# M/S Arun Entp v. A.D.J., Court No. 9, Lko. & Ors

- **Citation:** (2024) 9 ILRA 954
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-09-10
- **Case number:** Matter Under Article 227 No. 4226 of 2024
- **Bench:** Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-arun-entp-v-a-d-j-court-no-9-lko-ors-52550
- **Pages:** 6

## Headnote

Civil Law - The Constitution of India,
1950-Article 227 -Transfer of Property
Act, 1882-Section 106- there was a lease
agreement dated 30.07.1980 between the
parties in respect of a portion of tenanted
premises measuring 530 Square Feet, which
categorically St.s that the lease was a month to
month lease-Subsequently a further portion of
the property of the opposite parties was given
on lease to the petitioner under an oral
agreement, the entire leased premises was
always treated as a single tenement and a
single rent was payable for the entire tenanted
premises- Petitioner has failed to discharge his
burden to prove that his tenancy was an year
to-year
tenancy-
Nothing
on
record
to
substantiate that the rent was payable in
respect of the tenanted premises on an yearly
basis. Even if rent was paid on yearly basis on
some occasions, it would not make the lease an
yearly lease. (Para 23, 25 & 26)

Petition dismissed. (E-15)

List of Cases cited:

## Text

954 INDIAN LAW REPORTS ALLAHABAD SERIES
should not have filed the present
frivolous writ petition to challenge
the
impugned
contractually
"binding order". The conduct of the
petitioner in filing the present writ
petition deserves to be condemned
inasmuch as a frivolous writ
petition has been filed to drag in
litigation the respondent No.1 who
is
a
widow
and
belongs
to
economically weaker and socially
and educationally disadvantageous
section of the society."

11. Keeping in view the aforesaid
facts and circumstances of the case this
court finds no merit in the petition and the
court deprecates the conduct of the
petitioner in filing this frivolous petition.

12. The petition is accordingly
dismissed.
----------
(2024) 9 ILRA 954
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 10.09.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Matter Under Article 227 No. 4226 of 2024

M/S Arun Entp. ...Petitioner
Versus
A.D.J., Court No. 9, Lko. & Ors.
 ...Respondents

Counsel for the Petitioner:
Praveen Tripathi, Saud Rais

Counsel for the Respondents:
Aakchad Nath, Nirmit Srivastava

Civil Law - The Constitution of India,
1950-Article 227 -Transfer of Property
Act, 1882-Section 106- there was a lease
agreement dated 30.07.1980 between the
parties in respect of a portion of tenanted
premises measuring 530 Square Feet, which
categorically St.s that the lease was a month to
month lease-Subsequently a further portion of
the property of the opposite parties was given
on lease to the petitioner under an oral
agreement, the entire leased premises was
always treated as a single tenement and a
single rent was payable for the entire tenanted
premises- Petitioner has failed to discharge his
burden to prove that his tenancy was an year
to-year
tenancy-
Nothing
on
record
to
substantiate that the rent was payable in
respect of the tenanted premises on an yearly
basis. Even if rent was paid on yearly basis on
some occasions, it would not make the lease an
yearly lease. (Para 23, 25 & 26)

Petition dismissed. (E-15)

List of Cases cited:

1. Idandas Vs Anant Ramchandra Phadke
(Dead) by Lrs.: (1982) 1 SCC 27

2. Paul Rubber Industries (P) Ltd. Vs Amit
Chand Mitra: 2023 SCC OnLine SC 1216

(Delivered by Hon'ble Subhash Vidyarthi, J.)

1. Heard Sri Saud Rais, the learned
counsel for the petitioner, Sri Nirmit
Srivastava, the learned counsel for the
opposite parties and perused the records.

2. By means of the instant petition,
filed under Article 227 of the Constitution
of India, the petitioner has challenged the
validity of a judgment and order dated
08.08.2024 passed by learned Judge, Small
Causes Court, Lucknow in S.C.C. Suit No.
48 of 2017 (old number 218 of 2014),
whereby the Suit for ejectment and
recovery of arrears of rent and damages
filed by opposite parties against the
petitioner was decreed. The petitioner has
also challenged the judgment and order
dated 08.08.2024 passed by the learned
9 All. M/S Arun Entp. Vs. A.D.J., Court No. 9, Lko. & Ors.
955
Additional District Judge, Court no. 9,
Lucknow whereby SCC Revision No. 41 of
2017, filed against the aforesaid order dated
08.08.2024, has been dismissed.

3. Briefly stated, facts of the case
are that the opposite parties had filed the
aforesaid S.C.C. Suit for ejectment and
recovery of arrears of rent and damages
pleading that they are co-owners/landlords
of the land with building bearing municipal
no. 352/2, Tulsidas Marg, Manjeet Singh
Building Campus, New C-Block, Raja Ji
Puram, Lucknow, having an area of
6390.65 Square Feet which is bounded as
below:

East: Tulsidas Marg
West: Vacant land of the
plaintiffs and thereafter warehouses
North:
Land
of
the
plaintiffs and thereafter Talkatora
Power House
South: Office of Senior
Marketing
Inspector
(Food
Department) and vacant land of the
plaintiffs. The petitioner was using
the tenanted premises as a factory
and Godown and the monthly rent
payable by the petitioner was Rs
3,569/- per month.

4. It was further pleaded that
initially the property in question was let out
to the defendant as a single unit but on the
request of the proprietor of the petitioner,
the tenancy was bifurcated with one portion
remained in the tenancy of M/s Arun
Enterprises with its proprietor Sri Arun
Mansukhani and the other portion fell in
the tenancy of M/s. M.K. Enterprises with
its new proprietor Smt. Meera Kumar
(mother-in-law of Sri Arun Mansukhani).
However, both the proprietorship concerns
continued to be managed by Sri. Arun
Mansukhani and both the concerns carry on
business as a single unit. It was alleged that
the tenant defaulted in payment of rent
since 01.07.2014. The plaintiffs sent a
notice dated 09.10.2014 under Section 106
of the Transfer of Property Act stating that
the tenancy would stand determined upon
expiry of 30 days from the date of receipt
of the notice.

5. The petitioner filed a written
statement of its defence stating that the
tenanted premises is being used for
manufacturing goods. The petitioner denied
having committed any default in payment
of rent and stated that the entire rent had
been paid to the landlords.

6. The plaintiffs has filed a
supplementary affidavit annexing therewith
a copy of a lease agreement dated
30.07.1980 executed between Satender Jeet
Singh - the predecessor in interest of the
opposite parties, and Sri Arun Mansukhani,
proprietor
of
M/s
Arun
Enterprises,
wherein it was written that the petitioner
had taken a Godown measuring 530 Square
Feet in premises No. 532/2, Talkatora
Road, Lucknow for a period of 3 years, on
a monthly rent of Rs 150/-. The tenant had
a right of renewal of lease after every 3
years enhancing the rent upto 10%. Clause
2 of the aforesaid agreement provides that
the tenancy shall begin from the first day of
every month of the Gregorian calendar
terminating with the last day of every
month and the monthly rent shall fall due
on the first day of each month. The
petitioner had filed this lease agreement
before the trial Court also.

7. The Judge Small Causes Court
has decreed the Suit by the impugned
judgment and order dated 08.08.2024
956 INDIAN LAW REPORTS ALLAHABAD SERIES
wherein the following four points for
determination were framed: -

i. Whether the relationship
of landlord and tenant exists
between the plaintiff and the
defendant.
ii. Whether the notice sent
by the plaintiffs was duly served on
the defendant.
iii. Whether the defendants
made any default in paying the
rent.
iv. To what relief the
plaintiffs are entitled.

8. Point no. 1 was decided in the
affirmative holding that the defendant is the
plaintiffs' tenant and this finding has not
been assailed before this Court.

9. While deciding point 2, the
Judge Small Causes Court took into
consideration the facts that the plaintiff has
pleaded that he had sent a notice through
registered post-acknowledgment due on
11.11.2014, through his advocate, whereby
the defendant's tenancy was terminated.
The notice was served on the defendant.
The defendant had denied having received
the notice in the written statement of his
defence.
The
plaintiffs
had
filed
a
photocopy of the notice dated 09.10.2014
and the postal receipt of sending notice
through registered post. The plaintiffs
proved the aforesaid document by oral
testimony.

10. DW-1 stated in his crossexamination that he had handed over the
notice sent by the plaintiffs directing him to
vacate the tenanted premises, to his
counsel. He did not remember whether his
counsel had sent any reply to this notice or
not.
11. The learned trial Court held
that from the aforesaid statement given by
DW-1 in his cross examination, it was
established that the notice sent by the
plaintiffs was served on the defendant.

12. While deciding point no. 3,
the Judge Small Causes Court has
recorded that PW-1 has stated that the
defendant
has not
paid
rent
since
01.07.2014. The defendant has disputed
this fact. In his cross examination, DW-1
has stated that he used to pay rent of the
premises through cheques. Sometimes the
landlord issued receipts acknowledging
payment of rent but at other times, no
receipt was issued. Apparently, the
defendant did not adduce any evidence
regarding payment of rent for the period
after 01.07.2014 and, therefore, the Judge
Small
Causes
Court held
that
the
defendant had not paid rent since
01.07.2014 and he was in arrears of rent
amounting Rs.15,346/-.

13. In view of the aforesaid
finding, the Judge Small Causes Court
decreed the Suit filed by the opposite
parties.

14. The petitioner filed Revision
No. 41 of 2017 against the aforesaid order
dated 08.08.2017 passed by the Small
Causes Court, which has been dismissed by
the learned Additional District Judge, Court
no. 9, Lucknow by the impugned judgment
and order dated 08.08.2024. the Revisional
Court has framed the following points for
determination:

(i) Whether
the
notice
issued
by
the
opposite
parties/landlords
to
the
revisionist/tenant was legal and was
duly served on him?
9 All. M/S Arun Entp. Vs. A.D.J., Court No. 9, Lko. & Ors.
957
(ii)
Whether
the
revisionist/tenant
was
in
default/arrears of rents
(iii) What relief, if any, is
the revisionist/tenant entitled to?

15. On issue no. 1, the learned
counsel for the revisionist/petitioner had
submitted that the premises in question was
a factory with a manufacturing unit
installed therein and, therefore, the lease
could have terminated only after giving a
six months' notice as provided under
Section 106 of the Transfer of Property Act.

16. The learned Revisional Court
held that Clause 2 of the lease agreement
executed between the parties specifically
mentions that the lease was a month-tomonth lease. Therefore, there was no need
to issue a six months notice for terminating
the lease.

17. On the second point regarding
default in payment of rent, the learned
counsel for the revisionist had drawn
attention of the revisional Court towards a
copy of Cheque No. 21078676 which was
marked as Paper no. C-24/10 and a
certificate dated 03.10.2014 issued by the
Branch Manager of the Union Bank of
India, Aishbagh Branch (Paper no. C24/11), stating that the aforesaid cheque
had been paid from the revisionist's
account on 03.11.2014.

18. In response of the aforesaid
contention, the learned counsel for the
opposite parties had submitted that the
aforesaid document itself established that
the rent was paid on 03.11.2014 and,
therefore, on the date of issuance of notice
dated 09.10.2014, the revisionist was in
default of payment of rent. Accordingly, the
revisional court found that the revisionist
was not entitled to any relief and dismissed
the revision.

19. While assailing the aforesaid
order, Sri. Saud Rais, the learned counsel
for the petitioner, has submitted that the
lease was for manufacturing purposes and
as per the provision contained in Section
106 of the Transfer of Property Act, it shall
be deemed to be a lease from year to year,
terminable on the part of either the lessor or
the lessee, by six months' notice. As the
notice of the present case was a notice of
30 days only, it was not a notice as
contemplated by Section 106 of the
Transfer of Property Act and, therefore, the
petitioner's
tenancy
could
not
be
terminated by this notice. The learned
counsel for the petitioner has submitted that
the lease agreement had been executed only
in respect of a portion of the tenanted
premises measuring 530 Square Feet
whereas the Suit had been filed in respect
of a premises measuring 6390.65 Square
Feet and there was no written agreement
regarding the remaining 5,860.65 square
feet land. He has submitted that on several
occasions, rent of the entire premises has
been paid on yearly basis which establishes
that the entire tenancy was an year-to-year
tenancy.

20. Before proceeding to examine
applicability of the aforesaid judgment to
the facts of the present case, it would be
appropriate to have a look at the provisions
contained in Section 106 of the transfer of
Property Act, which reads as follows: -

"106. Duration of certain
leases in absence of written
contract or local usage.-
(1) In the absence of a
contract or local law or usage to
the contrary, a lease of immoveable
958 INDIAN LAW REPORTS ALLAHABAD SERIES
property
for
agricultural
or
manufacturing purposes shall be
deemed to be a lease from year to
year, terminable, on the part of
either lessor or lessee, by six
months' notice; and a lease of
immoveable property for any other
purpose shall be deemed to be a
lease
from
month
to
month,
terminable, on the part of either
lessor or lessee, by fifteen days'
notice.
(2)
Notwithstanding
anything contained in any other
law for the time being in force, the
period mentioned in sub-section (1)
shall commence from the date of
receipt of notice.
(3) A notice under subsection (1) shall not be deemed to
be invalid merely because the
period mentioned therein falls short
of the period specified under that
sub-section,
where
a
suit
or
proceeding is filed after the expiry
of the period mentioned in that subsection.
(4) Every notice under subsection (1) must be in writing,
signed by or on behalf of the
person giving it, and either be sent
by post to the party who is intended
to be bound by it or be tendered or
delivered personally to such party,
or to one of his family or servants
at his residence, or (if such tender
or delivery is not practicable)
affixed to a conspicuous part of the
property."

21. Section 106 of the Transfer of
Property Act provides that in the absence of
any contract or local law or usage to the
contrary, a lease for manufacturing purpose
shall be deemed to be a lease from year to
year, terminable by six months' notice and
a lease of immoveable property for any
other purpose shall be deemed to be a lease
from month to month, terminable by fifteen
days' notice.

22. The learned counsel for the
petitioner has relied upon a decision of
Hon'ble Supreme Court in Idandas Vs.
Anant Ramchandra Phadke (Dead) by
Lrs.: (1982) 1 SCC 27. Para 5 of the
aforesaid judgment records the admitted
facts of the case, which is being reproduced
below: -

"5. In the present case, the
admitted facts are as under:
1. That to begin with the
lease was given to the defendant in
respect of an open piece of land;
2. That on the open piece of
land the appellant installed a flour
mill and that the defendant was not
using the land for any other
purpose except running a flour
mill;
3. That the receipts filed by
the tenant clearly show that the
lease was doubtless a yearly one."
On the basis of aforesaid
facts, the Hon'ble Supreme Court
held
that
the
lease
was
for
manufacturing purposes, the notice
of one month must be held to be
invalid and the Suit for ejectment
should have failed on that ground.

23. In the present case, there was a
lease agreement dated 30.07.1980 between
the parties in respect of a portion of
tenanted premises measuring 530 Square
Feet, which categorically states that the
lease was a month to month lease.
Although subsequently a further portion of
the property of the opposite parties was
9 All. Ram Shiromani Pandey & Anr. Vs. Manoj Tiwari @ Manoj Brahmchari & Anr.
959
given on lease to the petitioner under an
oral agreement, the entire leased premises
was always treated as a single tenement and
a single rent was payable for the entire
tenanted premises. Therefore, the facts of
the present case are entirely different from
the facts of Idandas (Supra) and the
principle laid down in Idandas case will not
apply to the facts of the present case.

24. In Paul Rubber Industries
(P) Ltd. v. Amit Chand Mitra: 2023 SCC
OnLine SC 1216, the Hon'ble Supreme
Court referred to a precedent on the point
and held that: -

"In
the
case
of G.
Mackertich v. Steuart
and
Co.
Ltd. [(1971) 3 SCC 39], it has been
held that burden of proving that the
lease was
for
manufacturing
purpose lies on the party who
claims it to be so. In the present
appeal, it would have been for the
defendant (appellant before us) to
discharge this burden, as held by
the High Court. In the case
of Shivaji
Balaram
Haibatti v. Avinash
Maruthi
Pawar [(2018) 11 SCC 652] as
also in a judgment of the Calcutta
High Court in the case of Shree
Nursing Timber Works and Shree
Nursing Electric Stores v. Sm. Amala
Bala Dassi [1973 CWN 522], it has
been held that on this ground, there
must be pleading supported by
evidence to prove that the lease was
for manufacturing purpose."

25. There is neither any pleading
nor any evidence in the present case that
the terms or oral lease agreement were
different from those of the lease agreement
dated 30.07.1980. Therefore, the petitioner
has failed to discharge his burden to prove
that his tenancy was an year-to-year
tenancy.

26. There is nothing on record to
substantiate the contentions of the learned
counsel for the petitioner that the rent was
payable in respect of the tenanted premises
on an yearly basis. Even if rent was paid on
yearly basis on some occasions, it would not
make the lease an yearly lease.

27. In view of the foregoing
discussions, this Court finds itself unable to
accept the contention of learned counsel for
the petitioner that the petitioner was holding
the premises in question under an yearly lease
and it could not have been terminated by a 30
days' notice.

28. There appears no illegality in the
impugned orders passed by the Judge Small
Causes Court and the Revisional Court
warranting any interference by this Court in
exercise of its supervisory jurisdiction under
Article 227 of the Constitution of India.

29. Accordingly, the petition lacks
merit and is dismissed at the admission
stage.
----------
(2024) 9 ILRA 959
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 24.09.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Matter Under Article 227 No. 4278 of 2024

Ram Shiromani Pandey & Anr.
 ...Petitioners
Versus
Manoj Tiwari @ Manoj Brahmchari & Anr.
 ...Respondents