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Potluri Subbareddi, P. Seshagirirao and Co. and ors. Vs. Kalabai Rathi - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAndhra Pradesh High Court
Decided On
Case NumberS.A. No. 402 of 1979
Judge
Reported inAIR1982AP186
ActsTransfer of Property Act, 1882 - Sections - 106 and 110; Code of Civil Procedure (CPC), 1908 - Sections 100, 100-A and 101 - Order 1, Rule 9
AppellantPotluri Subbareddi, P. Seshagirirao and Co. and ors.
RespondentKalabai Rathi
Appellant AdvocateN. Ramamohan Rao, Adv.
Respondent AdvocateJ.V. Suryanarayana, Adv.
Excerpt:
tenancy - validity of quit notice - sections 106 and 110 of transfer of property act, 1882 and sections 100, 100-a, 101 and order 1 rule 9 of code of civil procedure, 1908 - defendant took suit premises belonging to plaintiff on lease for fixed period of one year ending with 'diwali' day - complaining that even after expiry of period of one year defendants were continuing in occupation of premises plaintiff issued quit notice - contention that plaintiff's quit notice terminating tenancy by holding over on 28.02.1974 was ineffective because it was said that tenancy by holding over did not commence on 01.11.1968 - there can be no doubt that quit notice to be effective must put an end to monthly tenancy by last day of tenancy month - trial court and in first appeal it was held that monthly..........paying rents to the landlord without vacating the suit premises. the plaintiff, therefore, issued quit notice on 4-2-1974 terminating the tenancy by the last day of february, 1974 and filed the present suit for ejectment, for mesne profits and for damages.3. the suit was resisted by the defendants on multiple grounds. the second defendant filed a written statement. the second defendant contended that the suit premises was governed by the provisions of the rent control act and that therefore, the civil court had no jurisdiction. secondly, his contention was that the first defendant in whose behalf he took the suit premises on lease as managing partner, was dissolved on 31-12-1969 with effect from 1-1-1970, and that thereafter it was new firm that came into existence of which he still.....
Judgment:

1. This second appeal was filed by the first defendant and the legal representatives of the second defendant. The first defendant was sued in the trade name of M/s. Polutri Subba Reddy, P. Seshagiri Rao and Company being represented by partner Polutri Subha Reddy. The second defendant was sued in his individual name. the suit was for ejectment, for mesne profits and for damages for use and occupation.

2. The second defendant had taken the suit premises belonging to the plaintiff on lease for a fixed period of one year ending with the 'Diwali day'. the plaintiff's complaint was that after the expiry of that period of one year the defendants were continuing in occupation of the premises paying rents to the landlord without vacating the suit premises. The plaintiff, therefore, issued quit notice on 4-2-1974 terminating the tenancy by the last day of February, 1974 and filed the present suit for ejectment, for mesne profits and for damages.

3. The suit was resisted by the defendants on multiple grounds. the second defendant filed a written statement. The second defendant contended that the suit premises was governed by the provisions of the Rent Control Act and that therefore, the civil court had no jurisdiction. Secondly, his contention was that the first defendant in whose behalf he took the suit premises on lease as managing partner, was dissolved on 31-12-1969 with effect from 1-1-1970, and that thereafter it was new firm that came into existence of which he still continued to be its managing partner . His contention was that from 1-1-1970 onwards the second new partnership was the tenant and that therefore the quit notice given by the plaintiff

to the second defendant as managing partner of the first defendant was invalid. While the suit was pending trial, the second defendant died and his legal representatives, that is to say, his wife and children were brought on record after contest as defendants.

4. The trial court in all framed the following issues:-

1. Whether the plaintiff is entitled for a decree of ejectment,?

2. Whether this court has no jurisdiction to try the suit ?

3. Whether the first defendant is a tenant as contended by the plaintiff ?

4. Whether the plaintiff is entitled to recover damages at the rate of Rs.400/- per month?

On 1-4-1976 the following additional issued were framed by the trail court:-

1. Whether the defendants 3 to 7 have any interest in the suit schedule property,?

2. Whether the defendants 3 to 7 are not the legal representatives of the second defendant?

3. Whether . Ramireddi and U. Krishnarao are necessary and proper parties to the suit?

On 7-2-1977 the court framed one more additional issue.

1. Whether there is proper and valid quit notice in the suit?

5. The trial court answered all the issued in favour of the plaintiff and against the defendants. Against that decree and judgment, M/s. Potluri Subbareddi. P. Seshagirirao and Company, represented by the partner Sri Potluri Subbareddi being dead, represented by P. Venkataratnamma and five others had preferred A.S. No.55/77 to the court of the learned Subordinate Judge. Vijayawada. Before the learned Subordinate Judge the agreement that the civil court had no jurisdiction to try the suit, as the suit building was governed by the provisions of the Rent Control Act was reiterated. Secondly it was also argued that it was the second defendant that was the tenant under the plaintiff, and not the first defendant, and that at my rate after the dissolution of the 1st defendant firm, the new firm should have been sued, Thirdly, it was argued that defendants 3 to 7 were not the legal representatives of the deceased second defendant. It was also urged that there was no proper quit notice, as the plaintiffs notice did not demand defendants 1 and 2 to give vacant possession of the suit premises on the midnight of 28-2-1974 but merely asked the defendants 1 and 2 to vacate the plaint Schedule premises on or before 1-3-1974. The appellate court rejected all these contentions and confirmed the decree of the lower court.

6. In this appeal two questions were prominently argued by Sir Harinath. One is relating to the invalidity of quit notice, and the other is relating to the necessary parties to the suit not being added. It was said that the plaintiffs quit notice terminating the tenancy by holding over on 28-2-1974 was ineffective, because it was said that the tenancy by holding over did not commence on 1st of November, 1968. The appellants learned counsel said that according to the plaint allegations the tenancy by holding over commenced on the next day of Deepavali in the month of November, 1968 which did fall on the 1st November, 1968, and therefore the quit notice terminating the tenancy by 28-2-1974 was bad.. There can be no doubt that the quit notice to be effective must put an end to the monthly tenancy by the last day of the tenancy month. But then what is that last day? This question calls for investigation into and determination of an essential fact. Which was the day the monthly tenancy commenced? The quit notice and the reply to it, the trial, and the first appeal all proceeded on the basis that the monthly tenancy by holding over ended by the last day of the calendar month. The defendants did not challenge this assumption either in their reply notice or written statement or even in the two courts below. The two courts below tired the suit on the basis that the tenancy month ended by the end of calendar month. I cannot now permit the appellants to challenge that basis and try that issue of fact myself and find in this second appeal when Deepavali day of 1968 falls.

7. As a part of the appellants attack on the quit notice it was also argued that even on the assumption that the tenancy month commenced by 1st day of the calendar month of 1968, the quit notice must be held to be invalid. This argument, was based on the alleged non-compliance of the quit notice with the requirements of S. 10 of the Transfer of Property Act which reads thus:- Section 110:-

'Where the time limited by a lease of immovable 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 its expiration, and the lease omits to mention at whose option it is so terminable, the lessee, and not the lessor, shall have such option'

It was argued that under the above language of S. 110 of Transfer of Property Act, the first day should be omitted and the tenancy month should be counted as commencing on 2nd of November, 1968 and ending on the 3rd day of next calendar month. So done it is clear that the quit notice issued by the plaintiff putting an end to the tenancy on the last day of February. 1974 would be bad. In support of this argument reliance was placed by the appellants on two decisions one reported in Benoy Krishna v. Salsiccioni. Air 1932 PC 279 and the other reported in Dattonpant v. V. Marutirao, : AIR1975SC1111 .

8. In Calcutta Landing and Shipping case (AIR 1944 Cal 84) where the meaning of the opening words of S. 110 of T. P. Act had come to be ascertained, it was ruled that the words 'time limited by a lease of ......expressed as commencing from a particular day....' lay down two conditions: one relating to the fixation of time or period by the lease and the other relating to an expression in the lease as to a particular day when the lease should commence, It was held in the above case that the direction to deduct the first day contained in S. 110 of Transfer of Property Act would apply when the above two conditions are satisfied. Applying the above principle, it was held in U. A. Mfg. Co. v. Motilal Bombay Mills. AIR 1943 Bom 306, Usharani Debi v. The Research Industries Ltd., (1946) 50 Cal WN 461. Baldeo Prasad v. Rewaram Ramnath. AIR 1950 Nag 107 and B. Samantrai v. L. Agarwala. AIR 1950 Orissa 1 that a monthly tenancy by holding over does not limit the time or the period or lease. It goes on and on till it is validly determined. In AIR 1950 Orissa 1 (B. Samantrai v. L. Agarwala (supra) it was observed (at p. 4):

'A tenancy for a time means a tenancy that is determined on efflux of time . So far as tenancies from month to month are concerned. they are to be determined on notice to quit at the option of either the lessor or the lessee. Hence a monthly tenancy is not one for a term. Section 110, therefore, does not apply.'

9. B. K. Das v. Salsiccioni, (1932) 59 Ind App 44 : (AIR 1932 PC 279) on which the advocate for the appellants placed strong reliance in support of his argument that S. 110 of Transfer of Property Act would apply even for monthly tenancies does not in my opinion support his contention. The decision of the Privy Council did not lay down any such rule holding that S. 110 of Transfer of Property Act would apply to monthly tenancies by holding over. The facts in that case are: A tenancy for a fixed term of four years said to commence from 1-6-1921 was held to have commenced on 2-6-1921, because of the application of S. 110 of transfer of Property Act. Accordingly , the tenancy was held to have ended on the midnight of 1st June 1925. Thereafter, a quit notice given by the tenant on 1-2-1928 and putting an end to the monthly tenancy by holding over was held to be valid. That case clearly did not decide that S. 110 of Transfer of Property Act would apply to monthly tenancies by holding over. In that case S. 110 of Transfer of Property Act was applied to the four year tenancy and not to the monthly tenancy by holding over. That case was referred to in the above mentioned cases of Bombay, Nagpur and Orissa. In Dattonpant v. V. Marutirao : AIR1975SC1111 (supra) the Supreme Court did not decide that S. 110 of Transfer of Property Act would apply to monthly tenancies by holding over. There the quit notice was held invalid on the ground that it purported to terminate the tenancy a day before the last day of the tenancy month.

10. There remains the argument of the appellants regarding the addition of the parties. The argument of the appellants was that by the date of the filing of the suit the old partnership firm was dissolved and that a new partnership firm had come into existence and that it was the latter that was occupying the suit premises and that therefore, the partners of the new firm should have been added as party defendants. The appellants further argued that at least after the death of the second defendant the new partners should have been brought on record as legal representatives. This argument was rejected by the courts below. Although the second defendant in his reply notice as well as in his written statement alleged that there was a new partnership firm, he did not give the names of the persons who constituted either the first partnership firm or the second partnership firm. In the absence of such information, it could not be known whether M/s. Potluri Subba Reddy, P. Seshagirirao and Company was anything more than a trade name. In the nature of things, it would not be possible for the plaintiff to know who constituted either the first partnership firm or the second partnership firm. The complaint that the partners of the first firm ought to have been brought on record cannot therefore be accepted at all events, it must be held that the plaintiff had nothing to do with the so called second partnership firm who are not his lessees. When the plaintiff sought to bring the legal representatives of the second defendant on record, the second defendant's legal representatives had contested that application. But that application was ordered, Against that order no appeal or revision had been filed . That order in a way decided that there were no partners in the first defendant firm. It is no doubt open for the appellants now to canvass the correctness of that order, but even placed before me to show that there were any other persons constituting the firm. I accordingly reject this argument of the appellant.

11. The second appeal accordingly fails and is dismissed with costs.

12. Appeal dismissed.


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