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 Sughra 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
Page No. 1 of 12
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
Page No. 2 of 12
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
Page No. 3 of 12
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
Page No. 4 of 12
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
Page No. 5 of 12
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
Page No. 6 of 12
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
Page No. 7 of 12
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
Page No. 8 of 12
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
Page No. 9 of 12
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
Page No. 10 of 12
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
Page No. 11 of 12
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
Page No. 12 of 12
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 Sughra 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
Page No. 1 of 12
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
Page No. 2 of 12
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
Page No. 3 of 12
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
Page No. 4 of 12
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
Page No. 5 of 12
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
Page No. 6 of 12
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
Page No. 7 of 12
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
Page No. 8 of 12
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
Page No. 9 of 12
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
Page No. 10 of 12
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
Page No. 11 of 12
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
Page No. 12 of 12
