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Peter Paul Coelho and Ors. Vs. Constance D'Souza and Ors. (25.01.1979 - KARHC) - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. No. 1573 of 1975
Judge
Reported inAIR1980Kant28; 1979(1)KarLJ219
ActsMysore Rent Control Act, 1961 - Sections 21(1) and 50; Transfer of Property Act, 1882 - Sections 106
AppellantPeter Paul Coelho and Ors.
RespondentConstance D'Souza and Ors.
Appellant AdvocateK. Radhesh Prabhu, Adv.
Respondent AdvocateB.P. Holla, Adv.
Excerpt:
.....the act. hence, impugned order was set aside. - he contended after termination of the tenancy by quit notice dated 2-11-1967 the tenant having continued in possession as a statutory tenant had failed to give vacant possession in spite of demanding possession. he sought for the eviction of the tenant on four different grounds mentioned in clauses (a), (b), (c) and (i) of sub-section (1) of section 21 of the karnataka rent control act, 1961, (hereinafter referred to as 'the act'). firstly, on the ground that the tenant had committed default in payment of rent from 1-2-1969 and failed to pay or tender the same in spite of lawyer's notice dated 2-11-1967 and 5-11-1968; secondly, on the ground the house was old and rickety and he reasonably and bona fide required the same for carrying out..........end of the month. the respondent terminated the tenancy of the said tenant sylvester coelho by a quit notice dated 2-11-1967 issued by his lawyer on the ground that the -said house occupied by him was very old and, rickety and w. was about to collapse and he therefore, reasonably and bona fide required the same for immediate purposes of carrying out the repairs to which the tenant gave a reply through his lawyer that there was no connection between the premises in his occupation and the portion which was old and rickety and even if any repairs or improvements were necessary the same could be carried out without. he vacating the building and he also contended in the reply notice, the notice to quit was invalid, improper and insufficient and continued to occupy the same. thereafter, the.....
Judgment:
ORDER

1. The petitioners herein who have been brought on record as heirs of the original tenant, since deceased, in occupation of the premises have sought to challenge the correctness of the judgment and Order dated 24-2-1976 passed by the District Judges South Kanara, now Dakshina Kannada, in H. R. C. Appeal No. 110 of 1974 confirming the order of eviction dated 27-9-1974 by the II Additional Munsiff, Mangalore, in H. R. C. No. 289/69 on the file of his Court.

2. Residential house bearing Number 15-458 of which the respondent-1 is admittedly owner and landlord is the subject matter of dispute.

3. Sylvester Coelho, since deceased was the monthly tenant of the same paying a monthly rent of Rs. 20/-, the same being payable by the end of every calendar mouth. The tenancy commenced from the first of every calendar month and ended with the end of the month. The respondent terminated the tenancy of the said tenant Sylvester Coelho by a quit notice dated 2-11-1967 issued by his Lawyer on the ground that the -said house occupied by him was very old and, rickety and W. was about to collapse and he therefore, reasonably and bona fide required the same for immediate purposes of carrying out the repairs to which the tenant gave a reply through his lawyer that there was no connection between the premises in his occupation and the portion which was old and rickety and even if any repairs or improvements were necessary the same could be carried out without. he vacating the building and he also contended in the reply notice, the notice to quit was invalid, improper and insufficient and continued to occupy the same. Thereafter, the respondent-1 got issued another notice dated 5-111968 demanding possession of the premises as also the rent that were in arrears from 1-10-1967, but when it was returned through the post with an endorsement as 'escaping, on 15-121969 the respondent made an application in H. R. C. No. 289/69 in the Court of the Munsiff at Mangalore for eviction of the tenant. He contended after termination of the tenancy by quit notice dated 2-11-1967 the tenant having continued in possession as a statutory tenant had failed to give vacant possession in spite of demanding possession. He sought for the eviction of the tenant on four different grounds mentioned in clauses (a), (b), (c) and (i) of sub-section (1) of Section 21 of the Karnataka Rent Control Act, 1961, (hereinafter referred to as 'the Act'). Firstly, on the ground that the tenant had committed default in payment of rent from 1-2-1969 and failed to pay or tender the same in spite of Lawyer's notice dated 2-11-1967 and 5-11-1968; secondly, on the ground the house was old and rickety and he reasonably and bona fide required the same for carrying out repairs, that they could not be carried out without the tenant vacating the same and thirdly on the ground he had erected permanent structures by constructing a room at the southern end of the verandah of. the house by enclosing it with walls and by constructing parapet walls and pillars into the remaining portion of the verandah and a new bath shed on the southern side of the premises and a new passage leading to the newly constructed room in the verandah and a new bath shed without his knowledge and consent and fourthly he was committing waste, that is to say, fixing a window in the southern wall and removing the old steps built into, the verandah and replacing them by new steps outside the verandah. He contended, for all these reasons the tenant was liable to be evicted.

4. The tenant, who contested the application, filed his objections on 27-21970. He denied either he had committed any default in payment or was due to pay any rent as alleged. On the other hand, he had paid the rentals payable up to the month ending with 31-3-1969 and that he offered to pay the subsequent rents, the respondent refused to receive the same without any valid reason. He further denied he had put up any permanent structure or made any alterations in the premises or had committed any waste or damage to the premises as alleged. He also denied the respondent landlord reasonably and bona fide required the premises for carrying out the repairs or any such repairs, as contemplated were required.

5. During the pendency of the case, when the original tenant Sylvester Coelho died on 2-8-1970 his children, the petitioners herein. Who were resident in the premises with him and had continued to reside there in were brought on record as his legal representatives.

6. At the hearing, the respondent-1 got appointed a Commissioner to hold a local inspection of the premises and to report the general condition of the same as also the structural alterations, etc., made in the same and examined the Commissioner as witness P. W. 1 in support of her contentions and got marked the report of the commissioner as Ext. C. 1. She also examined her husband as P. W. 2 and the lawyer who had issued two notices as P. W. 3.; Sri Raymond Coelho, petitioner No. 2, herein also examined as witness in rebuttal and in support of the contentions raised in the objection.

7. After hearing the Advocates on both sides during the course of judgment the Munsiff raised the following points for consideration:

1. Whether the tenant had erected any permanent structure on the petition-premises without the written consent of the respondent?

2. Whether the tenant had committed any acts of waste or damage to the property leased to him?

3 Whether the landlord reasonably and bona fide required, the premises for carrying out the repairs and if the same could not be carried out without the tenant 'vacating the premises?

4. Whether the tenant was in arrears of rent for the months of February and March 1969? and

5. Whether the notice terminating the tenancy was legal and valid and sufficient in law?

8. On the basis of the evidence and material before him, the Munsiff answered all the points affirmatively and in favour of the respondent-landlord and in that view he allowed the application and by his order dated 27th September 1974 he directed the tenants-petitioners to give vacant possession of the premises to the respondents. On appeal the District Judge having confirmed the same, the petitioners have filed this revision petition.

9. Mr. K. Radhesh Prabhu, learned Advocate appearing for the petitioners, argued, the Courts below had erred in allowing the application and making the order of eviction. He contended not only the notice terminating the tenancy was insufficient improper and invalid in law, but no notice as provided under clause (a) of sub-section (1) Of Section 21 of the Act was served on the tenant calling upon him to pay the rent alleged to be due from 1-219.69 and as such the order passed by the court below under clause (a) of sub-section (1) of Section 21 of the Act was illegal and vitiated. He also urged, the court below had failed to consider the valuable and material admissions elicited in the cross-examination of the respondents witnesses before reaching conclusion that the tenant had erected permanent structure or had committed waste and damage to the property and therefore the findings recorded by the courts below on the relevant points were vitiated and it called for interference in the revision. He submitted the revision therefore, deserves to be allowed and the application for eviction made by respondent-1 deserves to be dismissed with costs throughout.

10. Mr. B. P. Holla, learned Advocate appearing for the respondent-1 on the 'other hand, supported the findings recorded by the court below on all the relevant points arising in the case and argued even if the powers conferred on the High Court under Section 50 of the Act were wider, then they were not larger enough to make the High Court a second Court of appeal and since both the courts below had not only found the tenant was guilty of causing waste and. damage to the property but he had also erected permanent structures without the knowledge and consent of the landlord and that finding of the fact was binding on the High Court. He also submitted apart from the fact the tenant did not state either in his reply to the notice terminating the tenancy or in the objection filed by him how the notice terminating the tenancy was improper, invalid and insufficient, both the Courts below have found the service of notice terminating the tenancy was legal and sufficient in law and there was absolutely no merit whatsoever in the revision and it deserves to be dismissed.

11. Mr. Radhesh Prabhu, it appears is on firm grounds that the courts below had committed a material error in allowing the application for eviction on the ground mentioned in clause (a) of sub-section (1) of See, 21 of the Act, According to the landlord, the tenant was in arrears of rent from 1-2-1969 onwards. But there is no denial of the fact that notice as required by clause (a) of sub-section (1) of Section 21 of the Act calling upon the tenant to pay the arrears of rent within two months of its service was not issued. Mr. Holla did not also want to press the application of the landlord for eviction on that ground and the order of the court below to that extent -is clearly illegal and liable to be set aside.

12. However. I am unable to accept the other contentions of Mr. Radhesh Prabhu. Both the courts below have found concurrently that not only the tenant had committed waste and damage to the building but had also erected various permanent structures without the knowledge or written consent of the landlord and the building was, in fact, old and rickety. Mr. Radhesh Prabhu was unable to point out that those valuable and material admissions elicited in the cross-examination of the witnesses that were not considered by the court below. As I could understand his only grievance was the Commissioner. P. W. 1 had admitted in the cross-examination that the past description and condition of the building, as mentioned in his report, was based on the instructions given by the landlord at the time of the local inspection. But assuming for a moment, the - Court below had not noticed it in reaching their conclusions. I do not see how it affects the find in logs on fact recorded by the courts be as rightly pointed out by Mr. Holla, even if the scope of revision, in a case like this arising under the Act, was wider and not narrower as the revisional powers of the High Court under Section 115 of the Civil P C they were not wide enough to convert the High Court into a second court of appeal (See : AIR1975SC1111 ).

13. Here, in this case not only P. Ws. 1 and 2 speak to the condition of the building and the structural alterations but the evidence of P. W. 2 showed the premises in question was very old and rickety and required immediate repairs. As admitted by P.W.1 himself, if there was only one room and kitchen when the building was let-out, now there are two rooms and a kitchen. That itself is sufficient to show that the tenant had erected permanent structures covering a portion of the verandah. The learned Munsiff and the District Judge, who heard the appeal. have elaborately discussed the structural alterations made by the tenant and the permanent structures erected by him and it appears there is neither any error in appreciation of the evidence nor in the findings recorded by the court below on this aspect of the case.

14. Now the only question that remains for decision in this revision is whether the quit notice dated 2-11-1967 was not in, conformity with the provisions of Section 106 of the T.P. Act and invalid in law.

15. Mr. Radhesh Prabhu has sought to challenge the validity of the quit notice on two grounds. Firstly, on the ground the tenant was not given the clear 15 days' notice and secondly on the ground the tenancy was not terminated ending with the end of the ten- month, but one day earlier. So far as the first part of his contention is concerned, it may be mentioned here, as rightly pointed out by Mr. Holla, apart from saying, the notice to quit is invalid, improper and insufficient, the tenant did not mention either in his reply Ext. P-2 dated 29-11-1967 or in the objection filed by him in reply to the application of the respondent made against him for eviction from the premises that the notice was served on any particular day short of 15 days and the notice was therefore not sufficient. From the witness box also he did not say when was the said quit notice served on him. P. W. 3 S. R. Hegde, Advocate, who issued the notice Ext. P-1 on behalf of the respondent I has given evidence in this behalf and stated the notice was served on the tenant on 9-11-1967. Now of course the evidence showed the notice Ext. P-1 was sent to the tenant by a registered post and it would have been better, the postal acknowledgment itself was produced, but the evidence of P. W. 3 also showed the postal acknowledgment was lost or misplaced. This is not sought to be disputed. P.W. 3 is certain that it was served in time and swears with confidence saying 'in the subsequent notice Ext. P-3 dated 5-11-1968 he had mentioned the date of service of the notice Ext. p-1 on the tenant as 9-111967 on the basis of the postal acknowledgment itself, which was subsequently lost or misplaced', Both the Courts below have-, accepted this evidence and found that the tenant had clear 15 days' notice. The date on which the notice was served is essentially a question of fact and both the courts below have accepted the evidence of P. W. 3 and found that it had been served on the- tenant on 9-111967. In the circumstances, there are no substantial grounds to interfere with this finding of the, fact and it therefore follows the tenant had clear 15 days' notice of the termination of the tenancy.

16. Coming to the other part of the contention what requires to be considered is whether the notice Ext. P-1 terminating the tenancy was not In conformity with the provisions of Section 106 of the T. P. Act. That is to say, did not the notice terminate the tenancy ending with the end of tenancy month?

17. As already observed above, there is no dispute, the tenancy here was monthly tenancy according to the English Calendar. Therefore, not only the notice must give clear 15 days time to the tenant, but to be operative in law it must also expire with the end of the month. The determination of the tenancy must be with the end of the tenancy month. The tenant should be allowed to remain in possession of the premises as a tenant till the end of that tenancy month. Here, the operative part of the notice Exh. P-1 served on the tenant reads as follows:

'This is therefore to call upon you finally to surrender the premises to my client for the reasons stated above and so on behalf of my client your tenancy is hereby determined and you are hereby called upon to quit and deliver vacant possession of the premises occupied by you on or before

18. Relying on the expression 'on or before 30-11-1967' Mr. Radhesh Prabhu argued the tenant was not allowed to continue in possession of the premises tilt the end of the tenancy month on the a-her hand he was asked to vacate the premises before the end of the tenancy month ending with 30-11-1967 and as such the notice terminating 'he tenancy was improper and invalid in law, in support of his contention he also placed - reliance on the decision of this Court in Faldragouda S. Patil v. Parvatibai Mahadev Mehendrakar (1976) 2 Kant LJ - 452, where in a case of monthly tenancy, regulated by English Calendar month the landlady terminated the tenancy by notice dated 6-12-1972 served on the tenant on 11-12-1972, asked the tenant to vacate the house by the end of December, 1972 and before the beginning of January 1, 1973, this Court held in unequivocal terms the landlady wanted the tenant to vacate the house before the beginning of January 1, 1973, amounting thereby before the end of 31st December 1972 and did not give the tenant the whole anniversary of the day of 31st December, 1972 and as such the termination of the tenancy did not end with the end of the month of the tenancy and the notice was, therefore, clearly invalid. With due respect I am unable to -accept the said decision as laying the correct law on the question.

19. There cannot be any dispute that under Section 106 of the T. P. Act, the notice to quit must expire with the end of the month of the tenancy. It must terminate the tenancy with effect from the expiration of the month of the tenancy. If it terminates the tenancy with effect from any earlier date it would be clearly invalid. It is also now well settled law that a notice to quit must be construed liberally. There are series of decisions which have laid down that a notice to quit on or before a fixed date or even 'by' a fixed date may be regarded as valid in law. It is unnecessary to refer here to all the decisions which have taken this view. Mr. Holla has drawn my attention to a decision in Baijnath Pandit v. Smt. Narvada Devi Kejriwal : AIR1973Pat286 . In that decision there is an elaborate discussion on this question of 'interpretation of the expressions as used in the quit notice issued by the landlord. I will advert to it a little later. But here it is important to note, as observed in the decision in Harihar Banerji v. Ramshashi Roy (AIR 1918 PC 102 at p. 107), the notices under S. 106 are construed not with a desire to find faults in them which would render them defective but to be construed construedutres magis valeat quam pereat. At the same time it is also to borne in mind in construing the language of the notice no inconsistent or unnatural meaning must -be given to the expression used in order to make an otherwise invalid notice, a valid notice.

20. In the decision in Baijnath Pandit v. Sint. Narvada Devi Kejariwal : AIR1973Pat286 , where the tenancy was a monthly tenancy, the operative portion of the quit notice stated:

'That my client needs the house for her own occupation. That may client does not want you to remain in the house and as such determines Vie tenancy on and from 31st Jan., 1965.'

In the concluding portion it stated:

'I, therefore request you to kindly vacate the premises occupied by you on or before the 31st Jan., 1965'.

21. Interpreting and considering the effect of the expressions 'on or before the 31st Jan., 1965', it was held: 'the tenant would be entitled to continue in possession of the premises till the mid- of 31st Jan, 1965. When he vacated the premises at that point of time he can validly say. 'I have vacated the premises on and from 31st Jan., 1965 and in that view the notice was good and valid in law. His Lordship S. Sarwar Ali, J., who rendered the decision in the said case has referred to a decision in the case of Sidebotham v. Holland (1805-1 QB 378) wherein Lindley, L J. observed:

'When considering the validity of a notice to quit given in time and expiring on the anniversary of the commencement of a tenancy, I can find no distinction ever drawn between tenancies commencing 'at' a particular time or 'on' a particular day and' 'from' the same day. 'At' 'on', 'from' and 'on and from' are for this purpose equivalent expressions.'

22. In Art. 1172 of Halsbury's Laws of England, it is stated:

'A notice to quit 'on or before' a fixed date or even 'by' a fixed date may be valid.'

In the decision in Bhagabandas Agarwalla v. Bhagwandas Kanu : [1977]3SCR75 , their Lordships quoting with approval the observations made by the Privy Council in Harthar Banerji v. Ramshashi Roy (AIR 191-8 PC 102), that 'a notice to quit must be construe& not with a desire to find faults in it, which would render it defective, but it must be construed construedutres magis valeat quan pereat' observed further:

'That the validity of a notice to quit an pointed out by Lord Justice Landley, L J. in Sidebotham v. Holland (1895) 1 QB 378, 'ought not to turn on the splitting of a straw'. It must not be read in a hyper-critical manner, nor must its interpretation be affected by pedagogic pendency over refined subtlety, but it must be construed in a common sense way.' In the said case, the tenancy was admittedly a monthly tenancy and the relevant part of the notice to quit was in the following terms:

'You are hereby informed by this notice that you will vacate the said house for our possession within the month of Oct. 1962 otherwise you will be treated as trespassers from 1st November in respect of the said house. 'The notice to quit required the tenant to vacate the premises within the month of Oct. 1962. It also stated the tenant would be treated as trespassers of the premises from 1st of Nov. Considering the meaning and effect of the words 'within the month of Oct. 1962' in the contest in which they were used in - the notice to quit, their Lordships observed:

'When the notice to quit required the respondents to vacate 'within the month of Oct. 1962', what it meant was that the respondents could vacate at any time within the month of Oct. 1962 but not later than the expiration of that month. The last moment up to which the respondents could, according to the notice to quit, lawfully continue to remain in possession of the premises was the midnight of 31st Oct, 1962. We fail to see any difference between a notice asking a tenant to vacate 'within the month of Oct. 1962' and a notice requiring a tenant to vacate latest by the midnight of 31st Oct. 1962, because in both cases, the tenant would be entitled to occupy the premises up to the expiration of 31st Oct., 1962 but not beyond it. This position would seem to follow logically and incontestably, as a matter of plain natural construction, from the use of the words 'within the month of Oct, 1962 without anything more, but here it is Placed beyond doubt or controversy by the notice to quit proceeding to add that otherwise the respondents would be treated as trespassers from 1st Nov., 1962. This makes the intention of the authors of the notice clear that they are terminating the tenancy only, with effect from the end of the month of Oct. 1962 and not with effect from any earlier point of time during the currency of that month, if the respondents do not vacate the premises within the month of Oct. 1962, they would be treated as trespassers from 1st Nov., 1962 and not from any earlier date, clearly implying that they would lawfully continue as tenants up to the expiration of the month of Oct. 1992. The tenancy was, therefore, sought to be determined on the expiration of the month of Oct. 1962 and not earlier and the notice to quit expired with the end of the month of tenancy as required by S. 106 of the T. P. Act. It was in the circumstances a valid notice which effectively determined the tenancy of the respondents with effect from the midnight of 31st Oct., 1962.'

23. In the case at hand also, it may be noted, even though the quit notice asked the tenant to vacate the house on or before 30-11-1967, the tenant was entitled to remain in possession till the midnight of 30-11-1967 and thereafter vacate it and still comply with the notice to quit. The notice was thus perfectly valid and complied with the requirements of S. 106 of the T. P. Act.

24. In that view, the revision has therefore to fail and it is accordingly dismissed.

25. The petitioners-tenants shall pay the cost of respondent-1 and bear their own.

26. The tenants to give vacant possession of the premises to respondent-1 within 3 months from today.

27. Revision dismissed.


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