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Har Sarup Lal Vs. Chiddalal - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 3417 of 1961
Judge
Reported inAIR1965All291
ActsUttar Pradesh (Temporary) Control of Rent and Eviction Act, 1947 - Sections 3 and 3(1); Transfer of Property Act - Sections 106
AppellantHar Sarup Lal
RespondentChiddalal
Appellant AdvocateN.S. Singhal, Adv.
Respondent AdvocateA.P. Gupta and ;P.M. Gupta, Advs.
DispositionAppeal dismissed
Excerpt:
.....as he had served a notice of demand on the tenant who failed to pay arrears within one month of the receipt of that..........section 106 of the transfer of property act, as amended in u. p., the tenancy is terminable by 30 days' notice. a composite notice, therefore, has to be read as if there were two separate notices sent to the tenant. one part of the notice calls upon him to pay the arrears due and the law casts a duty on the tenant to pay within 30 days and if he pays then the auit for ejectment would be barred and no further question will arise. but if he falls to do so then the right of the landlord to file a suit survives and the purpose of section 3 (1) (a) of the act is exhausted. once the suit is filed the landlord will have to show that he has terminated the tenancy by 30 days' notice in order to comply with the provisions of section 106 of the transfer of property act. for this purpose he can.....
Judgment:

K.B. Asthana, J.

1. This is a defendants appeal. The defendant was a tenant of the plaintiff in a house on a rent of Rs. 16/- per month. The tenancy of the defendant began from the 15th of each month and ended on the 14th day of the succeeding month. The defendant had paid Rs. 90/- in all to the plaintiff and rest of the rent for the period starting from 13-11-1956 to 14-4-1958 remained in arrears. The plaintiff thereupon served a notice of demand 7-4-1958 calling upon the defendant to pay the arrears due within one month of the receipt of the notice ana also intimated that the plaintiff did not want to keep the defendant as tenant ana called upon him to vacate the premises after the expiry of 30 days from the receipt of the notice. The defendant neither paid the rent within the period stipulated nor vacated the premises. The plaintiff then filed the suit for ejectment and recovery of arrears and mesne profits. it is not necessary for the purpose of deciding this appeal to state ail the pleas which were raised in defence save the plea that the notice dated 7-4-1958 demanding rent and terminating the tenancy was not valid notice. The trial court found on all other issues against the defendant but upheld the plea of the defence that the notice terminating the tenancy was not a valid notice. Accordingly the suit of the plaintiff for recovery of arrears and mesne profits was decreed but the relief for ejectment of the defendant was refused. On appeal by the plaintiff the learned Additional Civil Judge of Bulandshar who heard the appeal reversed the decree of the learned Munsif and granted the relief for ejectment also while affirming the decree for arrears of rent and mesne profits. it was held by the lower appellate court that the notice dated 7-4-1958 was a valid notice. The defendant has now come up in second appeal.

2. M. S. Singhal the learned counsel for the defendant-appellant submitted that the notice dated 7-4-1958 was invalid for two reasons viz:

(a) it did not in terms expressly intimate the termination of the tenancy and,

(b) it did not in terms have the effect of terminating the tenancy after a period of 30 days front the expiry of the period of first 30 days from the receipt of the notice within which time the defendant was called upon to pay the arrears. In other words the submission was that the termination of the tenancy under the law could only be effective after a period of 60 days from the receipt of the notice and the suit for ejectment having been filed before the expiry of the period of 60 days was premature.

3. Having heard learned counsel I do not think there is any force in any of the submissions made by him. The language of the notice is clear. It definitely states that the plaintiff did not want to continue any further the relationship of the landlord and tenant and called upon the defendant to vacate the premises at the expiry of 30 days from the receipt of the notice. There cannot be any doubt what the plaintiff intended. It was a clear intimation to the defendant who wag the tenant that after the expiry of 30 days from the receipt of the notice he was to vacate the premises because the plaintiff did not want to continue him to remain in occupation as tenant. I think the language of the notice was clear and unequivocal in this regard. There is no substance in the submission of the learned counsel that the notice in terms did not expressly terminate the tenancy.

4. In support of this second submission the learned counsel relied on a decision of this Court in the case of Ram Pratap v. Pannalal, 1956 All LJ 787. I do not think the decision in the case cited is of any assistance to the learned counsel. My reading of the ratio decldendi of that case is that far from supporting the contention of the learned counsel militates against ft. At page 789 of the Report the contentions raised by the learned counsel for the appellant in that case have been noted and at page 790 of the Report the contention has been summarised. It was to the effect that the anomaly which according to the learned counsel arose between Section 106 of the Transfer of Property Act and Section 3 (1) (a) of the U. P. (Temporary) control of Kent and Eviction Act could only be removed if the notice, under Section 106 of the Transfer of Property Act was given after the expiry of one month as provided by Section 3 (1) (a) of the U. P. (Temporary) Control of Rent and Eviction Act. Their Lordships observed that they did not think that that was a necessary conclusion upon a reading of the provisions of the two Acts together and then they further discussed the merits of the question. It appears to me that the contention that the notice under Section 106 of the Transfer of Property Act terminating the tenancy can only be given after the expiry of the period of 30 days from the receipt of the notice contemplated by Section 3 (1) (a) of the U. P. (Temporary) Control of Rent and Eviction Act did not find favour with the learned Judges who decided the case of 1956 All LJ 787 (supra).

This is further made clear by the observations of the learned Judges that a composite notice or combined notice under Section 3 (1) (a) of the U. P. (Temporary) Control of Kent and Eviction Act and Section 106 of the Transfer of Property Act was a validand legal notice. It is implict, therefore, that the two periods can be synchronised by one notice.

N. S. Singhal strongly relied on the observations made by the learned Judges in tne case cited which were to the effect that as the suit for ejectment was filed after the expiry of the two periods, that is, the period of 15 days as provided in Section 106 of the Transfer of Property Act as it stood then and the period of one month as provided in Section 3 (1) (a) of the U. P. (Temporary) Control of Rent and Eviction Act, it was rightly instituted and urged that their Lordships laid down the law that both the periods should expire one after the other before a suit can be filed. I do not find any such words in the language used by the learned Judges that the two periods should expire one after the other or they should run consecutively and not concurrently. There is no such warrant for concluding that the learned Judges ruled out the concurrent running of the two periods and laid down a law that the suit for ejectment cannot be filed unless the two periods have run out consecutively i. e. one after the other.

It would be seen that the provisions of Clause (a) of Sub-section (1) of Section 3 of the Rent Control and Eviction Act lay down an exception to the generality of the prohibition contained in the opening part of Section 3 of that Act, namely, no suit without the permission of the District Magistrate can be filed by a landlord for ejectment of his tenant. Once the conditions laid down in that clause are satisfied the landlord is free to file a suit for ejectment. That is all what is the effect of those provisions. Whether a tenant is liable to be ejected when a suit is filed is not a matter in which the provisions of that clause come into play. It is the general law under the Transfer of Property Act which would then apply. Under Section 106 of the Transfer of Property Act, as amended in U. P., the tenancy is terminable by 30 days' notice. A composite notice, therefore, has to be read as if there were two separate notices sent to the tenant. One part of the notice calls upon him to pay the arrears due and the law casts a duty on the tenant to pay within 30 days and if he pays then the auit for ejectment would be barred and no further question will arise. But if he falls to do so then the right of the landlord to file a suit survives and the purpose of Section 3 (1) (a) of the Act is exhausted. Once the suit is filed the landlord will have to show that he has terminated the tenancy by 30 days' notice in order to comply with the provisions of Section 106 of the Transfer of Property Act. For this purpose he can fall back upon the same notice. This is what I think is the legal implication of holding that a combined notice or a composite notice is a valid notice. There is no warrant, therefore, for the proposition that though a combined notice is permissible but the notice of termination of the tenancy would be deemed to have been served and received by the tenant after the espiry of the first 30 days' period within which the tenant was called upon to pay the arrears. The argument that it would be an anomaly or contradiction in terms if a combined notice is permitted to effect the termination of the tenancy at the same time is fallacious.

As already observed above, the right to file a suit for ejectment is barred by Section 3 unless one of the exceptions is set up as provided under that section. The landlord is always free under the general law of Transfer of Property Act to terminate the tenancy. The provisions of the U. P. (Temporary) Control of Kent and Eviction Act, as I read them, do not affect the contract of tenancy and the applicability of the Transfer of Property Act except where the provisions of Rent Control and Eviction Act expressly or impliedly lay down to the contrary or are repugnant to any of the provisions of the Transfer of Property Act. It has been held by a Full Bench decision of this Court in Udhoo Dass v. Prem Prakash, 1963 All U 406 : (AIR 1964 All 1 F. B.) that a contract of tenancy which is not illegal or invalid under the general law of contract but the tenant has not obtained an allotment order under the provisions of Section 7 (2) of the U. P. (Temporary) Control of Rent and Eviction Act remains a valid contract and is not hit by Section 23 of the Contract Act. It follows from this decision that the rights and liabilities of the landlord and that of the tenant despite the provisions of the U. P. (Temporary) Control of Rent and Eviction Act continue to be governed by the Contract Act or the Transfer of Property Act and the only duty of the court would then be that where any provision of the Rent Control and Eviction Act appears to run counter or is repugnant to the provisions of the Contract Act or Transfer of Property Act to find out whether both can be reconciled as was done in the case of 1956 All L.J 787 (supra), cited by the learned counsel.

I do not find anything in the provisions of Clause (a) Sub-section (1) of Section 3 of the Act which impairs the right of the landlord to terminate the tenancy by notice given under Section 106 of the Transfer of Property Act. The only bar would be that he would not be able to file a suit for ejectment unless he has obtained the permission of the District Magistrate under Section 3 of the U. P. (Temporary) Control of Rent and Eviction Act or establish such facts or circumstances which make out the necessary exceptions provided under that section. A suit for ejectment can only be filed under the general law after the tenancy has been terminated by 30 days' notice or the tenant has forfeited the tenancy under the provisions of Section 111 of the Transfer of Property Act. Many of the provisions on the basis of which a tenancy stands forfeited under Section 111 of the Transfer of Property Act form part of the exceptions under Section 3 of the U. P. (Temporary) Control of Rent and Eviction Act. In this view of the matter I think there is no merit in the argument that a landlord has to wait for another 30 days before he can file a suit which he is free to file without permission of the District Magistrate as he had served a notice of demand on the tenant who failed to pay arrears within one month of the receipt of that notice. The right of the landlord to terminate the tenancy at any time is a right which is not at all affected by Section 3 of the U. P. (Temporary) Control of Rent and Eviction Act. This view has been taken in the case of Ahmad All v. Mohd. Jamal Uddin, 1963 All LJ 567 : (AIR 1963 All 581). I, amtherefore, unable to accept this argument of the learned counsel.

5. For the reasons given above I find no force in this appeal and dismiss it with costs. The defendant is granted three months' time within which tovacate the premises.


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