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Budh Sen Vs. Smt. Rahiman - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 30 of 1970
Judge
Reported inAIR1978All549
ActsTransfer of Property Act, 1882 - Sections 106; Code of Civil Procedure (CPC) , 1908 - Sections 100
AppellantBudh Sen
RespondentSmt. Rahiman
Advocates:Krishna Murari Sinha, Adv.
DispositionAppeal allowed
Excerpt:
.....the words used in the notice as a whole, the mere fact that the expression that tenancy was being terminated is not used, would not render the notice invalid. in fact, the recital in that notice that in case the premises were not vacated within a month from the date of the notice a suit will be filed for the ejectment of the tenant as well as for recovery of rent and that too at the enhanced rate, were interpreted to mean that what was intended was not to terminate the tenancy but to require the tenant to pay rent at an enhanced rate......in that notice that in case the premises were not vacated within a month from the date of the notice a suit will be filed for the ejectment of the tenant as well as for recovery of rent and that too at the enhanced rate, were interpreted to mean that what was intended was not to terminate the tenancy but to require the tenant to pay rent at an enhanced rate.7. whether or not the intention of the landlord is to terminate the tenancy through the notice given to the tenant is essentially a question of fact to be inferred from the language used in the notice. if the intention to terminate the tenancy can reasonably be inferred, the mere absence of words expressly terminating the tenancy has no significance. in my opinion, the view taken by the lower appellate court in this regard cannot.....
Judgment:

V.K. Mehrotra, J.

1. This is a plaintiff's appeal who is the landlord of the premises in dispute.

2. The appellant brought the suit against the defendant for her ejectment on the ground of default in payment of rent as also for recovery of the amount due as arrears of rent. He had further claimed damages for use and occupation of the premises in question for the period of the pendency of the suit as also future interest.

3. The trial court decreed the suit on the finding that the defendant had committed default in payment of rent and was consequently liable for ejectment. It negatived the objection of the defendant that the notice (Ext. 1) under Section 106 of the Transfer of Property Act was invalid.

4. The defendant-respondent appealed. The lower appellate court affirmed the findings of the trial court on the question of there being a default by the tenant and maintained the decree as regards the recovery of arrears of rent for the period in question and of the amount of interest thereon. It, however, dismissed the suit in so far as it related to the relief for ejectment of the tenant? It also set aside the trial court decree as regards pendente lite and future damages. In reversing the decree for ejectment of the defendant-respondent, the lower appellate court took the view that the notice (Ext. 1) was invalid, inasmuch as, it did not constitute a notice terminating the tenancy of the defendant-respondent. In arriving at that conclusion, the lower appellate court relied upon a decision of this court in the case of Bradley v. Atkinson ((1885) ILR 7 All 899) (FB). It held that the language of the notice in the present case was akin to that in the aforesaid decision which had taken the view that a notice of the kind which was before this Court in Bradley v. Atkinson did not amount to a valid notice to quit.

5. Learned counsel for the appellant has assailed the view taken by the lower appellate court. He has urged that a perusal of the notice in its entirety clearly establishes an intention on the part of the plaintiff-appellant to terminate the tenancy of the defendant-respondent and, inasmuch as, no particular form of notice under Section 106 of the T. P. Act is prescribed by law, the notice given to the defendant-respondent in the instant case could not be said to be invalid. He has also placed reliance, in support of his submission, upon the judgment of a learned single Judge in the case of Rajendra Kumar v. Smt. Maya Devi (1968 All WR (HC) 854) (decided by Hon. K.B. Asthana, J. as he then was).

6. I have gone through the notice which was sent by the plaintiff-appellant to the defendant-respondent. The relevant portion of the notice runs thus:--

'Aap ko mujhe kiraya 21-6-1967 lagayat 20-3-1968 tak ka kiraya Rs. 54/- alawa water tax wa sood aap key jummey wajib hae. Aap notice pahunchane ke ek maah men kiraya wa sud ada kar den warna default ho jayega aur yasi surat me aap ko wajib hae ki ek maas makan men qabiz wa deakhil rah kar qabza hamarey men deiden aur makan ki halat khasta aur najuk hae, kutch hissa gir bhi gia hai isliye khali kar deejiye warna miyad guzar ney notice aap key khilaf karrwai dakhl wa wasuli kiraya adalat me kee jawegi.'

A reading of the notice aforesaid would show that the plaintiff-appellant had clearly expressed an intention that he did not wish the defendant-respondent to continue in possession of the premises after the expiry of the period of one month. It is true that in this notice it has not been stated that the tenancy of the defendant-respondent was being terminated. However, if an intention to terminate the tenancy can be clearly discerned by construing the words used in the notice as a whole, the mere fact that the expression that tenancy was being terminated is not used, would not render the notice invalid. The language which has been used in the notice given by the plaintiff-appellant to the defendant respondent, does unmistakably evince an intention on the part of the plaintiff-appellant not to continue the tenancy of the defendant-respondent. In the case before this Court in Bradley v. Atkinson (1885 ILR 7 All 899) (FB) the notice did not contain any word from which the intention of the owner to terminate the tenancy of the tenant could be inferred. In fact, the recital in that notice that in case the premises were not vacated within a month from the date of the notice a suit will be filed for the ejectment of the tenant as well as for recovery of rent and that too at the enhanced rate, were interpreted to mean that what was intended was not to terminate the tenancy but to require the tenant to pay rent at an enhanced rate.

7. Whether or not the intention of the landlord is to terminate the tenancy through the notice given to the tenant is essentially a question of fact to be inferred from the language used in the notice. If the intention to terminate the tenancy can reasonably be inferred, the mere absence of words expressly terminating the tenancy has no significance. In my opinion, the view taken by the lower appellate court in this regard cannot be sustained.

8. In the result, the appeal succeeds and is allowed. The decree of the lower appellate court, in so far as it dismissed the plaintiff's suit, is set aside and that of the trial court is restored in its entirety. No one has appeared on behalf of the defendant-respondent at the hearing of this case even though she was personally served with the notice of the appeal. In the circumstances of the case, however, I direct the parties to bear their costs throughout.


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