1. This is a second appeal filed by the defendant-tenant against the judgment dated 9-8-1971 of the Third Extra Assistant Judge, Nagpur, in Civil Appeal No. 138 of 1971 dismissing the appeal filed by the defendant and confirming the judgment and decree passed by the Fourth Joint Civil Judge, Junior Division, Nagpur, in Regular Civil Suit No. 175 of 1970, decided on 31-3-1971, directing the defendant-tenant to vacate the suit premises and to deliver possession of the same to the plaintiffs. By this decree the defendant was further ordered to pay Rs. 1510/- and costs by the suit to the plaintiffs and an enquiry into the mesne profits in respect of the suit premises from 26-2-1970, the date of the institution of the suit, till delivery of possession was also ordered.
2. Civil Suit No. 175 of 1970 was filed by the plaintiffs-landlord for ejectment and mesne profits regarding the suit premises, that is a bungalow, bearing Corporation House No. 64/0-4 situated in Ward No. 38 at Nagpur. It was alleged in the plaint by the plaintiffs that by registered sale-deed dated 1-3-1966 they purchased this bungalow. Even prior to purchase of this bungalow the defendant was a tenant and after the purchase of the house the defendant attorned the tenancy of the premises in favour of the plaintiffs and also paid the rent. After purchase of the house, as the plaintiffs badly needed the house for their own residence, they filed an application to the Rent Controller for permission to determine the tenancy, of the defendant and the Rent Controller by his order dated 23-8-1967 granted permission to the plaintiffs to determine the tenancy of the defendant in Revenue case No. 583/A-71 (2) of 1965-66. As the permission granted by the Rent Controller was a partial one, an appeal was filed against the said order and the appellate authority granted permission in respect of the whole house by his order dated 2-3-1968 in Revenue Appeal Nos. 43, 44 and 55/A-71(2) of the 1967-68. Against this order a writ petition was filed in the High Court, being Special Civil Application No. 823 of 1968, by the tenant and that writ petition was also dismissed.
3. Thereafter a notice dated 10-3-1968 determining the tenancy of the defendant was served on the defendant and since the defendant did not vacate the premises, a suit for ejectment was filed by the plaintiffs. This suit was numbered as Civil Suit No. 813 of 1968. It is alleged by the plaintiffs that this suit was withdrawn by them as they found that the notice was defective. Thereafter a fresh notice was served on 7-11-1968 terminating the tenancy of the defendant with effect from 24-12-1968 and as the defendant failed to vacate a suit bearing Civil Suit No. 175 of 1970 was filed. In this suit the plaintiffs have also claimed rent and mesne profits.
4. The defendant by his written statement resisted the claim of the plaintiffs. It was specifically alleged in the written-statement by the defendant that this suit is barred in view of the provisions of Order 23 of the Code of Civil Procedure. It was further alleged that the permission granted by the Rent Control authorities stands exhausted in view of the previous notice given by the plaintiffs, and therefore, unless a fresh permission was obtained by the plaintiffs it was not open for them to file the present suit.
5. The trial Court decreed the suit filed by the plaintiffs and an appeal filed by the defendant was also dismissed by the appellate Court. Hence this second Appeal is filed by the defendant under Section 100 of the Code of Civil Procedure.
6. Mr. Palshikar, appearing for the appellant-tenant, has contended before me that the plaintiffs have failed to prove the date the plaintiffs have failed to prove the date of the tenancy, and therefore, the notice served by them is illegal being not in conformity with the provisions of Section 106 of the Transfer of Property Act. After obtaining the permission from the Deputy Collector the plaintiffs had served a notice dated 10-3-1968 wherein it was alleged by them that the tenancy month commences from first of each calendar month. In the suit filed on 1-4-1968, bearing Civil Suit No. 813 of 1968, similar allegations were also made by the plaintiffs. The plaintiffs applied for withdrawal of that suit on 7-2-1970 by filing a purshis with liberty to file a fresh suit on the same cause of section. This prayer of the plaintiffs incorporated in the purshis was not granted by the Court, and therefore, the plaintiffs filed another application dated 24-2-1970 informing the Court that they did not wish to prosecute the suit. The suit was, therefore, dismissed for want of prosecution. In view of this dismissal of the suit, it was contended by Mr.Palshikar that the present suit is barred under Order 23 sub-rule (3) of Rule 1, Code of Civil Procedure because the plaintiffs have abandoned their claim when they informed the Court they did not wish to prosecute the suit. It was further contended by Mr.Palshikar that as the suit was dismissed for want of prosecution this should be read as an order under Order 9, Rule 8, and in this view of the matter the suit is also barred under Order 9, Rule 9 of the Code of Civil Procedure. According to Mr.Palshikar the whole conduct of the plaintiffs clearly indicates that they have abandoned and waived their rights and therefore, the present suit itself is not maintainable.
7. It was further contended by Mr.Palshikar that initially as soon as the Rent Controller has granted permission to the plaintiffs to terminate the tenancy relating to the portion of the house, the plaintiffs served a notice dated 27-8-1967 upon the defendant. In this notice it was the case of the plaintiffs English calendar month commencing from the first and ending with the last day of the month. Even in the subsequent notice dated 10-3-1068 it was the case of the plaintiffs that the defendant had started paying rent to them from the 1st April, 1966 and the tenancy month is according to English calendar commencing from the first and ending with the last date of the month. Even in the plaint in Civil Suit No. 813 of 1968, the plaintiff's have averred that the tenancy of the defendant is according to the English calendar month commencing on the First day of the month and ending on the last day of the month. Therefore, according to Mr.Palshikar it was the case of the plaintiff's throughout that the tenancy month commences from the first of each calendar month and the notice was also given on this basis by the plaintiff's. The said notice was prima facie in conformity with the provisions of Section 106 of the Transfer of the Property Act. After the notice dated 27-8-1967, which was based on the permission granted by the Rent Controller, another notice dated 10-3-1968 was given by the plaintiff's after the appellate order of the Deputy Collector granting permission relating to the whole house was passed and on the basis of this notice a Civil Suit was filed bearing No. 813 of 1968, which was subsequently dismissed for want of prosecution. No doubt, though in the written-statements filed by the defendant in the previous suit as well as in the present suit the defendant has denied the allegations made in the plaints regarding the commencement of the tenancy, still as per the plaintiff's own pleas the tenancy being from the first of each calendar month the previous notices given by the plaintiff's were legal and did terminate the tenancy of the defendant and as the suit based on that notice has been subsequently dismissed for want of prosecution the present suit is barred under Order 23, Rule 1, sub-rule (3), of the Code of Civil Procedure. It was further contended by Mr.Palshikar that in view of the subsequent notice dated 10-3-1968 it should be taken that the plaintiffs have waived the first notice dated 27-8-1967 and in view of the further notice dated 7-11-1968 second notice dated 10-3-1968 is also waived. Therefore, according to Shri Palshikar, as a matter of fact when the first notice itself was given the permission granted by Rent Control authorities stood exhausted. In any case, after the dismissal of the suit, bearing Civil Suit No. 813 of 1968, the permission granted by the Rent Control authorities was fully utilised by the plaintiffs and unless a fresh permission was obtained from the Rent Control authorities, the present suit was not maintainable. Thus the argument of Mr.Palshikar is two-fold. According to him, once the permission is obtained from the Rent Control authorities and a notice to determine the tenancy is served on the defendant on the basis of the permission obtained unless again a fresh permission is obtained from the Rent Control authorities, no fresh notice determining the tenancy could be given. In view of the provisions of Clause 13 of the C. P. and Bearer Letting of the Houses and Rent Control Order. For this proposition Mr.Palshikar was relying upon a Division Bench decision of this Court in Chaturbhuj v. Mengnibhai, 1958 Nag LJ 250. In the present case, according to the defendant, after serving the notices of termination on 27-8-1967 and 10-3-1968 the plaintiffs have accepted the rent from the defendant till August, 1968, and therefore, there was a waiver on the part of the plaintiffs of the right arising out of the permission granted by the Rent Control authorities. In view of this, as held by this Court in the case referred to hereinbefore, a fresh permission of the Rent Controller was necessary to issue another notice of termination of tenancy and a suit without such permission was not maintainable. Plaintiff's have not stopped there only, but on the basis of the earlier notice dated 10-3-1968 they had filed a suit bearing Civil Suit No. 813 of 1968 which was subsequently dismissed for want of prosecution. In the application for withdrawal of the suit the plaintiffs had not disclosed any reason for withdrawing the suit and thus there was a waiver not only of the permission but of notice on their part. This conduct of the plaintiffs, coupled with the acceptance of the rent for a subsequent period created a fresh tenancy which could not be terminated unless a fresh permission was secured from the Rent Controller.
8. It is not possible for me to accept these contentions. Clause 13 (1) of the Rent Control Order lays down a restriction on a right of a landlord to serve a notice to determine the lease of a tenant unless he has secured a previous written permission of the Rent Controller. Clause 13 (1) (a) contemplates giving of a notice to the tenant for 'determining the lease' and thereafter Clause 13 (2) contemplates filing of an application by the landlord before the Rent Controller on the grounds stated in the subsequent clauses. After hearing the parties if the Controller is satisfied, he has to grant the landlord permission to give notice to determine the lease of the tenant as required by sub-clause (1) of Clause 13. After getting this permission Tel landlord is at liberty to serve a notice under Section 106 of the Transfer of Property Act for determining the lease. Therefore, unless the lease is legally determined as contemplated by the provisions of the Transfer of Property Act and in particular Section 106 of the Transfer of Property Act, it cannot be said that the permission granted by the Rent Controller stands exhausted. The decision, to which a reference has been made by Mr.Palshikar, in 1958 Nag LJ 250 . was based on altogether different facts. In that case after obtaining the permission of the Rent Controller, the landlord served a notice of ejectment calling upon the tenant to vacate the premises. Though such a notice determining the lease was served the landlord accepted the rent for the subsequent period, which became due since expiry of notice, indicating the intention of the landlord to treat the lease subsisting . In that case the notice given had legally determined the lease of the tenant and thereafter landlord accepted the rent from the tenant for a period after the date of expiry of notice. In these circumstances it was held by this Court that the first notice was waived and since no permission was obtained from the Rent Controller to serve a fresh notice of ejectment the notice was invalid and the suit was not maintainable. In that case the legality of the notice was not in question not any dispute was resisted as to whether said notice could legally determine the lease or not.
9. In the present case when the first notice dated 27-8-1967 was given by the plaintiffs the permission which was granted to them by the Rent Controller was a partial permission which related to a portion of the house only. The plaintiffs had not accepted the order of the Rent Controller and had filed an appeal before the appellate authority challenging the said order. The appeal filed by the landlords-plaintiffs was allowed and thereafter a notice relating to the whole house was given by the plaintiffs vide notice dated 10-3-1968. The crucial point which is to be decided in the present appeal is whether this notice legally determined the tenancy of the tenant-defendant and it is found that the said notice was a legal and valid notice and it did then it is not disputed even on behalf of the plaintiffs-landlords that subsequent acceptance of the rent by them will amount to a waiver of the first notice and even the permission granted by the Rent Controller might stand exhausted.
10. However, it is contended by Mr.Bobde, one behalf of the landlord, that according to the defendant-tenant's own submission throughout, the tenancy commenced from the 24th of each month and not from the first of every month as was contended by the plaintiff's have purchased this house vide sale-deed dated 1-3-1966 from Shri Lalitkumar Jain through Gendalal Patni. The defendant had been a tenant of the said house from before the purchase of the house by the plaintiffs and his tenancy with the old landlord was from the 24th of each English calendar month. As there was no alteration in the date of the commencement of the tenancy, under law the tenancy continued on the same terms and conditions, and therefore, in fact the tenancy month commenced from the 24th of each month instead of the first. In the written-statement filed in Civil Suit No. 813 of 1968 the defendant had made the following submissions :
'The allegations about the date of commencement of the tenancy as being from the first day of the month are not admitted. In the intimation given by Gendalal to this defendant the plaintiff have become entitled to claim rent from the 24th of the month and hence the notice dated 10-3-1968 served on the defendant as per the dates given by the plaintiff's is not fifteen days' clear notice to terminate the tenancy as required.'
11. It is pertinent to note at this stage that the defendant-tenant had filed a writ petition, being Special Civil Application No. 823 of 1968 before this Court against the orders of the Rent Control authorities. This writ petition was decided on 10-10-1969. For properly appreciating the contentions of the parties and in the interest of justice I though it expedient to allow the plaintiff's to file the admitted copies of the said writ petition as well as the return. With the consent of the parties I had also sent for the original record of the said Special Civil Application and persued the same. The first appellate Court has allowed the plaintiffs to file the written-statement filed by the defendant in Civil Suit No. 813 of 1968 by exercising its power under Order 41, Rule 27, Code of Civil Procedure. It seems from the record that no objection was taken by the defendant at the appellate stage when this additional evidence was produced before the appellate Court, though a grievance has been made before me regarding the production of this additional evidence at the appellate stage. When the additional evidence has been admitted by the first appellate Court without any objection at the time it was admitted, it is not now open for the appellant to complaint about it later on. Therefore, the appellant cannot now be heard to say that the additional evidence was admitted on the record by the first appellate Court in this case in breach of the provisions of law. In this Court also both the parties have filed applications under Order 41, Rule 27, Code of Civil Procedure. The appellant-tenant has filed an application for producing certain documents, namely, the notice dated 10-3-1968 issued by the counsel for the respondent No.2, one of the plaintiffs, and a certified copy of the deposition of respondent No.2 Sureshchandra given in Revenue Case No. 528/A-71 of 1965-66 before the Rent Controller, Nagpur. The respondents-landlords have also filed an application for taking on record a copy of the petition in Special Civil Application No. 823 of 1968 together with the original notice received from the High Court dated 15-10-1968 and the return filed by the landlords dated 19-11-1968 in the said writ petition. Normally it is not open for the parties to file these documents at this stage. However, in the interest of justice and in view of the fact that one of the documents, namely, the written-statement in Civil Suit No. 813 of 1968 was already allowed to be filed by the first appellate Court at the appellate stage, in my opinion these documents are necessary to complete the chain to enable me to pronounce the judgment and effectively decide the controversy between the parties. Moreover, either of the parties have not challenged the authenticity of these documents and no further evidence for the proof of them is necessary. In view of these circumstances, I hereby allow the applications filed by the parties under Order 41, Rule 27, Code of Civil Procedure.
12. In the petition filed before the High Court in para 2 the tenant has made the following statement :
'That the rent is being paid regularly and the rent is paid upto the tenancy month ending with 24th March, 1968. That the previous landlord had asked the petitioner to pay the rent to respondent No. 4 with effect from date 24-3-1966 and accordingly the payment of Rs. 77.50 P. is made to respondent No. 4 who passed a receipt on date 5-4-1968 as having received rent for the said period.'
The tenant had also filed this receipt as Annexure 1 with the said petition. In this petition a reference was also made to the filing of a Civil Suit by the landlords. While replying to the contentions raised in the petition. In para 9 of the return the landlords made the following submissions :
'It is admitted that the respondent No. 4 had been receiving the rent from the petitioner for the tenancy month from 24th to 23rd. The tenancy month is according to Gregorian calendar commencing on the 24th day of the month and ending on the 23rd day of the succeeding month. The respondents inadvertently have served notice dated 27th August, 1967 and 10th March 1968 treating the petitioner's tenancy month as from the 1st day of the English Calendar month and ending on the last day of the month. The notices were ineffective in law to determine the tenancy of the petitioner and the relationship of landlord and tenant continued between these respondents and the petitioner. Acceptance of rent therefore was quite proper and legal. These respondents deny that the effect of the order of the respondent No.2 granting permission to these respondents is waived by acceptance of the rent. The respondents' suit for ejectment having been based on the notice dated 10-3-1968 is bound to fail. They are therefore withdrawing their suit. The respondents have now served a fresh notice dated 7-11-1968 on the petitioner determining his lease according to the tenancy month of the petitioner. There was therefore no waiver and the order granting permission stands and is effective.'
The return of behalf of the landlords was filed on 19-11-1968. Therefore, it is quite clear that since the very beginning it was the case of the tenant that the tenancy month commenced from the 24th of each month. The landlords who were not aware of this position and who though that after the purchase of the house tenancy month commences from the first of each English calendar month under a misapprehension, served notices dated 27-8-1967 and 10-3-1968. When the landlords came to know about the real position from the assertions made by the tenant in the written-statement as well as from the allegations made in the writ petition they immediately made a statement in the return that they are going to withdraw the suit in view of the correct legal position. Therefore, it is quite clear that even according to the tenant, the first two notices served by the landlords were not in conformity with the provisions of Section 106 of the Transfer of Property Act. The said notices did not expire with the end of the month of the tenancy. Therefore though the suit was filed by the plaintiffs to eject the defendant, find that there was no notice as contemplated by Section 106 of the Transfer of Property Act, the plaintiff's withdrew their suit without obtaining the leave of the Court. In these circumstances as a matter of fact the leave of the Court was not at all necessary. The invalid notices could never determine the lease of the tenant, and therefore, in my opinion the question of waiver will not arise. The case reported in 1958 Nag LJ 250 was not a case of an invalid notice. If in law an invalid and improper notice cannot legally determine the tenancy of a tenant, then it cannot be said that if on proper appreciation of the facts as well as the legal position a landlord finds that the first notice given by him is not legal or valid notice and will not determine the tenancy of a tenant it is not open for him to withdraw the said notice and give a subsequent notice. What the provision of Clause 13 (1) (a) of the Rent Control Order contemplates is 'determination of the lease', and therefore, unless by a proper and legal notice the lease is determined it cannot be said that the permission granted by the Rent Controller is exhausted. The provisions of the C. P. and Berar Letting of Houses and Rent Control Order are in addition to these in Transfer of Property Act, and therefore, before the tenant can be evicted by landlord he must comply with the provisions of Section 106 of the Transfer of Property Act. Such a notice is essential for bringing to an end the relationship of landlord and tenant. Unless the relationship is validly terminated the landlord does not get a right to obtain possession of house by evicting the tenant. One of the requirements of Section 106 of the Transfer of Property Act is that a lease from month to month can be terminated only after giving fifteen days notice expiring with the end of the month. In the present case in view of the findings recorded by the lower Court, this condition was not satisfied in the case of earlier notices dated 27-8-1968, because these notices did not expire with end of tenancy month. In view of this position, it is not possible for me to accept the first contention raised on behalf of the appellant.
13. It was then contended by Shri Palshikar that once a notice is served determining the tenancy by the landlord, it is not open for the landlord to withdraw the said notice and the party to whom the said notice is given is entitled to insist upon it. For this submission of his. Shri Palshikar relied upon the decision of Supreme Court in Calcutta Credit Corporation Ltd. v. Happy Homes (P) Ltd. : 2SCR20 ).
14. In my opinion the principles of law laid down by the Supreme Court are not applicable to the facts of the present case. That was a case where tenant served upon the landlord a notice his intention to quit on the expiry of the period of notice. This notice though defective seems to have been accepted by the landlord and the defect was waived. In this context it was held by the Supreme Court that a notice which is defensive may still determine the tenancy if it is accepted by the other side. In para 7 of the judgment it is observed by the Supreme Court as under : -
'A notice which complies with the requirements of Section 106 of the Transfer of Property Act operates to terminate the tenancy, whether or not the party served with the notice assents thereto. A notice which does not comply with the requirements of Section 106 of the Transfer of Property Act in that it does not expire with the end of the month the tenancy, or the end of the year of the tenancy, as the case may be, or of which the duration's shorter then the duration contemplated by Section 106, may still be accepted by the party served with the notice and if that party accepts and acts upon it, the party serving the notice will be estopped from denying its validity. The defect in the notice served by one party may undoubtedly be relied upon by the other party and he may plead that the tenancy does not stand determined, but after the notice is accepted by the other party who acts upon it, the party serving the notice cannot contend that the notice served by him was defective, and on that account the tenancy was not determined. The reason of the rule is clear. A tenancy is determined by service of the notice in the manner prescribed by Section 111(h) read with Section 106 of the Transfer of Property Act. If the notice is duty given, the tenancy stands determined on the expiry of the period of the tenancy. Even if the party served with the notice does not assent thereto, the notice takes effect. If the notice is defective, it does not operate to terminate the tenancy by force of the statute. But a tenancy is founded in contract, and it is always open to the parties thereto to agree that the tenancy shall be determined otherwise than by notice served in the manner provided by Section 106 of the Transfer of Property Act, or by a notice of duration shorter than the period provided by the Act. If the parties so agree, the tenancy will come to an end.'
14-A. In the present case this is not the position. From the attitude adopted by the tenant and the stand taken by him in the written statement as well as in the writ petition it is quite clear that he did not act upon the notices nor he any time agreed that his tenancy stood determined because of these notices. On the contrary it was his contention throughout that the said notices are not legal and did not determine his lease. In this view of the matter there is no force in this contention also.
15. It was next contended by Mr. Palshikar that in this particular case the landlords have also filed civil suit on the basis of the earlier notice and the said suit was subsequently dismissed for want of prosecution. On earlier occasion the prayer made by the plaintiffs for permission to withdraw the suit with liberty to file a fresh suit in respect of the same subject-matter was not granted by the Court. This dismissal of the suit, therefore, bars the plaintiffs from instituting a fresh suit on the basis of the same subject-matter. According to Mr. Palshikar, the subject-matter in the instant case is the termination of a tenancy. This termination of tenancy is not possible unless a permission is obtained from the Rent Controller for giving a notice. This permission granted by the Rent Controller, coupled with the notice to determine the tenancy issued by the landlords in pursuance thereof, was the subject-matter of the previous suit as well as the present suit. By the dismissal of the previous suit for want of prosecution the landlords have abandoned, or in any case have given up their claim based on that permission of the Rent Controller, and therefore, the present suit is not maintainable. Alternatively, it was also contended by Mr.Palshikar that this dismissal of the suit for want of prosecution should be construed as a dismissal of a suit under Order 9, Rule 8. Code of Civil Procedure and in that view of the matter also the fresh suit is not maintainable. According Shri Palshikar, it was not open for the plaintiffs to adjudicate upon their own notice and take a decision for themselves. When the plaintiffs have not invited a decision of a competent Court about the legality of their notice and withdrew the suit without giving any reason for the said withdrawal it should be held that they have abandoned the whole claim, and therefore, now the plaintiffs cannot be allowed to turn back and file a suit on the basis of the same cause of action. In this behalf Mr. Palshikar relied upon a decision of the Supreme Court in Vallabh Das v. Dr. Madanlal, : 1SCR211 , particularly upon the observations that 'the expression 'subject-matter' in Order 23, Rule 1, Code of Civil Procedure, means the series of acts or transactions alleged to exist giving rise to the relief claimed. In other words 'subject-matter' mean the bundle of facts which have to be proved in order to entitle the plaintiff to the relief claimed by him.' Therefore, according to Mr.Palshikar, the bundle of facts which constituted cause of action in the present suit is the same, namely, the permission of the Rent Controller and the notice to determine the tenancy given in pursuance thereof.
16. On the other hand, Mr.Bobde contended that in a suit for ejectment though there may be similar causes of action, the cause of action can never be the same. The term 'same cause of action' would obviously imply identity of cause of action and in an essential part of the cause of action. The previous suit was based on a notice dated 10-3-1968 and the present suit is based on a notice dated 7-11-1968. For ejectment suit it is necessary to determine the tenancy before a suit is filed, and therefore, the two notices being distinct and separate it cannot be said that the subsequent suit is based on the same cause of action. For this proposition Mr.Bobde relied upon the two decisions, one reported in Mrs. L. A. Saunders v. Land Corporation of Bengal Ltd. : AIR1955Cal169 and another in Chaganlal v. Smt. Partwatibai, 1972 MPLJ 51. However, it is not necessary to decide this question in the present appeal. As already held by me, the notice dated 10-3-1968 was not a valid and legal notice, and therefore, it could not effectively determine the lease of the tenant. Finding that the previous notice was not valid and legal the landlords withdrew the suit and treated the tenancy as continued one and thereafter they served a valid and legal notice dated 7-11-1968 for determining the lease of the tenant. This is the notice by which the lease has been legally and properly determined by the landlords. This is what has been held by this Court in Rakhmabai v. Mahadeo, ILR Bom 155 : AIR 1917 Bom 10 . In the said case the landlord finding that there was no sufficient notice to quit withdrew the suit without obtaining leave of the Court and thereafter having given a formal notice to quit complying with the provisions of law filed a fresh suit of ejectment, the question was whether the previous suit was a suit based on the same subject-matter within the meaning of Order 23 Rule 1. In this context it was observed as under :
'Obviously the first series of acts or transactions which formed the basis of the first suit was incomplete, or the plaintiff would have been able to prosecute his suit to decree. It was incomplete because there was no notice to quit. The second series of acts or transactions is complete because the notice to quit has been given, and therefore, the two suits are not in respect of the same subject-matter.'
In this view of the matter it cannot be said that the subject-matter of cause of action of the two suits was the same. The plaintiffs-landlords would be in an embarrassed position, because after realising the true legal position they honestly withdrew the suit instead of allowing it to be dismissed by the Court for want of good cause of action. This is more so when the landlords withdrew the suit in pursuance of statement made by them in the return, which they filed in reply to writ petition before the High Court wherein they had made their stand and reason for withdrawal of suit very clear. This being the position in law. It cannot be held that the suit filed by the landlords is either barred in view of the provisions of Order 23, Rule 1, or Order 9, Rule 9 of the Code of Civil Procedure.
17. It was then contended by Mr. Palshikar that the finding recorded by the Courts below regarding the commencement of the tenancy is not correct. It is contended by him that it was the case of the landlords-plaintiffs throughout that the tenancy commences from the first of each calendar month, and therefore, it is not now open for the landlords to contend at this stage that the tenancy commences from the 24th of each calendar month and not on the first, as earlier contended by them.
18. So far as the finding given by both the Courts below is concerned regarding the commencement of the tenancy, in my opinion, it being a concurrent finding of fact based on evidence, is binding upon this Court in second appeal. Apart from this, it was the case of the tenant-defendant himself as stated by him in his written-statement and deposition in the present suit as well as in the written-statement filed in Civil Suit No. 813 of 1968 and also in the writ petition before the high Court, that his tenancy commences from the 24th of each calendar month. Apart from this, in view of the legal position it cannot be assumed that the date of commencement of the tenancy is subsequently altered, simply because the plaintiffs happened to purchase the premises from its previous owner on a particular day. As held by Rajasthan High Court in Mohanlal v. Vijay Narain, , to which reference is already made by the lower Court the true date of the commencement of the tenancy month is the date which was in force between the tenant and the previous owner. In the particular case of the defendant's own showing the date of commencement of the tenancy with the previous owner was 24th day of each calendar month. There is no evidence on record to suggest that this date was in any way altered. This is not even suggested by the defendant in his written-statement. In view of this position, the finding recorded by the Courts below regarding the date of commencement of the tenancy is hereby confirmed.
19. Once it is held that the date of commencement of the tenancy was the 24th of each calendar month and not the first. It is obvious that the notices given by the plaintiff's dated 27-8-1967 and 10-3-1968 were not valid and proper notices. By the said notices there was no determination of the lease of the defendant-tenant as contemplated by Section 106 of the Transfer of Property Act. In spite of these notices the lease of the defendant-tenant was not determined and he continued to be a tenant till a valid and legal notice was given by the landlords on 7-11-1968. The notice dated 7-11-1968 was the only valid and legal notice which legally determined the lease notice which legally determined the lease of the defendant-tenant. In view of this finding, there is no substance in the contention raised by Mr.Palshikar about the maintainability of the present suit or the waiver of the right of the landlords.
20. However, it was contended by Mr.Palshikar that on the basis of the findings recorded in this suit the validity or otherwise of the notice dated 10-3-1968 cannot be judged. The question regarding the validity of the said notice cannot be adjudicated upon or decided in this suit in view of the fact that the plaintiffs did not choose to invite a decision on this issue in the previous suit, but allowed the said suit to be dismissed for want of prosecution. I do not think that there is any substance in this contention. The question regarding the maintainability of the second suit has been raised in these proceedings. On the pleadings of the parties issues have been framed by the Court in this behalf. As the controversy has been raised in the present suit, the findings will have to be recorded on these issues in the present suit itself. For judging the validity or otherwise of the present proceedings, it is necessary to adjudicate upon the various contentions raised by the defendant-tenant in the written-statement on the basis on which these issues have been framed by the trial to lead evidence on these issues in these proceedings only. The occasion to decide these issues arose in these proceedings, and therefore, it was open for the Courts below to record their findings on these issues on the basis of material available before them.
21. In the view I have taken, the appeal filed by the defendant-tenant is without any substance and is dismissed with costs.
22. Appeal dismissed.