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Ahmad Ali Vs. Mohd. Jamal Uddin - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 242 of 1961
Judge
Reported inAIR1963All581
ActsTransfer of Property Act, 1882 - Sections 106 and 111; Uttar Pradesh (Temporary) Control of Rent and Eviction Act, 1947 - Sections 3(1), 7C(1), 7C(2) and 7C(6)
AppellantAhmad Ali
RespondentMohd. Jamal Uddin
Appellant AdvocateK.B. Sinha, Adv.
Respondent AdvocateMangi Lal, Adv.
DispositionAppeal allowed
Excerpt:
.....of lease - sections 106 and 111(h) of transfer of property act, 1882 - monthly lease - thirty days notice required for termination of lease - interpretation - 'your tenancy is terminated' - consistent with termination of notice in future. (iii) notice for rent - section 3(1) of u.p. (temporary) control of rent and eviction act, 1947 - restriction on right of landlord - filing of suit for ejectment - cause of action must be raised - it cannot be contended that the notice terminating the tenancy ought to be given after the notice of demand for arrears - notice for rent can be given independently. (iv) deposit of rent - section 7c (1), (2) and (6) of u.p. (temporary) control of rent and eviction act, 1947 - rent to be tendered to the landlord - rent is not paid to the landlord - held,..........was a tenancy from month to month 'terminable, on the part of either lessor or lessee, by thirty days' notice'. the respondent's tenancy could be terminated, as laid down in section 111(h) 'on the expiration of a notice to determine the lease, or to quit ..... duly given . . . . . ' by the appellant to the respondent. what is required by these provisions is that a notice terminating the tenancy should be given and that the tenancy is terminated on the expiry of thirty days. it was contended by sri mangi lal that the appellant by his notice terminated the respondent's tenancy on the date on which he gave the notice and not after thirty days but we do not read the notice in this sense. the appellant did not say in the notice that the respondent's tenancy was terminated on the date on.....
Judgment:

Desai, C.J.

1. This second appeal by a plaintiff whose suit for arrears of rent and ejectment of the respondent from an accommodation governed by the Rent Control and Eviction Act has been dismissed by the courts below, came up for hearing before one of us and he referred it to a larger Bench on account of conflict among various authorities of this Court. Sri K. B. Sinha for the appellant does not press the appeal as regards the arrears of rent and we are concerned only with the question of ejectment of the respondent. The facts giving rise to the dispute are as follows. In 1952 a Munsif acting under Section 5 (4) of the Act made an order fixing Rs. 15/- as the rent of the accommodation to be paid by the respondent to the appellant. The appellant sent by registered post a notice which was received by the respondent on 28-8-1958. The relevant contents of the notice were thus :

'Rent from 1-9-57 to 31-7-58 at a rate of Rs. 15/- per month amounting to Rs. 165/-are due which please pay.

Since my client does not wish to keep you a tenant your tenancy is terminated and you are hereby asked to vacate the premises in your occupation on the 30th day after the receipt of this notice failing which legal action shall be taken against you for the costs of which you shall be held responsible.'

The respondent did not pay the arrears to the appellant. Instead he deposited them in the court of a Munsiff on 15-9-58 with an application in which he alleged that he was depositing them on account of a bona fide doubt or dispute as to the person who was entitled to receive them. He did not allege in the application that he had tendered the arrears to the appellant and that he had refused to accept them. After the arrears were deposited the Munsiff issued notice to the parties and on 13-12-58 passed an order directing the arrears to be paid to the appellant. It will be noticed that the period of thirty days since the respondent's receiving the notice to pay the arrears had expired much before this date. The respondent also did not vacate and deliver possession over the accommodation to the appellant. Consequently the appellant instituted the suit giving rise to this appeal, for arrears of rent and ejectment. The suit was contested on several grounds which found favour with the courts below and they dismissed it.

2. The appellant gave one notice and that was both for terminating the tenancy of the respondent and for payment of the arrears. As regards the notice terminating the tenancy we find nothing illegal in it. It did not become illegal merely because it was accompanied by a demand for arrears of rent. A document purporting to have a legal effect may fail to achieve that effect if it lacks something but cannot fail to achieve it just because it contains a superfluous matter, unless the law makes it devoid of the effect on account of its containing the superfluous matter. There is nothing in Sections 106 and 111(h) of the Transfer of Property Act to indicate that if a notice terminating the tenancy contains another demand it is invalid or ceases to be a notice terminating the tenancy. It has been held by this Court that one notice terminating the tenancy and demanding arrears of rent is not invalid; see Jagat Narain Mehra v. Madan Lal, 1961 All LJ 442 in which Oak and Kailash Prasad, JJ., overruled Ram Krishna Prasad v. Mohd. Yahia : AIR1960All482 in which a contrary view was taken by Dhavan, J.

3. Another defect pointed out in the notice terminating the tenancy was that it terminated the tenancy on the date on which the notice was given and not after thirty days. Under Section 106 of the Transfer of Property Act the respondent's tenancy was a tenancy from month to month 'terminable, on the part of either lessor or lessee, by thirty days' notice'. The respondent's tenancy could be terminated, as laid down in Section 111(h) 'on the expiration of a notice to determine the lease, or to quit ..... duly given . . . . . ' by the appellant to the respondent. What is required by these provisions is that a notice terminating the tenancy should be given and that the tenancy is terminated on the expiry of thirty days.

It was contended by Sri Mangi Lal that the appellant by his notice terminated the respondent's tenancy on the date on which he gave the notice and not after thirty days but we do not read the notice in this sense. The appellant did not say in the notice that the respondent's tenancy was terminated on the date on which the notice was given; he wrote 'your tenancy is terminated' and not 'your tenancy is terminated today'. He used the present tense but it does not mean that he was terminating the tenancy in present : the present tense is quite consistent with the termination of the tenancy in futuro when the act by which the tenancy is to terminate in futuro is done in present. Since it was by the act of giving the notice that the tenancy was to be terminated he could say 'your tenancy is terminated.'' The tenancy of the respondent was terminated by the notice given by him and, therefore, on the date on which he gave, the notice he could say 'your tenancy is terminated'. What he meant was 'your tenancy is terminated after the expiry of thirty days, from the receipt of the notice'; this was made clear by the addition that he should vacate the accommodation on the 30th day after the receipt of the notice.

There is undoubtedly a distinction between terminating the tenancy at once and calling upon the tenant to deliver possession after 30 days and terminating tenancy after 30 days : in the former case the relationship of landlord and tenant comes to an end at once and the tenant is given a right to remain in possession for 30 days either as a licensee or as a tenant on sufferance, whereas in the latter case he remains a tenant for 30 days. But it is clear from the notice that the appellant did not intend to terminate the tenancy on the date on which he gave the notice; he did not give the respondent a right to remain in possession for 30 days as his licensee or a tenant on sufferance after the termination of his tenancy. He meant to retain him as his tenant for 30 days.

It is true that under the Transfer of Property Act only a notice to terminate the tenancy is required and not a notice to deliver possession because it is the tenant's own duty to deliver possession as soon as his tenancy is terminated, but it does not follow that a notice terminating the tenancy cannot include in it a demand for delivery of possession or that a notice to deliver possession means that the tenancy has already been terminated. The notice cannot be interpreted to mean a notice terminating the tenancy with immediate effect and calling upon the respondent to deliver possession after 30 days.

In this connection Bradley v. Atkinson ILR 7 All 899 (FB) was cited before us but this does not govern the facts of the instant case. The notice dealt with in that case was that if the tenant did not vacate within a month from the date of the notice the landlord would file a suit against him for ejectment and for arrears of rent and the Full Bench held that it was not a notice to quit at all inasmuch as it did not contain a notice of the lessor's intention to terminate the tenancy. The notice evidently only asked for delivery of possession without any reference to the termination of the tenancy and it was because of this that the Full Bench held that it was not a notice terminating the tenancy.

A notice terminating the tenancy may include a demand for possession but a notice only demanding possession cannot be interpreted as a notice terminating the tenancy. There is nothing to prevent a landlord's asking his tenant to deliver possession without his terminating the tenancy and this is what was done by the landlord in Bradley's case ILR 7 All 899 (FBJ. Since there was no termination of tenancy his suit for ejectment of the tenant was dismissed. It was observed by Straight, J, that the notice never gave any indication to the tenant that if he did not comply with the notice he would continue in possession as a trespasser. In the present case the appellant has clearly said that he was terminating the tenancy of the respondent and, therefore, the notice is quite different from the notice dealt with in the case of Bradley.

4. Another contention advanced on behalf of the respondent is that the notice terminating the tenancy should have been given after the notice demanding the arrears of rent. Section 3 (i) of the Rent, Control and Eviction Act lays down that 'no suit shall without the permission of the District Magistrate, be filed in any Civil Court against a tenant for his eviction from any accommodation, except on one or more of the following grounds :,

(a) that the tenant is in arrears of rent for more than three months and has failed to pay the same to the landlord within one month of the service upon him of a notice of demand.'

The appellant sued the respondent without the District Magistrate's permission on the ground that the respondent was in arrears of rent for more than three months and had failed to pay them to him within one month of the service upon him on 28-8-1958 of a notice of demand. What was contended on behalf of the respondent is that only after the period of one month had expired since the notice of demand the appellant could give a notice terminating his tenancy; this is nothing but confusing the right to terminate the tenancy with the right to file a suit for ejectment. Section 3 (i) restricts only the landlord's right to file a suit for ejectment. Before he can file a suit for ejectment he must have a cause of action and one of the causes of action is termination of the tenancy followed by the tenant's retention of possession. If the defendant's tenancy is terminated and he does not deliver possession as is his duty under the Transfer of Property Act a cause of action accrues to the landlord to sue for his ejectment.

Section 3 (i) comes into application at the time when the landlord intends to file a suit for his ejectment and not earlier. It does not at all deal with the accrual of the cause of action of with the termination of the tenancy. In Kuppuswami Ayyar v. Mahadeva : AIR1950Mad746 it was held that the Madras Rent Control Act, which is similar to ours, does not concern itself with the termination of leases. Therefore, a notice terminating the tenancy can be given regardless of the provisions of the Rent Control and Eviction Act. It can be given regardless of whether the tenant is in arrears of rent or not and whether he has paid the arrears within a month of the service upon him of a notice of demand or not.

After the tenancy has been terminated the landlord cannot file a suit against him unless he has obtained permission of the District Magistrate or the tenant has defaulted in payment of the arrears within one month of the service upon him of a notice of demand. This notice of demand might have been given at any time; there is nothing whatsoever in Section 3 (i) (a) to suggest that it should have been given at a particular time or should not have been given at a particular time. It is not required to have any relation with the notice terminating the tenancy; the two notices may be given in one document of they may be absolutely independent of each other. There is, therefore, no force in the contention that no notice to quit can be given unless the notice of demand has expired without the demand being satisfied.

It was open to the appellant to give the notice of demand simultaneously with the notice terminating the tenancy. It was for the respondent, if he wanted to escape liability for ejectment without the District Magistrate's permission to pay the arrears within a month of the service if the notice of demand. If he did not, the appellant was free to sue for his ejectment without the District Magistrate's permission and that is what has happened in the instant case. The respondent did not pay him the arrears of rent within a month of 28-8-58; so he became liable to be sued for ejectment on his tenancy being terminated after 30 days from 28-8-58,

5. The respondent could not take any advantage of the fact that he deposited the arrears in Court within 30 days. Under Section 7-C (1) when a landlord refuses to accept any rent the tenant may deposit it and continue to deposit it. Sub-section (2) is to the effect that 'where any bona fide doubt or dispute has arisen as to the person who is entitled to receive any rent referred to in Sub-section (i) in respect of any accommodation, the tenant may similarly deposit the rent stating the circumstances under which such, deposit is made.'

The rent is to be deposited in the Court of the Munsif having jurisdiction vide Sub-section (3). The Munsif then is required to give a notice of the deposit to the landlord who may withdraw the money on an application made by him to the Court. Sub-section (6) lays down that

'......... where a deposit has been made, as aforesaid, it shall be deemed that the rent has been duly paid by the tenant to the landlord.'

The respondent claimed that by virtue of the provision of Sub-section 6 he must be deemed to have duly paid the arrears to the appellant and that consequently he could not be sued without the District Magistrate's permission. There are several answers to this contention. One is that it has been found as a matter of fact that there was no bona fide doubt or dispute as to the person who was entitled to receive the arrears of rent. The respondent is bound by this finding of fact. When he had no bona fide doubt or dispute he could not deposit the arrears in the Munsif's Court and the deposit could not be said to be 'made as aforesaid' within the meaning of subsection (6). The respondent could claim that the arrears must be deemed 'to have been paid to the appellant only if he deposited them in the circum-stances mentioned in 'Sub-section (2) but it has been found that he did not deposit them in those circumstances. In the written statement of the suit he did not plead that it was on account of a bona fide doubt or dispute that he deposited them in the Munsif's Court. On the other hand; he pleaded that he deposited them in the Munsif's Court on account of the appellant's refusal to accept them when tendered. The Courts of fact have found that the respondent had not at all tendered the arrears to the appellant.

The language of Sub-section (2) of Section 7-C is rather odd. It applies only when there is bona fide doubt or dispute as to the person who is entitled to receive any rent referred to in Sub-section (i) and Sub-section (i) refers to rent which is tendered by the tenant and is refused by the landlord. So Sub-section (2) applies only when a landlord refuses to accept the rent and there is an addition, a bona fide doubt or dispute as to the person entitled to receive it. No real can be deposited under Sub-section (2) if it had not been previously tendered to the landlord. It has been found that the respondent did not tender the arrears to the appellant and, therefore, even if there was a bona fide doubt or dispute as to the person entitled to receive them, he could not deposit them in the Munsif's Court Lastly, Sub-section (6) only raises a legal fiction that the deposited rent will be deemed to have been paid to the landlord but the question still remains of the date on which it was deemed to be paid to the landlord. The respondent could escape liability to be sued for ejectment without the District Magistrate's permission only if he paid the rent to the appellant within 30 days of the notice of demand. Even if he had made the deposit under Section 7-C (2) and consequently the arrears were deemed to have been paid to the appellant, the question will still arise on what date he had paid them.

The appellant became entitled to receive them for the first time on 13-12-1958 when the Munsif passed the order in his favour. He can-not be deemed to have received them on an earlier date. It was the respondent himself who prevented his receiving them earlier by depositing them in the Munsif's Court and subjecting them to the procedure involving delay prescribed in Section 7-C. It was for him to show that he had paid the arrears to the appellant within 30 days from 28-8-958 and he has failed to do so. Nothing to the contrary was decided by Mithan Lal, J., in Khushro S. Ghandhi v. Ferdunji J. Ghan-dhi, 1962 All LJ 1086. He had found that the deposit was made under Sub-section (i) of Section 7, and the question of the date on which the tenant was to be deemed to have duly paid the arrears was not raised before him.

6. We find no substance in the last contention that the notice terminating the tenancy, was invalid because it called upon the respondent to deliver possession on the 30th day after the receipt of the notice. The notice certainly did not require the appellant to deliver possession at the first moment of the 30th day and allowed him to deliver possession at the last moment of that day. So long as he had the liberty to remain in possession up to the last moment of the 30th day he could not contend that he was required to vacate before the expiry of the 30th day. It was open to him to remain in possession up to the last moment of the 30th day and if he had delivered possession at the last moment of that day he would have fully complied with, the notice. He remained in possession for full 30 days and cannot be heard to say that he was required to vacate before the expiry of 30th day. In Kashi Pd. Gupta v. Rup Narain, 1962 RD 187 A. P. Srivastava and Jagdish Sahai, JJ., held that a notice terminating the tenancy within 30 days is invalid.

7. In the result we allow this appeal anddecree the appellant's suit for possession of theproperty in dispute with proportionate coststhroughout. The dismissal of the suit for arrearsof rent is maintained. The appeal is thus partlyallowed.


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