Case: DR. H.K. SHARMA Vs. RAM LAL

4. The appellant is theopposite party whereas the respondent is the applicant in the original application out of which these appeals arise5. The respondent (applicant) is the owner of house bearing No.5A, Court Road, Nardev Shastri Road, Dehradun comprising of four rooms, one kitchen, two verandahs and two galleries. The respondent has let out a portion of this house consisting of three rooms, one kitchen, latrine- bathroom, one store and two verandas (hereinafter referred to as thesuit house) to the appellant on a monthly rent of Rs.750/- as per the tenancy agreement dated 22.07.1985 entered into between them6. On 28.04.2008, the respondent filed an application under Section 21(1) (a) of the U.P. Urban Buildings (Regulation of Letting Rent and Eviction) Act, 1972 (hereinafter referred to asthe UP Act) against the appellant (opposite party) before the Prescribed Authority (Civil Judge) Sr. Division, Dehradun seeking his eviction from the suit house7. The eviction was sought on the ground of respondentsbona fideneed for his residence and also the members of his family. The respondent alleged that he has retired from the services and has no other suitable house of his own where he can live and,therefore,requires the suit house for his personal residence as also for the residence of the members of his family8. The appellant (opposite party) contested the application by filing the written statement. While denying the ground ofbona fideneed, it was contended that the appellant has entered into an agreement on 13.05.1993 with the respondent for purchase of the suit house and pursuant thereto he has also paid huge amount to the respondent. It was contended that since the parties have already entered into an agreement of sale/purchase of the suit house, the relationship of landlord/tenant between them has ceased to exist and now it no longer subsists and has come to an end9. It was also contended that consequent upon the execution of the agreement between the parties for the purchase of the suit house, the appellant is no longer in possession of the suit house as tenant but is now in possession as a purchaser of the suit house in part performance of the agreement dated 13.05.1993 qua the respondent10. In other words, it was contended that the relationship of landlord and tenant between the parties has come to an end and now the same stood converted into the new relationship of buyer and seller of the suit house. It was, therefore, contended that the application filed by the respondent under Section 21(1) (a) of the UP Act against the appellant for his eviction from the suit house is not maintainable and, therefore, it is liable to be dismissed on this short ground.11. The Prescribed Authority by order dated 03.11.2010 dismissed the respondents application and held that since the parties entered into an agreement dated 13.05.1993 for sale of the suit house, the appellant was not required to pay any monthly rent to the respondent inasmuch as according to him the relationship of the landlord and tenant between the parties has come to an end. He also decided the issue of bona fide need against the respondent and in appellants favour12. The respondent felt aggrieved and filed an appeal before the Appellate Court. By order dated 19.12.2015, the Appellate Court dismissed the appeal and affirmed the order of the Prescribed Authority. The respondent (applicant) felt aggrieved and filed the writ petition under Article 227 of the Constitution of India before the High Court of Uttarakhand at Nainital13. By impugned order dated 17.07.2017, the High Court allowed the writ petition and set aside the order of the Appellate Court and the Prescribed Authority. The appellant felt aggrieved and filed recall application. The High Court by order dated 03.10.2017 dismissed the recall application14. The High Court held that mere agreement to sell the suit house would not result in termination of landlord-tenant relationship between the parties unless there is a stipulation in the agreement itself to that effect. It was also held that since the agreement in question relied on by the appellant (opposite party) is not a registered agreement, he is not entitled to raise the plea of part performance based on Section 53-A of the Transfer of Property Act, 1882 (for short the TP Act) against the respondent. The High Court further held that the respondent being an old man has every right to live in his house in the last leg of his life and more so when he has no other house of his own in the city and, therefore, he has made out a case of bona fide need for his residence as also for the members of his family15. It is against these two orders of the High Court, the opposite party, i.e., the tenant has filed these appeals by way of special leave in this Court.

Reasoning:
23. Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in these appeals26. In our considered opinion, the aforementioned question has to be decided keeping in view the provisions of Section 111 of the TP Act and the intention of the parties to the lease - whether the parties intended to surrender the lease on execution of such agreement in relation to the tenanted premises or they intended to keep the lease subsisting notwithstanding the execution of such agreement33. Perusal of Agreement to Sell dated 13.05.1993 (Annexure P-1) shows that though the agreement contains 9 conditions but none of the conditions provides much less in specific terms as to what will be the fate of the tenancy. In other words, none of the conditions set out in the agreement 13.05.1993 can be construed for holding that the parties intended to surrender the tenancy rights34. Afortiori,the parties did not intend to surrender the tenancy rights despite entering into an agreement of sale of the tenanted property. In other words, if the parties really intended to surrender their tenancy rights as contemplated in clauses (e) or (f) of Section 111 of the TP Act while entering into an agreement to sell the suit house, it would have made necessary provision to that effect by providinga specific clause in the agreement. It was, however, not done. On the other hand,we find that the conditions set out in the agreement do not make out a case of express surrender under clause (e) or implied surrender under clause (f) of Section 111 of the TP Act35. It is for this reason, the law laid down by this Court in the case of R. Kanthimathi (supra) has no application to the facts of this case and is, therefore, distinguishable on facts.36. The words highlighted in italics of the agreement were construed by Their Lordships for holding that these italicized words in the agreement clearly indicate that the parties had really intended to surrender their tenancy rights on execution of the agreement of sale and bring to an end their jural relationship ofthe landlord and tenant37. As observed supra, such is not the case here because we do not find any such clause or a clause akin thereto in the agreement dated 13.05.1993 and nor we find that the existing conditions in the agreement discern the intention of the parties to surrender the tenancy agreement either expressly or impliedly38. In the light of the foregoing discussion, we are of the considered opinion that the tenancy in question between the parties did not result in its determination as contemplated under Section 111 of TP Act due to execution of the agreement dated 13.05.1993 between the parties for sale of the suit house and the same remained unaffected notwithstanding execution of the agreement dated 13.05.199339. A fortiori,the respondent (lessor) was rightly held entitled to file an application against the appellant (lessee) under Section 21 (1) (a) of the UP Act and seek the appellants eviction from the suit house after determining the tenancy in question40. Before parting, we make it clear that we examined the terms of the agreement dated 13.05.1993 only for deciding the question as to whether the execution of agreement, in any manner, resulted indetermination oftheexisting tenancy rights between the parties in relation to the suit house in the context of the TP Act and the UP Act and not beyond it41. Coming to the next question as to whether the respondent has made out a case of hisbona fide need for his residence and the members of his family as contemplated under the UP Act, suffice it to say, it being a question of fact, the finding recorded by the High Court on this question does not call for any interference in this appeal. It is binding on this Court.Even otherwise, we find no good ground to interfere in the finding for the reason that the respondent being a landlord and a retired man has every right to live in his house with his family.Therefore, there is no perversity in the finding of the High Court on this issue.