REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 20915    OF 2017 [Arising out of SLP(C) No.27765 of 2010]

Smt. Syed Sugara Zaidi                 …Appellant

Versus

Laeeq Ahmad (Dead) Through LRs. & Ors.      ....Respondents

J U D G M E N T

R. BANUMATHI, J.

Leave granted.

2. This  appeal  arises  out  of  the  judgment  dated  09.10.2009

passed by the High Court of Allahabad in Revision Petition No.543 of

1989  dismissing  the  revision  petition  filed  by  the  original

plaintiff/landlord  thereby  affirming  the  judgment  of  the  trial  court

dismissing the ejectment suit of the plaintiff/landlord.   

3. Brief facts of the case are that the suit property No.37(old), 17

and 18 (new numbers) situated at Beli Bazar, Meerut was let out by

the original plaintiff/landlord (Nazar Mohammad Zaidi) to the original

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defendants  (Abdul  Qayuum  and  Hazi  Anvaruul  Haq)  by  way  of

registered rent agreement dated 12.08.1968 for a period of  ten years

at the rent of Rs.750/- per month.  There was a specific term in the

rent agreement which envisaged renewal of the rent agreement by

execution of a separate registered agreement for a further period of

five  years  at  enhanced rent  from Rs.750/-  to  Rs.800/-  per  month.

After expiry of the original term of lease, landlord (Nazar Mohammad

Zaidi) filed ejectment suit in SCC Suit No. 2 of 1981 for eviction of

defendants/tenants inter alia on the pleas:- (i) that the period of lease

has expired; the defendants/tenants have failed to get the fresh lease

deed executed at the enhanced rent of Rs.800/- per month; (ii) the

defendants/tenants  have  put  up  construction  of  shops  in  the  suit

premises and let out the same to third party in violation of the terms of

the rent agreement; and (iii) default in payment of rent and municipal

tax by the defendants.   

4. Respondents-tenants contested the suit stating that they have

taken every possible step to get the lease deed renewed for a further

period of five years and also sent the rent @ Rs.800/- per month as

per  the  terms  of  the  lease  deed  dated  12.08.1968  to  the  original

plaintiff who refused to receive the same.  The tenants further pleaded

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that the entire arrears of rent, damages along with interest etc. have

been deposited in the court under Section 20(4) of the Uttar Pradesh

Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972

(for short 'U.P. Act 13 of 1972') and the suit for eviction is liable to be

dismissed.

5. Upon  consideration  of  the  pleadings  and  evidence,  the  trial

court framed eleven issues and dismissed the suit on the ground that

the plaintiff/landlord has not been able to establish any of the grounds

for eviction specified under Section 20 of the U.P. Act  13 of 1972.

Insofar as the issue of construction by defendants/tenants allegedly in

violation of  terms of  rent  agreement was concerned, the trial  court

held that the construction was in consonance with the terms of the

rent agreement and there was nothing in the rent agreement which

restricted the right of defendants/tenants to raise construction in the

premises.  So far as non-renewal of the rent agreement is concerned,

the  trial  court  held  that  there  was  reluctance  on  the  part  of  the

plaintiff/landlord to renew the rent agreement.  The trial court further

held that  there was no default  in payment of  rent  and the tenants

continued  paying  the  rent  even  after  lapse  of  lease  period  at  the

enhanced  rate  of  rent.   Being  aggrieved,  the  plaintiff/landlord

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approached the High Court by way of revision and the same came to

be dismissed by the impugned order.   

6. Mr.  V.  Shekhar,  learned  senior  counsel  for  the  appellant

contended  that  the  lease  deed  dated  12.08.1968  was  for  a  fixed

period of ten years and it can further be extended for five years on

executing fresh deed and since the defendants-tenants failed to get

any  fresh  deed  executed,  their  continuance  in  possession  had

become illegal after service of legal notice for eviction.  It was further

contended  that  the  courts  below  failed  to  appreciate  that  the

respondents defaulted many times in payment of rent and payment of

house tax to municipality and even on the plea under Section 20(4) of

the U.P. Act 13 of 1972, the tenants defaulted in regularly depositing

the  admitted  amount  and  therefore,  the  respondents-tenants  are

liable to be evicted.

7. Reiterating the findings of the High Court and the trial court, the

learned  counsel  for  respondents-tenants  submitted  that  the  courts

below  recorded  concurrent  findings  that  every  possible  step  was

taken by the respondents-tenants and it was the plaintiff-landlord who

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failed to renew the rent  agreement and the concurrent  findings so

recorded cannot be interfered with.  

8. Upon consideration of  the rival  contentions and materials  on

record, the question falling for consideration is whether after expiry of

the lease period and the determination of the tenancy whether the

respondents-tenants can continue in possession of the suit property,

when the lease was not renewed?   

9. The suit property was let out to the respondents-tenants by a

registered rent agreement dated 12.08.1968 for a period of ten years

on rent @ Rs.750/- per month.  There was a specific term in the rent

agreement  which  envisaged  renewal  of  the  rent  agreement  by

execution of a separate rent agreement for a further period of five

years at enhanced rent from Rs. 750/- to Rs.800/- per month.  The

lease was not renewed and thereafter the landlord issued a notice to

the respondents-tenants on 09.04.1979 seeking vacant possession of

the suit property on account of determination of lease due to efflux of

time.

10. The trial court was of the view that there was no violation of the

terms of the lease deed as they had put in sufficient efforts in getting

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the rent agreement renewed.  For arriving at such conclusion, the trial

court and the High Court placed reliance upon Ex. A-18 (13.06.1978)

a  notice  allegedly  issued  by  the  plaintiff's  advocate  Gulzar  Mohd.

intimating the tenants that they are willing to renew the lease as per

the terms of the rent agreement provided the tenants pay enhanced

rent @ Rs.800/- per month.  This piece of evidence was categorically

denied by the landlord.  The trial court did not keep in view the denial

of  the  appellant-landlord  regarding  issuance  of  Ex.  A-18  notice

(13.06.1978).  In the light of denial of issuance of Ex. A-18 notice, it

was necessary to adduce evidence to prove that Ex. A-18 notice was

actually issued on instructions by the landlord.  The burden was upon

the respondents-tenants to prove that the said notice was issued by

advocate Gulzar Mohd. on the instructions of the landlord.  The trial

court  pointed out  that  the respondents-tenants  had taken steps to

examine the said advocate; but he had not appeared before the court.

From the materials on record, it is not known as to what steps were

taken by the tenants to examine the said advocate Gulzar Mohd.  The

trial court, in our view, could have very well exercised its power under

Order  XVI  Rule  14  CPC  and  summoned  the  said  advocate  as

witness.  In the absence of examination of the said advocate Gulzar

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Mohd., the trial court ought not to have placed reliance upon   Ex.

A-18 notice alleged to have been issued on the instructions of the

landlord.

11. Ex. A-18 notice (13.06.1978) is said to have been issued on the

instructions of the landlord.  As pointed out earlier, the landlord issued

eviction  notice  on  09.04.1979  seeking  vacant  possession  of  the

premises.  If really Ex. A-18 notice dated 13.06.1978 was issued at

the instance of the landlord offering to renew the lease, there was no

requirement of issuance of eviction notice on 09.04.1979 calling upon

the respondents-tenants to hand over the vacant possession of the

suit property.  The courts below erred in ignoring landlord's denial of

issuance  of  Ex.  A-18  notice  (13.06.1978)  and  non-examination  of

advocate Gulzar Mohd.  The High Court was not right in holding that

the  respondents-tenants  have  taken  steps  to  get  renewal  of  rent

agreement and there was reluctance only on the part of the landlord.

Be it noted, the tenants have not approached the court to get renewal

of lease agreement beyond 12.08.1978.

12. As  pointed  out  earlier,  on  09.04.1979,  the  landlord  issued  a

notice to the respondents-tenants seeking vacant possession of the

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demised premises on account of determination of lease due to efflux

of  time.   After  lapse  of  lease  period,  if  a  lessee  continues  in

possession  of  the  demised  premises  in  absence  of  an  assent  by

lessor, then he is a tenant by sufferance and exposes himself to be

sued for ejectment at any time without any prior notice or demand of

possession.

13. The term in the lease agreement for renewal of lease deed does

not  ipso facto extend the tenure or term of the lease.  So far as the

clause for renewal in the lease deed is concerned, it was held in Delhi

Development Authority v. Durga Chand Kaushish (1973) 2 SCC 825

that such covenant only entitled a lessee to obtain a fresh lease in

accordance  with  and  in  due  satisfaction  of  the  law governing  the

making of leases.  In the absence of renewal of rent agreement, in

our considered view, the possession of the respondents-tenants in the

demised premises has become unlawful  and they are liable to  be

evicted.

14. Yet another ground for eviction is construction of shops in the

suit premises by the tenants and sub-letting the same in violation of

terms  of  rent  agreement.   Though,  there  is  a  clause  in  the  rent

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agreement enabling the tenants to put up construction, there is no

clause in the lease agreement permitting the tenants to transfer his

interest of tenancy to third party.  It is the case of the appellant that in

violation of the rent agreement, Anwar Ul Haq who was one of the

original tenants, transferred his interest of tenancy in favour of third

respondent  Mohd.  Ilyas  alias  Chaman.   The  appellant-landlord

specifically denied that such transfer of interest in the tenancy was

with  the consent  of  the original  landlord.   On the other  hand,  the

respondents-tenants  in  support  of  their  claim  submitted  that  such

transfer of interest in tenancy had taken place with the consent and

knowledge of the original landlord, relied upon Exs. A1 to A7 which

are the receipts said to have been signed by the original  landlord

issuing to Mohd. Ilyas alias Chaman as one of the tenants.  In view of

specific denial by the appellant-landlord that they have permitted such

transfer of interest,  the receipts Exs. A1 to A7 ought to have been

proved  by  adducing  evidence.   The  respondents-tenants,  though

relied upon the said documents, had not taken steps to prove those

documents.

15. On those issues,  the courts below recorded findings that  the

rent  agreement  nowhere  prohibited  any  of  the  tenants  from

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transferring  their  interest  in  tenancy  and  therefore,  there  was  no

violation of any of the terms of the rent agreement.  In noting so, the

trial  court  lost  sight  of  the fact  that  in  the rent  agreement,  parties

specifically incorporated clause (9), permitting sub-letting by tenants.

Had the parties agreed to create or transfer of interest in the tenancy

in favour of third party, they would have added a specific term in that

regard in the rent agreement.  Though, sub-letting of the premises for

commercial purpose was agreed to by the original parties, transfer of

interest in tenancy leading to creation of third party interest in the suit

property could not have been done in the absence of a specific term

in the rent agreement.  Thus, the respondents-tenants are liable to be

evicted  on  the  ground  of  violation  of  terms  of  rent  agreement  by

transfer of interest in tenancy to respondent No. 3 - Mohd. Ilyas alias

Chaman.

16. So far as the default in payment of rent and the deposit arrears

of rent by the defendants and whether the respondents are entitled to

the benefits of Section 20(4) of the U.P. Act 13 of 1972, the courts

below recorded concurrent findings that Section 20(4) of the U.P.   Act

13  of  1972  has  been  complied  with.   According  to  the

appellant-landlord,  the respondents have failed to regularly deposit

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the rent  in the trial  court  and there was no compliance of  Section

20(4)  of  the  U.P. Act  13  of  1972.   Since  we  have  held  that  the

respondents-tenants  are  liable  to  be  evicted  on  the  ground  of

non-renewal  of  rent  agreement  and  determination  of  tenancy  and

transfer of tenancy right in violation of terms of rent agreement, we

are not proposed to go into the ground of default in payment of rent

and compliance of Section 20(4) of the U.P. Act 13 of 1972.

17. The courts below did not properly appreciate that after service

of  eviction  notice  on  09.04.1979  continuance  of  respondents'

possession in the demised premises had become illegal.  The High

Court  did  not  appreciate  that  the  respondents  have  sub-let  the

property to third party and are earning huge profits by simply paying a

meager rent of Rs.800/- per month.  The respondents-tenants cannot

squat on the property and make a profit for themselves at the cost of

the appellant-landlord and the judgment of the High Court cannot be

sustained.   

18. In  the  result,  the  impugned  judgment  is  set  aside  and  this

appeal  is  allowed.   The  respondents-tenants  and  the  sub-tenants

inducted by them and any other person claiming through them are

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directed to hand over vacant possession of the suit premises within a

period of one year from today, failing which the respondents-tenants

and their sub-tenants or other persons claiming through them shall be

liable for contempt of Court in addition to other proceedings.  No order

as to costs.

     …….…………...………J.        [KURIAN JOSEPH]

…………….……………J.        [R. BANUMATHI]

New Delhi; December 06, 2017  

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