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Jamil Ahmad Vs. Bharat Bhusan Sibal - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal No. 67-D of 1965
Judge
Reported inAIR1967P& H259
ActsTransfer of Property Act, 1882 - Sections 106; Code of Civil Procedure (CPC) , 1908 - Sections 100 and 101 - Order 41, Rule 31
AppellantJamil Ahmad
RespondentBharat Bhusan Sibal
Appellant Advocate Tej Singh Vohra, Adv.
Respondent Advocate Shyam Kishore, Adv.
DispositionAppeal allowed
Cases ReferredVenkataratnam v. Suryanarayana
Excerpt:
.....for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in..........senior sub-judge should have on the facts and in the circumstances of this case held that notice exhibit p-3 did in fact end with the month of the tenancy. mr. shyam kishore has also relied on clause (12) of the agreement exhibit p-l to the effect that the contractual tenancy was for a fixed period of six months only and did not constitute a monthly tenancy. according to the learned counsel, the covenant providing for a tenancy for a fixed term of six months abrogated the requirements of any notice for ejectment. this again is a point on which the learned additional senior sub-judge has not given any decision. the stand taken by mr. tej singh vohra, learned counsel for the appellant, is that his client, has specifically denied the contents of clauses (11) and (12), which,.....
Judgment:

R.S. Narula, J.

1. In July, 1963, Bharat Bhushan respondent filed a regular civil suit for ejectment of the appellant and one Abdul Majid from the property in question. The suit was contested by Jamil Ahmed appellant alone and he represented himself to be the tenant of the entire premises. His defences, inter alia were that the property in question was not a vacant plot of land at the time it was let out to the appellant but included a stall or a Khokha with iron sheet roof and, therefore, amounted to 'premises' within the meaning of the Delhi Rent Control Act, 1958 (Act 59 of 1958) and that the notice of ejectment did not terminate with the last day of a month of the tenancy and could not, therefore, furnish a valid basis for his ejectment.

From the pleading of the parties the trial court framed the following issues :--

1. Whether the tenancy of the defendants was with respect to premises?

2. Whether the notice is legal and valid?

3. In case issue No. 1 is proved against the plaintiff, whether this court has jurisdiction to try the suit?

4. Relief.

By its judgment dated the 16th November, 1964, the court of Shri K. C. Dewan, Sub-Judge, Delhi, found all the issues in favour of the plaintiff and decreed the suit for ejectment with costs. The appeal of Jamil Ahmed against the decree of the trial court was heard by the learned Additional Senior Sub-Judge, Delhi. In the course of the hearing an objection appears to have been taken on behalf of the tenant about the burden of proof and frame of issue No. 1. The lower appellate court held that it was true that the onus of proof of the first issue had been wrongly placed on the defendants, because according to Section 101 of the Evidence Act it was for the plaintiff to prove all the facts, which were necessary to entitle him to a judgment in his favour.

The learned Additional Senior Sub-Judge, therefore, proceeded to recast and resettle issues Nos. 1 and 3 and substituted for the same, the following consolidated issue :--

'Was it a vacant site and not a premises within the meaning of Delhi Rent Control Act, 1958, which had been let out to the defendants and has civil court jurisdiction to entertain the suit?'

After refraining the issue, the learned Additional Senior Sub-Judge observed that the only person, who could have been prejudiced by the recasting of the said two issues was the plaintiff himself and that since the plaintiff urged that there was sufficient material on the record to decide the suit even according to the reframed issue, the court below proceeded to decide the same. There is in existence on the record of this case a typed letter with manuscript amendments purporting to have been addressed by Jamil Ahmed to Bharat Bhushan. The letter, as typed, was addressed to one Shri Sardari Lal Sibal and related to house No. 499/2, Gandhi Nagar. The amendment and corrections in the document are in green ink except for the solitary instance in which for the word 'house', which has been scored out, the word 'plot' has been substituted and for No. 499/2 the No. 471 has been substituted in blue ink. The document (Exhibit P. 1) has not been engrossed on any stamped paper, but merely bears a one anna revenue stamp on which the admitted thumb impression of the appellant is affixed. According to the appellant, he affixed the thumb impression on a blank paper, but this story of the appellant has not been believed by the trial court.

In exercise of my second appellate jurisdiction under Section 100 of the Code of Civil Procedure, I cannot differ from that finding of fact recorded by the court below. It would therefore, have to be presumed that document Exhibit P. 1 was, in fact, executed by the appellant. The document appears to contain all the terms relevant for the creation of a tenancy. No objection appears to have been raised about the document being unstamped and, therefore, being inadmissible in evidence. The appellant appears to have relied in the first appellate court on the description of the property in question as 'premises' in Clauses (2), (6) and (8) of Exhibit P. 1. Reliance was also placed on admitted receipts of rent Exhibits D. 1 and D. 2, in which the demised property has been described as 'House No. 471'. The learned Senior-Sub Judge did not permit the appellant to rely on the said description of the premises in the rent receipts on the ground that no specific question having been put to the landlord to explain this discrepancy, the said admission or the plaintiff as to the nature of the premises could not be allowed to be used against him.

For this proposition reliance was placed by the first appellate court on the Full Bench judgment of the Lahore High Court in Firm Malik Des Raj Faqir Chand v. Firm Piara Lal Aya Ram, AIR 1946 Lah 65 (FB). It does not appear to have been brought to the notice of the learned Senior Sub-Judge that the law laid down by the Lahore High Court in the aforesaid case has not been approved by the Supreme Court in Bharat Singh v. Mst. Bhagirathi, AIR 1966 SC 405. Their Lordships of the Supreme Court held in that case that admissions are substantive evidence by themselves and the admissions duly proved are admissible evidence irrespective of whether the party making them, when appearing as a witness, was confronted with those statements or not, in case the party made a statement contrary to those admissions. The Supreme Court referred to the decision of the Punjab High Court in AIR 1946 Lah 65 (FB), but authoritatively laid down law which is exactly contrary to the said Full Bench judgment in this respect.

2. On the question of validity of the notice, the first appellate Court has noticed the contention of the tenant to the effect that the month of the tenancy started from 8th of every month and ended on 7th of next month, but that the notice did not expire with the end of the month of the tenancy. After noticing the said contention, the learned Additional Senior Sub-Judge did not give his own decision about this contention, but proceeded to repel it on the short ground that the operation of Section 106 of the Transfer of Property Act had been excluded by Clause (8) of letter Exhibit P. 1 which reads as follows :--

' (8) For either side, if the premises are to be vacated a fifteen days notice will be required. '

Section 106 of the Transfer of Property Act reads as follows:

'106. In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months' notice expiring with the end of a year of the tenancy; and a lease of immovable 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 fifteen days' notice expiring with the end of a month of the tenancy.

Every notice under this section must be in writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants, at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property.'

The relevant requirements of Section 106 are two fold, namely, (i) a monthly lease is terminable on the service of fifteen days notice, and (ii) such fifteen days notice must expire with the end of a month of the tenancy. There is no doubt that both the requirements of Section 106, quoted above, are subject to a contract or local law or usage to the contrary. All that this means is that parties may by contract provide for a different period of ejectment and may also provide in addition that notice of ejectment may not end with a month of the tenancy. In the instant case Clause (8) of the letter Exhibit P. 1 does not contain a contract to the contrary on either of the two counts. The period of notice is retained in the contract to be fifteen days as in Section 106. No provision is made about the date on which the notice of ejectment should terminate. In the absence of such a provision, the statutory requirement of a notice of ejectment expiring with the end of a month of the tenancy binds the parties.

Mr. Shyam Kishore, learned counsel for the respondent, has not seriously contested this legal proposition, but has vehemently contended that the Additional Senior Sub-Judge should have on the facts and in the circumstances of this case held that notice Exhibit P-3 did in fact end with the month of the tenancy. Mr. Shyam Kishore has also relied on Clause (12) of the agreement Exhibit P-l to the effect that the contractual tenancy was for a fixed period of six months only and did not constitute a monthly tenancy. According to the learned counsel, the covenant providing for a tenancy for a fixed term of six months abrogated the requirements of any notice for ejectment. This again is a point on which the learned Additional Senior Sub-Judge has not given any decision. The stand taken by Mr. Tej Singh Vohra, learned counsel for the appellant, is that his client, has specifically denied the contents of Clauses (11) and (12), which, according to the tenant, have been subsequently and unauthorisedly added in Exhibit P-l after it was thumb marked by Jamil Ahmed. This is also a matter on which the Court below will have to give a finding, if it is properly raised there.

3. In para. 2 of the notice Exhibit P.-l it is specifically stated that a month of the tenancy commenced from the 8th day of every English Calendar month and terminated on the 7th day of every such subsequent month. In the end it has been said in the notice that the tenancy stands terminated 'by 7th January, 1963' and that the tenant is required 'to give vacant possession of the portion of the plot' to the landlord 'before 7th of January, 1963'. Mr. TeJ Singh Vohra has contended that 'before 7th of January, 1963' is not the same thing as 'by the end of a month of the tenancy', as by the operation of Section 110 of the Transfer of Property Act as interpreted in Venkataratnam v. Suryanarayana, AIR 1953 Orissa 58 the month of the tenancy ended on the 8th of January, 1963. These questions have not been dealt with by the first appellate Court.

4. I find it impossible to finally decide this case without all the crucial questions, referred to above, being decided by the final Court of fact. Moreover, the judgment of the learned Additional Senior Sub-Judge is also vitiated by placing reliance on the Full Bench judgment of the Lahore High Court in AIR 1946 Lah 65 (FB) (supra), though the same has not been approved by the Supreme Court.

5. For the foregoing reasons, this appeal is allowed and the appellate judgment and the decree are set aside. The case will go back to the Senior Sub-Judge, Delhi, who will re-hear the parties and decide the appeal of the tenant on merits in accordance with law. At the joint request of the learned counsel for the parties it is further directed that both sides may lead such additional evidence as they may consider necessary on issue No. 2, particularly regarding the month of the tenancy and other allied matters covered by that issue. Costs of this appeal shall abide the result of the first appeal before the first appellate Court. The parties have been directed to appear before the Senior Sub-Judge, Delhi, on the 9th November, 1966.


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