LEB TERM
PAPER
Case analysis for the case of
Abdul Aziz Vs. Abdul Majid, 1994, 23 CLC
(AD) [1144]
Submitted to:
Dr. Mohammad Towhidul Islam
Associate Professor, Department of Law
University of Dhaka
Date of Submission: 15th December, 2014
Institute of Business Administration
University of Dhaka
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ACKNOWLEDGEMENT
I express my warm thanks and respect to our course supervisor, Dr. Towhidul Islam for
the valuable guidance and advice. His aspiring guidance helped me to complete this
report. I must admit that I did not have much idea to write this kind of report about
cases and laws. But his lectures and examples in the class made me confident to write
one. I would like to thank the authority of Institute of Business Administration (IBA) for
providing a good environment and facilities to complete this paper. It gave me an
opportunity to learn thoroughly and get discreet knowledge about the rules and
regulations of Transfer of Property law and Contract Law and their applications. I would
also like to thank Dhaka Law Report which provided valuable information as the
guidance of my paper. Besides, I am using this opportunity to express my gratitude to
everyone who helped me during the composition of this report. Without helps of the
particular people mentioned above, I would face many difficulties while doing this.
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1. INTRODUCTION TO THE FACTS
Name Of The Court
Name of the plaintiff-respondent
Name of the defendant-appellant
Lawyers Involved
Judges
Judgment
Supreme Court
Appellate Division (Civil)
Abdul Majid
Abdul Aziz
Miah Abdul Gafur (for the appelant)
Nurul Huq instructed by AKM
Shahidul Huq (for the plaintiff)
Latifur Rahman
Mustafa Kamal
April 4, 1994
The appeal to the supreme court is directed by the defendant Abdul Aziz against
the judgment and order of a Single Judge of the High Court Division passed in Civil
Revision No. 2291 of 1990 affirming the judgment and decree passed by the
Subordinate Judge, 3rd Court and SCC Judge, Dhaka in SCC Suit No. 6 of 1985 for
ejectment of a monthly tenant. The facts leading to that appeal is in brief discussed
below.
The plaintiff-respondent Abdul Majid was the lessor of his property to Abdul Aziz for a
period of 11 months beginning from 1st day of December, 1983 to October, 1984 at a
monthly rental of Taka 800.00 per month by a written agreement on 1.12.83.
According to the defendant, there was an option of renewal of the tenancy with the
lessor. The defendant argued that he was a good tenant and he was paying his rents
regularly. He did not do anything wrong and so he was eligible for the renewal of the
lease. But after the expiry of the period of 11 months the plaintiff filed the suit for
eviction of the defendant.
On 1.10.84 the landlord respondent sent a notice by registered post with AD through
his lawyer stating that lease shall not be renewed and in the appellant fails to quit and
vacate the premises with the expiry of the last day of October, 1984, he will be treated
to be an unauthorized occupier and will be liable to pay compensation @ Taka 100.00
per day. The postal peon returned the notice with an endorsement that the addressee
does not stay in the address given. The trial Court found that the landlord-respondent
had given the correct address of the appellant in that notice, but failed to give a
decision as to whether the service of the notice was a valid service or not. However,
on 18.10.84 the landlord-respondent sent another legal notice in the same terms for
service through his Manager, PW 2 Mohammad, who served the same by hanging it in
the shop premises in the presence of PW 3 Shaukat Ali on 22.10.84 upon the refusal of
the appellant to accept it. The appellant replied to the second notice on 29.10.84
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through his lawyer refusing to quit. The respondent filed the suit for eviction on
26.2.85. The only ground taken was that the lease had expired with efflux of time.
The learned SCC Judge decreed the suit and passed the order of eviction of the
defendant from the suit premises on the finding that no notice under section 106 of
the Transfer of Property Act was necessary prior to the institution of the suit as the
tenancy of the defendant was terminated by efflux of time.
The defendant contested the suit. He said that he was not a defaulter in payment of
rent as he regularly deposited the rent in House Rent. He then made his appeal to
Supreme Court appellate division and eventually the case was solve by the judges of
Supreme Court.
2. ISSUES
On the pleading following issues were settled:
Whether the tenant is liable to be ejected solely on this ground of expiry of the
period of lease without specifying any other valid grounds?
Whether eviction is legal after the lease is terminated by the expiry of time with a
notice or without a notice under section 106 of the Transfer of Property Act?
Whether the order of ejectment is valid when the tenant was paying the rent at
allowable rate?
Whether the tenant can "hold over" after expiry of lease?
What is the difference between Statutory tenants and Contractual Tenants
3. RULES
Transfer of Property Act, 1882
Section 105
Lessee
A lessee of a property has a right to possession and enjoyment of the devise to the
exclusion of the lessor whereas a licensee does not have such a right. Since the
appellant had the right to exclusive possession and enjoyment of the disputed
property, he was a lessee and not a licensee; Ajab Singh v. Shital Puri, AIR 1993 All
138.
Lease
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(i) If the agreement between the parties shows an intention to create an interest in the
property in favor of the grantee what results is said to be a lease. A licensee on the
other hand does not create an interest in property; Mrs. Karuna Manoharlal Ohri v.
Vipinbhai U. Sanghani, AIR 1993 Bom 177.
(ii) The furniture and fittings and the tools and implements which have been given
along with the shop were not meant for the beneficial use of the shop but were meant
exclusively for running of the hair dressing saloon, thus creating a lease of the
business and not a lease of the shop; Vidya Wati v. Hansraj, AIR 1993 Del 187.
License
The Corporation had all the supervisory powers to regulate the running of the
refreshment stall. No exclusive right was created in favor of the caterer to run the
refreshment stall in the manner the caterer choose to do so. Since there is no transfer
of interest in the stall and as per the terms of agreement, the document can be
termed as license only and not a lease; Udai Pratap Singh v. Collector Varanasi, AIR
1991 All 104.
Section 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 immovable
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 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.
(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 sub-section (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 sub-section (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
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servants at his residence, or (if such tender or delivery is not practicable) affixed to a
conspicuous part of the property.
Section 111
A lease of immoveable property determines
(a) By efflux of the time limited thereby;
(b) Where such time is limited conditionally on the happening of some eventby the
happening of such event;
(c) Where the interest of the lessor in the property terminates on, or his power to
dispose of the same extends only to, the happening of any eventby the happening of
such event;
(d) in case the interests of the lessee and the lessor in the whole of the property
become vested at the same time in one person in the same right;
(e) by express surrender; that is to say, in case the lessee yields up his interest under
the lease to the lessor, by mutual agreement between them;
(f) By implied surrender;
(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-enter ; or (2) in case the
lessee renounces his character as such by setting 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 lessor may re-enter on the happening of such event; and in[any of
these cases] the lessor or his transferee4[gives notice in writing to the lessee of] his
intention to determine the lease;
(h) On the expiration of a notice to determine the lease, or to quit, or of intention to
quit, the property leased, duly given by one party to the other. Illustration to clause
(f)A lessee accepts from his lessor a new lease of the property leased, to take effect
during the continuance of the existing lease. This is an implied surrender of the former
lease, and such lease determines thereupon.
Section 116
If a lessee or under-lessee of property remains in possession thereof after the
determination of the lease granted to the lessee, and the lessor or his legal
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representative accepts rent from the lessee or under-lessee, or otherwise assents to
his continuing in possession, the lease is, in the absence of an agreement to the
contrary, renewed from year to year, or from month to month, according to the
purpose for which the property is leased, as specified in section 106.
Premises Rent Control Ordinance 1963
Section 18
No order for ejectments ordinarily to be made if rent paid at allowable
rate.- (1) Notwithstanding anything contained in the Transfer of Property Act, 1882, or
the Contract Act, 1872, no order or decree for the recovery of possession of any
premises shall be made as long as the tenant pays rent to the full extent allowable by
this
Ordinance
and
performs
the
conditions
of
the
tenancy
Provided that nothing in this sub-section shall apply wherea) the tenant has done any act contrary to the provisions of clause m), clause c) or
clause p) of section 108 of the Transfer of Property Act, 1882 (IV of 1882); or
b) in the absence of any contract to the contrary, the tenant has, without the consent
of the landlord in writing, sublet the premises in whole or in part; or
c) The tenant has been guilty of any such conduct as is a nuisance or an annoyance to
occupiers of adjoining or neighboring premises; or
d) The tenant has been using the premises or part thereof or allowing the premises or
part thereof to be used for economic purposes; or
e) the premises are bona fide required by the landlord either for purposes of building
or rebuilding the premises or for his own occupation or for the occupation of any
person for whose benefit the premises are held, or where the landlord can show any
cause which may be deemed satisfactory by the Court;
(2) That fact that the period of the lease has expired, or that the interest of the
landlord in the premises has been transferred shall not of itself be deemed to be a
satisfactory cause within the meaning of clause (e) of the proviso to sub-section (1),
provided that the tenant is ready and willing to pay rent to the full extent allowable by
this Ordinance.
References
Pradhip Das alias Shambhu and others Vs. Kazal Das Sarma, 44 DLR (AD) 1; 32 DLR
(AD) 171.
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4. APPLICATION OF THE RULES
From the Transfer of The Property Act 1882, we found that a lease of immoveable
property can be terminated by efflux of the time limited thereby; in this base the
plaintiff suit the file for eviction against the defendant. Although the tenancy expired
by efflux of time, but the tenant could not be evicted solely on this ground of expiry of
the period of lease without specifying any other valid grounds as provided in the
Premises Rent Control Ordinance. From the section 18 of the, Premises Rent Control
Ordinance 1963, No order for ejectments ordinarily to be made if rent paid at
allowable rate.- (1) Notwithstanding anything contained in the Transfer of Property
Act, 1882, or the Contract Act, 1872, no order or decree for the recovery of possession
of any premises shall be made as long as the tenant pays rent to the full extent
allowable by this Ordinance and performs the conditions of the tenancy. Provided that
nothing in this sub-section shall apply wherea) the tenant has done any act contrary to the provisions of clause m), clause c) or
clause p) of section 108 of the Transfer of Property Act, 1882 (IV of 1882); or
b) in the absence of any contract to the contrary, the tenant has, without the consent
of the landlord in writing, sublet the premises in whole or in part; or
c) The tenant has been guilty of any such conduct as is a nuisance or an annoyance to
occupiers of adjoining or neighboring premises; or
d) The tenant has been using the premises or part thereof or allowing the premises or
part thereof to be used for economic purposes; or
e) the premises are bona fide required by the landlord either for purposes of building
or rebuilding the premises or for his own occupation or for the occupation of any
person for whose benefit the premises are held, or where the landlord can show any
cause which may be deemed satisfactory by the Court;
(2) That fact that the period of the lease has expired, or that the interest of the
landlord in the premises has been transferred shall not of itself be deemed to be a
satisfactory cause within the meaning of clause (e) of the proviso to sub-section (1),
provided that the tenant is ready and willing to pay rent to the full extent allowable by
this Ordinance. In this case the defendant was not a defaulter of payment and he
regularly deposited the rent.
It is admitted that the right to renew the lease was with the plaintiff-respondent. In
such circumstances notice under section 106 is not required. The plaintiff of the case
sent a notice by registered post with AD through his lawyer stating that lease shall not
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be renewed and in the appellant fails to quit and vacate the premises with the expiry
of the last day of October, 1984, he will be treated to be an unauthorized occupier and
will be liable to pay compensation @ Taka 100.00 per day. But it was not a notice
under section 106 of the Transfer of Property Act, as the landlord merely wanted the
tenant to quit and vacate on the expiry of the term of lease. The trial Court then hold
that in any view of the matter no notice to quit is necessary where the action of
ejectment is brought after the term of the lease has expired and the tenancy has come
to an end by efflux of time and the landlord has not accepted the rent from the tenant
after the expiry of the term. No notice was taken to the appellant's unchallenged
assertion that after the expiry of the tenancy he has been depositing rent regularly
and without default to the House Rent Controller. Again the Premises Rent Control
Ordinance 1963, has given a protection to the tenant from eviction when the period of
lease has expired, provided that the tenant is ready and willing to pay rent to the full
extent allowable. He by the aforesaid legislations. If he is to be evicted, then the
landlord will have to make out a case of default in the payment of rent and/or under
any of the clauses (a)-(e) of the proviso to sub-section (1) of section 18.
The tenant cannot be evicted solely and only on the ground of expiry of the period of
lease, even if a notice under section 106 of the Transfer of Property Act is validly
served before filing of the suit. A notice will only be an idle formality in that case,
leading to no remedy. All leases are created under the Transfer of Property Act and the
Contract Act.
If the Premises Rent Control Ordinance was not there, a tenancy terminates with the
expiry of the period of lease because section 111 of the Transfer of Property Act
expressly provides that "a lease of immovable property determines (a) by efflux
of time limited thereby". But to give a protection to the tenants, section 18 of the
Premises Rent Control Ordinance makes a significant departure from the Transfer of
Property Act. Sub-section (1) of section 18 protects a tenant from eviction "as long as
the tenant pays rent to the full extent allowable by this Ordinance and
performs the conditions of the tenancy". There may be a host of other
circumstances provided for in the Transfer of Property Act and in the contract of
tenancy itself which render a tenant liable for eviction, but the causes of eviction
under the premises Rent Control Ordinance are limited to the causes of default in the
payment of rent and any of the circumstances mentioned in section 18(1) Premises
Rent Control Ordinance 1963.
A tenant who continues in possession after expiry of tenancy with efflux of time by
regularly paying rent either to the landlord or on his refusal to accept rent to the
House Rent Controller is a tenant "holding over the option is with the landlord to
accept or not to accept rent from the lessee or under-lessee after the determination of
the lease with efflux of time. If the landlord refuses to accept rent that will be the end
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of the tenancy, there is no "holding over" and the tenant renders himself liable to
eviction. According to the section 116 of the Transfer of Property Act, If a lessee or
under-lessee of property remains in possession thereof after the
determination of the lease granted to the lessee, and the lessor or his legal
representative accepts rent from the lessee or under-lessee, or otherwise
assents to his continuing in possession, the lease is, in the absence of an
agreement to the contrary, renewed from year to year, or from month to
month, according to the purpose for which the property is leased, as
specified in section 106.
But under the Premises Rent Control Ordinance it is the tenant who exercises the
option. If he wishes to continue as a tenant it is he who has to be ready and willing to
pay rent to the full extent allowable by the Ordinance. If he sent the rent after expiry
of lease by money order and the landlord refuses to accept, and if he makes a timely
deposit of the same to the House Rent Controller and continues to do so, he will be
protected from eviction. They are designated by the Courts to be "Statutory tenants".
The defendant-appellant of the case was a statutory tenants. He was regularly
depositing rent with the House Rent Controller. he can only be evicted by a statutory
notice under section 106 of the Transfer of Property Act on the ground of default in the
payment of rent and/or any of the circumstances mentioned in clauses (a) to (e) of the
proviso to sub-section (1) of section 18, and not on any other ground whatsoever. The
sole ground of expiry of tenancy with efflux of time is simply not available to the
respondent, notice or no notice. It is immaterial in this appeal whether any notice
under section 106 of the Transfer of Property Act was served or not. If the respondent
has no available ground for eviction, a valid notice would not save his suit.
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5. CONCLUSION
The plaintiff-respondent filed his suit solely on the ground that, the lease was terminated
by efflux of time. There are some rules for the tenant Premises Rent Control Ordinance
1963. The defendant was not a defaulter of payment of rent and he prove himself as
statutory tenants. He continued his rent payments even after the lease period was over.
Hence the tenant could not be ejected solely on this ground of expiry of the period of lease
without specifying any other valid grounds as provided in the Premises Rent Control
Ordinance. Having considered the facts and circumstances of the case and foregoing
narrative,the judgment of the High Court Division is set aside and the plaintiffs suit for
ejectment is dismissed by the honorable judges.
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