IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No. 220 of 2008
Virendra Kumar ........Appellant
Versus
M/s Jamshedpur Printing Works Ltd. .......Respondent
CORAM: THE HON'BLE MR. JUSTICE R.K. MERATHIA
For the Appellant : Mr. P.K. Prasad, Sr. Advocate
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6/ 5/04/2010
This second appeal has been filed against the judgement
and decree dated 15.9.2008, passed by learned District Judge,
Singhbhum East at Jamshedpur in Eviction Appeal No. 26 of 2007,
dismissing the appeal and confirming the judgment dated 27.9.2007,
passed by learned Subordinate Judge-V, Singhbhum East at
Jamshedpur in Eviction Suit No. 170 of 1989.
Mr. P.K. Prasad, learned senior counsel appearing for the
tenant-appellant, submitted that the suit could not be decreed as the
document-Ext.3 creating fixed term tenancy for 11 months was
required to be registered, as the tenant was continuing in possession
from before the date, with effect from which, such tenancy was
created. He relied on 1989 PLJR 1162-Rajendra Behl Vs. Desraj Singh.
Perused the records.
It appears that the said eviction suit was filed by the
landlord-respondent on the ground of default and expiry of period of
tenancy. The trial court held that the tenant was not defaulter but held
him liable to be evicted on the ground of expiry of lease. The tenant
preferred appeal before the lower appellate court, which was also
dismissed.
Learned courts below have inter alia held that the
defendant-tenant signed on Ext-3, dated 2.5.1988 agreeing to take the
lease of shop in question on a monthly rental of Rs.400/- excluding the
electricity charges for a period of 11 months with effect from
1.4.1988. It was further held that the tenant signed the said
documents after fully knowing the contents thereof and it cannot be
believed that it was signed under coercion and pressure. It was
further held that the tenant never moved any competent authority
against enhancement of rent, or against creating fixed term lease of
11 months by unregistered document, and only when the lease expired
and the landlord refused to accept rent, he filed the suit against the
landlord to pressurize him.
In view of (1997) 3 SCC 679, Satish Kumar Versus Zarif
Ahmed, the appellant cannot rely on Rajendra Behl ( Supra).
Moreover, in the facts and circumstances of this case, the
judgment in the case of Smt. Yamuna Maloo Vs. Anand Swarup,
reported in AIR 1990 SC 1725. (Paragraph 21) is applicable, in which it
was held as follows:-
“Both in Vohra’s case and in Shiv Chander Kapoor’s case
though not arising for determination in either, it has
been stated while laying down the rule that proceeding
to challenge limited tenancy has to be taken during the
currency of the tenancy, an objection filed by the tenant
could be looked into is indeed an obiter. We would like
to make it clear that the rule having been stated to the
contrary in Vohra’s case, there was indeed no warrant to
indicate the contra situations. Perhaps to meet the
eventuality which might arise in a particular case,
neither of the two Benches of this Court wanted to close
the avenue of enquiry totally, and that is why in both
the cases decided by co-ordinate Benches the exception
has also been indicated. It must be understood on the
authority of the said two decisions and our judgment
now that if the tenant has objection to raise to the
validity of the limited tenancy it has to be done prior to
the lapse of the lease and not as a defence to the
landlord’s application for being put into possession. We
would like to reiterate that even if such an exercise is
available that must be taken to be very limited and
made applicable to exceptional situations. Unless the
tenant is able to satisfy the Controller that he had no
opportunity at all to know the facts earlier and had
come to be aware of them only then, should such an
objection be entertained.
This judgment was followed in the case of Kulbhushan Malik Vs.
Syed Qamruzzama Rizvi, reported in 1994 (2) BLJ 754.
In the present case, it is not in dispute that during the period of
lease created under Ext-3, the terms of the lease were performed by
the parties, and the rent was paid as specified in the lease. Both the
parties exercised their rights and performed their obligation; and
therefore after the contract between the parties were fully performed
and acted upon and when creation of such lease was not objected
during continuous of the lease, it is not open to the tenant to dispute
the validity of the lease, after it’s expiry.
In my opinion, no substantial question of law is involved in the
second appeal, which is accordingly dismissed.
( R.K. Merathia, J)
Rakesh/