Skip to content


Ram Gopal Vs. Man Chand - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 1126 of 1968
Judge
Reported inAIR1981All352
ActsCode of Civil Procedure (CPC) , 1908 - Order 6, Rule 17; Uttar Pradesh (Temporary) Control of Rent and Eviction Act, 1947 - Sections 3(1); Transfer of Property Act, 1882 - Sections 106 and 111; Uttar Pradesh Transfer of Property (Amendment) Act
AppellantRam Gopal
RespondentMan Chand
Appellant AdvocateRama Nand, Adv.
Respondent AdvocateSantosh Kumar and ;A.K. Banerji, Advs.
DispositionAppeal allowed
Excerpt:
(i) tenancy - amendment in pleading - order 6 rule 17 of code of civil procedure,1908 and u. p. (temporary) control of rent and eviction act,1947 - amendment of petition filed under u. p. (temporary) control of rent and eviction act,1947 - held, amendment does not change cause of action or nature of petition. (ii) appeal not allowed - order 6 rule 17 of code of civil procedure,1908 - amendment application was allowed subject to cost - cost was received by opposite party - party cannot subsequently file appeal. (iii) notice to vacate - section 106 of transfer of property act,1882 - tenant asked to vacate - less then 30 days notice not valid. - - in the result the lower appellate court decreed the suit for ejectment as well as recovery of mesne profits at the rate of rs. where the.....deoki nandan, j.1. this is defendant's second appeal in a suit for ejectment from, and rent and damages in respect of a shop.2. the appellant became a tenant of the shop in the year 1962 under a sarkhat dated 3rd march, 1962, on payment of rs. 32/- p. m. as rent. by a notice dated 12th july, 1966 rent for the period of 18 months from 3rd january; 1965 to 2nd july, 1966 was demanded from the appellant and his tenancy was also purported to be terminated by the same notice (ext. 1) with effect from 12th august, 1966. a reply dated 20th july, 1966 was sent by the defendant and the rent demanded was also remitted in full by money-order on 27th july, 1966. but the plaintiff refused to receive the same on 5th august, 1966, whereupon it is said to have been deposited in court under section 7-c of.....
Judgment:

Deoki Nandan, J.

1. This is defendant's second appeal in a suit for ejectment from, and rent and damages in respect of a shop.

2. The appellant became a tenant of the shop in the year 1962 under a Sarkhat dated 3rd March, 1962, on payment of Rs. 32/- p. m. as rent. By a notice dated 12th July, 1966 rent for the period of 18 months from 3rd January; 1965 to 2nd July, 1966 was demanded from the appellant and his tenancy was also purported to be terminated by the same notice (Ext. 1) with effect from 12th August, 1966. A reply dated 20th July, 1966 was sent by the defendant and the rent demanded was also remitted in full by money-order on 27th July, 1966. But the plaintiff refused to receive the same on 5th August, 1966, whereupon it is said to have been deposited in Court under Section 7-C of the U. P. (Temporary) Control of Rent & Eviction Act, III of 1947, on the 9th August, 1966, vide Ex. A-3.

3. The notice dated 12th July, 1966, expressly stated that if the rent demanded was not paid within '30 days' of its receipt the defendant-appellant would be liable to be evicted under Section 3 (a) of the 'U. P. Rent Control and Eviction Act.' It further stated that the plaintiff-respondent, since deceased and now represented by his legal representatives, did not want to keep the defendant-appellant as tenant in the house, hence his tenancy was terminated from 12th August, 1966 and he was given notice to vacate the house and deliver possession of the house and pay the rent till then to the plaintiff, by that date (12th August 1966) or within such time as he, the defendant thought was the legal limitation for vacating the house.

4. In the plaint also there is an express mention of the said notice as a notice under Section 3 of the 'U. P. Rent Control Act' and Section 106 of the T. P. Act', in paragraph 3 thereof; and again in paragraph 7 thereof wherein the dates of the accrual of cause of action are given. It can thus be said that the plaintiff deemed the giving of notice under Section 3 of the U. P. Act number III of 1947 as an integral, essential part of the cause of action, as pleaded in the plaint.

5. The defence set up by the defendant-appellant in his written statement filed on 9th November 1966 was that the rate of rent agreed upon was Rs. 25/-p. m. although the plaintiff had by coercion obtained the rent note for Rs. 32/- p. m., and other such pleas were also raised, but the material pleas were that the defendant had remitted the rent by money-order and on the plaintiff's refusal to receive it, he had deposited it in Court under Section 7-C; that he was not a defaulter and the suit was barred by Section 3 of the 'Control of Rent and Eviction Act'; and that in any case the notice under Section 106 of the 'T. P. Act' was against law and the plaintiff could not evict the defendant from the shop on its basis.

6. After the defendant had filed his written statement the plaintiff moved an application dated 18th January 1967 for amendment of the plaint stating therein that he was ignorant of court proceedings and had got the notice under Section 106 of the Transfer of Property Act written at Baraut, (the town where the accommodation is situate which did not have any civil courts there but was a Tehsil headquarter) and that because of ignorance (obviously of the person who drafted the 'notice and of the plaintiff) Section 3 of the 'Rent Control Act' was mentioned in the notice, which was wrong; and that in fact the shop in suit along with another shop and the plaintiff's house had been constructed in the year 1952 and the 'Rent Control Act' did not apply to them; and that therefore he may be permitted to amend the plaint by inserting paragraph 3-A in the plaint to the effect that the shop in suit was constructed after 1951, that is in 1952 and the 'Rent Control Act' was not applicable to the matter. The application was allowed by the trial Court's order dated 10th April, 1967, which reads as under.-

'This is a suit for possession and rent. The plaintiff has moved 11A1, application for amendment of the plaint on the grounds that some mistakes had been made in the issue of notice. This application has been contested by 12C2 objection of the defendant stating that nature of the suit was being changed by the amendment application,

'I have heard the learned counsel for the parties and come to the conclusion that the mistake is of a serious nature. But in the interest of justice the mistake can be compensated by allowing costs to the defendant. Moreover it will be in the interest of party also to avoid multiplicity of proceedings on the same point. I therefore allow 11 A1 amendment application subject to the payment of Rs. 25/- as costs to the defendant. Let plaint be amended within seven days and costs be paid before this period. Register No. 3 should also be amended if necessary. The defendant may file additional W. S. by 25-4-1967'.

7. The plaint having been amended the defendant filed an additional written statement pleading that the shop in suit was not constructed in 1952 but had been constructed before 1951 and that the 'Rent Control and Eviction Act' was applicable thereto and he was not liable to be evicted therefrom.

8. The application for amendment of the plaint was made on the first date of hearing, i.e., the first date on which the case was taken up for framing issues. Consequently the issues were framed after the disposal of the amendment application as aforesaid. The issues framed were :--

'1. Whether shop in suit was constructed in the year 1952 A. D. or in the year 1947-49 A.D.?

2. Whether provisions of U. P. Control of Rent and Eviction Act are not applicable to shop in suit?

3. Whether the rent has been in arrears since 3-1-1965?

4. Whether the notice is invalid?

5. Whether suit is barred by Section 3 (1) of U. P. Control of Rent and Eviction Act?

6. Whether the plaintiff is entitled to recover mesne profits? If so at what rate?

7. To what relief, if any, is the plaintiff entitled?'

9. After the issues were read over and the documents filed, the plaintiff's counsel stated under Order X C. P. C. that the plaintiff does not rely on 'the alternative case of default within the meaning of Section 3 (1) (a) of U. P. Act No. III of 1947.'

10. The result was that the basic issue of fact which remained to be determined in the case was issue No. 1, and if it were answered in the plaintiff's favour the only other issue which could be said to arise was issue No. 4, and if the notice was also found valid, the further issue which arose was issue No. 6, the answers to issues Nos. 2 and 5 being consequential to and dependent on the answer to issue No. 1, in view of the proof of payment of rent demanded by deposit under, Section 7-C, on refusal of it by the plaintiff.

11. On a consideration of the evidence on the record the trial court held on issues Nos. 1, 2, 3 & 5, which were taken up together for consideration by it, that the shop in suit was constructed in or about the year 1947, i.e., before 1-1-1951, and was not constructed in 1952, and the provisions of U. P. Act No. III of 1947 were applicable to it; and that the rent from 3-1-1965 was in arrears against the defendant but the suit was barred by Section 3 (1) of the Act. On issue No. 4, the trial Court held that the notice was invalid as it gave less than 30 days for termination of the tenancy and also because the tenancy could not be terminated due to the protection provided by Section 3 of U. P. Act No. III of 1947; on issue No. 6 that the question of mesne profits did not arise; and on issue No. 7 that the plaintiff was not entitled to the relief of ejectment or mesne profits but was entitled to the amount of Rs. 630/- as rent up to the date of suit. Accordingly, the trial Court dismissed the suit for ejectment and mesne profits but decreed it for recovery of Rs. 630/- as rent up to 31-8-1966, and left the parties to bear their own costs.

12. On first appeal by the plaintiff, the Court of the Temporary Civil & Sessions Judge, Meerut, which heard it, raised two points for its consideration: (1) whether the shop in suit was constructed in the year 1947 or in the year 1952, and whether the U. P. Act No. in of 1947 applied or not accordingly; and (2) Whether the notice was in accordance with law. The defendant did not presshis cross-objection to the rate at which rent was decreed but pressed for costs of the suit. The propriety of the order allowing amendment of the plaint was, also questioned by the counsel for the defendant before the lower appellate court.

13. On the first point, the lower appellate Court held that the amendment of the plaint was properly allowed by the trial court, but on the view which it took of the evidence it came to the conclusion that the shop in suit was first constructed in the year 1952, and that, therefore, the U. P. Act No. III of 1947 was not applicable. On the second point too, the lower appellate court disagreed with the trial court and held that the notice served on the defendant was a valid notice. In the result the lower appellate court decreed the suit for ejectment as well as recovery of mesne profits at the rate of Rs. 32/- P. m., with full costs, and dismissed the defendant's cross-objection with costs. Costs of the appeal before it were also decreed by the lower appellate court in the plaintiff's favour.

14. Mr. Rama Nand, learned counsel for the defendant-appellant assailed the findings and decree of the lower appellate court on all counts. He gave the facts as detailed in this judgment, and urged: Firstly that the amendment of the plaint was illegally and improperly allowed inasmuch as the plaintiff was estopped from going back on his admission in the notice, which was the basis of the suit, that U. P. Act HI of 1947 applied to the case, and further, the amendment changed the entire basis of the case or the basic cause of action of the suit; secondly that the finding about the date of construction being the year 1952, is illegal and vitiated for not keeping in mind the difference between an altogether new construction, which was the requirement of Section 1-A of U. P. Act No. m of 1947, and a mere repair of a fallen down wall of an existing construction, and at any rate the finding was as to a jurisdictional fact and was wrong on facts also; Thirdly that the notice served on the defendant was a notice of less than 30 days and was therefore not a valid notice under Section 106 of the Transfer of Property Act; and lastly that the rent having been deposited under Section 7-C of the Act even before the suit was filed and within one month of the service of the noticeof demand, no decree for arrears of rent could have been passed and at any rate even if the decree for rent was allowed to stand the defendant-appellant was entitled to his full costs throughout against the plaintiff-respondent.

14A. Learned counsel for the plaintiff respondent supported the judgment and decree under appeal on all counts.

15. The first point which thus calls for consideration in this case is whether the amendment of the plaint was properly allowed by the trial Court. The rule prescribed by Order 6, Rule 17 of the Code of Civil Procedure is short and simple. It provides that 'the Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.' It has been the subject matter of interpretation in innumerable cases. The object of requiring the parties to formally state their case in the form of pleadings is to fix the points of controversy between the contending parties, so as to facilitate a rational determination of the same by the Court. That is why the last limb of the rule prescribes that all such amendments shall be made as are necessary for the purpose of determining the real controversy between the parties. Where the pleadings of a party are not clear, the Court is empowered even to ask for a further and better statement of the nature of the claim or defence, and further and better particulars of any matter stated in the pleading, vide Order 6, Rule 5; and Order 10, Rule 2, enjoins upon the Court, at the first hearing of a suit, to orally examine the parties with a view to elucidating matters in controversy in the suit, and the recorded statements made by parties on such examination are treated at par with their written pleadings. Now, to err is human, and negligence is a habit with most people. The law does not expect that the parties whose cases the Courts are called upon to adjudicate, are all so careful and competent that they would commit no mistake in their pleadings. The function of the Courts is to do justice between the parties. Therefore, the rule prescribes that the Court may allow either party to amend his pleading at any stage in such manner and on such terms as may be just. Iwould rather quote from Bowen L. J., in Cropper v. Smith, (1884) 26 Ch D 730 (710-711):--

'It is a well established principle that the object of Courts is to decide the rights of the parties and not to punish them for mistake they make in the conduct of their cases by deciding otherwise than in accordance with their rights ... I know of no kind of error or mistake which if not fraudulent or intended to overreach the Court ought not to be corrected if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy, and I do not regard such amendments as a matter of favour or grace............ It seems tome that as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected, if it can be done without injustice as anything else in the case is a matter of right.'

16. The question about the propriety or otherwise of the amendment of the plaint that was allowed by the trial court in the present case may be considered in this light. The mistake. was there. It was a grievous mistake. It was discovered that if the plaint was allowed to stand as it stood before the amendment, the suit was bound to be dismissed, for it was plain that the defendant could not be said to have committed any default in payment of more than 3 months' rent within 1 month of the service upon him of the notice of demand. The death knell of the suit was heard by the learned counsel for the plaintiff even before the Court started hearing it, and the application for amendment was made. The bar of Section 3 (1) of U. P. Act No. III of 1947, which must have stared in his face, was sought to be got over by pleading that the Act did not apply as the shop had been constructed in the year 1952, and in order to explain why the concession or admission to the contrary in the notice of demand and quit, it was stated in the amendment application that it was a mistake caused by ignorance. The trial court appreciated that the mistake was a gross one, but thought that the interest of justice required that the amendment be allowed in order to prevent a multiplicity of proceedings. It has beenseen above that on the plaint as it stood before the amendment, there was an apparent end of all controversy between the parties on proof of the fact that rent had been paid by the defendant within one month of the service upon him of the notice of demand. The suit as it then stood could not go on. It was barred by Section 3 (1) of the U. P. Act III of 1947. There was no controversy between the parties at that stage about the applicability of that Act. The plaintiff wanted to introduce the controversy by amendment of the plaint. If he was not allowed to amend the plaint, the only course left open to him was to pray for leave to withdraw the suit with permission to bring a fresh suit on the same cause of action, that is, the demand for possession by the quit notice dated 12th July, 1966 on determination of the tenancy, or to bring a fresh suit on a fresh cause of action, that is, after again terminating the tenancy by a fresh notice under Section 106 of the Transfer of Property Act. That would have surely led to a multiplicity of suits. The trial court therefore thought, and in my view rightly, that multiplicity of suits should be avoided and the plaint should be allowed to be amended for bringing out the real controversy between the parties, namely, whether U. P. Act III of 1947 applied to the shop in suit or not. The amount of costs of the defendant thrown away till that stage could not have been more than Rs. 25/-and it is noticeable that the costs were accepted by the learned counsel for the defendant, on 17th April, 1967, without any objection or protest. It is all the more reason that the defendant cannot be allowed to challenge the propriety of the amendment. I may add that the matter of allowing amendment of pleadings is in the discretion of the Court. The trial court exercised the discretion which it had. The lower appellate Court also considered that the exercise of its discretion by the trial Court was right and proper. It cannot be said that the exercise of its discretion by the trial court was arbitrary so as to make out a case for interference.

17. Mr. Ramanand, however, argued that the plaintiff was estopped from amending the plaint in view of the admission contained in the notice that Uttar Pradesh Act No. III of 1947 applied to the case, and that the amendment had the effect of changingthe entire cause of action for the suit. So far as the question about changing the cause of action is concerned it may at once be observed that the immediate cause of action for a suit between 'a landlord and tenant for the latter's eviction is the determination of tenancy. That was done in the present case by the notice dated 12th July, 1966. The notice stood unchanged. It could not, therefore, be said that there was any change in the cause of action for the suit. The permission under Section 3 (1) of the several grounds specified in clauses (a) to (g) thereunder, do not constitute the cause of action for a suit for eviction against a tenant. They are only specific circumstances in which a suit for eviction of a tenant from an accommodation governed by U. P. Act No. III of 1947 is not barred. Indeed, it was held by a Division Bench of this Court in Pahlad Das v. Ganga Saran : AIR1958All774 that even after the dismissal of a suit on some technical ground such as a defective notice, the permission granted under Section 3 (1) of U. P. Act No. III of 1947 could be availed of for filing a second suit against the same tenant after giving a fresh notice. That would not have been possible if the permission had constituted the cause of action for the suit, for with the dismissal of a suit, a fresh suit cannot be filed on the same cause of action except with the leave of the Court. The case of default under clause (a) of Section 'A (1) of U. P. Act No. III of 1947, cannot stand on any higher footing.

18. As to the plea that the amendment deprived the defendant-appellant of a valuable right which he had acquired by reason of the admission contained in the notice to the effect that U. P. Act No. III of 1947 was applicable to the shop in suit, it is noticeable that the notice has not been amended. Even the averment in the plaint that a notice of demand under Section 3 (1) (a) of U. P. Act No. III of 1947 was given, has been allowed to remain as it was. The explanation for seeking amendment of the plaint was that the concession for admission about the applicability of U. P. Act No. III of 1947 to the shop, was mistaken and the mistake occurred due to ignorance. It is well settled that an admission although almost conclusive against a party, may yet be withdrawn or shown to be mistaken. The question whether the admission of the applicability of U. P. Act No. III of 1947 thatwas made in the notice was a mistake or not could not be prejudged at the stage of allowing the amendment of plaint. It could be judged only after the evidence of the parties. The amendment of the plaint could not, therefore, be disallowed on any such ground. I may as well notice here that while the trial court held that the shop in suit was constructed in or about the year 1947, the lower appellate court has held that it was constructed in the year 1952. If the finding of the trial court is correct, the admission in the notice was not incorrect, but if the finding of the lower appellate Court is correct, the admission in the notice was undoubtedly a mistake. We have yet to see which of the two findings is correct.

19. This brings me to the consideration of the second point raised by Mr. 'Ramanand for the defendant-appellant. For arriving at its finding that the accommodation was constructed in the year 1947, the trial court has drawn heavily on the plaintiff's admission contained in the notice, that U. P. Ad No. III of 1947 was applicable to the shop in suit. In the application for amendment, the plaintiff had already explained that the admission was a mistake caused by ignorance. His case was that the notice was got drafted at Baraut, which as observed above, had no Civil Courts but was only a Tahsil Head Quarter. It is not unlikely that the plaintiff did not get proper legal advice at Baraut when he sent the notice. But Mr. Ramanand contended that even if the person who had drafted the notice dated 12th July, 1966 for the plaintiff was ignorant, the learned counsel who drafted his plaint could not be said to be ignorant. The fact remains that the plaint as originally drafted did not contain any statement to the effect that the shop in suit was constructed before January 1, 1951. It only states the fact that the plaintiff gave a notice dated 12th July, 1966 which was a combined notice under Section 3 of U. P. Act No. III of 1947 and Section 106 of the Transfer of Property Act, and that it was served on 14th July, 1966. There was no mistake about the statement, and things being what they are these days, the learned counsel must not have adverted to the question whether U. F. Act No. III of 1947 applied to the shopor not when the plaint was drafted. It must have been only when he applied his mind to the facts of the case, in preparation for the first hearing of the suit, that he must have felt that the suit was barred by Section 3 (1) of U. P. Act No. III of 1947, inasmuch as on the facts of the case it could not be said that the defendant-appellant had committed any default in payment of rent within one month of the service upon him of the notice of demand dated 12th July, 1966. It is obvious that he must have said so to the plaintiff and on hearing that, the plaintiff must have told him that the shop in suit was constructed in the year 1952, and that is how the application for amendment was made. The amendment of the plaint having been allowed on that basis only, and the basic question of fact which was raised for determination of the court as a result of the amendment being whether the shop in suit was constructed in the year 1952, the fact had to be determined on the basis of the evidence led by the parties on that point, rather than on the basis of the admission contained in the notice dated 12th July, 1966 which the plaintiff had already withdrawn on the allegation that it was a mistake caused by ignorance. The finding of the trial court on the issue about the date of construction of the shop in suit cannot, therefore, be said to be justified in law.

20. This leaves me with the finding of the lower appellate court that the shop was constructed in the year 1952, The finding is undoubtedly a finding on a question of fact. There was evidence both ways. The defendant-appellant had no personal knowledge about the date of construction. The evidence of the witnesses is also not very direct. They only vaguely stated that they had seen the shop in existence. The evidence of the plans sanctioned by the Baraut Municipality has been relied upon by the lower appellate court. The first plans sanctioned are those dated 6th February, 1952 vide Exts. 5, 6 and 7. Having seen those plans, 1 cannot say that the lower appellate court committed any error in believing the plaintiff's evidence on their basis, that the shop in suit was constructed for the first time in the year 1952. It was contended by Mr. Ramanand that the finding is illegal inasmuch as the lower appellate court treated the case of a mere repair of a wall as the case of a new construction. The contention of Mr. Ramanand on this point is incorrect, for the wall re-constructed was that sanctioned by the plan dated 19th September, 1964 vide Ex. 10 and Ex. 7 which is the plan dated 6th February, 1952 clearly shows that the whole of the house of which the shop in suit forms part was to be constructed afresh. It cannot thus be said that the finding of the lower appellate court on this point suffers from any error of law, and being a finding as' to a fact, it is binding on second appeal.

21. This brings me to the third point raised by Mr. Ramanand, which relates to the validity of the quit notice dated 12th July, 1966. In view of the finding that the shop in suit was not governed by U. P. Act No. III of 1947, the giving of a notice determining the tenancy under Section 106 of the Transfer of Property Act was essential, in spite of the change in law brought about by the recent decision of the Supreme Court. I have summarised the relevant terms of the notice in the recital of facts, nevertheless since the question would turn upon the language of the notice, I may as well quote the relevant portions thereof :-- (Matter in vernacular -- hence omitted -- Ed).

The law on this point has been considered in some detail by a Division Bench of this Court in Abdul Jalil v. Haji Abdul Jalil : AIR1974All402 . None of the illustrations (A) to (G) of the varying language employed in the notices of this kind that were considered by the Division Bench of this Court in that case fit in with the language employed in the notice in question in the present case. The peculiar feature of the notice in question in the present case is that it terminates the tenancy with effect from 12th August, 1966, the notice having been given on 12th July, 1966. It is in evidence that the notice was served on 14th July, 1966. It is in every sense of the terms a 'lame' and 'inaccurate' notice. Nevertheless, Ut Res Magis Valeat Quam Pereat, one must try and make out the intention of the noticegiver as best as it could be called out from the language employed rather than to find fault with it. A notice has to be construed liberally and not too strictly.

22. The requirement of the law is, vide Section 106 of the Transfer of Property Act, that such a notice must bein writing duly signed by the landlord and the notice must be a 30 days' notice, for the law is that 'a lease of immoveable property for any other purpose shall be deemed to be a lease from month to month terminable on the part of either lessor or lessee, by 33 days' notice' as amended in Uttar Pradesh. The lease, or the tenancy is terminable 'by 30 days' notice'. The notice must be a notice of 30 days clear, between the date on which it is served and the date on which the tenancy is terminated. It has been held in some cases that a month's notice where the month is of 31 days is as good as a 30 days' notice, but where the month is of less than 30 days, as in the case of February, the notice is bad. See for instance Smt. Ram Kali v. Sia Ram : AIR1978All546 . The head note of the report of that case does not bring out the decision correctly, when it says that the 'notice in the instant case asking the tenant to quit within one month i.e. within less than 30 days held not bad'. The notice given in that case was served on 8th February, 1968 and it required the tenant to quit within one month of the date of the service of the notice. The Bench held that a month means a month reckoned according to the British Calendar, and the month commences from the first and ends with last day of the month and that, therefore, in that case the month could commence from 8th February and end on 7th March, 1968. Consequently the Bench held that the period given by the notice was less than 30 days as envisaged by Section 106 of the Transfer of Property Act, and it appears that the fact that the notice was being given in the month of February was lost sight of when it was given. The argument of the learned counsel that one month meant 30 days was rejected. From a reading of the whole judgment in that case which was given on a review petition, it appears that the tenant's appeal had been allowed by a learned single Judge of this Court and the review petition by the landlord was directed against that judgment. The review petition was dismissed. It follows that the notice was held to be bad by the learned single Judge who allowed the tenant's appeal and consequently by the Bench which confirmed that judgment by dismissing the review petition.

23. We have, therefore, to find out whether the notice in question gave 30days clear to the tenant to vacate the shop in suit. On the face of it, it gives a month inasmuch as the notice is dated 12th July, 1966 and the tenancy is terminated on or from 12th August, 1966, but the period of one month given by the notice is not from the date of service of the notice but from the date on which it was written. It is in evidence that it was served on 14th July, 1966. Even if the fact of the date of the service of notice is taken into consideration in construing it, in view of the liberty given to the tenant to vacate it on such date as he thought the tenancy was determined, the date 12th August, 1966, leaves only 29 days complete after the date of its service. The notice would in that view be bad in law and not good enough for determining the tenancy.

24. But the learned counsel for the plaintiff-respondent urged on the basis of three cases relied upon by the lower appellate court in support of its finding on this point that the giving of the option to the defendant to vacate the shop in suit on the date on which he thought the tenancy terminated made the notice valid. These three cases are: (1) Pahlad Das v. Ganga Saran : AIR1952All32 ; (2) Ganga Prasad v. Prem Kumar Kohli (AIR 1949 All 173) and (3) Bhagwan Sri Krishnaji Maharaj Virajman Mandir, Khanpur v. Chhuttan Lal : AIR1963All54 . All the three cases were of notices given when the Transfer of Property Act as it stood before its amendment in Uttar Pradesh by U. P. Act No. XXIV of 1954. It was necessary under the unamended provisions of Section 106 of the Transfer of Property Act that a notice for terminating a tenancy from month to month must be a 15 days' notice expiring with the end of the month of the tenancy. It was in that context said in all the three cases referred to by the lower appellate court, and relied upon by the learned counsel, that the statement in the notice that the tenancy was terminated with effect from the specified date of the end of the month of the tenancy, or in the alternative from such date as on which the tenant thought it ended in fact, was sufficient to uphold the validity of the notice in case the tenant disputed the exact date of the end of the month of the tenancy as specified by the landlord. That consideration is not involved in the present case. The notice has to be a notice of not less than 30days in order to bring about a termination of a month to month tenancy under Section 106 of the Transfer of Property Act, as it now stands in Uttar Pradesh after the amendment. The notice given by the plaintiff-respondent in the present case was specifically a notice of less than 30 days as demonstrated above. The statement that the tenant could vacate the shop in suit on the date specified in the notice, that is. 12th August, 1966 (which was less than 30 days after the service of the notice) or within such period as may be considered by the defendant-appellant to be the legal limitation for vacating the shop, could not in my view be treated to be sufficient for upholding the notice as valid under Section 106 of the Transfer of Property Act. These words only gave the defendant-appellant an option to vacate the shop in suit on 12th August, 1966 which was the date on which the plaintiff-respondent had purported to terminate the tenancy, or to vacate it by such date as the tenant thought was the last day of the legal limitation for vacating the house. In law a tenant was not under any obligation to vacate the house unless the tenancy was terminated by a proper notice under Section 106 of the Transfer of Property Act, and that, the notice failed to achieve, in spite of all the intentions of the notice-giver, by stating that the tenancy was terminated 'from 12th August, 1966'.

25. I am, therefore, of the view that the contention of Mr. Ramanand on the third point relating to the validity of the notice must prevail and the suit for eviction must be dismissed.

26. With regard to the last point raised by Mr. Ramanand, he stated that the entire rent due from 3-1-1965 has been deposited at the rate of Rs. 32/-per month along with the decreed costs of the suit, by the defendant-appellant. The amount deposited under Section 7-C, it was stated by Mr. Ramanand, on behalf of the defendant-appellant, has not been withdrawn by him. But, he could not make a definite statement whether that amount has been adjusted in making the deposits towards the decreed amount in the present suit. In case it has not been so adjusted, it would be refundable to the defendant-appellant. Some of the amounts deposited by the defendant-appellant in the suit, pursuant to the stay order of this Court, are said to have been withdrawn by the plaintiff-respondent. Under the circumstances, it would be inappropriate to interfere with the decree for rent in the sum of Rupees 630/- which was passed against the defendant-appellant by the trial court, nor is it proper to direct the plaintiff-respondent to re-deposit the amounts withdrawn by him from out of the deposits made by the defendant-appellant in pursuance of the stay order of this Court. The fact remains that with the promulgation of the U. P. Urban Buildings (Regulation of Letting) Rent and Eviction Act, U. P. Act No. 13 of 1972, the plaintiff-respondent could have enhanced the rent payable for the shop from Rs. 32/- p.m. to Rs. 40/- p.m. He could not, however, do so in view of the pendency of the suit giving rise to the present appeal. When this fact was put to Mr. Ramanand, he offered on behalf of the defendant-appellant, to pay rent at the rate of Rs. 40/- p.m. with effect from 15-7-1972. As regards costs, it is impossible to apportion blame on either of the two parties with respect to the present suit. I would, in the circumstances, direct the parties to bear their own respective costs throughout.

27. There is an application made by the defendant-appellant on 17-3-1980 under Section 39 read with Section 40 of U. P. Act No. 13 of 1972. That application is belated and rejected as such.

28. In the result, the appeal succeeds and is allowed. The decree for ejectment of the defendant-appellant from the shop in suit is set aside. The decree for recovery of Rs. 630/- as rent up to 31-8-1966 is maintained. The parties shall bear their own respective costs throughout.

It is further directed that the amounts deposited, pursuant to the stay order of this Court dated 17-4-1968 towards the rent and costs, shall be adjusted towards the amount of rent payable by the defendant-appellant to the plaintiff-respondent at the rate of Rs. 32/- p.m. up to 14-7-1972 and at the rate of Rupees 40/- p.m. from 15-7-1972 onwards. If the amount deposited exceeds the amount of rent calculated as aforesaid, such excess shall be refunded to the defendant-appellant. On the other hand, if it falls short of rent calculated as such, the whole of it shall be paid by the court to the plaintiff-respondent and the balance due, if any, may be recovered by him from the defendant-appellant.

It is further made clear that if the amount deposited under Section 7-C was not adjusted by the defendant-appellant in depositing the decretal amount in this Court, it shall be refunded to him on an application being made in that behalf. On the other hand, if it was adjusted by the defendant-appellant in depositing the decretal amount in court, it shall be paid over to the plaintiff-respondent.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //