SHIV DAYAL SINGH RAWAT Vs. NARENDRA SINGH BHANDARI

JUDGEMENT

(1.) HEARD Sri L. R Naithani, Sr. Advo cate, assisted by Sri B. R Nautiyal, coun sel for the revisionist and Sri H. C. Bisht, counsel for the respondent. 2. By the present civil revision filed under Section 25 of the Provincial Small Cause Courts Act, 1887, the revisionist has prayed for setting aside the judgment and decree dated 16-10-2006 passed by the District Judge/judge SCC Garhwal in S. C. C. Suit No. 4 of 1998 by which the decree for eviction has been passed against the revisionist. 3. Judge Small Cause Court has de creed t-e suit of the plaintiff on 16th October, 2006. The operative portion of the decree is quoted below: "this S. C. C. Suit No. 4/98 is de creed with cost throughout. The de fendant is directed to vacate the building in question within a month and he will also pay the rent to the plaintiff from April 1997 to Novem ber, 1997@ Rs. 2190/-per month in cash in front of the court. Further he will pay the compensation from 4-5-98 till the. date of actual delivery of possession @ Rs. 5000/- per month in cash to the plaintiff in front of the court along with 9% compound in terest half yearly rest will also be leviable on entire amount which will come out after subtracting the amount already paid by the defend ant @ Rs. 2190/- per month. " Factual Matrix of the Case 4. Briefly stated, plaintiff-respond ent is the owner and landlord of build ing known as House No. 33 situate at Mauhalla Agency, Pauri Garhwal of which the defendant is a tenant of a shop situate on the ground-floor and Hotel situate on the first floor of the building of the plaintiff on a monthly rent of Rs. 2,190/- besides the rent the defendant is also liable to pay water tax at the rate of 12. 5% of the basis rent. 5. According to the case of the plaintiff, the defendant is running a sweet-shop and restaurant in the name of Garhwal Sweet and Coffee House in the disputed tenanted premises and since the rental is more than Rs. 2,000/ -, therefore, U. P Act No. . 13 of 1972 has no application to the building in dispute. 6. The plaintiff has stated that the defendant has not paid the rent and water tax from 1st April, 1997 and since the U. P Act No. 13 of 1972 is not ap plicable to the building in dispute, there fore, the tenancy of the defendant was terminated through registered notice dated 17th March, 1998, which was posted by registered post No. 2839 dated 21-3-1998. Through the aforesaid notice, the plaintiff has demanded the arrears of rent from 1-4-1997 and possession of the tenanted premises. The said notice was served upon the defendant on 4th April, 1998. The tenancy, therefore, stands ter minated after 30 days of the receipt of the notice. Despite service of notice, the de fendant has neither paid the arrears of rent nor has vacated the premises. 7. The plaintiff has claimed the fol lowing amount from the defendant along with the interest to the extent of 18% p. a. : "10. That the following amount of rent and taxes has become due against the defendant in respect of said disputed premises. 1. Rent from 1-4-1997 to 19-5-98@2190. 00 per month 29,857. 00 2. Water tax @ 12v2% from 1-4-1997 to 19-5-98 3. 732. 00 33. 589. 00 The defendant is also liable to pay interest @ 18% p. a. on the above amount. The same rate of interest is prevalent in the market and is being charged by commercial schedule banks. Defendant is further liable to pay dam ages for use and occupation @ Rs. 5000/- per month in respect of the above disputed tenanted premises from the date of the suit till date of ejectment and actual delivery of possession of the said premises in occupation of the de fendant, to the plaintiff. However, now a days the rate of rent is much higher this amount. " 8. A written statement was filed by the defendant denying the averments contained in the plaint. It was denied that he has not paid the rent from 1st April, 1997. So far as the monthly rent of Rs. 2,190/- is concerned, rate of rent was admitted. The notice dated 1/-3-1998 was denied by the defendant only on the ground that no member of his family has received the notice. 9. A replication was filed by the plaintiff, where in paragraph 5, it has been stated that the notice was received by Sanjay Negi-Manager of the defend ant, 10. Counsel for the revisionist Sri L. R Naithani, Sr. Advocate, assisted by Sri B. P Nautiyal, Advocate has made following submissions : " (1) The notice was not served upon the defendant and as such the suit was not maintainable. (2) About the applicability of the Act. (3) Defendant is entitled for the ben efit of Section 114 of the Trans fer of Property Act. (4) The imposition of damages/ mesne profits are wholly exorbi tant. " Submission About Service Of No tice 11. So far as the point regarding notice is concerned, counsel for the re visionist has denied the service of notice. According to the plaintiff, the notice was sent on 31-3-1998. 12. According to the case of the de fendant notice was not served in accord ance with the provisions of Section 106 of the Transfer of Property Act. 13. Plaintiff has filed his own affi davit and has deposed in paragraph 7 to the following effect: "that the deponent did not want the tenancy of the defendant to con tinue, hence the same was termi nated through registered A. D. Notice U/s 106 of the Transfer of Property Act, 1882 dt. 1/-03-1998. Through that notice, the defendant was called upon to pay arrears of rent etc. from 1-4-1997 within thirty days for the receipt of notice and a peace ful possession of the premises in question was also demanded from the defendant after thirty days for the service of the said notice. The said notice bearded true and correct ad dress of the defendant and was pre paid with due postal stamps. 8. That the said notice was duly served on the defendant on 4-1998 and was delivered to one Sh. Sanjay Negi who is/as long standing Man ager/servant of the defendant and used to look after the day to affairs of the business of the defendant. 9. That thus the tenancy of the de fendant in respect of the disputed premises stands terminated after 30 days of service of the notice. How ever, in spite of the due service of the notice, the defendant neither paid due arrears of rent etc. nor vacated the disputed premises under tenancy of defendant. Due to this, the deponent had to file the present suit. 10. That the defendant had full knowledge of the notice and after service of the said notice, the de fendant contacted the deponent and asked deponent to sell the property in question to him, which the deponent obviously refused. It is ab solutely wrong to allege that the said notice was not duly served on the de fendant. " 14. The plaintiff has also come in the witness-box and has deposed that the notice Paper No. 6-Ga was received and signed by the Manager of the de fendant, who is running the hotel. The said statement is quoted below: @ Hindi 15. The revisionist has also filed his own affidavit denying that Sanjay Negi was servant/manager. He was also cross examined. 16. Counsel for the plaintiff-re spondent has filed a counter affidavit, where, he has annexed the affidavit filed by the applicant in Civil Revision No. 19 of 1999, where the service of the notice was admitted to the following effect: "4. That in order to brow beat the deponent and stab him in the back the plaintiff-opposite party filed a suit for his ejectment on the ground of arrears of rent since April 1997 and obtaining report of service upon servant left by the deponent during his absence for the treatment of his wife in Delhi and Dehradun be pro duced and order for service by pub lication which he effected in an ob scure News Paper "daink Jayant" which has absolutely no circulation in the placed where deponent resides and it is not been a recognized news paper for the purpose of. . . . . . publication. " 17. Section 106 of the Transfer of Property Act reads as under: "106. Duration of certain leases in absence of written contract or local usage.- In the absence of a contract or lo cal law or usage to the contrary a lease of immovable property for agricultural or manufacturing purpose shall be deemed to be a lease from year to year, termi nable, on the part of either lessor or lessee, by six months' notice expiring with the end of a year of the tenancy; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month termina ble, on the part of either lessor or les see, by fifteen days' notice expiring with the end of a month of the tenancy. Every notice under this section 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 deliv ered personally to such party, or to one of his family or servants, at his resi dence, or (if such tender or delivery is not practicable) affixed to conspicuous part of the property. " 18. Legal position regarding the no tice has been settled by the Apex Court in various decisions, 19. Counsel for the applicant has relied upon the judgment of Dharam Pal Tyagi Vs. Anil Kumar 1986 AWC 584 re garding requirement of notice. Para graph 8 is quoted below : "8. In the instant case it has not been disputed before me on behalf of the respondent that the address on which the notice under section 106 of the Transfer of Property Act is said to have been sent to the appli cant was not the address of his resi dential house but was the address of the shop where the applicant was car rying on his business. In view of the definition in this behalf contained in Section 3 (c) even if it is accepted as stated in the letter of the Senior Su perintendent of Post Offices that the registered letter was delivered to the addressee, it does not rule out the possibility of the said letter being delivered not to the applicant person ally but to some 'servant or agent or other person considered to be au thorized to receive the article accord ing to the usual manner of deliver ing postal articles to the addressee'. The said delivery shall be deemed to be delivery to the addressee. The said letter of the Senior Superintendent of Post Offices does not conclusively prove that the registered letter con taining the notice under section 106 of the Transfer of Property Act was served to the applicant personally, Section 106 of the Transfer of Prop erty Act inter alia provides : "every notice under this section 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 in tended to be bound by it or be ten dered or delivered personally to such party, or to one of his family mem bers or servants, at his residence, or (if such tender or delivery is not prac ticable) affixed to a conspicuous part of the property. " 20. Counsel for the applicant has laid emphasis that in view of the propo sition of law laid down by the Allahabad High Court that since the notice was sent at the address of the shop, where he was carrying on the business, there fore, it will not be sufficient service of the notice as contemplated by Section 106 of the Transfer of Property Act. 21. In Ranjit Singh v. Nirbhayanand, 1970 ALJ 455, it has been held as un der :-"9. In view of the law laid down in the aforesaid decision even if the reg istered letter containing the notice dated 13th March, 1985 sent not at the ad dress of the applicant's residence but sent at the address of the shop where he was carrying on his business was served on a servant or agent of the ap plicant and not personally on him it would be deemed to have been delivered to the addressee within the meaning of Section 3 (c) of the Post Office Act. " 22. In the aforesaid case law, it has been held that notice at the shop shall be treated to be sufficient service. 23. In M/s. Madan and Company Vs. Wazir Jaivir Chand AIR 1989 SC 630 the Apex Court while considering the similar situation has observed that a registered letter addressed to person, if it is not served, can only be attributed to the addressees own act. The obser vations are quoted below: "6. We are of opinion that the con clusion arrived at by the Courts be low is correct and should be upheld. It is true that the proviso to CL (i) of S. 11 (1) and the proviso to S. 12 (3) are intended for the protection of the tenant. Nevertheless it will be easy to see that too strict and literal a compliance of their language would be impracticable and unwork able. The proviso insists that before any amount of rent can be said to be in arrears, a notice has to be served through post. All that a land lord can do to comply with this pro vision is to post a prepaid registered letter (acknowledgment due or oth ep. Wise) containing the tenant's cor rect address. Once he does this and the letter is delivered to the post of fice, he has no control over it. It is then presumed to have been deliv ered to the addressee under S. 27 of the General Clauses Act. Under the rules of the post office, the letter is to be delivered to the addressee or a person authorized by him. Such a person may either, accept the letter or decline to accept it. In either case, there is no difficulty, for the acceptance or refusal can be treated as a service on, and receipt by, the addressee. The difficulty where the postman calls at the address men tioned and is unable to contact the addressee or a person authorized to receive the letter. All that he can then do is to return it to the sender. The India Post Office Rules do not prescribe any detailed procedure re garding the delivery of such registered letters. When the postman in unable to deliver it on his first visit, the gen eral practice it on the next one or two days also before returning it to the sender. However he has neither the power nor the time to make enquir ies regarding the whereabouts of the addressee; he is not expected to de tain the letter until the addressee chooses to return and accept it; and he is not authorized to affix the let ter on the premises because of the assessee's absence. His responsibili ties cannot, therefore, be equated to those of a process server entrusted with the responsibilities of serving the summons of a Court under O. V of the C. P. C. The statutory provision has to be interpreted in the context of this difficulty and in the light of the very limited role that the post office can play in such a task. If we interpret the provision as requiring that the letter must have been actu ally delivered to the addressee, we would be virtually rendering it a dead letter. The letter cannot be served where, as in this case, the tenant is away from the promises for some considerable time. Also, as addressee can easily avoid receiving the letter addressed to him without specifically refusing to receive it. He can so manipulate matters that it gets re turned to the sender with vague endorsement such as "not found", "not in station", "addressee has left" and so only, it is suggested that a land lord, knowing that the tenant is away from station for some reasons, could go through the motions of posting a letter to him which he knows will not be served. Such a possibility cannot be excluded. But, as against this, if a registered letter addressed to a person at his residential address does not get served in the normal course and is returned, it can only be attributed to the ad dressee's own conduct. If he is stay ing in the premises, there is no rea son why it should not be served on him. If he is compelled to be away for some time, all that he has to do is to leave necessary instructions with the postal authorities either to detain the letters addressed to him for some ' time until he returns or to fop. Ward them to the address where he has gone, or to deliver them to some other person authorized by him. In this situation, we have to chose the more reasonable, effective, equitable and practicable interpretation and that would be to read the word "served" as "sent by post", correctly and properly addressed to the ten ant, and the word "receipt" as the tender of the letter by the postal peon at the address mentioned in the letter. No other interpretation, we think, will fit the situation as it is simply not possible for a landlord to ensure that a registered letter sent by him gets served on, or is received by, the tenant. " 24. As will appear from the afore said judgment of the Apex Court that presumption of service of notice has been drawn under Section 27 of the General Clauses Act and under Section 114 of the Evidence Act if the registered letter has been sent to the addressee on the correct address. 25. In D. Vindo Shivappa v. Nanda Belliappa 2006 Criminal Law Journal-2897, the Apex Court has referred the rule of Heydon. It acts as rule of purposive construction and mischief rule. Relevant portion of the judgment. is quoted below : 0 "11. The question is whether in a case of this nature, where the postal endorsement shows that the notice could not be served on account of the non-availability of the addressee, a cause of action may still arise for prosecution of the drawer of the cheque on the basis of deemed serv ice of notice under clause (c) of pro viso to Section 138 of the Act. In our view this question has to be an swered by reference to the facts of each case and no rule of universal application can be laid down that in all cases where notice is not served on account of non availability of the addressee, the court must presume service of notice. 12. It is well settled that in interpret ing a statute the court must adopt that construction which suppresses the mischief and advances the rem edy. This is a rule laid down in Heydon's case (76 ER 637) also' known as the rule of purposive con struction or mischief rule. " 26. In view of the aforesaid, notice sent by the registered post under Section 106 of the Transfer of Property Act can not be defeated on more technicalities, that it was not sent on the residence of the addressee. 27. The Apex Court has also taken the view that the presumption of serv ice arises where the registered letter has been sent to correct address. In the present case, the notice was sent at the premises, which is the subject matter of litigation for which the eviction has been sought and therefore, the notice having been sent on the premises, which is in dispute. The presumption applies with all force. 28. The Apex Court has taken this view in Green View Radio Service Vs. Laxmi Ramji and another 1990 SCC (4) Page 497. The observations are quoted below : "4. In the present case it is an ad mitted position that the notice by registered post had been sent at the proper address. Similar address ap peared in the earlier notice given to 15 the defendant and the same is ad mitted to have been received by the defendant. It has come on record that the defendant proprietor Amarjeet Singh signs his name dif ferently at different times. This is borne out from his signatures on the receipt of summons in the suit, vakalatnama of his former advocate Mr. Mattai and the written statement on the suit which have been signed by him in English in three different ways. It may be further noted that Amarjeet Singh had deposed that he had paid rent for April 1963 to the Gurkha employee of the plaintiffs but no rent receipt was brought to him. He also produced a copy of letter dated June 5, 1963 addressed by him to plaintiffs together with a certificate of posting as Ex. 7 (Col. 1 ). The plaintiffs in this regard did not admit the receipt of this let ter and their case was that the copy of letter and certificate of posting Ex. 7 (Col. 1) have been fabricated by the defendant of the 1 original writ ten statement. The trial Court while dealing with this matter arrived at the conclusion that the copy of the letter dated June 5,1963 and the certificate of posting were not genu ine documents and no reliance could be placed upon them. The above matter was also examined by the High Court in detail and it recorded the finding that the appellant (defendant) had made an unsuccessful attempt by inserting on record a sus picious document in order to make out a case of payment of rent for the month of March 1963. The High Court observed that the learned trial Judge had rightly disbelieved this evi dence and it found no reason to dif fer from him on this point. The above conduct of the defendant goes to show that no reliance can at all be placed on the bald denial of Amarjeet Singh that he did not re ceive the notice dated September 3,1963 sent to him by registered post. He was capable of introducing certificate of posting (Ex. 7) in sup port of his case which was found to be not genuine. As already men tioned above, Amarjeet Singh was singing in different manner and his above conduct of relying on a fabri cated document clearly goes to show that no credence can be given to his statement that he had not received the notice in question. 5. In view of these circumstances, we hold that the mere denial by Amerjeet Singh that he did not re ceive the notice cannot be believed and as such there is no rebuttal of the presumption drawn against him under Section 114 of the Evidence Act. 6. Hence, we cannot fault the rea soning of the courts below. In the cir cumstances, we dismiss this appeal. " 29. Similar controversy with regard to the presumption has also been settled in Kulkarni Patterns Put. Ltd. and Ors. v. Shri Vasant Baburao Ashtekar and Ors 1992 (1) JT194, where it has been ob served as under : "learned Additional District Judge further held that when the notices are sent by registered post it is pre sumed to have been served and mere denial by the tenants had no value, unless they proved some extraordi nary happenings or events which prevented following of usual course of business. Learned Additional Dis trict Judge further held that the no tice was sent on the address given in the plaint and it was admitted by the defendant in his statement that it contained the correct address. A pre sumption of service of notice was drawn under Section 27 of the Gen eral Clauses Act and Section 114 of the Evidence Act. " 30. The word "residence" has been interpreted in Smt. Jeewanti Pandey Vs. Kishan Chandra Pandey (1981) 4 SCC 517 to the following effect: 2 "if a person has no established home and is compelled to live in hotels, boarding houses are houses of oth ers, his actual and physical habita tion is the place where he actually or personally resides. 13. . . . . . . . . . . . . The word "resides" is a flexible one and has many shades of meaning, but it must take its colour and content from the context in which it appears and cannot be read in isolation. " 31. It is evident from Section 106 of the Transfer of Property Act that the notice has to be signed 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 deliv ered personally to such party or to one of his family members or servants at his residence, the word "resides", therefore, cannot be read in isolation and once registered letter has been sent on the correct address, the presumption lies for its service at the place it has been sub ject of the litigation and the servant, who has received the notice shall be treated to be sufficient service under Sec tion 106 of the Transfer of Property Act. 32. In view of the aforesaid, point no. 1 is decided in favour of the plain tiff and it shall be presumed that the notice was duly served upon the defend ants. Applicability of the Act 33. So far as the applicability of the Act is concerned, the rent is more than Rs. 200/- per month and therefore, the matter is fully protected under Section 2 (1} (gj. It reads as under : " (g) any building, whose monthly rent exceeds two thousand rupees;" 34. In Mahendra Pal Agap. Wal Vs. Prescribed Authority/civil Judge and others 2000 (2) ARC Page 296 the Apex Court has laid down that where the rent is more than Rs. 2000/- the premises is fully exempted from the operation of the Act. It has been held as under: "while the aforesaid writ petition was pending, U. P. Amendment Act 5/95 came into force whereby the premises which were fetching rent above Rs. 2,000 were exempted from the provisions of the Act. " 3 35. In view of the aforesaid statu tory provision, the arrears of rent are wholly immaterial and the notice termi nating the tenancy simpliciter under Sec tion 106 of the Transfer of Property Act is sufficient for filing the suit. Benefit of Section 114 of the Trans fer of Property Act 36. Counsel for the revisionist has submitted that the defendant is entitled for the protection under Section 114 of the Transfer of Property Act. 37. So far as the benefit of Section 114 of the Transfer of Property Act is concerned, the plaintiff has submitted that the said benefit is not applicable in the present case. 38. In order to get the benefit of Section 114 of the Transfer of Property Act, there must be a forfeiture as con tained under Section 111 (g) of the Transfer of Property Act. Section 114 of the Transfer of Property Act is quoted below : "114. Relief against forfeiture for non-payment of rent.-Where a lease of immovable property has de termined by forfeiture for non-pay ment of rent, and the lessor sues to eject the lessee, if, at the hearing of the suit, the lessee pays or tenders to the lesser the rent in arrear, to gether with interest thereon and his full costs of the suit, or gives such security as the court thinks sufficient for making such payment within fif teen days, the court may, in lieu of making a decree for ejectment, pass an order relieving the lessee against the forfeiture; and thereupon the les see shall hold the property leased as if the forfeiture had not occurred. " "111. (g) by forfeiture; that is to say, (1) in case the lessee breaks an ex press condition which provides that, on breach thereof, the lessor may re-enter or (2) in case the lessee re nounces his character as such by set ting up a title in a third person or by claiming title in himself, or (3) the lessee is adjudicated an insolvent and the lease provides that the les sor may re-enter on the happening of such event; and in any of these the lessor or his transferee gives notice in writing to the lessee of his inten tion to determine the lease. " 4 39. In Kishan Lal Agap. Wal v. Na tional Insurance Company Ltd. 2004 (1) ARC 101, this Court has observed as interest thereon and his full costs of the suit, or gives such security as the Court thinks sufficient for making such payment within fifteen days, the Court may, in lieu of making a decree for ejectment, pass an order relieving the lessee against the forfei ture; and thereupon the lessee shall hold the property leased as if the for feiture had not occurred. " under: "applicability OF SEC. 114 OF THE T. P. ACt Section 111. (g) provides mode of determination of lease. Clause (g) reads as under: " (g) by forfeiture; that is to say, (1) in case the lessee breaks an express condition which provides that, on breach thereof, the lessor may re-en ter or (2) in case the lessee renounces his character as such by setting up a title in a third person or by claim ing title in himself, or (3) the lessee is adjudicated an insolvent and the lease provides that the lessor may re-enter on the happening of such event; and in any of these the les sor or his transferee gives notice in writing to the lessee of his intention to determine the lease. " "applicability OF SEC. 114 OF THE T. P. ACt 16. So far as the Sections 114 and 114-A of the Transfer of Property Act is concerned, it is not applicable in the present case. Section 114 of the Trans fer of Property Act reads as under: "114. Relief against forfeiture for non-payment of rent.- Where a lease of immovable property has deter mined by forfeiture for non-payment of rent, and the lessor sues to eject the lessee, if, at the hearing of the suit, the lessee pays or tenders to the lesser the rent in arrear, together with 5 7. Since there is no forfeiture as alleged by the defendant, therefore, there is no application of Sec. 114 of the Transfer of Property Act. 18. Further, neither there is a lease deed containing any forfeiture clause, nor there is any averment in the written statement to that effect, as such, no benefit can be claimed by the defend ant under Section 114 of the Transfer of Property Act. 19. The revision is also covered by the Judgment of the Uttaranchal High Court reported in 2003 (2) ARC 290 where this Court has taken view to the following effect :. "24. In the case Shiv Shanker v. Ad ditional District Judge reported in 2002 (1) ARC 13, it has been held that Section 114 of Transfer of Prop erty Act is applicable only where the lease of immovable property has been determined by forfeiture. Rel evant observations of Allahabad High Court are quoted below; Section 114, Transfer of Property Act quoted above, gave an option to a pe riod mentioned in this Section. In the case of forfeiture only this expression used in the said Section 114, Trans fer of Property Act "where a lease of immovable property has been deter mined by forfeiture. . . . . . . . . . . . . . . " Leaves no doubt that right of lessee to avoid suit for ejectment can be resorted to only in a case where a lease of im movable property determines by forfei ture and not othep. Wise. Consequently, defendant petitioner cannot take ad vantage of the aforesaid Section 114, Transfer of Property Act in a case where lease of a transferee determine only itself or to quite the properly lease, duly given by one party to the other, as contemplated under Section 111 (h) of Transfer of Property Act. 40. In Mohamad Nasir a District Judge, Nainital and others 1999 (1) ARC 202, it has been held as under : "in order to claim benefit under this Section, it has to be shown by the ten ant that one of the terms of the lease was that the landlord will have a right of re-entry if the rent for any specified period remained unpaid and he has to show further that forfeiture has been incurred as provided under Section 111 (g ). Section 114 T. P Act thus postu lates existence of determination of lease by forfeiture as a condition prec edent and provisions contained in this section will have no application where the lease has been determined by serv ing a notice to quite under Section 106. T. P Act. The relief under Section 114 T. P Act is confined to those cases only which are strictly covered under Sec tion 111 (g) and not to those cases which fall under Section 106 T. P Act. A monthly tenancy is determinable by one month's notice by either party and if the tenancy is terminated by serving one month's notice under Section 106 T. P Act, there is 6 no forfeiture of ten ancy and in that event Section 114 cannot be applied. Thus a notice un der Section 106 T. P Act by no means could be treated as one under Section 11 Kg ). " ; 41. Similarly in Ram Bali Pandey v. 2nd Add/. District Judge, Kanpur 1998 (2) ARC 362, it has been held that for the ap plicability of Section 114, the existence of an agreement containing a stipulation em powering the landlord to re-enter is essen tial. Relevant observations are quoted be low : "for the applicability of Section 114, existence of an agreement containing a stipulation empowering the landlord to re-enter in the demised premises in case of breach of condition regarding payment of rent is essential. In the present case there was no such agree ment and as U. P Act No. 3/47 was not applicable to the premises, there was simpliciter termination of tenancy un der Section 106 T. P Act serving a notice there under. The mere fact that the notice stated about non-payment of rent also besides by exercising the power under clause (h) of Section 111 of the T. P Act. No authority is required for the proposition that where there is simpliciter termination of tenancy un der section 106 of the T. P Act and not under section III (g) of the T. P Act then provision of Section 114 of the T. P Act, cannot be attracted. " 42. In Prithuichand Ramchand Sablok v. S. Y Shinde, 1993 (3) SCC 271:1993 SCFBRC 283, if was held that the provi sions contained under the Rent Control Act being a special provision would exclude the operation of Section 114 of the Transfer of Property Act. In substance it was held that a building cannot be governed by the provisions of two Acts, one by the State Rent Act and other by the Transfer of Property Act. 43. From the aforesaid decisions there is no doubt that if a building is not (sic) governed by the State Rent Act the ten ant cannot claim, benefit of provisions of Section 114 of the Transfer of Property Act. 44. Similar observations have been taken in Kumaun Plaza Put. Ltd. Vs. Dr. Arvind Sharma [2003 (2) ARC 290] 2004 (1)U. D. , 133. In the said judgment it has been observed as under: "33. In the light of the judgment of the Apex Court since the special Act i. e. Rent Control Act gives benefit to the landlord in cases which fall under the exemption from operation of the act and, therefore, in view of provi sions of Section 38 of U. P Act No. 13 of 1972, it will exclude the applicability of Section 114 of the Transfer of Prop erty Act. Section 38 reads as under :-"this provision of this Act shall have effect notwithstanding anything incon sistent therewith contained in the Transfer of Property Act, 1882 (Act No. IV of 1882), or in the Code of Civil Procedure, 1908 (Act No. V of 1908)". 7 Submission With Regard to Damages/mesne Profits 45. The suit was filed as back as in the year, 1998 and since then the defend ant is lingering the matter. The matter has come up to this Court earlier and a direc tion was made for disposal of the case at an early date. 46. In Atma Ram Properties (P) Ltd. Vs. Federal Motors (P) Ltd (2005) 1 SCC 705 after relying upon various judgments, it has been held as under : "13. In Shyam Charan v. Sheoji Bhai (1977) 4 SCC 393, this Court has up held the principle that the tenant con tinuing in occupation of the tenancy premises after the term ination of ten ancy is an unauthorized and wrongful occupant and a decree for damages or mesne profits can be passed for the period of such occupation, till the date he delivers the vacant possession to the landlord. . . . . . . . . . . . . . After determina tion of the tenancy, the position of the tenant is akin to that of a trespasser and he cannot claim that the meas ure of damages awardable to the land lord should be kept tagged to the rate of rent payable under the provisions of the Rent Control Order. If the real value of the property is higher than the rent earned then the amount of com pensation for continued use and oc cupation of the property by the ten ant can be assessed at the higher value. " 47. Relying upon the judgment of Atma Ram Properties (P) Ltd. V. Federal Motors (P) Ltd. JT 2004 (1) SC 410:2005 (1) SCC 705:2005 SCFBRC 99 in Achal Mishra Vs. Ram Shankar Singh reported in 2005 (1) ARC Page 887'it has been observed as under: "we make it clear that the respond ents shall be liable to pay the rent equivalent to mesne profits with effect from the date with which they are found to have ceased to be entitled to retain possession of the premises as tenant for such period the landlord's entitlement can not be held pegged to the standard rent. Reference may be had to the law laid down by the Court in Atma Ram Properties (P) Ltd. V. Federal Motors (P) Ltd. , JT 2004 (1) SC 410 : 2005 (10) SCC 705 :2005 SCFBRC 99. " 48. Scope of interference under Sec tion 25 of the Provincial Small Cause Court Act has been interpreted by the Apex Court from time to time. It is not an appellate jurisdiction and therefore, the findings of fact cannot be interfered. 8 49. In Harshvardhan Chokkani Vs. Bhupendra N. Pate/ 2002 SCFBRC 344, the Apex Court has observed as under : "nonetheless, the High Court is exer cising the revisional power which in its very nature is a truncated power. The width of the powers of the Revisional Court cannot be equated with the power of the Appellate Court. In ex amining the legally and the proprietary of the order under challenge, what is required to be seen by the High Court is whether it is in\violation of any statutory provision or a binding precedent or suffers from misreading of the evidence or omission to consider rel evant clinching evidence or where the inference drawn from the facts proved in such that no reasonable person could arrive at or the like, it is only in such situations that interference by the High Court in revision in a finding of fact will be justified. Mere possibility of a different view is no ground to in terfere in exercise of revisional power. From the above discussion, it is clear that none of the aforementioned rea sons exists in this case to justify inter ference by the High Court. " 50. The tenancy was terminated in the year, 1998. Since then 9 years have already passed. Premises is not covered under the Rent Control Act. Taking into consideration the facts and circumstances of the case, the damages is fixed at Rs. 2500/- per month from the date of termi nation of tenancy upto the date of deliv ery of possession. So far as interest part is concerned, if the possession is not de livered on the due date, the applicant will be liable to pay interest as awarded by the court below through-out from the date of termination of tenancy. CONCLUSIOn 51. In view of the above, the damages/mesne profits are modified to the ex-K tent of 2,5001- per month from the date of termination of tenancy. 52. However, in the interest of justice time is granted up to 31st October, 2007 to vacate the premises in dispute provided (a) undertaking is furnished by 5th July, 2007 for vacating the premises in dispute. 9 (b) the revisionist pays entire dam-ages/renfmesne profits on or be fore 5th July, 2007 (c) the revisionist goes on paying the regular damages/mesne profits at the rate fixed above in the first week of every month until and unless the premises in dispute is vacated. (d) On failure of the aforesaid condi tions, respondents-landlord shall have liberty to execute the order forthwith. 53. Civil Revision is dismissed with costs. .