Smt. Mursila vs Islamuddin

Manoj Misra, J.—Heard learned counsel for the petitioners and Sri Chetan Chatterjee for the respondent.

The present petition has been filed by the petitioners against the judgement and order dated 30.11.2016 passed by Additional District Judge, Court No. 4, Saharanpur in SCC Revision No. 3 of 2016 by which the judgement and decree passed by the trial court in SCC Suit No. 13 of 2005 has been set aside and the matter has been remanded back to be decided afresh in accordance with the observations made in the order.

A perusal of the record would go to show that the plaintiff respondent instituted SCC Suit No. 13 of 2005 for arrears of rent and eviction against the defendant petitioners by taking a plea that the provisions of U.P. Act No. 13 of 1972 was not applicable and that the defendants were defaulter in payment of rent and that by a consolidated notice, the tenancy of the defendants was terminated but despite termination of tenancy, the defendants did not vacate the premises, hence the suit was necessitated.

The trial court framed as many as five issues, which are as follows:

Whether there was relationship of landlord tenant between the parties?

Whether the suit property was under the purview of U.P. Act No. 13 of 1972?

In case, the suit property was not within the purview of U.P. Act No. 13 of 1972 then which law would be applicable?

Whether the plaintiff had cause of action to institute the suit?

To what relief the plaintiff was entitled too?

The trial court returned finding that there exists landlord tenant relationship between plaintiff and defendants; that U.P. Act No. 13 of 1972 was not applicable; and in lieu thereof, the provisions of T.P. Act would govern the rights of the parties. On issue no. 4, the court came to the conclusion that since by the notice, arrears of rent was also demanded, which the plaintiff failed to prove to be due, therefore no cause of action arose for terminating the tenancy and as such the suit was dismissed.

The judgement and decree passed by the trial court was subjected to revision by the plaintiff respondent. The revisional court by its judgement and order dated 30.11.2016 found that the notice terminating the tenancy was a composite notice whereby the tenancy was specifically terminated though arrears of rent was also demanded. Therefore merely because the arrears of rent were not found payable, the notice would not be bad in law and, therefore, the finding returned to the contrary by the trial court was erroneous. Accordingly the matter was remanded back to the trial court to decide in accordance with law.

The submission of learned counsel for the petitioners is that there was no default on the part of the defendants in payment of rent, therefore the trial court was legally justified in holding that the plaintiff did not have any cause of action to institute the suit.

Sri Chetan Chatterjee, who appeared on behalf of the respondent has submitted that it was not a case of forfeiture of lease on account of violation of any of the terms and conditions of lease but it was a case where the tenancy was terminated by a notice under section 106 of Transfer of Property Act. It has been submitted that bare perusal of the notice terminating tenancy would disclose that it was not a case of forfeiture of tenancy on ground of violation of any of the terms and conditions of written lease but the lease was terminated separately by making a specific statement that the landlord does not wish to continue with the tenancy of the tenant and accordingly terminates the tenancy by serving thirty days notice. It has been submitted that the revisional court was therefore justified in setting aside the finding returned by the trial court on issue no. 4.

I find substance in the submission of learned counsel for the respondent that the tenancy was terminated in exercise of the right conferred by section 106 of Transfer of Property Act therefore the notice terminating tenancy cannot be said to be invalid merely because the landlord failed to prove that the tenant was in arrears.

Accordingly, I do not find any good reason to interfere with the order passed by the revisional court. The petition is dismissed.