Vitasta School of Law and Humanities

BEFORE THE HONBLE HIGH COURT OF J & K

AND LADAKH

Civil Appeal No. 52 (A) of 2023

IN THE CASE OF:

Ms. AALIYA APPELLANT

V.

Mr. RAMZAN KHAN RESPONDENT

UPON SUBMISSION TO THE HONBLE HIGH COURT OF

J &K AND LADAKH MEMORANDUM ON BEHALF OF
THE RESPONDENT

NAME: REYAZ AHMAD MIR

COURSE: BA LLB
SEMESTER: 7th
SECTION: A
ROLL NO: 60 (Sixty)
 Table of Contents

List of Abbreviations 1
Table of Cases 2
Index of Authorities 3
Statement of Facts 4,5
Issues Raised 6
Arguments in Advance 7-12
Prayer 13
 List of Abbreviations
1. AIR All India Reporter
2. Bom. Bombay
3. Cal. Calcutta
4. CPC Code of Civil Procedure
5. Co. Company
6. Hon’ble Honorable
7. Ltd. Limited
8. Mfg. Manufacturing
9. Rs. Rupees
10. SC Supreme Court
11. SCC Supreme Court Cases
12. Sd/- Signed
13. Smt. Shrimati
14. Spg. Supplying
15. u/s Under Section
16. v. Versus

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 Table of Cases
i. Achintya Kumar Saha v. Nanee Printers 2004, 12 SCC 368

ii. Anamika Roy v. Jatindra Chowrasiya and others (2016) 10 SCC 209

iii. Annapoorani Ammal v. G. Thangapalam (1995) 6 SCC 213

iv. B Arvind Kumar v. Union of India Writ Petition (Civil) No. 462/2007

v. Chunilal V. Mehta and Sons Ltd. v. Century Spg. and Mfg. Co. Ltd (2001) 6
SCC 652

vi. K. Chinnammal v. L.R. Eknath, 2023 SCC OnLine SC 611

vii. Kashibai v. Parwatibai (1996) 3 SCC 392

viii. M.S.V. Raja v. Seeni Thevar AIR 1963 SC 302

ix. Parsun Chakraborty v. Smt. Indira Jaiswal (2016) 4 Cal LT 420

x. Priyavarte Mehta vs Amrendu Banerjee AIR 1997 Pat 114

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 Index of Authorities
BOOKS:
i. Dr. Avtar Singh, The Transfer of Property Act (Universal Law Publishing 5th Edition,
2016)
ii. C.K. Takwani, Civil Procedure with Limitation Act, 1963 ( EBC; 8th Edition 2020)

WEBSITES:
i. http://www.findlaw.com
ii. http://www.indiankanoon.org
iii. http://www.manupatrafast.com
iv. http://www.scconline.com

STATUTES:
i. The Code of Civil Procedure, 1973 (Act No. 2 of 1973)
ii. The Transfer of Property Act, 1882 (Act No.4 of 1882)

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 STATEMENT OF FACTS
1. Rahil and Aaliya took a flat on rent in Jammu after shifting to the new city. Mr. Ramzan
Khan is their landlord who stays on the 2nd floor and gives the 1st floor on rent to Rahil
and Aaliya.
2. Mr. Ramzan Khan makes an agreement for 11 months (i.e. from 01st March, 2015 to 28th
February, 2016) with Rahil and Aaliya regarding renting the flat and handing over the
premises to both of them on 10,000/- per month.
3. Rahil and Aaliya started living in the aforementioned premises from 01st March, 2015.
Things were going good until Rahil lost his job in last week of May, 2015. However,
Aaliya was completely unaware of this incident.
4. Aaliya started working in a Kid Zee in Jammu as she used to get bored at home after
Rahil left for job. Aaliya was paid Rs. 5000/- per month. Rahil used to earn Rs. 20000/-
per month.
5. Due to the loss of job of Rahil, the rent of the property remained due for 6 months
consecutively. However, Aaliya did not know the reason for such delay as to the payment
of the rent and kept on asking Rahil, while Rahil was trying to avoid confronting Aaliya.
6. At last, in November, 2015 Mr. Ramzan Khan sent a notice to the Couple expressing his
desire to not continue the agreement with the couple. The said notice also disclosed that
Mr. Ramzan Khan wanted the couple to leave the premises within 1 month. Receiving
this notice Aaliya confronted Rahil that followed a heated argument.
7. Following the argument Aaliya was informed about the unemployed status of Rahil.
Following this Aaliya left that house on 01st December, 2015 and went to her home at
Srinagar. Rahil made several attempts to call her and talk to her; however, everything
seemed to go in vain. Aaliya did not pay any heed and stayed back in her parental home.
8. It was on 22nd April, 2015 Aaliya came back to the shared flat at Jammu that the couple
had rented. Mr. Ramzan Khan made repeated requests to Rahil during the absence of
Aaliya to pay the rent.
9. However, everytime Rahil has paid month for some months and then became defaulter
again and again for several months. Therefore, the payment of rent was irregular in
nature.
10. After coming back Aaliya asked Rahil to leave the said flat and also talked to Mr.
Ramzan Khan that from now onwards Aaliya would stay in the flat and would pay the

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 rent. Aaliya also informed Rahil that she wanted to divorce him as he hide the fact of his
unemployment to her thereby causing mental trauma.
11. Mr. Ramzan Khan did not want to face any unwanted problem therefore, he asked Aaliya
to vacate that flat no matter she agreed to pay the rent. Mr. Ramzan Khan has issued a
notice for eviction to the couple in May, 2015.
12. When the couple did not vacate the premises Mr. Ramzan Khan filed a suit for eviction
against Mr. Rahil and Ms. Aaliya before the Controller in June, 2015. Ms. Aaliya in the
abovementioned suit contended that,
a) she was having a matrimonial dispute with her husband regarding which she had to
take a decision,
b) she had a job in Jammu therefore she wished to stay back in the town and did not
want to go back to her parental home and be a burden upon her parents,
c) she needed a safe place to stay in the city.
 Therefore, vacating the premises would not be possible for her. She made a prayer before
the Controller to order for the continuation of the tenancy.
 Mr. Ramzan Khan contended that, he requires the suit property for his personal use, and
the couple became defaulter in paying the rent amount. Therefore, he prayed before the
Controller to order for eviction of the couple.
 The Controller in the suit for eviction decided in favour of Mr. Ramzan Khan and ordered
Ms. Aaliya to vacate the suit property.
 The suit for restitution of conjugal right between Mr. Rahil and Ms. Aaliya was still
pending before the competent court. After the decision of the Controller Mr. Rahil left the
suit property.
 However, Ms. Aaliya did not vacate the suit property and decided to file an appeal before
the Tribunal. An appeal was filed by Ms. Aaliya against the decision of the Controller to
the Tribunal.
 However, the Tribunal upheld the decision of the Controller and asked Ms. Aaliya to
vacate the suit property. Aggrieved by the decision of the Tribunal Ms. Aaliya filed an
appeal before the High Court of J&K, contending that the order of the trial court
regarding eviction of Ms. Aaliya from the suit property amounted to grave injustice.
 Therefore, the Appellate court should consider the situation and order accordingly.

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 ISSUES RAISED

ISSUE I: Whether the present suit is maintainable both in law and in fact?

ISSUE II: Whether there is landlord and tenant relationship between Ms.
Aaliya and Mr. Ramzan Khan under the Transfer of Property Act?

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 ARGUMENTS ADVANCED
1. Whether the present suit is maintainable both in law and in fact?
It is humbly submitted before this Hon’ble High Court of Jammu and Kashmir, that the
present appeal is not maintainable u/s 100 of Code of Civil Procedure. This Hon’ble High
Court is satisfied that the case involves a substantial question of law but the present appeal
does not involve any substantial question of law.
As per Section 100 of CPC the second appeal to the High Court from an appellate decree.

[Second appeal:
(1) Save as otherwise expressly provided in the body of this Code or by any other law
for the time being in force, an appeal shall lie to the High Court from every decree
passed in appeal by any court subordinate to the High Court, if the High Court is
satisfied that the case involves a substantial question of law.

(2) An appeal may lie under this section from an appellate decree passed ex parte.

(3) In an appeal under this section, the memorandum of appeal shall precisely state
the substantial question of law involved in the appeal.

(4) Where the High Court is satisfied that a substantial question of law is involved in
any case, it shall formulate that question.
(5) The appeal shall be heard on the question so formulated and the respondent shall,
at the hearing of the appeal, be allowed to argue that the case does not involve such
question:
Provided that nothing in this sub-section shall be deemed to take away or abridge
the power of the Court to hear, for reasons to be recorded, the appeal on any other
substantial question of law, not formulated by it, if it is satisfied that the case involves
such question.]1
In Annapoorani Ammal v. G. Thangapalam2 the Supreme Court held that a perusal of Section
100 CPC clearly indicates that the High Court had the jurisdiction to interfere only when a
substantial question of law is involved and even then it is expected that such a question shall
be so framed although the court is not bound by that question as the proviso indicates.

1
Section 100 of Code of Civil Procedure, 1973.
2
(1995) 6 SCC 213

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In Chunilal V. Mehta and Sons Ltd. v. Century Spg. and Mfg. Co. Ltd.3 while determining the
said expression occurring in Article 133(1) of the Constitution of India. The Supreme Court
laid down the test as follows:
"The proper test for determining whether a question of law raised in the case is
substantial would, in our opinion, be whether it is of general public importance or
whether it directly and substantially affects the rights of the parties and if so whether
it is either an open question in the sense that it is not finally settled by this Court or by
the Privy Council or by the Federal Court or is not free from difficulty or calls for
discussion of alternative views. If the question is settled by the highest court or the
general principles to be applied in determining the question are well settled and there
is a mere question of applying those principles or that the plea raised is palpably
absurd the question would not be a substantial question of law."

The present case does not involve the substantial question of law and nothing anything of
general public importance is involved in the present case.
In Kashibai v. Parwatibai4 the Supreme Court observed as under:
"It may not be out of place to mention that sub-section (1) of Section 100 of the Code of
Civil Procedure explicitly provides that an appeal shall lie to the High Court from every
decree passed in appeal by any court subordinate to the High Court, if the High Court is
satisfied that the case involves a substantial question of law. Sub-section (4) of Section 100
provides that when the High Court is satisfied that a substantial question of law is involved in
any case it shall formulate that question.”
In M.S.V. Raja v. Seeni Thevar5 it was held by the Supreme Court that the formulation of a
substantial question of law may be inferred from the kind of questions actually considered
and decided by the High Court in second appeal, even though the substantial questions of law
were not specifically and separately formulated.

1.1 Whether rent appeal maintainable in fact?

In Anamika Roy v. Jatindra Chowrasiya and others6, A lease of immovable property is a

transfer of a right to enjoy such property, made for a certain time, express or implied, or in

3
(2001) 6 SCC 652
4
(1996) 3 SCC 392
5
AIR 1963 SC 302
6
(2016) 10 SCC 209

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perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service
or any other thing of value, to be rendered periodically or on specified occasions to the
transferor by the transferee, who accepts the transfer on such terms.

In B Arvind Kumar v. Union of India7, the Supreme Court has given the essential ingredient
under this case. There should be a transfer of right to enjoy an immovable property; such
transfer may be for a certain term or in perpetuity. The transfer should be in consideration of
a premium or rent the transfer should be a bilateral transaction and the transferee accepting
the term of transfer.

The appellant had a right to enjoy an immovable property. The appellant and respondent
make a valid agreement for a specific time period in which appellant name is mentioned. An
agreement for 11 months (i.e. from 01st March, 2015 to 28th February, 2016) with Rahil and
Aaliya regarding renting the flat and handing over the premises to both of them on 10,000/-
per month.

The appellant had personal issues as she had a job in Jammu, therefore she wished to stay
back in the town and did not want to go back to her parental home and be a burden upon her
parents moreover she needed a safe place to stay in the city. Aaliya was paid Rs. 5000/- per
month. Rahil used to earn Rs. 20000/- per month. Due to the loss of job of Rahil, the rent of
the property remained due for 6 months consecutively.

In a civil appeal against the Judgment and Order of the Madras High Court, wherein the
High Court dismissed the revision petition filed by the appellant, the Division Bench of
Krishna Murari and Ahsanuddin Amanullah*, JJ., the Court dismissed the appellant’s
appeal and said that as per Section 3 of the Tamil Nadu Cultivating Tenant Protection Act,
1955, late payment of the rent as per the direction of the Revenue Court was clearly a valid
ground for effecting the eviction. The Court also said that Section 4 of the Act provides for
restoration of possession only in limited cases and that too when the default is of only one
year of lease amount to be paid, whereas in the present case, the default was for three
years.8

7
Writ Petition (Civil) No. 462/2007
8
K. Chinnammal v. L.R. Eknath, 2023 SCC OnLine SC 611

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In Priyavarte Mehta vs Amrendu Banerjee9, it was held that if the amount of 2 months’ rent,
lawfully payable by the tenant and due from him is in arrears and if tenant has not paid
within time fixed by the contract or if there is no such contract than by the last day of the
month next following that for which the rent is payable and not having deposited the rent in
accordance with the provision of the said Act, will be liable for eviction.
In the present scenario after the arrear of rent takes the agreement at end there is an implied
consent of the appellant that the tenancy will be continued as Rahil was not able to pay rent.
Grounds for eviction: A landlord can ask the tenant to leave if he has completed the tenure
as per the lease agreement. Other valid grounds are refusal to pay the rent or indulging in
unlawful activities on your property. Landlord can demand eviction if the tenant has sub-let a
part or all of your property without your permission.
It has been decided in the case of Achintya Kumar Saha v. Nanee Printers10 that: “in view of
the rent control laws and the concept of statutory tenancy evolved in the respect of urban
building it is now generally necessary to determine tenancy by a notice to quit before
claiming ejectment on grounds admissible under such laws.”
If the tenant is un-cooperative and does not want to settle the dispute peacefully and even not
agrees to vacate the land, the landlord can issue an eviction notice. Not only a tenancy of
temporary term but also of fixed term can be challenged and determined by the eviction
notice.
The proper drafting and inclusion of all the important points in an Eviction notice is essential
as there have been cases when the suits have been dismissed only because of the errors in the
Eviction notice.
If applied in the present case the landlord have sufficient ground for eviction because the
appellant and her husband did not pay rent. The Controller and tribunal give valid and
justifiable decision.
In the present case the respondent has the sufficient ground to evict the appellant and all the
conditions are fulfilled by the respondent.

9
AIR 1997 Pat 114
10
2004, 12 SCC 368

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2. Whether there is landlord and tenant relationship between Ms. Aaliya and Mr.
Ramzan Khan under the Transfer of Property Act, 1882?

It is humbly submitted to this Honorable High Court that the appellant is not a tenant and
respondent is the landlord under Section 105 of Transfer of Property Act, that the agreement
of tenancy was signed between the respondent and the husband of the appellant and the
appellant’s husband was paying the rent so appellant directly or indirectly did not form any
relation with the landlord/respondent. The Hon’ble High Court may consider that there was a
landlord tenant relationship between Ms.Aaliya and the respondent but such relationship is no
longer existent.

Firstly, it is clarified that the rental agreement in the present case denotes a lease falling under
the definition of lease under section 105 of the Transfer of Property Act, along with lease,
Section 105 also defines Lessor, lessee, premium and rent. It is as follows:

[Section 105: A lease of immoveable property is a transfer of a right to enjoy such property,
made for a certain time, express or implied, or in perpetuity, in consideration of a price paid
or promised, or of money, a share of crops, service or any other thing of value, to be
rendered periodically or on specified occasions to the transferor by the transferee, who
accepts the transfer on such terms.

Lessor, lessee, premium and rent defined.-- The transferor is called the lessor, the transferee
is called the lessee, the price is called the premium, and the money, share, service or other
thing to be so rendered is called the rent.]11

In the present case, Mr. Ramzan Khan is the lessor who transfers his property to the couple
who are named as lessees in the agreement. The agreement made by Mr. Ramzan Khan with
the couple mentioned that both Ms. Aaliya and Mr. Rahil would be staying in the suit premise
and to that effect both their ID proofs were taken. Further, when the landlord issued an
eviction notice against the couple (and not just one of the spouses) in May 2015, he has
impliedly recognized Ms. Aaliya as a tenant. Such implied recognition through an eviction
notice was held to be sufficient to consider a person as a tenant in the Parsun Chakraborty’s12
case.

11
The Transfer of Property Act, 1882.
12
Parsun Chakraborty v. Smt. Indira Jaiswal (2016) 4 Cal LT 420

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It is further argued that the above mentioned relationship came to an end in June 2015, when
the Rent Controller in the suit for eviction, filed by Mr.Ramzan Khan against Ms. Aaliya,
ruled in favor of Mr.Ramzan Khan and ordered Ms.Aaliya to vacate the suit property. The
same is substantiated by Section 2(6) of the Jammu and Kashmir Houses and Shops Rent
Control Act, 1966, which defines a tenant and states that:

"tenant" means any person by whom or on whose account rent or any money liable to be paid
for use of house or shop, is or but for a special contract, would be payable for any such
premises and includes legal representative of such person; and, person continuing in
possession after termination of tenancy in his favour but does not include any person placed
in occupation of the house or shop by its tenant without the consent of the landlord;

According to the facts of the present case, an eviction order was made against the
couple by the Controller in June, 2015 and the same was upheld by the Tribunal as well. This
clearly indicates that the landlord and tenant relationship between Mr.Ramzan Khan and
Ms.Aaliya came to an end in June of 2015.

Therefore it is most humbly submitted that there had been a landlord tenant
relationship between Mr. Ramzan Khan and Ms. Aaliya up until June, 2015 but no such
relationship exists at present.

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 PRAYER

Wherefore in the light of the issues raised, arguments advanced and authorities cited, the
counsel for the Respondent humbly prays that the Hon’ble Court be pleased:

1. To declare that the present suit is not maintainable both in law and in fact,
2. To uphold the order of the Rent Control Tribunal,

And pass any order that this Hon’ble Court may deem fit in the interest of equity, justice and
good conscience. And for this act of kindness, the counsel for the Respondent shall be duty
bound and forever pray.

Sd/-

(Counsel for the Respondent)

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