MUSTAQUE AHMAD SIDDIQUE Vs. S AJMAL HUSSAIN

JUDGEMENT

(1.) This appeal by the defendant arises out of a suit for his eviction from a shop, which is part of a house bearing Municipal Holding No. 2. Ward No. VII, of the Daltonganj Municipality.

(2.) The plaintiff's case in short is that Syed Ajmal Hussain, father of the first three plaintiffs and the husband of the fourth, died on the 20th October, 1964, leaving behind the plaintiffs as sole heirs of his properties, including the one in dispute. Ajmal Hussain, by a registered deed dated the 21st February. 1957. had inducted the defendant as a monthly tenant of a shop room in the aforesaid holding for a period of ten years on a monthly rental of Rs. 55/-, payable on expiry of every month. It was also agreed that the defendant would spend a sum of Rs. 2,400/- over the reconstruction of the suit premises and would deduct a sum of Rs. 20/- per month from the rental, towards the aforesaid cost of re-construction. It was also provided in the lease deed that the work of reconstruction was to be completed within a period of six months and the tenancy in question was to commence from the date of the completion of reconstruction. In the lease was incorporated a clause giving option for renewal of the lease on same terms after the expiry of the specified period. The case of the plaintiffs was that the reconstruction was completed by the end of May, 1957, and the tenancy, according to the terms of the lease, commenc-ced with effect from the 1st day of June. 1957, and the period of lease expired on the 31st May, 1967, and the defendant did not get the lease renewed. The plaintiffs also alleged that the defendant failed to pay the rent from the month of February, 1967 onwards, and he was liable to be evicted on the ground of non-payment of the rent for more than two months. The plaintiffs further alleged that they required the room in question for their personal use as the portion of the holding occupied by them was proving insufficient for the growing family. On the above grounds, after a notice terminating the lease under Section 106 of the Transfer of Property Act was served, the plaintiffs instituted the suit on the 29th August, 1967, for eviction of the defendant.

(3.) The defendant contested the suit and pleaded that the reconstruction was to be completed within six months from the date of the execution of the lease, and, therefore, the tenancy commenced from the 21st August, 1957, and the determination of the tenancy by notice dated the 3rd July. 1967, was invalid. The defence case further was that the defendant exercised his option for the renewal of the lease by sending a letter dated the 16th February. 1967, addressed to the plaintiffs, through plaintiff No. 1, who was managing the affairs and realising rent on behalf of all the plaintiffs under registered cover, asking them to intimate as to when and on what date they would be available for executing the new lease deed for a further period of five years. The defendant has averred that the plaintiff evaded service of the notice, which was returned unserved. The defendant further sent another notice addressed to plaintiff No. 1 by his Dalmianagar address, but that also was returned to him as refused. There is also an averment that whenever the defendant met plaintiff No. 1, when the latter came to Daltonganj, he requested him for renewal of the lease, but the plaintiff continued to evade the same on some pretext or the other. Thus, there was no laches on the part of the defendant and in the circumstances he must be deemed to have exercised the option for renewal of the lease and to have continued to be a lessee of the suit premises, and, therefore, the lease could not be determined. The defendant also denied that there was any default in payment of the rent and it is averred that when plaintiff No. 1, who used to realise rent on behalf of all the plaintiffs, did not turn up to receive the rent for the month of February, 1967, the defendant sent the rent by money order, which the plaintiff refused to accept with ulterior motive to make out a case of default for his eviction- The plaintiffs' case of personal necessity was also denied and it is stated that the residential portion of the house of the plaintiffs is very spacious and alleged that the shop-portion of the house being in the middle of the Bazar is suitable only for holding a shop and not for residential purpose. According to the defendant, the action for his eviction was motivated one to coerce the defendant to agree to enhance the rent.