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Kishan Chand Vs. Sayeeda Khatoon - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAndhra Pradesh High Court
Decided On
Case NumberSecond Appeal No. 129 of 1982
Judge
Reported inAIR1983AP253
ActsCode of Civil Procedure (CPC), 1908 - Order 12, Rule 1; Transfer of Property Act, 1882 - Sections 106 and 110
AppellantKishan Chand
RespondentSayeeda Khatoon
Appellant AdvocateU.P. Ugle, Adv.
Respondent AdvocateM.S. Narayanacharyulu, Adv.
Excerpt:
.....evidence, both documentary as well as oral, has established to the hilt that the premises has been leased out or has been taken on lease for manufacturing purposes and right from the commencement of the lease the premises have been used for the manufacture of lamps if that be so the notice which is admittedly not six months' notice within the meaning of sec. even if that be so, i am unable to comprehend as to how this would go to the aid of the tenants' case it is now well settled that in order to gather as to for what purpose the lease was brought about in respect of certain premises, reference must be made to the time on which the lease is brought into being......purposes would not render the premises. as one let for manufacturing purpose and therefore, six months notice need not be issued as contemplated under sec. 106 t.p. act, hence this second appeal.4. at the time of admission of this second appeal the substantial question of law that was framed by this court is as under:-'the substantial question of law that arises for consideration among other grounds is whether in view of the admission of the plaintiff contained in the memo filed before the trial court the lease could be deemed to be a lease for manufacturing purposes and if so whether after the expiry of the first 11 months will it be deemed to be a lease for one year and terminable on 6 months notice or a lease from month to month terminable on 15 days notice ending with the monthly.....
Judgment:

1. This rent revision by the tenant raises a sole but rather important question as to whether as to whether under sec. 110 of the T.P. Act if the isntrument of lease is silent with regard to the commencement of the lease, the first day as per the implied commencement within the meaning of second limb of sec. 110 will have to be excluded in computing the time. Within which a notice to be given by landlord for the termination of tenancy.

2. The format of the case in brief is The lease agreement was entered into on 16th February 1971 abetween the revisionist-tenant and the landlady-respondent in respect of the demised premises, H. No. 3-3-71/2. Kachiguda, hyderabad, on a monthly rent of Rs. 150/- for a period of eleven months with a stipulation therein that the tenancy may be continued by the landlady after the expiry of eleven months on the smae terms and conditions after the stipulated period the tenancy, however continued and came to be treated as a tenancy by holding over from month to month. After a decade the landlady gave a notice of termination under Ex. A-7 stating that the tenant has contravened the stipulation of the lease agreement by using the premises for running N. K. Cottage Industry which has materially impaired the value and damaged the premises. This notice was given on 20th October. 1979 stating therein that the tenant shall vacate the premises by the mid-night of 15/16th December 1979.

3. The rent court, on the basis of the evidence, both documentary and oral held that though the tenant has not been in a position to establish that the premises have been let out for manufacturing purposes but however since the quite notice is not in conformity with the provisions enacted under sec. 110 T.P. Act, as the day of commencement for the purpose of reckoning the period of computation in regard to the notice will have to be excluded viz., 16th December. 1979 the right to terminate by the landlady is defeated and thereby the eviction petition was dismissed. On appeal the rent Appellate Court, however allowed it holding sec 110 T.P. Act is not available to the tenant inasmuch as the second limb of that section explains by deeming provision, as to when the lease commences, but it does not provide for exclusion of any day in the process of computation of the period within which (notice) has to be issued. Secondly it held that even on the basis of the evidence the premises have been used much later to the letting out for the purpose of manufacturing lamps. It is the original intention of the parties that has to be gathered from the instrument. Admittedly, since at the initial stage when the premises any subsequent usage of it for manufacturing purposes would not render the premises. As one let for manufacturing purpose and therefore, six months notice need not be issued as contemplated under sec. 106 T.P. Act, hence this second appeal.

4. At the time of admission of this second appeal the substantial question of law that was framed by this Court is as under:-

'The substantial question of law that arises for consideration among other grounds is whether in view of the admission of the plaintiff contained in the memo filed before the trial Court the lease could be deemed to be a lease for manufacturing purposes and if so whether after the expiry of the first 11 months will it be deemed to be a lease for one year and terminable on 6 months notice or a lease from month to month terminable on 15 days notice ending with the monthly tenancy?'

5. Sri Ugle, the learned counsel for the appellant, raises the following contentions:-

1. Notice under Ex. A-7 to quite issued by the landlady on 20th October 1979 is defective, as it is not in conformity with the provisions enacted under sec. 110 T.P. Act.

2. The lease agreement Ex. A-1 being silent on the nature of commencement of the lease, it should be presumed under sec. 110 T.P. Act that it commenced on the day when the lease commenced and therefore the day on which the notice is given must be excluded from the computation in determining the minimum period of notice.

3. The tenant has carried on the business of manufacturing lamps in the demised premises right from the begining, and the enormous documentary evidence let in would establish to the same effect which the courts below failed to take cognizance of coupled with the admission made by P.W. 1 in her evdence and therefore it ordains the issue of six months notice under S. 106 T.P. Act, for termination of tenancy.

6. The counter-contentions of sri narayanacharyulu the learned counsel for the respondent in brief are that the quit notice is perfectly valid: the second limb of sec 110. T.P. Act only explains by deeming provision as to the commencement of the lease, where it is not stated in the instrument of lease itself and nothing else and therefore for the purpose of computation of time for the quite notice the date on which lease commenced should not be excluded but to be included; the purported memo submitted before the Court below should not be acted upon as it is a conditional Memo; and lastly even if it is to be presumed that after taking over the premises initially for the residential purpose. If manufacture of certain goods has been carrried on, it does not nevertheless. Render the initial agreement one for manfufacturing purposes which enjoins upon the landlady to give six months notice within the meaning of sec. 106 T.P. Act.

7. Before adverting to the arguments advanced by both the counsel the relevant statutory provisions viz., secs. 106 and 110 T.P. Act and the relevant portions of the legal quite notice, Ex A-7, be noticed. Sec. 106 T.P. Act is as under:-

'106 in the absence of a contract or local law or usage to the contrary a lease of immoveable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year. Terminable on the part of either lessor or lessee, by six months' notice expiring with the end of a year of the tenancy: and a lease of immoveable property for any other purpose shall be deemed to be a lease from month to month terminable. On the part of either lessor or lessee by fifteen days' notice expiring with the end of a month of the tenancy. Every notice under this section must be in writing signed by or on behalf of the person giving it and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party. Or to one of his family members or servants, at his residence or if such tender or delivery is not practicable affixed to a conspicuous part of the property'.

Section 110 of the Act. Reads thus:-

'110. Where the time limited by a lease of immoveable property is expressed as commencing from a particular day in computing that time such day shall be excluded. Where no day of commencement is named the time so limited begins from the making of the lease.

Where the time so limited is a year or a number of years in the absence of an express agreement to the contrary the lease shall last during the whole anniversary of the day from which such time commences,

Where the time so limited is expressed to be terminable before expiration and the lease omits to mention at whose option it is so terminable. The lessee and not the lessor shall have such option'. The relevant portions of the legal quit notice Ex. A-7 are as under:-

'That you are a tenant of our client in occupation of the House bearing No. 3-3-71/2 situated at kachiguda, Hyderabad on a monthly rent of rupees 250/- payable in advance before 6th of every calendar month. The tenancy was created originally on 16-2-71 at a monthly rent of Rs. 150/-.................. The tenancy was for a period of 11 months only with an option vested in the landlady our client to continue the tenancy on the same terms even after the expiry of 11 months.......Our client has learnt that N.K. Cottage Industry is being run by you in contravention of the terms of the agreement in the residential house without the consent or permission of our client and against the terms of rental agreement as your Act of using the residential house for running N.K. Industry has materially impaired the value and utility of the demised promises.............. our client also requires the said premises for her own residential use. Hence she does not want to continue your tenancy any more............. Now please take notice that your tenancy is hereby terminated. You are directed to vacate the premises by 16th December 1979. A notice of one month as per agreement is hereby given against you to vacate the premises. Expiring with the end of the month of tenancy i.e., by the mid-night of 15th & 16th December 1979.......'

8. First. I will take up the issue of Memo as to whether it constitutes admission by the landlady to the effect that the premises have been given on lease for manufacturing purposes. The memo filed in O.S. 4176 of 1979 on 28-4-1981:-

'The defendant has taken a very long time for examining his witness. The suit is being protracted for examining witnesses. Who are not material for the disposal of the suit. The proposed witnesses, are said to prove that suit house was obtained for manufacturing purposes In order to save the time of this Hon'ble Court and to avoid inordinate delay this plaintiff admits the plea set up by the defendnt on condition that arguments are heard either to-day or on 30th April, 1981'.

It is this memo that has given rise to the argument and counter-argument that the landlady has admitted the plea that the premises has been given on lease for manufacturing purposes and therefore, six months' notice is a must under section 106 T.P. Act. I am afraid. I cannot accede to the argument of the learned counsel for the appellant for the reason that the Memo is a conditional one and admittedly, the condition has not been fulfilled viz. That the arguments were not heard either on 29th April, 1981 or on 30th April 1981. But a few months thereafter and therefore, this must be deemed to have been put an end to and cannot be given effect to at all the privy council in a case reported in M.M. Essabhoy v. M. Haridas (AIR 1915 PC 2 ) Heldo:-

'It is permissible for a tribunal to accept part and reject the rest of any witness's testimony. But an admission in pleading cannot be so dissected and if it is made subject to a condition it must either be accepted subject to the condition or not accepted at all'.

Hence I have no hesitation in holding that the admission has become non est in view of the non-fulfilment of the condition which partakes the very admission itself. Industrably the condition is not fulfilled. Hence the admission made therein is not binding at all. Contention is therefore rejected.

9. The second and more substantial question is whether the second limb of sec. 110 T.P. Act, will also by deeming provision exclude the date on which the notice of termination is given in computing the period of limitation.

10. It is quite manifest from the language of the section itself that the latter limb of the said section viz., 'Where no date of commencement is named the time so limited begins from the making of the lease', explains and explains only the position that when the date of commencement is not mentioned in the instrument of lease then it must be deemed that it commences from the date of making of the lease itself. There is nothing further stated after the said words of the second limb. It stops short there only and does not proceed, just as in the case of first limb which does proceed saying in computing that time such day shall be excluded'. Absence of these words in the second limb is conspicious and lends support to the view that the legislature restricted in the absence of the date of commencement in the lease agreement to the date of the making of the lease and nothing else and therefore by an irresistible implication the intention of the legislature cannot be attributable to the exclusion of the date on which quite notice is given for computing the period of limitation any other construction would not only cause violence to the language used, but would be reading something more into it see U.A. Manfg co.v. Motilal bombay Mills (AIR 1943 Bom 306). Usharani debi v. Research Industries ltd. (1946- 50 cal WN 461), Baldeo prasad v. Rewaran Ramnath (AiR 1950 Nag 107) and B. Samantrai v. L. Agarwala (AIR 1950 orissa 1), Wherein it was held that a monthly tenancy by holding over does not limit the time or the period of lease; it goes on and on till it is validly determined. Hence in my undoubted judgment, in the latter limb of sec. 110 T.P. Act, it is impermissible to read. For the purpose of computing that the date on which a notice is issued shall be excluded just as it is so in the case of the former Limb of that section consequently the argument of the learned counsel for the appellant, which is devoid of substance is rejected.

11. Though the learned counsel for the appellant, while relying upon a decision reported in Dattopant v. Vithalrao : AIR1975SC1111 . Wherein it is held; 'the tenancy for one year having commenced from 9-4-1954. Under section 110 in computing the period of one year the date of commencing i.e, the 9th day of april 1946 by holding over the tenancy from month-tomonth started from 10th april. 1946 ending on the 9th day of the following month. The notice served on the tenant on 21-11-1967 purported to terminate the tenancy by the 8th December 1968 treating the month of tenancy as commencing from the 9th day of a month and ending on the 8th day of the month following. Held that the notice did not expire with the end of the month of the tenancy. The end of the month of the tenancy was the 9th day and not the 8th day thus there was no valid and legal termination of the contractual tenancy'. Argued that in this case. Since the notice to quite under Ex. A-7 contemplates termination of tenancy at the mid-night of 15/16th December. 1979, instead of 16th /17th December 1979 the notice is in contravention of sec. 110 T.P. Act and, therefore, it is not a proper and legal notice. The argument is fallacious inasmuch as though it is a tenancy from month to month by holding over and since the monthly lease commences on the 16th day and ends on the 15th day of the following month the notice is certainly quite in compliance with the provisions enacted as it does not come to an end on the 16th of the following month. Therefore, it is very hard to see that the defect as visualised by the learned counsel for the appellant in the notice to quite and as such that aspect of argument also stands rejected.

12. Yet another argument Enormous evidence, both documentary as well as oral, has established to the hilt that the premises has been leased out or has been taken on lease for manufacturing purposes and right from the commencement of the lease the premises have been used for the manufacture of lamps if that be so the notice which is admittedly not six months' notice within the meaning of sec. 106 T.P. Act does not enable the landlady to seek the eviction of the premises I apprehend the argument is misplaced. Exhibits referred to by the learned counsel viz., Exs B-1 to B-15, which relate to sales tax assessment order the challan showing payment of assessed tax. Electricity bills, purchase bills and os forth even if are taken can establish is that the premises having been taken over on 16th February 1971 under Ex. A-1 later in the year 1972 as all the exhibits enumerated above, the first of which being from 8-9-1972 how that the tenant started utlizing the premises also for manufacturing purposes. Even if that be so, I am unable to comprehend as to how this would go to the aid of the tenants' case it is now well settled that in order to gather as to for what purpose the lease was brought about in respect of certain premises, reference must be made to the time on which the lease is brought into being. In this case it is evidence that initially when the premises was leased out it was for residential purpose if that be so it is the original intention that has to be taken into recokoning for the purpose of determining the nature of lease and not how the said premises is subjected to treatment later. See manzoor Ali v. Laldevi : AIR1951All396 . Therefore this defence also is of no avail to the tenant and hence the argument in this behalf is rejected.

13. In the result, the second appeal is dismissed No costs No leave.

14. The tenant, however is given six months' time to vacate the premises provided he pays the agreed rent regularly.

15. Appeal dismissed.


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