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T.K. Siddarama Setty Vs. V.K. Kalappa - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKarnataka High Court
Decided On
Case NumberSecond Appeal No. 558 of 1948-1949
Judge
Reported inAIR1950Kant63; AIR1950Mys63
ActsTransfer of Property Act, 1882 - Sections 106; Code of Civil Procedure (CPC), 1908 - Sections 100
AppellantT.K. Siddarama Setty
RespondentV.K. Kalappa
Excerpt:
.....106 of the transfer of property act, 1882, which says that a lawful notice must end with end of month of tenancy b) the case dealt with a plea of want of notice under section 106 of the transfer of property act, 1882 - it was held that plea could be raised for the first time in second appeal under section 100 of the civil procedure code, 1908. - karnataka panchayat raj act, 1993.[k.a. no. 14/1993]. sections 43 & 168: [mohan shantanagoudar, j] membership of gram panchayat- held, seat of member becomes vacant on expiry of fifteen days from date of receipt of such resignation, unless he withdraws resignation letter. where there is nothing on record to show that petitioner had withdrawn his resignation letter subsequently, petitioner had vacated his office as a member of gram panchayat..........that the notice should be served clearly fifteen days before the expiry of and ending with the month of tenancy. it is undisputed that the month of tenancy is the british calendar month and though the period of notice is more than 15 days, the expiry of the period falls in the middle of the month of tenancy and does not end with it as required by section 106, t.p. act. the notice is not, therefore, in accordance with law. the defendant has not raised the question of notice at all in his written statement and though a feeble attempt appears to have been made about the question of notice during arguments in the first appellate court, it was not raised in the technical manner as required under section 106 of the said act. however, sri krishnamurthy relies upon a decision of this court.....
Judgment:

Balakrishnaiya, J.

1. This is an appeal by the defendant against whom the respondent plaintiff filed a suit for recovery of arrears of rent as also for ejectment. The defendant pleaded that he had paid rents regularly and was not, therefore, liable to ejected. Both the Courts found against the defendant and awarded a decree for rent as also for possession of the property.

2. Sri V. Krishnamurthy on behalf of the appellant contends before this Court that a proper notice contemplated under Section 106, T. P. Act had not been given and, as such, the relief for ejectment ought not to have been granted to the plaintiff, Exhibit B is the notice dated 5th September 1947 in which the plaintiff states:

'....you are required to vacate the said schedule houses within one month from the date of receipt of this notice and deliver possession of the same in a proper manner......'

Section 106, T.P. Act, lays down that the notice should be served clearly fifteen days before the expiry of and ending with the month of tenancy. It is undisputed that the month of tenancy is the British calendar month and though the period of notice is more than 15 days, the expiry of the period falls in the middle of the month of tenancy and does not end with it as required by Section 106, T.P. Act. The Notice is not, therefore, in accordance with law. The defendant has not raised the question of notice at all in his written statement and though a feeble attempt appears to have been made about the question of notice during arguments in the first appellate Court, it was not raised in the technical manner as required under Section 106 of the said Act. However, Sri Krishnamurthy relies upon a decision of this Court reported in 13 Mys. C.C.R. 207 which states that a plea of want of notice may be taken at any time and argues further that the compliance with the requirement of Section 106 is a part of the cause of action upon which the plaintiff bases his suit which is not a question relating to the maintainability of the suit, but one relating to the plaintiff's cause of action or his right to sue as laid down in 20 Mys.L.J. 194. We are therefore, of opinion that the plaintiff had not right to eject inasmuch as the notice given is bad in law and the plaintiff's suit to that extent should inevitably fail. The portion of the decree ejecting the defendant from the suit premises cannot, therefore, be supported. We therefore set aside that portion.

3. In this view, the direction of the trial Court in the decree that future rents from the date of suit till delivery of possession be determined at the time of execution has also to be set aside. But the decree for rent claimed till the date of suit is confirmed. Since the defendant succeeds on a technical point not raised in the trial Court he is not entitled to any costs and parties will bear their own costs in the Courts below.

Mallappa, J.

4. I agree.

5. This is an instance in which the plaintiff's suit has failed, after it has come up to the High Court, on a very technical ground. The provisions of Section 106, T.P. Act, regarding notice to be issued to entitle a lessor to file a suit for ejectment have not been properly understood and, in fact the wording of the section itself on this aspect of the matter is not very clear. The very fact that objection have not been taken to the maintainability of the suit either in the trial Court or in the Court of first appeal makes it clear that even the lawyers in the moffusil have not clearly understood the meaning of the words. Such case causing unnecessary waste of time and labour are not uncommon and there are two reported cases of this kind. The section needs amendment so as to make the meaning clear and it would be better if a notice of such period as is fixed in the section is stated to have the effect of terminating the tenancy at the end of the year or of the month of tenancy as the case may be.

6. Appeal partly allowed.


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