GAUTAMCHAND B. DIGE Vs. DHONDIRAM D. GURAV

JUDGEMENT

(1.) THE short question that arises for consideration in these two revision petitions is, whether the respondent who is admittedly a tenant should be directed to deposit the arrears of rent and future rent or mesne profit during the pendency of the suits for eviction and recovery of rent.

(2.) THESE two revision petitions arise out of two civil suits. Civil Suit No. 104 of 1984 in respect of one room admeasuring 40 ft. X 6 ft. on the eastern side of CTS No. 55 situated in Vadagaon forms the subject -matter of Civil Revision Application No. 208 of 1985, Suit No. 105 of 1984 in respect of one room on the northern side of C.T.S. No. 55 and two rooms on the eastern side of CTS No. 55 situated in Vadagaon forms the subject -matter of the Civil Revision Application No. 209 of 1985. For appreciating the contentions suffice it to mention the facts of Civil Suit No. 104 of 1984 out of which Civil Revision Application No. 208 of 1985 arises.

(3.) THE tenancy in question is in respect of a building; it is not an agricultural tenancy and ordinarily such tenancies are monthly and not yearly. Under Section 106 of the Transfer of Property Act, a lease of immoveable 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 expiring with the end of a year of the tenancy, while a lease of immovable 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 expiring with the end of a month of the tenancy. When the notice of termination was given, the respondent -tenant did not choose to send any reply. That is, at that stage he did not set up the claims of yearly tenancy. Under Section 107 of the Transfer of Property Act, a lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent, can be made only by a registered instrument. Any yearly tenancy of a building can be granted only under a registered lease deed. It is not the case of the respondent that any such registered instrument was executed in respect of the tenancy set up by him. All other leases of immovable property are made by a registered instrument or by oral agreement accompanied by delivery of possession. Obviously, it was a tenancy from month to month and not a tenancy from year to year. If yearly rent was paid, the tenant would have obtained receipts. By producing those receipts he could have established that in fact yearly lease was granted. No such receipt has been produced. The conclusion is, therefore, irresistible that the tenancy is a monthly tenancy. So also, if in fact rent was -paid earlier by him upto the end of December 1983, nothing prevented him from producing these receipts. His explanation that in view of cordial relations between the petitioner and the respondent receipts were not obtained is unacceptable. Order XV -A of the Rules made by the High Court under Section 122 C.P.C. reads as under: 1.(i) In any suit by a lessor for eviction of a lessee or for the recovery of rent and future mesne profits from him, the defendant shall deposit such amount as the Court may direct on account of arrears upto the date of the order (within such time as the court may fix) and thereafter continue to deposit in each succeeding month the rent claimed in the suit as the Court may direct. The defendant shall continue to deposit such amount till the decision of the suit unless otherwise directed. In the event of any default in making the deposit, as aforesaid, the Court may subject to the provisions of Sub -rule (2) strike of the defence. (2) Before passing an order for striking of the defence, the Court shall serve notice on the defendant or his Advocate to show cause as to why the defence should not be struck off, and the Court shall consider any such cause, if shown in order to decide as to whether the defendant should be relieved from an order striking of the defence. (3) The amount deposited under this rule shall be paid to the plaintiff lessor or his Advocate and the receipt of such amount shall not have the effect of prejudicing the claim of the plaintiff and it would not also be treated as a waiver of notice of termination.