Ganga Parshad and anr. Vs. Devi Lal - Court Judgment

Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the.....order1. this petition for revision is directed against the decision of the appellate authority reversing on appeal the decision of the rent controller ordering eviction of the tenant.2. the landlords claimed eviction of the tenant under section 13(3)(iii) and (iv) of the east punjab urban rent restriction act, namely that the tenant had committed acts, which had materially impaired the value and utility of the building or rented land and that he is guilty of acts of nuisance to the occupiers of the buildings in the neighbourhood. the petition was contested by the tenant. the rent controller found both the grounds in favour of the landlords and allowed the petition. on appeal by the tenant, the appellate authority reversed the decision of the rent controller on both the grounds. the.....

Judgment:
ORDER

1. This petition for revision is directed against the decision of the Appellate Authority reversing on appeal the decision of the Rent Controller ordering eviction of the tenant.

2. The landlords claimed eviction of the tenant under Section 13(3)(iii) and (iv) of the East Punjab Urban Rent Restriction Act, namely that the tenant had committed acts, which had materially impaired the value and utility of the building or rented land and that he is guilty of acts of nuisance to the occupiers of the buildings in the neighbourhood. The petition was contested by the tenant. The Rent Controller found both the grounds in favour of the landlords and allowed the petition. On appeal by the tenant, the Appellate Authority reversed the decision of the Rent Controller on both the grounds. The landlords have come up in revision to this Court.

3. After hearing the learned counsel for the parties I am of the view that the decision of the Appellate Authority cannot be sustained, so far as the first ground is concerned, namely, that the tenant had materially impaired the value and utility of the building. So far as the second ground is concerned I see no ground to interfere with the decision of the Appellate Authority.

4. The contention of the learned counsel for the petitioners with regard to the first ground is that in the Rent Note Exhibit P2 one of the conditions was that the tenant was liable for the safety of the building and was to look after it. This condition was again repeated in the second Rent Note Exhibit P1 which is dated 8th December, 1961. No further Rent Notes were executed and the tenant continued to hold over. The rights and liabilities of a tenant holding over are dealt with in Section 116 of the Transfer of Property Act which is in the following terms:-

'If a lessee or underlessee of property remains in possession thereof after the determination of the lease granted to the lessee, and the lessor or his legal representative accepts rent from the lessee or under-lessee, or otherwise assents to his continuing in possession, the lease is, in the absence of an agreement to the contrary, renewed from year to year, or from month to month according to the purpose for which the property is leased, as specified in Section 106.'

It was observed in Chaturbhuj Morarji v. Thomas J. Bennett. (1905) ILR 29 Bom 323 that where a tenant continues to hold over, he is bound to carry out such covenants as to repairs; etc, as would have to be performed under the lease within a period of similar duration to that during which he holds possession, the liability being based on the footing of a tenancy that commenced at the expiration of the lease, and not on any privity of contract or estate, whether legal or equitable, created by the lease. The view was accepted by the Federal Court in Kai Khushroo Bezonjee Capadia v. Bai Jehbai Hirjibhoy Warden, AIR 1949 FC 124 and it was observed that 'it is perfectly right that the tenancy which is created by the holding over of a lessee or under-lessee is new tenancy in law even though many of the terms of the old lease might be continued in it, by implication and it cannot be disputed that to bring new tenancy into existence, there must be a bilateral act.' In Digby v. Atkinson. (1877) 36 LT 613, it was held that the term 'as to repair' is applicable to a tenant holding over after the lease has expired. Even otherwise it appears to reasons that when a tenant enters into possession of premises, he is bound to keep them in good repair and it is for that reason that the Legislature thought fit to enact Section 12 in the East Punjab Urban Rent Restriction Act, 1949. Section 12 is in the following terms:--

'Where a landlord fails to make the necessary repairs to the premises, the tenant can apply to the Rent Controller to direct the landlord to do so and failing which the tenant can himself repair the premises and deduct the cost from the rent.'

The object of this provision is that a building should not go out of repairs. In the present case no attempt was made by the tenant or the landlord to repair the premises. In fact in the lease deeds Exhibits P2 and P1 the tenant had taken upon himself the safety of the premises and if the premises required repair it was his duty to approach the landlord to repair the same. In case the landlord failed to do so or an application to the Rent Controller in that behalf having failed, an argument would be open to a tenant that he was not at fault. The tenant did nothing of the kind. Therefore, the entire responsibility for the falling of the two walls would wholly and securely rest on him. I see no escape from this conclusion, in view of the decided cases as well as of the provisions of the law. The learned counsel for the tenant relied upon Kidar Nath v. Smt. Kartar Kaur. (1969) 71 Pun LR 186 and Anand Nivas (P) Ltd. v. Anandji Kalyanji's Pedhi AIR 1965 SC 414. These decisions do not militate with the view that I have taken. It is not that all the terms of the lease automatically apply to a lessee holding over. It is only certain terms which continue to govern the new relationship. The keeping of the premises in good repair is one of the terms which will apply so long the tenant holding over is in possession of the premises. Taking a different view of the matter would mean that the tenant can see the premises fall down without repair. In this view of the matter I cannot sustain the decision of the Appellate Authority. The Appellate Authority did not examine either the provisions of Section 116 of the Transfer of Property Act or the decisions on which I have relied upon.

5. For the reasons recorded above, this petition is allowed, the order of the Appellate Authority is quashed and that of the Rent Controller is restored, but there will be no order as to costs.

6. The petitioner is granted three months' time to vacate the premises provided he is not in arrears of rent and deposits the rent for three months within one month from today, failing which he will be liable to be evicted after the expiry of one month.

7. Petition allowed.