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IN THE HIGH COURT OF ALLAHABAD
R. N. Gurtu and S. N. Dwivedi, JJ.
SETH LOON KARAN SETHIYA - Appellant
Versus
CAPT..N.JOHN - Respondents
F. A. F. O. 439 Of 1959
Decided On : 05/05/1960
LEASE - RECEIVER - SUMMARY EVICTION - JURISDICTION - COURT'S POWER TO EVICT LESSEE BY SUMMARY PROCESS - LEASE NOT EXECUTED - LESSEE'S DEFAULT IN PAYING ADVANCE LEASE MONEY - COURT'S JURISDICTION TO EVICT LESSEE BY SUMMARY PROCESS - TERMS OF LEASE NOT SHOWN TO BE ONEROUS - NO RELIEF AGAINST FORFEITURE.
Fact of the Case:
The appellant, who was a party to a suit involving Mill No. 3, took a sub-lease from a person to whom the receiver had granted a lease. When the lease was about to expire, the appellant claimed an extension due to labor strikes. The court extended the lease up to March 31, 1959, and directed the appellant to vacate the Mill. The appellant requested time to wind up his business, which was granted. The court fixed a date for auctioning a fresh lease and announced the terms, including a two-year period and an advance deposit of the entire lease money by the highest bidder. The appellant's highest bid was accepted, and he was given time to deposit the lease money in two installments. However, the appellant defaulted on the payments, and the court ordered the receiver to take charge of the Mill.
Finding of the Court:
The court held that the appellant could be evicted by summary process because he had not executed a lease and had failed to pay the advance lease money. The court also held that the terms of the lease were not onerous and that the appellant was not entitled to relief against forfeiture.
Issues: 1. Whether the court had the jurisdiction to evict the appellant by summary process. 2. Whether the terms of the lease were onerous and the appellant was entitled to relief against forfeiture.
Ratio Decidendi: 1. The court held that it had the jurisdiction to evict the appellant by summary process because he had not executed a lease and had failed to pay the advance lease money. The court relied on the following principles: (a) A receiver is an officer of the court and has the duty to collect the income of the property in litigation and bring the money into court. (b) If a person intercepts any portion of the income, the court has the jurisdiction to compel him to refund the same to the receiver. (c) A lessee who has not executed a lease and has failed to pay the advance lease money can be evicted by summary process. 2. The court held that the terms of the lease were not onerous and that the appellant was not entitled to relief against forfeiture. The court noted that the appellant had voluntarily accepted the terms of the lease without any imposition, undue influence, or oppression. The court also noted that the lease was not yet in existence and that the appellant was being dispossessed because he had persistently defaulted in paying the advance lease money.
Final Decision: The appeals were dismissed with costs, and the stay orders were discharged. The amounts deposited by the appellant were to be withdrawn by the receiver and adjusted in accordance with the terms of the orders of the trial court and the High Court in stay applications.
( 1 ) THESE appeals raise common questions and are accordingly being disposed of by a common judgment.
( 2 ) IN a suit about (inter alia) the Mill No. 3, to which the appellant was a party, a preliminary decree was passed, and pending the preparation of the final decree a receiver was appointed. Pending appeal from the preliminary decree in this Court the receiver granted a lease to a person, from whom the appellant took the sub-lease. When the period of that lease was about to expire, the appellant claimed an extention of the lease on account of the labour strikes in the Mill. The lease was extended up to March 31, 1959 and the court directed him to vacate the Mill. He prayed for time to wind up his business, and the court gave him fifteen days time. The court also fixed April 27, 1959 for auctioning a fresh lease. On that date the appellant stated to the court that in the event the lease of the Mill No. 3 is not granted to him, he shall deliver vacant possession of Mill No. 3 to the prospective lessee within 15 days. Before auctioning the lease the court announced its terms, two of them being the two years period of the lease and the advance deposit of the lease-money for the entire term by the highest bidder, The appellants highest bid of Rs. 2800/- was accepted by the court. The appellants prayer that he should be permitted to deposit one years lease money within fifteen days and the balance amount of the second years lease money in the succeeding fortnight was granted by the court. The court then passed the following order:--
". . . . The formal lease deed shall be executed after the two years lease money is deposited in advance by Seth Loonkaran Sethiya. I want to make it clear that in case within 15 days from this date half of two years advance lease money or the remaining amount in the next 15 days is not deposited by Seth Loonkaran. Sethiya, the lease shall be granted to the next highest bidder. . The entire amount shall be deposited in court. "
( 3 ) AT his request time was extended up to May 12, 1959, but there was again a default, and on may 23, 1959 the court ordered the receiver to take charge of the Mill. On May 26, 1959 the appellant requested that the receiver could take possession after three days, but his request was not granted. The first appeal is directed against that order.
( 4 ) THE appellant continued to hold possession of the Mill for some months by obtaining a conditional stay order in appeal. On his failure to perform the condition the stay order stood discharged. The lower court, by its order dated December 7, 1959, then directed the receiver to obtain possession of the Mill from the appellant, and the second appeal is directed against this order.
( 5 ) IT is contended that a lease having been settled with him the appellant could be evicted only in a suit and not in a summary proceeding in the case. We are unable to accept the contention.
( 6 ) WHEN a lease has been executed, the lessee may ordinarily be evicted from the demised property only by a regular suit. Tile receiver is as much subject to the law of the land as any one else. But in this case a lease (which was necessary under the law for creating lessee rights, the lease being for a term of two years) was not executed and registered in favour of the appellant, because he did not pay up in advance two years lease money and failed to discharge his obligation to the court, by whom the appellants highest bid was accepted. By giving an undertaking to the court that he would vacate the Mill in favour of the prospective lessee and by bidding in the court-auction the appellant, in our view, submitted himself to the jurisdiction of the court. The appellant could therefore be ejected by summary process, instead of by a suit.
( 7 ) WE shall now examine the cases cited at the bar. Learned Counsel for the respondents relied upon Chandra Sekhar Prosad v. Hari Harendra Sahi, 10 Ind Cas 898 (Gal); Ramayya Servaj v. Sama Ayyar, AIR 1947 Mad 92; T.
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