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Ram Chandra and anr. Vs. Lala Dulichand - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad High Court
Decided On
Case NumberFirst Appeal No. 358 of 1948
Judge
Reported inAIR1958All729
ActsUttar Pradesh Temporary Control of Rent and Eviction Act, 1947 - Sections 3; Transfer of Property Act, 1882 - Sections 106 and 111
AppellantRam Chandra and anr.
RespondentLala Dulichand
Appellant AdvocateS.N. Duwedi, ;H.N. Seth, ;K.L. Misra, ;V.P. Misra, ;G.S. Pathak, ;P.C. Chaturvedi, ;Prem Narain Shukla and ;N.P. Asthana, Advs.
Respondent AdvocateS.K. Tewari, ;Schita Nand Sahai, ;Jagdish Swarup and ;Gopi Krishna Sahai, Advs.
Excerpt:
.....dated 18-7-47. i therefore call upon you to definitely vacate ram hall by 10-10-1947, and deliver possession of the same to my client along with the other articles offurniture and electric fittings etc. but it was a notice which required the respondent to quit so that it satisfied one of :the requirements of section 111 of the transfer of property act. of course, the further requirement that the notice should be such as to make the lease terminable with the end of a month of tenancy, has also to be satisfied. a physical act like that had to be formed some time on 10-10-1947. it cannot be said in these circumstances that if the appellant mentioned the whole of that date, he intended to recognise the respondent as his tenant for the whole of that date. 285 (d). consequently, we hold..........lower court as according to the lower court the tenancy was still continuing, which was a month to month tenancy and a full period of month not having expired during this period, no decree for arrears of rent for this fraction of the month could be granted.in this appeal it has been urged on behalf of the appellant that the lower court was wrong in dismissing the suit for ejectment, as the permission granted by the district magistrate under section 3 of the u. p. control of rent and eviction act was sufficient by itself to make the suit maintainable even without the existence of any of the other grounds mentioned in clauses (a) to (f) of section 3 of that act and the lower court was wrong in holding that the tenancy had not been terminated by the notices mentioned above in accordance.....
Judgment:

V. Bhargava, J.

1. This is a plaintiff's first appeal arising out of a suit for ejectment of the defendant, who was a tenant of the plaintiff-appellant, of a cinema building known as Ram Hall in Kanpur. The plaintiff also sued for arrears of rent and for mesne profits for the period during which, according to the plaintiff, the defendant continued in possession after the tenancy had come to an end. According to the plaintiff, the tenancy was terminated by a notice dated 9-4-1946 calling upon the defendant to vacate the building in suit after 10-5-1946 after 12 O'clock in the night. The plaintiff also gave another subsequent notice dated 13-9-1947, in which he called upon the defendant to vacate Ram Hall by 10-10-1947 and deliver the possession of it to the plaintiff.

Though the claim, as framed, based the case on ejectment on the earlier notice dated 9-4-1946, it appears that the subsequent notice dated 13-9-1947 was also mentioned in the plaint and during the trial of the suit reliance was placed on this subsequent notice also as having the effect of determining the lease in favour of the defendant. Before the suit was instituted the plaintiff had obtained permission of the District Magistrate for instituting the suit to eject the defendant under Section 3 of the U. P. Temporary Control of Rent and Eviction Ordinance, which was subsequently replaced by the U. P. Control of Rent and Eviction Act, The suit was instituted on 5-11-1947, on which date the U. P. Temporary Control of Rent and Eviction Act had already been promulgated and had come into force.

2. The lower court dismissed the suit for ejectment on two grounds. One ground was that the mere permission under Section 3 of the U. P. Control of Rent and Eviction Act granted by the District Magistrate did not empower the plaintiff to bring the suit for ejectment, unless he could also show the existence of one or more of the other grounds mentioned in Clauses (a) to (f) of Section 3 of that Act. The second ground on which the suit was dismissed was that neither of the notices relied upon by the plaintiff for termination of the tenancy was a valid notice, so that there had been no termination of the tenancy in accordance with the requirements of the Transfer of Property Act,

In the light of these findings the suit for ejectment was dismissed. The suit for mesne profits also consequently failed. The court granted a decree for arrears of rent upto 9-10-1947 only. No decree for arrears of rent for the period after 9-10-1947 and upto the date of the suit could be granted on the findings given by the lower court as according to the lower court the tenancy was still continuing, which was a month to month tenancy and a full period of month not having expired during this period, no decree for arrears of rent for this fraction of the month could be granted.

In this appeal it has been urged on behalf of the appellant that the lower court was wrong in dismissing the suit for ejectment, as the permission granted by the District Magistrate under Section 3 of the U. P. Control of Rent and Eviction Act was sufficient by itself to make the suit maintainable even without the existence of any of the other grounds mentioned in Clauses (a) to (f) of Section 3 of that Act and the lower court was wrong in holding that the tenancy had not been terminated by the notices mentioned above in accordance with the provisions of the Transfer of Property Act.

During the course of the arguments However it was conceded By the learned counsel that in claiming the termination of tenancy by notice in accordance with the Transfer of Property Act, the plaintiff could not rely on the first notice dated 9-4-1946 so that the tenancy did not terminate on the expiry of the period fixed by that notice. Reliance was placed only on the second notice dated 13-9-1947 under which it was claimed that the tenancy came to an end on the midnight of 9-10-1947 and it is thereafter that the appellant got the right to bring the suit for ejectment.

In the circumstances, the appellant did not challenge the correctness of the decree passed by the lower court for arrears of rent in respect of the period ending on 9-10-1947, which' left a claim for mesne profits for the period between that date and the date of institution of the suit. So far as mesne profits for this latter period is concerned, Sri V. P. Misra. learned counsel for the appellant, made a statement that the appellant desires to give up his claim for mesne profits for this period and does not want a decree to be passed in respect or it in this appeal, even if his suit is decreed and it is held thatthe tenancy of the defendant respondent had terminated on the midnight of 9-10-1947. In view of this statement made, the only point that arises in this appeal is whether the suit for ejectment has been rightly dismissed by the lower court or not.

3. The first ground on which the suit for ejectment has been dismissed by the lower court based on the provisions of Section 3 of the U. P. Control of Rent and Eviction Act of 1947, hardly needs any consideration or discussion by this Court now. The point is now well settled. There was a decision of a learned single Judge of the former Chief Court of Oudh in which it was held that, even if the landlord had obtained permission for filing a suit for ejectment against his tenant under Section 3 of the U. P. Control of Rent and Evictipn Act, that permission would not make the suit maintainable unless the ejectment was sought on one or more of the grounds mentioned in Clauses (a) to (f) of Section 3 of the Act

That decision was followed by the lower court; but, since then, the correct position of law has been laid down in a series of decisions of this Court and, further by the Amending Act an explanation was added by which it was clarified by the Legislature that, for bringing a suit for ejectment with the permission of the District Magistrate under Section 3 of the Act, the existence of one of the grounds mentioned in Clauses (a) to (f) of Section 3 of that Act was not necessary and was to deemed never to have been necessary. It does not appear to be necessary to refer to the various decisions in which this point has now been laid down by this Court.

We may, however, cite a Division Bench decision of this Court in Ghansyam Das v. Gulab Chand, 1951 All LJ, 616 : (AIR 1932 All 624) (A) and a Full Bench decision in Bhagwan Das v. L. Pyare Lal : AIR1955All19 . In the latter case the effect of the permission granted under Section 3 by the District Magistrate was considered in connection with a suit which was covered by Section 15 of the Act and the Full Bench case clearly held that, when the permission of the District Magistrate had been obtained for filing a suit for ejectment under Section 3 of the Act, the existence of the grounds under Clauses (a) to (f) of Section 3 of the Act was not at alii necessary. In view of this decision by this Court.|_ even the learned counsel for the respondent did not try to support the decision of the lower court on this point.

4. There remains the question whether the tenancy was actually determined in accordance with the provisions of the Transfer of Property Act, by the notice dated 13-9-1947. This is the point on which arguments have mainly been advanced before us by the learned counsel for the parties. In order to appreciate the arguments, it appears to be necessary to quote the relevant part of this notice. The notice was given by the plaintiff appellant through a lawyer and the relevant part of it is as follows :

'Under instructions from my client, Pt. Ishwar Narain Bajpai, owner Rom Hall No. 26/72, Patkapur, Kanpur, I have to write to you'that you have failed to vacate the premises of Ram Hall, 26/72, Patkapur in spite of my notice1 dated 9-4-46 and the order of the District Magistrate Kanpur dated 18-7-47. I therefore call upon you to definitely vacate Ram Hall by 10-10-1947, and deliver possession of the same to my client along with the other articles offurniture and electric fittings etc. You are further required to pay Rs. 1245-0-0 on account of arrears of rent for the period ending. 10-5-46 and Rs. 23,310-0-0 on account of damages till 10-10-47 at the rate of Rs. 45-0-0 per day.

'In case of non-compliance with this notice, which is being given without prejudice and without waiving my previous notice dated 9-4-46 legal steps shall be taken against you. .....'

In connection with the consideration of the effect of this notice, two points have mainly come up for examination by us. One is whether this notice was at all of the type of notice contemplated by Section 106 of the Transfer of Property Act, the argument being that the language of the notice itself indicates that by this notice the landlord did not communicate to his tenant his intention of terminating the tenancy by 10-10-1947, but was merely asking for being given possession of Ram Hall on its being vacated by the tenant, relying on the fact that the tenancy had already terminated as a result of the previous notice dated 9-4-1947. It was therefore urged that this was really not a notice to determine the tenancy at all but was merely a notice to the person who was already being treated as a trespasser, his tenancy being held to have terminated already as a result of the earlier notice, asking him to vacate the premises and deliver possession to the landlord.

5. The second point urged was that, in any case, the notice was not valid and in accordance with sec-lion 106 of the Transfer of Property Act, because the period fixed by the notice was expressed as 'by 10-10-1947'. This period was not the period ending with the end of the month of the tenancy.

6. So far as the first point is concerned, it appears to us that there is substance in the argument advanced on behalf of the respondent that by this notice the appellant had not conveyed to the respondent his intention to terminate the tenancy by 10-10-1947. He was actually claiming damages at the rate of Rs. 45/- per day lor the period which began after the earlier termination of the tenancy and was to end on the day on which the respondent was called upon to vacate the building and deliver possession to the appellant by this notice dated 13-9-1947. When such a notice was received by the respondent, the respondent could naturally infer from it only that the appellant desired his vacation because of the earlier termination of tenancy and it is not reasonable to expect that the respondent would further infer that the appellant wanted this notice to be read us indicating his intention to determine- the tenancy by service of this notice with effect from the date mentioned in it.

We are therefore unable to accept the contention of the learned counsel for the appellant that this was a notice to determine the tenancy. On behalf of the appellant, reliance has been placed on this notice, however, on the ground that it was a notice to quit and even such a notice was sufficient to determine the tenancy. The words used in the notice, catting upon the respondent to vacate the Hall by 10-10-1947, and calling upon him to deliver possession of it to the appellant, expressed in clear and unequivocal terms a demand by the appellant that the respondent should quit by vacating and delivering possession to the appellant.

Under Section 111 of the Transfer of Propertv Act, the lease of an immovable property terminates on the expiry of a notice to determine the lease or to quit or of intention to quit. It is to be noticed that this provision of law contains three alternatives. The determination of a lease is brought about (1) by notice to determine the lease; (2) by notice to quit; and (3) by notice of intention to quit. In the present case, as we have held above, we are not prepared to agree with learned counsel for the appellant that this notice dated 13-9-1957 was a notice to determine the lease, as in our opinion it did not convey such an intention. But it was a notice which required the respondent to quit so that it satisfied one of : the requirements of Section 111 of the Transfer of Property Act.

It was urged by Sri Jagdish Swarup, learned counsel for the respondent, that for determining a lease which is covered by Section 106 of the Transfer of Property Act, the notice that should be given is a notice to determine the lease and a notice to quit would not be a notice satisfying the requirements of Section 106 of the Transfer of Property Act. We are unable to accept this contention. Section 106 does not in plain words lay down what should be the contents of a notice under that provision. In the case of a lease which is deemed to be a lease from montli to montli, Section 106 of the Transfer of Property Act makes it terminable, on the part of either the lessor or the lessee, by fifteen days' notice expiring with the end of a montli of tenancy. The language used in this section shows that the primary object of it is merely to lay down the legal effect of a lease of immovable property, which is granted for a purpose other than agricultural or manufacturing purpose and which is not governed by special terms of a contract or local law or usage to the contrary. Such a lease is terminable on the initiative of either party to the lease and the termination must be by fifteen days' notice expiring with the end of a montli of tenancy. This section thus does not indicate what should be the nature of the notice by which the lease is terminable. All that it lays down is that the lease is terminable by a notice, and consequently, we consider that a lease governed by this section will be terminable by any notice which, under any other provision of law, can determine the lease. Under Section 111 of the Transfer of Property Act, a lease can be determined by a notice to determine the lease, or a notice to quit, or a notice of intention to quit the property. Since the nature of the notice required by Section 106 is not indicated in that provision of law, the conclusion is that even a lease governed by1 Section 106 of the Transfer of Property Act can be determined by a notice which complies with the requirements of Section 111 of the Transfer of Property Act. Under Section 111, as we have mentioned above, the notice can be of one- out of three different natures, viz., (1) a notice to determine the lease; (2) a notice to quit; and (3) a notice of intention to quit. A lease governed by Section 106 of the Transfer of Property Act is thus terminable by a notice of any of these three kinds. Of course, the further requirement that the notice should be such as to make the lease terminable with the end of a month of tenancy, has also to be satisfied. Section 106 of the Transfer of Property Act does not restrict a notice under it to a notice to determine the lease only. In the present case, therefore, the notice to quit given on behalfof the appellant on 13-9-1947, was a notice which satisfies the requirements of both sections of the Transfer of Property Act; Subject, of course, to the consideration of the further point whether the time fixed by the notice was or was not in accordance with the requirements of Section 106 of the Transfer of Property Act.

At one stage, some doubt was cast on the question whether the notice to quit mentioned in Clause (h) of Section 111 of the Act, was a notice which could be given by the lessee only and not by the lessor. But we have been referred to a number of decisions of various courts including courts in England, the Privy Council and certain courts in India, which have . all described a notice by the landlord to vacate a rented property as a notice to quit. It does not appear to be necessary for us to refer to the various decisions in detail. ,

The most important case being that of the Privy Council, we consider it enough to mention it. It is the case of Harihar Bannerji v. Ramshashi Roy, ILR 46 Cal 458 : (AIR 1918 PC 102) (C). In these circumstances, we now proceed to examine the next question whether this notice complies with the further requirement of Section 106 of the Transfer of Property Act that the period fixed by it ended with the month of tenancy.

7. In the notice, the appellant had called upon the respondent to vacate this building by 10-10-1946. The lease under which the respondent had obtained this building from the appellant was executed on 9-7-1941. According to the terms of the lease, the respondent had taken on rent, at the rate of Rs. 350/-per month, the building Ram Hall together with five shops facing towards the south along with the booking office and manager's rooms. It was further laid down that the date of tenancy was to commence from the 10th of every English month and was to end on the 9th of every English month.

The tenure of the tenancy was fixed at the period of three years. The period of three years expired on 9-7-1944. Thereafter admittedly the respondent continued in possession. The rent was payable monthly. The respondent thereupon became a tenant by holding over under Section 116 of the Transfer of Property Act. Since monthly rent was payable or deemed to be reserved, the tenancy had to be deemed to be a tenancy from month to month. Under Section 106 of the Transfer of Property Act, therefore, the notice to quit had to fix a period expiring with the end of the month of tenancy.

The language of the lease mentioned above shows that the month of the tenancy expired on the 9th of every month according to the English calendar. In October, 1947, therefore, the period of the month of tenancy expired with the expiry of 9-10-1947, and consequently the notice required to be given under Section 106 o the Transfer of Property Act, had to be a notice calling upon the respondent to vacate with the end of the day, 9-10-1947.

In the notice, the language used is that the respondent is to vacate 'by 10-10-1947.' There was controversy about the meaning of the word 'by.' On looking up the Shorter Oxford Dictionary, we find that the word 'by' means 'on or before but not later than.' This means that in the present case, the appellant called upon the respondent to vacate Ram Hall 'on or before 10-10-1947 but not laterthan that date.' The date 10-10-1947 began after the midnight of 9-10-1947.

The notice thus called upon the respondent to vacate Ram Hall at any time which began after the midnight of 9-10-1947. If the Hall was to be vacated one minute after that midnight, it would be a vacation on 10-10-1947 and would also be not later than 10-10-1947. Of course, as contended by Sri Jagdish Swamp, in this notice the respondent was desired to vacate the premises at any time on 10-10-1957, but this to us appears to be immaterial.

The notice had called upon the respondent to vacate the premises as soon as the midnight of 9-10-1947 expired. Naturally, an act of vacation would not be performed simultaneously with midnight. A physical act like that had to be formed some time on 10-10-1947. It cannot be said in these circumstances that if the appellant mentioned the whole of that date, he intended to recognise the respondent as his tenant for the whole of that date.

If the appellant had so intended, he could not have possibly called upon the respondent to vacate the Hall after the expiry of the midnight of 9th October, as a person who continued to be a tenant on the 10th October, could be called upon to vacate until the midnight of 10-10-1947. The language used in this notice is one requiring him to vacate the premises immediately after the midnight of 9-10-1947, but the Period following that midnight, during which he could do so, was a period of twenty four hours.

As we have stated above, a reasonable period has to be given because such an act cannot be timed so as to be simultaneous with the expiry of the midnight of the date on which the month of tenancy is expiring. When a reasonable period had to be fixed, it cannot be said that the period of twenty-four hours was unreasonable or that it was intended to extend the tenancy for the whole of these twenty four hours. Our view is also supported by the decision of a Division Bench of this Court in Durga Prasad v. Ramakant, 1951 All L. J. 285 (D).

Consequently, we hold that this notice of 13-9-1947 satisfied the requirements of both Sections 106 and 111 of the Transfer of Property Act, and, as a result of the service of this notice, the tenancy of the respondent was determined with effect from the midnight of 9-10-1947. The suit for ejectment should therefore have been decreed by the lower court.

8. As we have held above, so far as the decree for arrears of rent granted bv the lower court is concerned it needs no variation and so far as the decree for the mesne profits for the period between the determination of the lease and the date of the suit is concerned, that claim has already been given up by the appellant. A question also arose whether a decree should be made for mesne profits for the pendente lite period, but we do not propose to go into that question as an agreed statement was made by the learned Counsel that for the mesne profits for this period, separate suits have already been instituted. Learned Counsel for the respondent pressed only one other point, which according to him arose as a result of our proposed order of allowing the appeal and decreeing the suit for ejectment, In the lower Court, it was claimed by the respondent that a sum of Rs. 1000/- had been givenas an advance by the respondent to the appellant and that amount should be adjusted towards arrears of rent on termination of the tenancy. The lower Court refused this adjustment on the ground that the suit for ejectment was being dismissed by the court and on dismissal of the suit for ejectment it would be premature to make adjustments. In addition to the question of adjustment of advance, there was also a request made on behalf of the respondent that, considering the nature of the property which is a cinema hail, the respondent should be granted a reasonable time to vacate the Hall so that he might not be put to a heavy loss.

Reference was made to the fact that the respondent had entered into contracts with distributors of films and in case he was dispossessed immediately he might become liable for breach of contracts. In the circumstances we discussed the point with learned Counsel for the parties who were instructed by their clients and an agreed arrangement has been arrived at. The arrangement is that the respondent will be granted six months' time during which decree will not be executed.

For this period, the respondent will deposit in Court or pay to the appellant compensation at the rafe of Rs, 750/- per month. As has been mentioned above, an advance of Rs. 1000/- is already in the hands of the appellant. The compensation payable for the first one month shall be adjusted towards this advance of Rs. 1000/- so that there will be a balance of Rs. 250/- left on the expiry of the month. On or before 18-13-1957, the respondent will deposit in the lower Court a further sum of Rs. 500/-, which taken together with the balance of Rs. 250/-in the hands of the appellant, will make up the sum due for the next one month.

Thereafter, the respondent will make four furtherdeposits of Rs. 750/- each on or before the 18th ofeach succeeding month. If he defaults in makingany of these deposits within the time allowed, thedecree for ejectment will become liable to immediateexecution. We order accordingly. The appellantwill be entitled to half his costs from the respondentin both the Courts.


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