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Rayabai Vs. the State of Maharashtra - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appln. No. 2465 of 1969
Judge
Reported in1972MhLJ706
ActsCode of Civil Procedure (CPC), 1908 - Sections 80
AppellantRayabai
RespondentThe State of Maharashtra
Appellant AdvocateV.M. Limaye, Adv.
Respondent AdvocateM.R. Kotwal, Asst. Govt. Pleader
Excerpt:
.....suit would be filed and that the notice was under section 80 -- 'notice not complied with and suit filed two months after service of notice -- whether notice valid.;the plaintiff landlord served a notice upon the state on october 3, 1966, terminating its monthly tenancy with effect from october 31, 1966, for non-payment of rent for more than six months. the notice stated that if default was made in payment of arrears of rent a suit would be filed for recovery of possession and arrear of rent and further that 'this was notice under section 80 of the civil procedure code.' the notice was not complied with within the period required by statute and the plaintiff filed a suit against the state two months after service of notice as required under section 80. on the question whether the..........provisions of s. section are satisfied by the terms of notice. ex. 26, and the date on which the suit is filed. section 80 requires that a suit cannot be filed 'against the government or against a public officer ............ until the expiration of two months next after notice in writing has been delivered to or left the office of ............. stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left.' so far as the two months period after service of notice is concerned that is satisfied because the notice is dated october 3, 1966, and the suit was filed on january 23, 1967. so far as the name, description and place of residence of.....
Judgment:
ORDER

1. This is a petition by a landlord whose suit for possession of the property was dismissed by the appellate Court which reversed the decree of the trial Court which granted the claim.

2. The petitioner is the owner of City Survey No. 2607 situated at Meharun within the municipal limits of Jagaon. On this site there are five buildings which have been leased to the respondent, the State of Maharashtra, on a monthly tenancy at a rent of Rs.250/- per month. The lease was effected for the purpose of occupation of police personnel of the respondent. In Civil Suit No.19 of 1965 filed on March 22, 1965, which was decreed on July 2, 1966, the plaintiff was held entitled to charge permitted increases at the rate of Rs. 32.66 in addition to rent and the said suit was decreed for the arrears claimed therein. The claim of the plaintiff for the educational cess was disallowed on the ground that there was no notice served by him on the respondent on that account.

3. On October 3, 1966, by Ex. 26 the petitioner served a notice upon the respondent claiming arrears of rent for more than six months. By the said notice the tenancy of the respondent was terminated with effect fro October 31, 1966. In the said notice in paragraph 4, respondent No.1 was told that if default was made in compliance with the terms of the notice, a suit would be filed for the recovery of possession and other reliefs. In the said paragraph it was also mentioned that 'this was notice under Section 80 of the Civil P. C.' Within the period required by the statute there was no compliance by the respondent. The petitioner therefore filed the suit on January 23, 1967, claiming arrears of permitted increases from March 22, 1965 to October 31, 1966, arrears of education cess for a period of three years upto October 31, 1966, rent for August, September and October 1966 and compensation from November 1966 to January 22, 1967. The petitioner also claimed possession and future mesne profits until delivery of possession and costs.

4. Out of the defences the point that remains for consideration at present is whether there was a proper service of notice under Section 80 of the Civil P.C. The trial Court decreed the suit by holding that there was proper service of notice where the appeal Court held that there was no proper service under Section 80 and dismissed the suit for possession. The petitioner has filed this petition for relief of possession by quashing the order of the appellate Court.

5. Mr.Limaye who appears for the petitioner contended that the terms of notice very clearly stated what is required to be done by respondent No.1. He argued that the provisions of S. section are satisfied by the terms of notice. Ex. 26, and the date on which the suit is filed. Section 80 requires that a suit cannot be filed 'against the Government or against a public officer ............ until the expiration of two months next after notice in writing has been delivered to or left the office of ............. stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left.' So far as the two months period after service of notice is concerned that is satisfied because the notice is dated October 3, 1966, and the suit was filed on January 23, 1967. So far as the name, description and place of residence of the plaintiff and the relief that is claimed are concerned, there can be no dispute that these statements are contained in the notice. The plaint also states that a notice has been given. The point that was considered by the appellate Court was that the notice does not satisfy the requirement regarding cause of action. The appellate Court found that the claim for possession had not materialised at the date when the notice was given and therefore the notice was invalid in regard to the claim for possession.

6. The argument accepted by the lower appellate Court and urged by Mr.Kotwal appearing for respondent was as follows : One of the necessary factors to be proved by the landlord before he can obtain possession from the tenant is that the tenancy has been terminated. Unless and until the tenancy is terminated, there can be no cause of action in favour of a landlord to obtain possession from the tenant. What was further urged was that until and unless the termination becomes effective, there cannot be a suit for possession. In other words, the date of termination of the notice must expire before the cause of action for obtaining possession is complete. Mr.Kotwal's contention was given after the tenancy was in fact terminated, there could be no essential ingredients included in cause of action for possession was not in existence unless the notice under Section 80 was given after the date of the termination of tenancy. In the instant case there is no doubt that the tenancy was terminated with effect from October 31, 1966, and the notice was given on October 3, 1966. Obviously therefore if one of the essential conditions for the service of notice under Section 80 is that it must be served after, the tenancy is in fact terminated, then this notice is bad. There are several decisions which support the contention advanced by Mr.Kotswal that a premature notice is not a valid notice under Section 80. I need not refer to the several authorities cited by Mr.Kotwal on this point as that is the law. Mr.Kotwal, therefore, urged that the suit for possession had to be dismissed on that ground and there was no reason to interfere with the order passed by the appellate Court.

7. Mr.Limaye's contention, however, was that the entire construction of the notice in regard to the validity had to depend upon the interpretation of the expression 'cause of action' mentioned in Section 80. In the notice a statement of the cause of action is necessary to be stated. Mr.Limaye's further contention was that the tenancy has in fact expired is not one of statements to be included in the cause of action before the notice can be said to be valid notice. The expression 'cause of action' is an elastic expression and it has to vary with the circumstances of each case. The 'cause of action' has been considered to be a bundle of facts which it is necessary for the plaintiff to prove before he can succeed in the suit. Now, if the suits are of different nature, what is contained in the bundle of facts must necessarily vary according to the facts of each particular case.

8. According to Mr.Limaye, the present notice states the following facts :

(1) That respondent is in arrears for the payment of rent for a period of more than six months.

(2) That respondent is therefor a defaulter within the provisions of the Bombay Rent Act.

(3) That on that account the petitioner is entitled to terminate the tenancy and the tenancy is terminated with effect from the end of October 31, 1966.

(4) That if default is made in compliance regarding payment of rent, a suit will be filed of recovery of possession and the amounts due to the petitioners.

(5) That this notice is given under Section 80 of the Civil P. C.

Mr.Lamaye's contention, therefore, was that every fact which was to be proved by the plaintiff had been stated with definiteness in the said notice. Upon a suit being filed, the plaintiff has to prove (1) that respondent is a tenant, (2) that respondent is in arrears for more than six months, (3) that within a period of 30 days from the service of notice the payment was not made and (4) that the tenancy was been terminated before the filing of the suit. The proof of these facts would have entitled the petitioner to get an order for possession from the Court in regard to the premises in the occupation of the respondent.

9. The question then arises whether this notice is defective by reason of the fact that the notice is given during the period during which the tenancy was subsisting. In other words, at the time the notice under Section 80 is given, the claim had not fully matured as no suit could have been filed before October 31 is any case. That no suit could have been filed within two months of the service of the notice is one factor and the second factor is that no suit can be filed before the time the tenancy was terminated. Mr.Limaye's contention on this point was that termination of tenancy by a notice was an unilateral act and that act has been done by the plaintiff-petitioner. No act from the defendant-respondent was necessary for making effective the notice given by the petitioner. After having given the notice to terminate the tenancy with effect from October 31, the petitioner had done all that he was required to do in order to enable him to file a suit. One fact remained, namely that he could not file a suit before tenancy was in fact terminated. The question therefore that arises is, if there is a period during which the suit cannot be filed, can a notice be said to be invalid because it is given during that period?

10. I have already referred to the meaning of the expression 'cause of action' as accepted by the Court. The 'cause of action' means a bundle of facts which is required to be proved before a plaintiff can succeed. I have also pointed out earlier that after the giving of the notice plaintiff could not be prevented from filing a suit except that the same could not be filed before the tenancy was in fact effectively terminated by the end of the month. Can the notice which states all the facts proof of which is necessary for the plaintiff to succeed be defective by reason of the fact that the suit cannot be filed before a particular date? In this connection it is necessary to consider the object of giving a notice under Section 80 of the Civil Procedure Code.

11. In Chandulal v. Govt. of the Province of Bombay, : AIR1943Bom138 , a Division of Bench of this Court had considered the object of giving the notice. Beaumont. c. J. delivering the judgment of the Division Bench observed as follows :

'The cause of action which is to be stated in the notice, is the bundle of facts which go to make up the right in respect of which the plaintiff proposes to sue, and it is obvious that before the suit can be brought, it may be that that bundle of facts will be added to or subtracted from and I do not myself think that the notice is invalidated, because it refers to a possible additional claim, consequential upon the cause of action specified therein, and states that if such additional claim arises, the plaintiff with sue also in respect of it.'

If therefore a consequential claim arises as stated in the notice and the suit is filed after the consequential claim materialises although the same had not materialised at the date of the notice, the notice does not become invalid. The learned Judges also observed in regard to the object of Section 80 as follows :

'That object, as has been pointed out in a good many cases is to give to the public officer concerned notice of the claim which is going to be made against him, and to give him reasonable time in which to consider his reactions.'

12. In Secy. of State v. Hargovandas, 37 BomLR 341 : AIR 1935 Bom 229, Rangnekar. J. also observed as follows :

'The object of Section section is to give the Secretary of State for India on opportunity of settling the claim, if so advised, without litigation, or, to enable him to have an opportunity to investigate the alleged cause of complaint and to make amends, if he thought, fit, before he was impleaded in the suit.'

Similar are the observations of a Division Bench of the Punjab High Court in Braham Dutt v. East Punjab, province, . It observed as follows :

'The object is sufficiently satisfied if the notice informs the defendant generally of the nature of the suit intended to be filed and the relief sought to be claimed.'

13. The point, therefore, is whether in the instant case the object is satisfied and the cause of action has been properly stated. If the object was that the State Government should consider the position and make amends or act so as to see that no suit is filed, then the statements in the notice duly inform the respondent what it should do. In paragraph 4 a clear statement is made :

'In the event of your making default to comply with the terms of this notice. I have been instructed to inform you that my client will be constrained to file a Civil Suit for the recovery of possession and the amounts due to my client in the Court of the Civil Judge, Junior Division at Jalgaon ...............'

The provisions of law have also been stated in paragraph 13 of the notice. They are as follows :

'You have thus failed to pay the permitted increases and cess payable and due to my client for a period of more than six months and are therefore a 'defaulter' within the meaning of the provision of the Bombay Rent Act.'

These statements in the notice are sufficient indications of what was required to be done by the respondent. They are sufficient to enable the respondent to realises what the consequences would be if there was no compliance made in terms of the notice. I have earlier pointed out that the other requirements which could be included within the expression 'cause of action' have been clearly stated in the notice.

14. I, therefore, hold that the notice (Exh. 27) satisfies the requirements regarding contents as provided for in Section section of the Civil P. C. The notice states that it is given under Section section and since the suit is filed more than two months after the service of notice upon the respondent, the requirement of Section section have been satisfied. The order passed by the appellate Court therefore, has necessarily to be set aside in regard to possession.

15. The rule is made absolute with costs throughout. The orders passed by ht appellate Court dismissing the suit for possession are quashed. The orders passed by the trial Court in regard to possession and the other claims are confirmed.

16. Rule made absolute.


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