IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Civil Revision No. 51 of 2008 Mrs. Vimla Devi & others. .……… Petitioners Versus Nirmal Jeet Singh Hoon & others. ……… Respondents Mr. Sharad Sharma, Senior Advocate with Mr. Jitendra Chaudhary, Advocate for the petitioners / tenants. Mr. V.K. Kohli, Senior Advocate with Mr. Zainuddin Mohd. Siddiqui & Mr. H.M. Bhatia, Advocates for respondents Nos. 2, 3 & 4 / landlords. with Civil Revision No. 48 of 2008 Nirmal Jeet Singh Hoon. .……… Petitioner Versus Irtiza Hussain & others. ……… Respondents Dated: 23rd July, 2009 V.K. GUPTA, C. J. This almost four decades old litigation is being brought to an end by this Common Judgment, whereby these two Civil Revision Petitions are being disposed of together. It took full 35 years for the Trial Court to decide and dispose of a mere eviction proceeding filed by the landlords against the tenants. Actually the delay, inordinate delay, even by the national standards is all the more intriguing if one keeps in mind the fact that, in the ultimate analysis, the eviction proceeding was based just upon the ground of determination of tenancy by afflux of time. 2. The case has a chequered history. The subject matter of the dispute forming the central, focal point of litigation is a Hotel presently known by the name of ‘Hotel Grand Hakman’ situated on The Mall in the famous hill resort of Mussoorie in the district of Dehradun. The plaintiffs undoubtedly are the owners / landlords of the Building, details whereof have been clearly mentioned in Schedule 2 ‘A’ to the Plaint. The defendants have been the tenants of the said Building. The historical background of this Building dates back to the year 1904 when Grand Central Hotel (the name which this Building previously had) was started by one Jan Mohammad. He had a son by the name Hazi Razzak. Hazi Razzak had two wives, the first being Bismillah Begum and the second Jahida Khatoon. Hazi Razzak was Jahida’s second husband. From her first husband Jahida Khatoon had following four children: (i) Irtaza Hussain (ii) Murtaza Hussain (iii) Shahida Khatoon (iv) Sajida Khatoon 3. Bismillah Begum had one son, namely, Sultan Mohd. born out of the wedlock between her and Hazi Razzak. Sarvari Khatoon is the wife of Sultan Mohammad. On 08.11.1923, Hazi Razak executed a lease deed in favour of H.R. Hakman for the aforesaid Hotel. H.R. Hakman died on 22.04.1932. Upon his death, his rights devolved upon his wife Mrs. H.R. Hakman. On 05.02.1946, Sultan Mohammad, son of Hazi Razzak and Bismillah Begum executed a fresh lease deed in favour of Mrs. H.R. Hakman. On 22.06.1946, Mrs. H.R. Hakman executed a Deed of Conveyance in favour of Ram Prasad. 4. Case No. 94 of 1973 was filed by the landlord / respondents against the tenants, being an Eviction Application under Section 21(1)(a) of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (‘1972 Act’ or ‘Act No. 13 of 1972, wherever the context so requires, for short). This case was decided in favour of the landlords on 28.10.1976. Appeal under Section 22 of 1972 Act was filed by the tenants against this Judgment. The Appellate Court allowed the said Appeal vide its judgment dated 05.12.1985. Aggrieved, the landlords filed Writ Petition No. 6334 of 1986 in the Allahabad High Court. On 29.10.1999, this Writ Petition was dismissed by Allahabad High Court as having become infructuous in view of the averments and assertions made by the tenants, who were 3 the respondents in the said Writ Petition, that the rent of the premises in question being Rs. 28,405.95 per annum (being thus more than Rs. 2000/- per month), Act No. 13 of 1972 was not applicable to the property in question. 5. Simultaneously even while Case No. 94 of 1973 was pending, the landlords filed Case No. 5 of 1973 under Section 8 of 1972 Act for determination and fixation of the “standard rent”. Vide order dated 08.11.1974, the Prescribed Authority disposed of this Application by fixing standard rent @ Rs.23,125/- per annum, which was made effective from 15.07.1972. The landlords and the tenants, both, filed Appeals against this order, both being dissatisfied therefrom, being Appeal Nos. 268 of 1974 and 274 of 1974. Both these Appeals were dismissed by the Appellate Court (District Judge) on 23.03.1975. Tenants, feeling dissatisfied, filed Writ Petition No. 8365 of 1975 against the aforesaid order of the Appellate Court, but this writ petition was also dismissed on 29.11.1978 by the Allahabad High Court upholding the fixation of Standard Rent @ Rs. 23,125/- per annum which thus assumed finality. 6. Even while the landlords’ Application filed under Section 21 (1)(a) of 1972 Act, being Case No. 94 of 1973 was pending, they filed Case No. 41 of 1974 on 14.03.1974 for eviction of the tenants on the ground of defaults in the payment of rent and subletting in terms of clauses (a) and (e) of sub-section (2) of Section 20 of 1972 Act. (Decree passed on 22.08.2008 in the said Case has been challenged in these two Revision Petitions.). 7. Recapitulating and coming once again to the historical background further, it has to be mentioned that on 08.12.1954, in Suit No. 105 of 1948, a settlement had been arrived at between the defendants Nos. 1 & 2 and Hazi Razzak Mohammad, husband of plaintiff No. 2 and Smt. Sarvari Khatoon, plaintiff No. 4, whereby it was agreed between the parties that the period of lease with respect to 4 the Hotel was to stand extended up to 31.12.1962. It was also agreed that defendant No. 2 (M/s United Hotels Pvt. Ltd.) was to be the lessee of the property in question, but in case of any default in the payment of rent, the liability to pay the rent rested with defendant No. 1 (Ram Prasad, since deceased) personally. On the death of Ram Prasad, his personal liability stood devolved upon his heirs. Under the said Agreement, the yearly rent earlier fixed at Rs. 22,000/- was reduced to Rs. 18,500/- with the following breakup: (a) Rent of the Building : Rs. 13,500/- per annum. (b) Hire Charges of Furniture, Crockery and Cutlery etc.: Rs. 5,000/- per annum. Total : Rs. 18,500/- per annum 8. In the said Agreement, it was clearly agreed upon between the parties that the aforesaid two items, viz. annual rent of Rs. 13,500/- and the hire charges of Rs. 5,000/- per annum, would be inseparable until the termination of the lease and the Furniture, Crockery and Cutlery etc. were also not to be replaced by the lessor on any account during the continuance of the lease and the lessee was bound to make good the deficiency, if any, of the Furniture, Crockery, Cutlery etc. It was also stipulated in the said Agreement that a fresh Lease Deed was to be executed between the parties and duly got registered incorporating the above terms and conditions along with the conditions of the last Lease Deed dated 05.02.1946 so far as these were not inconsistent with the terms of the aforesaid Agreement. The text of this Agreement reads thus: “1. That the lessee Shri Ram Pershad Managing Director United Hotels Ltd. shall pay Rs. 13,500/- a year as rent of the building and Rs. 5,000/- as hire of furniture, total Rs. 18,500/- a year. The two items shall be inseparable until the termination of the lease and the furniture shall not be replaced by the landlords on any account during the continuance of the lease. 2. That the lease shall be renewed as from 1st January, 1952 on the above amongst others terms as embodied in the original lease in favour of Mrs. Hakman 5 deceased which are not inconsistent with the terms hereof. 3. That the lease shall be for period of 10 years from 1st January 1952. 4. That the lessee giving up his claim for Rs. 25,000/- for the excess of the rent paid under the old lease and landlords give up their claim to Rs. 9,000/- which was allowed by Court to the lessor for repairs. 5. That the landlord shall immediately carry on all the major and minor repairs in consultation with the help of the lessee. 6. That details of such repairs will be decided upon when the parties have met at Mussoorie or Lucknow till the end of the December 1954 and repairs shall be carried out under the supervision of a representative of both defendant No. 1 and the plaintiff. 7. That the amount of such repairs will be upto Rs. 20,000/- and this amount will be advanced by the lessee towards rent and he shall be entitled to deduct it from the yearly rent of Rs. 18,500/- in two years beginning from the 1st January, 1995 in equal six monthly installments. 8. That after these repairs the lessee shall be liable for major and minor repairs (with the Exception of Acts of God) until the termination of the lease. 9. That the arrears for the period of 1st January, 1952 to 31st December, 1954 amounting to Rs. 50,300/- are being paid by 4 cheques dated 01-12-1954, 31-01-1955, 28-02-1955 and 31-03-1955 of which the first cheque is for Rs. 20,300/- and the rest 3 cheques for Rs. 10,000/- each at the time of the verification of this compromise. Should the money be not realized on the due dates of the cheques or any one of them is dishonoured, the compromise shall not come into force. 10. That a part from the liability of the Limited Company for the rent, the Managing Director (Shri Ram Prasad) will also remain personally liable for arrears of rent due under the lease. 11. That the above terms are beneficial to the parties and it will save unnecessary expenses and protracted litigation.” 9. It is a common ground between the parties that actually, however, no fresh Lease Deed was ever executed and, therefore, the defendants became tenants from month to month. Plaintiff No. 1 Irtiza Hussain purchased 1/32 share of Raziunnisa Begum insofar as the suit property was concerned through a registered Sale Deed executed somewhere in October, 1967. Defendants Nos. 1 & 2 were 6 informed of this fact accordingly. Irtiza Hussain thereby became entitled to receive and recover the rent to the extent of 1/32 share with effect from October, 1967, which earlier was being paid to Raziunnisa Begum. 10. As noticed earlier, Case No. 41 of 1974 was filed by the plaintiffs / landlords against the defendants / tenants on two grounds, namely defaults in the payment of arrears of rent and subletting. Since the learned Trial Court has decided the issue relating to subletting against the plaintiffs and because this finding has neither been challenged nor is it relevant for our purposes, I need not even make an attempt to refer to this aspect of the case, confining myself only to the ground of default in the payment of arrears of rent as far as this ground would be relevant in the context and perspective of the contours upon which these Revision Petitions shall ultimately be decided. Insofar as the issue regarding the defaults is concerned, the averments with respect thereto are contained in Paras 18, 19 & 20 of the Plaint, which for ready reference are reproduced hereunder. These three Paras read thus: “18. That defendants 1 (since deceased) and 2 failed to pay 1/32 share since October, 1967, which was payable to plaintiff no. 1 Irtiza Husain and further failed to pay entire rent since 1-1-1972. The rent for the period 1-1-1972 to 30-06-1972 fell due on 15-06-1972 and rent for 1-7-1972 to 31-12-1972 fell due on 15-09-1972 and the rent for the period 1-1-1973 to 30-6-1973 fell due on 15-06-1973. 19. That on 14-08-1973 the plaintiffs through their counsel sent a composite notice of demand and termination of tenancy under registered cover as required U/s 106 of the Transfer of Property Act, 1882. The plaintiffs were entitled to send one month’s notice for termination of tenancy but by way of abundant caution the plaintiffs sent six months’ notice. 20. That the notice referred to above was served upon the defendants 1 (since deceased) and 2 on 17-08- 1973, but they neither vacated the premises nor paid any amount.” 7 11. Two noticeable events took place during the pendency of this litigation. The first event was the amendment of Act No. 13 of 1972 brought about by U.P. Amendment Act No. 5 of 1995, made effective from 26.09.1994, whereby clause (g) of sub-section (1) of Section 2 of 1972 Act was introduced, which reads thus: “g. any building, whose monthly rent exceeds two thousand rupees;” 12. The second event related to and arose out of the proceedings in Case No. 94 of 1973 filed by the landlords / respondents under Section 21(1)(a) of 1972 Act. As has been noticed in the earlier part of this Judgment, even though this Case was decided in favour of the landlords on 28.10.1976 by the Prescribed Authority, Appeal against this Judgment filed by the tenants under Section 22 of 1972 Act was allowed by the Appellate Court, which judgment was challenged by the landlords in Allahabad High Court through Writ Petition No. 6334 of 1986. This Writ Petition, when came up for consideration before Allahabad High Court on 29.10.1999, it was dismissed as having become infructuous on the ground that the rent of the property in question being more than Rs. 2,000/- per month, by virtue of the fact of the introduction of clause (g) in sub-section (1) of Section 2 of 1972 Act through the aforesaid amendment brought about in 1995, 1972 Act was not applicable to the property in question, it having gone outside the purview and scope of 1972 Act by virtue of the aforesaid 1995 Amendment. Order of Allahabad High Court passed on 29.10.1999 in the aforesaid Writ Petition No. 6334 of 1986 is being noticed hereunder for our ready reference so that a reading of this Order would indicate to us the background under which it had come to be passed. The Order reads thus: “The petitioners are the landlord (sic) of the accommodation which is non-residential in nature. They filed an application U/s 21(1)(1) (sic) of the U.P. Urban Building (Regulation of Letting, Rent and Eviction) Act, 8 1972 (the Act) for eviction of the tenant (sic). This application was allowed by the Prescribed Authority but the tenant’s appeal was allowed on 5.12.85, hence the present writ petition. I have heard Sri N.M. Dayal, B.K. Jain learned counsel for the petitioners and Sri Rajesh Tandon, learned counsel for the respondents. The respondents have filed a counter affidavit in which para 34 of the writ petition it is stated that the rent of premises is Rs. 28,405.95 per annum (more than Rs. 2,000/- per month) and tenant (sic) has also mentioned in para 28 of the counter affidavit that in view of the fact the rent is more than Rs. 2,000/- per month, the building is exempted for (sic) operation of the Act and the writ petition is not maintainable. Even if this writ petition is allowed and the matter remanded back of (sic) the appellate court for re- decision the proceedings can not be proceeded. In view of this the writ petition have (sic) become infructuous, it is accordingly dismissed.” 13. Since this Order mentioned and made a reference to some paras of the counter affidavit filed in the said Writ Petition by the tenants / respondents therein, it is worthwhile to notice the contents of these Paras of the said counter affidavit. Actually, a careful perusal of the counter affidavit (affirmed on 12th November, 1997) filed by the respondents in the aforesaid Writ Petition reveals to me that Paras 28 to 36 of this counter affidavit, alone, are relevant for our purposes insofar as the consideration of the issue relating to the applicability of 1972 Act to the property in question is concerned. Paras 28 to 36 accordingly are reproduced hereunder which read thus: “28. That the present writ petition is not legally maintainable as the property is exempted from operation of the Act in view of Section 2(i) (g) of the Act as amended by U.P. Act No. 5 of 1995. The writ petition is liable to be dismissed. 29. That the property was let-out on annual rental of Rs. 18,500/- per annum which was inclusive of Rs. 5,000/- per annum as hire charges of the furniture, crockery, cutlery, etc. 30. That the petitioners made an application U/s 8 (1) of the Act for determining the standard rent of the building of Hakmans Grand Hotel, Mussoorie excluding Servant quarters, out houses, phoenix lodge cottage and delight cottage and open land. 9 31. That the Rent control & Eviction Officer, Mussoorie by order dated 08-11-1974 declared the standard rent payable by the tenants to be Rs. 23,125/- per annum which was exclusive of Rs. 5,000/- being the hire charges of furniture, crockery, cutlery, etc. The appeal filed against the order dated 08-11-1974 before the District Judge, Dehradun was dismissed by order dated 23-09-1975. 32. That the respondent filed a writ petition in the Hon’ble Court against the order dated 08-11-1974 and 23-09-1975 being Civil Misc. Writ Petition No. 8365 of 1975 Sri Ram Prasad & Others Vs. District Judge, Dehradun & Others. The said writ petition was dismissed by order dated 29-11-1978, holding that the rent fixed by the Rent Control & Eviction Officer at Rs. 23,125/- per annum was in accordance with law. A copy of the Hon’ble Court’s order dated 29-11-1978 is Annexure-1 to this affidavit. 33. That U/s 7 of the Act, the tenant is liable to pay the rent to the landlord in addition and as part of rent, water tax and 25% of the house tax. The water tax is payable at the rate of 12.5% per annum and house tax is payable at 1.25% per annum. 34. That Rs. 2,390.95 per annum is payable as water tax and Rs. 2,890/- is payable as house tax. Thus the annual rent of the premises is Rs. 28,405.95 per annum which is more than Rs. 2,000/- per month. The bills dated 28-04-1992 issued by Municipal board, Mussoorie regarding house tax for the year 1992-93 is Annexure-2 to this affidavit. 35. That the petitioners have filed the suit for ejectment being S.C.C. Suit No. 41 of 1974, Sri Irtiza Hussain Vs. Sri Ram Prasad and others which is pending in the court of the District Judge, Dehradun. In the said suit the petitioners have claimed the rent @ Rs. 23,125/- per annum + Rs. 5,000/- per annum as hire charges of furniture, crockery and cutlery etc. The rent claimed is exclusive of the house tax and water tax. A certified copy of the plaint of S.C.C. Suit No. 41 of 1974 is Annexure 3 to this affidavit. 36. That thus the property is exempted from the operation of the Act and the writ petition filed by the petitioners have become infructuous and is liable to be rejected.” 14. It is in the aforesaid background that the Plaint in Case No. 41 of 1974 came to be amended by the plaintiffs / landlords. Through this amendment, the plaintiffs / landlords took their Suit (Case No. 41 of 1974) outside the ambit and purview of 1972 Act on the clear 10 premise and ground that because the monthly rent of the property in question was more than Rs. 2,000/-, the provisions of 1972 Act were not applicable to the property in question. The relevant paras of the Plaint, which thus underwent amendments because of the aforesaid changed circumstance, are as under: “17-A. That the application U/s 21 of the plaintiffs having been rejected by the appellant authority, they preferred a writ petition no. 6334/86. 17-B. That during the pendency of the said writ petition, U.P. Act No. 13 of 1972 was amended by U.P. Act No. 5 of 1995 by virtue of which premises having rent of Rs. (More than) Rs. 2,000/- P.M. were exempted from the operation of the said Act. 17-C. That the defendants filed counter affidavit in the said writ petition no. 6334/86 and contended that the rent of premises being Rs. 23,125/- plus Rs. 5,000/- i.e. Rs. 28,125 plus Rs. 2,390.95 water tax and Rs. 2,890/- house tax total being Rs. 33,405.95 which was more than Rs. 24,000/- P.A. as such the writ petition was not legally maintainable. 17-D. That the Hon’ble High Court upheld the contention of the defendants and dismissed the writ petition as infructuous since the rent of the premises was more than Rs. 2,000/- P.A. vide judgment dated 02-10- 1999. 17-E. That as such U.P. Act No. 13 of 1972 is not applicable to the premises and any contention of the defendants to the contrary would be barred on the principles of resjudicata and the year estopped from contending the same on account of pleadings set up by them in the said writ petition resulting the dismissal of the said writ petition.” 15. Connected with the aforesaid, was another issue relating to the fixation of the Standard Rent at the rate of Rs. 23,125/- per annum, which found a reflection, also through an amendment brought about in the Plaint, by introduction of Para 14A, which reads thus: “14-A. That the case U/s 8 of the U.P. Act No. 13 of 1972 has been finally decided by the Hon’ble High Court vide order dated 29-11-1978 holding the standard rent of the premises to be at Rs. 23,125/- per annum. And so the plaintiffs are entitled to recover at such rate.” 11 16. The defendants filed Additional Written Statement in answer to the amended Plaint and, whereas they dealt with Para 14A, they omitted to deal with the aforesaid Paras 17A, 17B, 17C, 17D & 17E. Insofar as Para 14A is concerned, the reply was as evasive as it possibly could be. The reply to Para 14A is reproduced hereunder, which reads thus: “That the allegations made in Para 14A of the Plaint as alleged are wrong and are denied. The order under Section 8 of the Act is void and is not enforceable.” 17. The aforesaid plea was taken despite the fact that the order fixing the Standard Rent had assumed finality through the judgments passed by the District Judge as well as the High Court. 18. The filing of Case No. 41 of 1974 was preceded by service of composite notice in terms of Section 106 of The Transfer of Property Act, 1882 on 14.08.1973. Averment to the effect that Notice dated 14.08.1973 was issued through the Counsel of the plaintiffs is contained in Para 19 of the Plaint. Similarly, the averment to the effect that this Notice was served upon the defendants on 17.08.1973 is contained in Para 20 of the Plaint. These two Paras have already been taken note of in the earlier part of this Judgment. Since a lot has been said about this Notice, it is worthwhile to take a look at its text which reads thus: “1. That my above clients are owner- landlords of Grand Central Hotel, Mussorie including its annexies known as Phoenix Lodge, Laurel Bank, Powey’s Cottage, Delight Cottage and, Delight house etc. the said Hotel is presently known as Hakman’s Grand Hotel and its Annexies etc. situated at Mall Road, Mussoorie, and you are tenant, month to month of the said premises alongwith furniture, crockery and cutlery etc. 2. That the rent of the said premises was at the rate of Rs. 13,500/- per year plus Rs. 5,000/- per annum hire charges of furniture etc. but after the enforcement of the U.P. Act XIII of 1972 the rent of the premises under 12 your tenancy has become at the rate of Rs. 29,062.50 per year with effect form 15-07-1972 in addition to Rs. 5,000/- per annum as hire charges of furniture etc. 3. That you failed to pay