, (1992) 1 SCC 647, State of M.P. v. Hiralal and others, (1996) 7 SCC 523, C.C. Alavi Haji v. Palapetty Muhammed and another, (2007) 6 SCC 555 and Thakumal (since deceased) through L.Rs. Mamtabai and others v. Chakradhar Rao Bhosle, 2009 (1) M.P.H.T. 17 (CG). In view of law laid down in the said cases it is urged that the finding recorded by the trial Court is erroneous, however, the decree of eviction may be granted looking to the finding of non-payment of the arrears of rent recorded by the trial Court. Reliance has been placed on the judgment of the Apex Court in the case of Jamnalal and others Vs. Radheshyam, (2004) SCC 380 to submit that the arrears of rent and the future rent are two ingredients of Section 13(1) of the M.P. Accommodation Control Act, 1961 (in short 'the Act'). Further relying upon the judgment of this Court in the case of Sabir Mohd. v. Maganlal, I.L.R. (2011) M.P. 1243 it is submitted that after determination of provisional rent vide order dated 2.7.2003 the tenant has not deposited the arrears within the time of one month as required under section 13 (1) of the Act, therefore the decree of eviction under Section 12(1) (a) of the Act may be directed. 7. It is further contended that on the basis of lease deed 6 (Ex.P/2) tenancy is undisputed as per Clause 2 (g)of the lease deed, after every two years 10% rent is required to be enhanced, Such condition has not been changed, the trial Court has committed an error in not granting the decree as per the increased rate of rent and the finding as recorded to pay rent at the rate of Rs.3,025/- on account of the expiry of the period of lease is completely erroneous particularly when the terms of the lease deed are admitted and the defendant is continuously occupying the shop without any change of terms and conditions of the tenancy. In support of such contention reliance has been placed on the judgment of the Apex Court in the case of Mohammad Ahmad & Anr. v. Atma Ram Chauhan and others, AIR 2011 SC 1940 wherein the Apex Court laid down the principles for enhancement of the rent as per terms and conditions of the agreement or at least by 10%, after every three years, which shall be payable to the landlord. In the said judgment it has further been observed that if the prevalent market rent assessed and fixed between the parties is paid by the tenant then he may be allowed to enjoy or occupy the shop at least for a period of five years. 8. Per contra Shri Vishal Dhagat, learned counsel appearing on behalf of the respondent-defendant contends that the defendant has raised dispute regarding rate of rent, however, until and unless dispute under section 13 (2) of the Act is decided, decree for eviction under section 12(1)(a) of the Act cannot be directed. In the 7 present case dispute under section 13 (2) of the Act is decided on 2.7.2003 fixing the provisional rent at the rate of Rs.3,025/- per month. Thereafter future rent has been paid by him regularly without any fault. It is fairly said that the arrears have been paid with some delay to which the application seeking condonation of the delay was filed. As the trial Court has not decided such application, therefore, by allowing such application delay, if any, in depositing the arrears may be condoned upholding the judgment and decree passed by the trial Court and the decree of eviction may be refused. In support of his submission reliance has been placed on the judgment of this Court in the case of Ramgopal Kanhaiyalal v. Firm M/s. Dinanath Gyasilal, 2006 (1) MPLJ 445 whereby this Court has held that time-barred rent is not required to be deposited and due to non-depositing of such rent decree under section 12 (1) (a) of the Act cannot be directed. In the said case it has been further held that if the notice has not been served by a person so authorised by the plaintiff and the suit is not instituted within the period of effectivity of the notice, decree of eviction cannot be directed. 9. After having heard learned counsel appearing on behalf of the parties and on perusal of the record, the tenancy of the defendant as per lease deed Ex.P-2 of the shop No.27, Jumerati, Bhopal is not in dispute. The said lease deed has been executed on 12th day of April, 1993. As per Clause 2 ( c) of the lease deed the defendant is 8 required to pay monthly rent at the rate of Rs.2,500/- on or before 5th day of each English calendar month obtaining receipt. As per Clause 2 (g) the tenant shall pay 10% increased rent every after two years, and such increase shall be effective from 1st April, 1994 onwards. The period of the lease was for five years. Admittedly no further renewal of the lease deed is in between the parties but the defendant is continuing in the shop as tenant as per said lease deed, however, the term of the lease deed shall not ceases its effect until changed or renewed, the term and condition of the said lease shall operate till occupation of the shop by the tenant. The non renewal of the lease deed would not culminate the terms upon which the defendant was inducted as a tenant and occupying the premises. Once tenant enjoys the shop it can only be in the terms in which he was inducted. Mere non renewal of lease after the said period would not give up the right of landlord to enhance 10% rent after every two years as agreed by defendant. The guidance may be taken from the judgment of the Apex Court in the case of Mohammad Ahmad (supra) whereby the Apex Court has clarified that the tenant must enhance the rent according to the terms of the agreement or at least by 10 per cent, after every three years and enhanced rent should then be made payable to the landlord. In the present case as per terms of the agreement, the said enhancement would be applicable w.e.f. 1st April, 1994. In view of the foregoing discussion, the finding recorded by the trial Court that the rent only 9 at the rate of Rs.3,025/- is recoverable on account of expiry of the period of the lease deed, is unsustainable in law. 10. It is seen from the record that on an application filed by the tenant under section 13 (2) of the Act, the provisional rent @ Rs.3025/- per month was fixed by the trial Court vide order dated 2.7.2003. Thus the dispute under section 13 (2) of the Act has been resolved by the trial Court. As per section 13 (1) of the Act after resolving the dispute, arrears of rent ought to be paid or deposited within one month and to pay rent regularly on or before 15th day of very month. The trial Court recorded a finding of non- payment of arrears of rent but the decree under section 12 (1) (a) of the Act has been refused because the notice of demand Ex.P-3 was not served on the defendant. In this respect record of the trial Court has been perused whereby notice for payment of the rent at the rate of Rs.3,327-50 w.e.f. 1st April,1999 onwards was sent vide Ex.P-3, by registered post on 2.9.2000 Ex.P-4. The said registered notice was sent on the address 27, Jawahar Chowk, Jumerati, Bhopal. The defendant has not disputed the said address and during trial various affidavits have been filed by him disclosing the same address. On 4.9.2000 defendant was not found on spot on 5.9.2000 it was reported that defendant is out of station, however intimation was given by Postman. On 11.9.2000 the notice was returned back with the note that despite information defendant has not received the notice. In this respect Section 114 of the Evidence 10 Act,1872 Illustration (f) is required to be quoted which is reproduced as under :- “114.Court may presume existence of certain facts.- The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Illustrations The court may presume-- (f) that the common course of business has been followed in particular case; thereby it is apparent that the court in the common course of business may presume the existence of any fact which it thinks likely to have happened. The said presumption may be drawn looking to the common course of natural events, human conduct and course of business in relation to the facts of the particular case. As per Section 27 of the General Clauses Act which reads as under :- “27. Meaning of service by post.- Where any Central Act or Regulation made after the commencement of this Act authorises or requires any document to be served by post, whether the express 'serve' or either of the express 'give' or 'sent' or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, prepaying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.” 11 thus it is clear, the service of the notice sent on the correct address by registered post may be presumed to be effective service of the said notice. The Apex Court in the case of Jagdish Singh (supra), State of M.P. Vs. Hiralal (supra) and C.C. Alavi Haji (supra) has held that when a notice is sent by registered post and is returned with a postal endorsement “refused” or “not available in the house” or “house locked” or “shop closed” or “addressee not in station”, due service has to be presumed. In the context of the said legal position looking to the fact of the present case despite intimation the defendant was not found available, however, by the said endorsement summons were returned to Court. In the present case the defendant has not disputed the address as given in the notice, more so he himself filed affidavits endorsing the said address. Rule 15 of the Rules of 1966 specifies the service of notice either by delivering it to the person or by forwarding it to the person by registered post with acknowledgment due. The present case relates to subsequent mode wherein by forwarding the notice to the person it has been sent by registered post. After despatch how the service be presumed it has not been specified in the said Rules of 1966. How the service of notice sent by registered post be accepted has been specified in section 27 of the General Clauses Act and the presumption as enumerated under section 114 Illustration (f) of the Evidence Act. Thus the finding of not having service of demand notice on person, recorded by the trial Court in reference to Rule 15 12 of the Rules of 1966 is based on the misinterpretation and liable to be set aside. In the opinion of this Court looking to the facts of this case notice of demand of rent sent by the landlord was duly served on the tenant. Thus trial Court erred in law in refusing the decree of eviction on account of non-service of demand notice Ex.P-3. It is seen that the trial Court in paragraph 13 of the impugned judgment recorded the finding of non-payment of the arrears of rent, however, as per the judgment of the Apex Court Jamnalal and others (supra) plaintiff is also entitled for decree under section 12 (1) (a) of the Act. 11. In addition to the same, on perusal of the record and looking to the statement of depositing rent filed by the defendant before the trial Court on 13.4.2005 it is clear that even after fixing provisional rent on 2.7.2003 future rent was deposited regularly but the arrears has not been deposited. As per said statement by receipt No.7 of Book No.9798 a sum of Rs.39,325/- was deposited on 2.1.2004. Similarly as per receipt No.60 of Book No.9865 Rs.33,025/- was deposited on 3.3.2004. As per requirement of Section 13 (1) of the Act amount of the arrears is required to be paid within one month from the date of service of the summon of Court. After fixing of provisional rent vide order dated 2.7.2003, the defendant became aware of the rate of rent and arrears, which has not been paid within due period as discussed above. As per record without depositing the arrears the defendant has filed an application before 13 the trial Court on 7.9.2003 which was not pressed on 21.6.2004 and on the said date another application (I.A. No.1/2004) was filed and that remained undecided by the trial Court. Simultaneously, application under Section 13 (6) of the Act was filed by the plaintiff on account of non-depositing the arrears of rent which also remained undecided, but the trial Court after appreciation of the evidence granted decree of arrears of rent and not of the eviction. It is to be observed that the appellant has not filed any application before this Court seeking condonation of delay. In view of the foregoing it is apparent that even after fixing the provisional rent, the arrears thereof has not been deposited within the time twice and no plausible explanation showing bona fide is available on record. However, in the opinion of this Court prayer seeking condonation of delay to pay the arrears of rent cannot be accepted. Thus in the facts of this case, plaintiff is entitled for a decree of eviction due to non-payment of arrears of rent under Section 12(1) (a) of the Act. 12. In the facts and circumstances of the case and in view of the discussion made herein above, the increase in rent @ 10% in terms of the agreement with effect from 1.4.1994 after every two consecutive years is required to be paid till vacation of the suit shop by the tenant. It is to be observed that the plaintiff is entitled for the legally recoverable arrears of rent as per the provisional rent fixed uptill passing the impugned judgment and decree. The plaintiff 14 is held to be entitled for the increased rate of rent @ 10% after passing the impugned judgment and decree till vacation of the suit shop. 13. In view of the foregoing, the appeal filed by the appellant/plaintiff succeeds and is hereby allowed. The finding recorded in the impugned judgment and decree refusing the decree of eviction is hereby set aside and the plaintiff is held entitled for decree of eviction under Section 12(1)(a) of the Act. It is to be further held that the arrears of rent as per the provisional rent fixed by the Trial Court is payable by the defendant till passing the impugned judgment and decree and thereafter the plaintiff is further held entitled to recover the increased rate of rent @10% after every two consecutive years till vacation of the suit shop. The decree be drawn accordingly. 14. In the facts and circumstances of the case, the parties are directed to bear their own costs. (J.K. Maheshwari) J U D G E ap