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When a tenant can seek his re-instatement

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21st-Jul-2018       
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High Court Division :
(Civil Appellate Jurisdiction)
Md Emdadul Hug J     
FRM Nazmul Ahasan J

Bata Shoe Company  (Bangladesh) Ltd ……
................. Appellant
vs
Hassan Movies Ltd …………
............. Respondent
Judgment
November 1st, 2017
Premises Rent Control Act (III of 1991)
Section 18(4)
The plea of the landlord about the purported own use or development work cannot allowed to continue for indefinite period. Subsection (4) confers a right on the evicted tenant to seek his re-instatement within a specified time. Although this provision is not very much pragmatic it unboundedly gives a clear caution to an unscrupulous landlord. ..... (34)
Premises Rent Control Ordinance (XX of J963)
Section 18(4)
Sub-section (4) comes into play only after recovery of possession. If the plaintiff fails to implement his intention to take development work or for his own use within 2 (two) months after recovery of his possession or if the plaintiff leases out the premise another tenant within six months, the evicted tenant can seek to be reinstated through court. .(34)
Section 18 as a whole particularly sub-section (I) including the proviso and sub-section (2) are to be read conjointly. The legislative intent as reflected in these two sub-sections are twofold, namely (I) a tenant can even after expiry of the lease period continue as a tenant if he pays ÒAby‡gv`b‡hvM¨ fvovÓ and fulfills other conditions of the tenancy and (2) at the same time the landlord can also exercise rights conferred on him by the clause (umo) of the proviso to sub-section (1). Close scrutiny of sub-section 18(2) clearly shows that the additional right conferred by sub-section (2) on a tenant is a corollary to the right declared by the 1st part of sub-section (1) and this additional right does not negate the right conferred on a landlord under the proviso to sub-section (1). It follows that sub-section (2) does not stand as a legal bar to the landlord's rights  seek eviction of a tenant.  It is noted that each of the four situation specified in clause (umo) are disjointed by the word 'A_evÕ and therefore anyone of them is a valid and sufficient ground for eviction. Thus clause (Umo) of the proviso to sub-section (1) clearly confers a right on the landlord to seek eviction of the tenant through court on the ground of development of the property or for his own use. In the instant case plaintiff has asserted his reasons in the notice (Exhibit No.3) that he wanted to undertake development work. So he can lawfully seek the remedy of eviction of the defendant under clause (umo) of the proviso to sub-section (1).
..... (34.29.30.31 & 32)
Abdul Aziz vs Abdul Majid, 46 DLR (Ad) 121 Ref.
Imam Ahmed Bhuiyan, Advocate-For the Appellant.
AF Hasan Ariff with Zahid Ahmed, Advocates-For the Respondent.
Judgment
Md Emdadul Huq J : This First Appeal is directed against the judgment and decree dated 7-7-2015 by which the learned Joint District Judge, 3rd Court, Dhaka, decreed the Title Suit No. 289 of 2012 for eviction of the appellant (defendant).
2. The facts relevant for· disposal of this appeal are briefly as follows:
Plaintiff-respondent's Case: Plaintiff Hassan Movies Ltd., represented by its Managing Director, filed the above noted suit for eviction of the defendant-appellant Bata Shoe Company Ltd, represented by its Managing Director, from the suit property being a shop located in Balaka Bhaban, Holding No.3, Mirpur Road, Dhaka.
3. Plaintiff has stated that it had leased out the suit property to the defendant as a monthly tenant on the basis of written agreement dated 6-2-2006 for a period of 6(six) years effective from 16-11-2005 and due to expire on 15-11-2005. The rent was fixed at Taka 60,000 per month for the 1st three years and Taka 72,000 for the next three years.
4. Plaintiff claims that he requires the shop for his own use and also for development thereof. So, before expiry of the lease period, plaintiff issued 4(four) notices to the defendant by registered post during the period from April, 2011 to October, 2011, with a request to vacate the property.
These notices were duely delivered to the relevant state of the defendant company. But the defendant. instead of vacating the premises, filed Title Suit No. 267 of 2011 in the Court of Joint District Judge Court No.3, Dhaka for a decree of permanent injunction. However, the plaint of the suit was rejected by the said court by order dated 14-12-2006. Subsequently defendant filed a Rent Control Case No. 1 of 2012 in the Court of Assistant Judge, Court No. I, Dhaka.
 (To be continued)
5. Lastly plaintiff sent another notice dated 17-6-2012 requesting the defendant to vacate the property, but to no effect. Hence the suit.
6. Defendant-appellant's Case: The defendant does not deny his status as a monthly tenant under the six year written agreement that expired on 15-11-2005.
7. Defendant, however, contends that there is no cause of action to file this suit and that the suit is not maintainable in its present form. He further contends that the plaintiff has not complied with the mandatory requirement of Section 106 of the Transfer of Property Act. 1882 (shortly the Act, 1882) and that plaintiff has no necessity of his own for getting the possession or the suit property. But in order to get a higher rent plaintiff has initiated a negotiation with a third party, named Jeney International Ltd.
8. Defendants asserts that he is willing to continue the tenancy on payment of proper rent as contemplated in Section 18 of the evwo fvov wbqš¿Y AvBb, 1991 (shortly the Act, 1991. Accordingly he has filed Rent Control Case No. 1 of 2012 and has been depositing the monthly rent at previous rate.
9. Proceeding and decision of the trial Court: At the trail both sides produced oral and documentary evidence. The trial Court. Upon consideration of the evidence on record, found that the plaintiff has issued to the defendant several notices for vacating the premises and that the defendant is under a legal obligation to vacate the property after expiry of the tenure of the lease period. Accordingly the trial court decreed the suit and directed eviction of the defendant.
10. Deliberation in Appeal: Mr Imam Ahmed Bhuiyan, the learned Advocate for the appellant (defendant), submits that the defendant never defaulted in paying the rent during the lease period and that, even after expiry of that period defendant has been depositing the rent in the Court of Rent Controller.
11. Mr Bhuyian next submits that the plaintiff has not only failed to issue a notice of termination of the tenancy as required by Section 106 of the Act, 1882 but also failed to prove his own necessity for the property or his plan for development thereof.
12. Mr Bhuyian lastly submits that the trial Court erroneously held that the plaintiff is not required to prove his own necessity or the development work in respect of the suit property and illegally decreed the suit and therefore the appeal should be allowed.
13. In reply, Mr AF Hassan Ariff, the learned Advocate for the respondent (plaintiff), submits that plaintiff has duly served notices under Section 106 of the Act, 1882 and specifically mentioned therein that he intended termination of the tenancy on the expiry of the lease period and that he needed the property for development thereof.
14. Mr Ariff next submits that the fact of plaintiff's own use can be seen and proved only after getting the possession back and that the manner of development need not be explained to the defendant.
15. Mr Ariff next submits that the trial Court lawfully held that the defendant is under a legal obligation to the vacate the property after expiry of the lease period.
16. Mr Ariff lastly draws our attention to Section 18(4) of the Ain, 1991 and submits that if the plaintiff fails to use the property for his own purpose or to undertake development thereof within the period specified in that sub-section the defendant may claim to be reinstated as a monthly tenant.
17. In support of his submission, Mr Ariff refers to the case of Abdul Aziz vs Abdul Majid 46 DLR (AD) 121.
18. Findings and decision in Appeal : The relationship between the respondent (plaintiff) and appellant (defendant) as landlord and tenant and also the fact of expiry of the tenancy period on 15-11-2015 are admitted.
19. The plaintiff has pleaded two reasons for eviction of the defendant, namely expiry of the agreement and the necessity for his own use and development of the suit property.
20. On the contrary, the defendant has pleaded plaintiff's failure to comply with the requirement of Section 106 of the Act, 1882 by way of issuing a notice and the defendant's right to continue as a tenant within the purview of Section 18(2) of the Ain, 1991.
21. To prove his claim about issuance of notice, plaintiff has produced several notices (Exhibits-3-series). These documents contain a request to the defendant to vacate the suit propel1y with reference to the expiry of the lease period. EXhibit-3, being the 1st Notice dated 19- 1-2011 states as follows:-
"This is to inform you that your rental agreement is expiring on 14-11-2011 and unable to renew further because of our development work.
Would you vacate the above Premises on 14th Nov, 2011."
22. The subsequent three Notices dated 7-8-2011, 16-8-2011, 17-6-2014 (Exhibit-3 (ka), 3(kha) and 3(ga) contain further request to vacate the property.
23. The postal receipts, Exhibit 3(Ja) and 3(Jha) prove the fact of sending and delivery of the notices by registered post.
24. The law relating to termination of tenancy is contained in Section 106 of the Act, 1882, which is quoted below (under lines added to emphasize):
"106. Duration of certain leases in the absence of written contract or local usage.- In the absence of a contract or local law or usage to the contrary, 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 lessore or lessee, by six months, notice expiring with the end of a year of the tenancy;  and a lease of immoveable 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. 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 tender or delivered personally to such party or to one of his family or servants at his residence or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property."
25. It is evident that Section 106 of the Act, 1882 simply states that for terminating the lease of an immovable property including a monthly tenancy the lesser must serve a notice. This section also specifies the manner of sending and delivery of the notice.
26. Exhibit-3 (series), being the notice as quoted above and the postal receipts Exhibit 3(ja) and 3(jha), conform to the requirements of Section 106 of the Act, 1882. So plaintiff has proved his case about termination of the tenancy by sending the notice and subsequent notices as required by that Section. The plea of the defendant (appellant) about plaintiff's failure to comply with Section 106 of the Act, 1882 is not acceptable.
27. With regard to the restrictions on eviction of a tenant on the grounds of a landlord's own use or of development of a rented property, and related matters, Section 18 of the Ain, 1991 contains detailed provisions. The relevant portions of Section 18 are quoted below (underlines added to emphasize):
১৮। অনুমোদনযোগ্য ভাড়া প্রদান করা হইলে সাধারণত ঃ উ"েছদের আদেশ দেওয়া হইবেনা। ঞৎধহংভবৎ ড়ভ চৎড়ঢ়বৎঃু অপঃ, ১৮৮২ (ওঠ ড়ভ ১৮৮২) অথবা ঈড়হঃৎধপঃ অপঃ, ১৮৭২ (ওঢ ড়ভ ১৮৭২) এ যাহা কিছুই থাকুক না কেন, কোন ভাড়াটিয়া এই আইনের অধীন অনুমোদনযোগ্য ভাড়া যতদিন পর্যন্ত পূর্ণমাত্রায় আদায় করিবেন এবং ভাড়ার শর্তাদি পূরণ করিবেন ততদিন পর্যন্ত বাড়ী মালিকের অনুকূলে বাড়ির দখল পুনরুদ্ধারের জন্য কোন আদেশ বা ডিক্রি প্রধান করা যাইবে না ঃ
তবে শর্ত থাকে যে, যে ক্ষেত্রেÑ
(ক) ভাড়াটিয়া ঞৎধহংভবৎ ড়ভ চৎড়ঢ়বৎঃু অপঃ, ১৮৮২ (ওঠ ড়ভ ১৮৮২) এর ঝবপঃরড়হ ১০৮   এর    পষধঁংব (প) বা ঈষধঁংব (ঢ়) এর বিধানের পরিপš'ী কোন কাজ করেন; বা
(খ).... ...(ঘ) (হড়ঃ ৎবষবাধহঃ)
(ঙ) বাড়ির নির্মাণ বা পুনঃ নির্মাণের জন্য অথবা নিজ দখলের জন্য অথবা যাহার উপকারার্থে বাড়িটি রাখা হইয়াছে তাহার দখলের জন্য বাড়িটি বাড়ি-মালিকের প্রকৃতই প্রয়োজন হয় অথবা বাড়িমালিক এমন কোন কারণ দর্শাইতে পারেন যাহা আদালতের নিকট সন্তোষজনক বলিয়া গণ্য হয়;
সেক্ষেত্রে এই উপ-ধারার কিছুই প্রযোজ্য হইবে না।
(২) ভাড়ার মেয়াদ শেষ হইয়াছে কিংবা বাড়ী-মালিকের স্বার্থ হস্তান্তরিত হইয়াছে কেবলমাত্র ইহাই উপ-ধারা (১) (ঙ) তে উল্লিখিত সন্তোষজনক কারণ বলিয়া গন্য হইবে না যদি ভাড়াটিয়া এই আইনের অনুমোদনযোগ্য পূর্ণ ভাড়া প্রদানের প্রস্তুত এবং ই"ছুক থাকেন।
(3)... .. (not relevant)
(৪) যেক্ষেত্রে নির্মাণ বা পুনঃ নির্মান বা নিজ দখল বা যাঁহার উপকারার্থে  বাড়ীটি রাখা হইয়াছে তাহার দখলের জন্য প্রকৃতই প্রয়োজন হওয়ায় বাড়ি-মালিক বাড়ির দখল পাইয়াছেন কিš' বাড়ির প্রাক্তন ভাড়াটিয়া কর্ত"ক বাড়ি খালি করার তারিখ হইতে দুই মাসের মধ্যে ইহার নির্মাণ বা পুনঃনির্মাণ শুরু করা হয় নাই বা বাড়ি-মালিক বা উক্ত যে ব্যক্তির উপকারার্থে বাড়ী রাখা হইয়াছে সেই ব্যক্তি কর্ত"ক উহার ভোগ দখল করা হয় নাই বা বাড়িটির দখল নেওয়ার পর দখল নেওয়ার তারিখ হইতে ছয় মাসের মধ্যে প্রাক্তন ভাড়াটিয়া বাড়ির অন্য কোনো ব্যক্তির নিকট বাড়িটি ভাড়া দেওয়া হইয়াছে সেক্ষেত্রে  নিয়ন্ত্রক, প্রাক্তন ভাড়াটিয়া কর্ত"ক বাড়ী খালি করার সাত মাসের মধ্যে তৎকর্ত"ক পেশকৃত দরখাস্তের ভিত্তিতে বাড়িটি প্রাক্তন ভাড়াটিয়ার দখলে নেওয়ার জন্য অথবা তৎকর্ত"ক নির্ধারিত ক্ষতিপূরণ উক্ত ভাড়াটিয়াকে দেওয়ার জন্য অথবা দখল বা ক্ষতিপূরণ  উভয় দেওয়ার জন্য বাড়ি-মালিককে নির্দেশ দিতে পারিবেন।
(৫)...(৬)... ..(হড়ঃ ৎবষবাধহঃ)
28. Section 18 of the Ain, 1991, as a legal provision regulating certain aspects of tenancy, marks a clear improvement over the Act, 1882. This Section 18 unambiguously speaks of the fol1owing rights and liabilities of the tenanant and the landlord:
 (1) Sub-section (1) overrides the provision of the Transfer of Property Act, 1882 including Section 106 of the Act, 1882 and Contract Act, 1872 with regard to termination of tenancy and it further declares a general right of the tenant to continue in possession of the retend property till এই আইনের অধীন অনুমোদন যোগ্য ভাড়া যতদিন পর্যন্ত পূর্ণমাত্রায় আদায় কারী এবং ভাড়ার শর্তাদি পূরণ করিবেন ততদিন পর্যন্ত।
(2) In addition to the general right of the tenant under sub-section (1), sub-section (2) confers another right on the tenanant, namely that mere expiry of the lease period is not a sufficient ground for eviction of the tenant. This means that a tenant may continue after the lease period, subject to the provision of sub-section (1) and other laws.
(3) But the right conferred by sub-section (1) and sub-section (2) on the tenant is subject to the five conditions mentioned in clauses (ka) to (uma) of the proviso to sub-section (1),
(4) Under clause (uma) of sub-section (1), the landlord has a right to seek recovery of possession not only on any of the four other conditions as specified in clauses (ka-gha) but also on anyone of four the situation specified in clause (uma) namely

(ধ)    বাড়িটি নির্মাণ বা পূর্ণ নির্মাণের জন্য অথবা
(ন)    নিজ দখলের জন্যে অথবা
(প)    যাহার উপকারার্থে বাড়ীটি রাখা হইয়াছে তাহার দখলের জন্য বাড়িটি বাড়ি-মালিকের প্রকৃতই প্রয়োজন হয় অথবা
(ফ)    বাড়ি-মালিক এমন কোন কারণ দর্শাইতে পারেন যাহা আদালতের নিকট সন্তোষজনক প্রতীয়মান হয়।
29. Section 18 as a whole particularly sub-section (1) including the proviso and sub-section (2) are to he read conjointly. The legislative intent as reflected in these two sub-sections are twofold, namely (1) a tenant can even after expiry of the lease period, continue as a tenant if he pays "Aby‡gv`b‡hvM¨ fvovÓ and fulfil1s other conditions of the tenancy and (2) at the same time the landlord can also exercise rights conferred on him by the clause (umo) of the proviso to sub-section (I).
30. Close scrutiny of sub-section 18(2) clearly shows that the additional right conferred by sub-section (2) on a tenant is a corol1ary to the right declared by the 1st part of sub-section (1) and this additional right does not negate the right conferred on a landlord under the proviso to subsection (1). It fol1ows that sub-section (2) does not stand as a legal bar to the landlord's right to 'seek eviction of a tenant.
31. It is noted that each of the aforementioned four situation specified in Clause
 (umo) are disjointed by the word "A_ev" and therefore anyone of them is a valid and sufficient ground for eviction. Thus clause (Umo) of the proviso to sub-section (1) as quoted above clearly confers a right on the landlord to seek eviction of the tenant through court on the ground of development of the property or for his own use.
32. In the instant case, plaintiff has asserted his reasons in the notice (Exhibit No.3) that he wanted to undertake development work. So he can lawfully seek the remedy of eviction of the defendant under clause (umo) of the proviso to sub-section (1).
33. We agree with Mr AF Hasan Ariff that plaintiff's intention to undertake development works cannot be implemented before recovery of possession of the property and that the plea of his own use cannot be proved before taking over possession.
34. However the legislature has made it clear that the plea of the landlord about the purported own use or development work cannot allowed to continue for indefinite period. Accordingly Sub-section (4) confers a right on the evicted tenant to seek his re-instatement within a specified time. Although this provision is not very much pragmatic it unboundedly gives a clear caution to an unscrupulous landlord. However sub-section (4) comes into play only after recovery of possession. If the plaintiff fails to implement his intention to take development work or for his own use within 2 (two) months after recovery of has possession or if the plaintiff leases out the premise another tenant within six months, the evicted tenant can seek to be reinstated through court.
35. It is noted that the decision of the Appellate Division reported in 46 DLR (AD) 121, as referred to by Mr Ariff the learned Advocate for the appellant is not applicable to the present case. Because the facts thereof are different from the present case.
36. The finding of the trial Court to the effect that the landlord may get recovery of possession of a rented property merely on the expiry of the lease period is partly in consistent with sub-section 18(2) of the Ain, 1991. Simply because the landlord has to prove not only the expiry of the lease period, but also at least one the four grounds as specified in clause "Umo".
37. The plaintiff has been able to prove that he has complied with the requirements of Section 106 of the Act, 1882 and that he intends to get possession of the premises for the development thereof as contemplated in clause (umo) of the proviso to sub-section (1) of Section 18 of the Ain, 1991. So we uphold the decision of the trial Court.
38. In view of the above we hold that the appeal is no merit.
39. Court Fee paid is correct.
40. The appeal is dismissed on contest.
41. The judgment and decree dated 7-7-2015 passed by the learned Joint District Judge. 3rd Court Dhaka in Title Suit No. 289 of 2012 is hereby upheld.
42. The defendant-appellant is directed to vacate the suit properly within 90 days from the date of receipt of the copy of this judgment and the lower court records.
43. If the defendant-appellant fails to vacate the suit property within the said period the plaintiff will be at liberty to initiate an Execution Case in accordance with law.
44. No order as to cost.
Send down the lower Court records at once along with a copy of this judgment.

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Ronaldo '1,000 percent' with Juventus


Cristiano Ronaldo said on Saturday he is "1,000 percent committed" to staying with Juventus next season after claiming his first Serie A title.Massimiliano Allegri's side needed just one point to nail down its eighth straight league championship, which helped ease some of the pain of its shock Champions League exit ...

International »

Top Democrats leave open option of Trump impeachment after Mueller report


Reuters, Washington :Top congressional Democrats left the door open on Sunday to the impeachment of US President Donald Trump, but said they would first need to complete their own investigations into whether he obstructed justice in Special Counsel Robert Mueller's Russia probe.Some party leaders have cautioned against impeachment just 18 ...

National »

PIROJPUR: Floating Watermelon Bazar at Swarupkathi Upazila has gained momentum as the district has achieved bumper production of the summer fruit. This snap was taken on Monday.


Business & Economy »

SM Jaffar, DMD of Al-Arafah Islami Bank Limited (AIBL) and Azizunnessa Huq, Executive Director of Fintech Innovations International, UAE, exchanging an agreement signing document at the Bank's head office in the city Wednesday. Under the deal, AIBL becomes a subscriber of the digital platform "TradeAssets" which will enable AIBL to enhance its capabilities in reaching out to all foreign financial institution members of the platform, directly, with a view to executing trade finance related transactions instantly. Farman R Chowdhury, CEO of the bank and senior officials from both sides were also present.


Entertainment »

Ananya Panday is binging on between breaks


Ananya Panday who is making her debut with Student Of The Year 2, is ringing high on the excitement with her recently released song, The Jawani Song. The teen sensation is a web series maniac and the testimony of the same are the series that Ananya binge watches, stealing time ...

Editorial »

The debt cycle must end


IN disaster prone Bangladesh floods, erosions and landslides are considered much more devastating as they make more people shelter-less each year. Losing everything, the affected people borrow from money lending Mahajans, micro credit institutions as well as select NGOs in money lending business at high rates of interest to rebuild ...

Editorial »

CID man held with Yaba: Virus in the antidote


A CONSTABLE of Criminal Investigation Department and one of his associates were arrested with 990 Yaba pills from Savar on Thursday evening, some newspapers reported. The arrestees are Taijuddin, a constable of CID's Uttara Zone, and his associate Mofiz Mia, said Officer-in-Charge of Detective Branch of Police in Dhaka (North). ...

 
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