D.K. Kapur, J.
(1) This Regular Second Appeal has been instituted by the principal defendant in a suit for possession of two plots bearing Nos 22 and 27 situated at Wazir Nagar, Kotia Mubarkpur, New Delhi. The suit is really one for ejectment based on a lease of two vacant plots which had been let out by the plaintiff, Shri. Mehar Chand Kohli to M/s Narang Overseas Private Limited. The agreement shows that plot No. 22 and half of plot no. 27 was covered by the agreement and the rent was Rs. 60.00per month for one year from 1st August. 1967 to 31st July, 1968. Advance rent was paid for the whole year on 12th August, 1967. At the end of the agreement, the following words occur :-
'THISagreement will be renewed after expiry of one year and one month's Notice is necessary for both parties in case of getting the plot vacated.'
On the basis of this agreement the plaintiff terminated the lease by giving one month's notice expiring on 31st July, 1968. The tenant did not give up vacant possession and hence the suit. It was claimed by the tenant that the lease should be extended under its terms but the landlord took the stand that the tenancy had been terminated, and hence, no question of extension arose.
(2) The suit was against the tenant, M/s Narang Overseas Private Limited, and also against some alleged sub-tenants who were defendants Nos. 2 to 4, being Shri Sardul Singh, Shrimati Raj Rani and Shri Baldev Singh, who claimed they held the property in their own right and the plaintiff had no cause of action against them. The trial court held that defendants 2 to 4 were in possession of some other land and hence the suit failed against them. Against defendant No. 1 the suit was decreed.
(3) An appeal by the tenant, M/s Narang Overseas Private Limited, was heard by Shri M. K. Chawla, then Additional District Judge. The judgment shows that three questions were raised in that appeal. Firstly it was contended that the suit was barred by the provisions of the Delhi Rent Control Act, 1958 on the ground that there was some construction on the property. On this point, the Additional District Judge found that undoubtedly the land let out was vacant and hence the Delhi Rent Control Act was not applicable. The second contention was that the suit was premature because the lease agreement showed that the the lease could be renewed. It was claimed that there was in fact a renewal of the lease and one year's further rent was also paid and the cheque for the same had been encased and, thereforee, there was a waiver of the notice. On this point the landlord's defense that the amount had been appropriated towards the damages and not the rent was upheld. On the reasoning, it was held that the tenancy had been rightly terminated and hence the suit was not pre-mature. The third contention was that there was no valid notice terminating the tenancy. On this point, the lower appellate Court held that the notice had been served one month before the date of expiry of the lease and hence there was nothing wrong with the notice. The first defendant has now come before this Court in second appeal.
(4) The main point urged by the learned counsel for the appellant is that the lease , not been properly terminated. On this question the argument raised has three different facets. Firstly, it is contended that the one month's notice required by the terms of the lease had to be given after the year had expired and not before. The second branch of the argument is that the lease terminated on 1st August, 1968 and not on 31st July, 1968, and thereforee, the termination of the lease is not valid under Section 106 of the Transfer of Property Act. Lastly, it was urged that there was a subsequent notice by the landlord which in law, waived the previous notice and hence the lower appellate Court was not right in concluding that the tenancy had been terminated.
(5) On the first point, it was submitted thai the lease should have been terminated not during the first year of the lease, but by giving one month's further time. For this purpose, reliance is placed on paragraph No. 8 of the replication which said :
'INreply to para 8 of the written statement it is submitted that the plaintiff was within his right under the terms and conditions of the agreement of lease to terminate the lease after the expiry of its period and the defendant cannot object to the same as they have committed serious breaches of the terms of the said lease.'
(6) The learned counsel emphasises the expression 'after the expiry of its period' to contend that this meant that the landlord had accepted the position that (he lease had to be terminated after it had expired. According to the learned counsel, this means that the lease has to be terminated by giving one month more to the tenant. In furtherance of the same argument, reference has been made to Exhibit P-5 which is a letter written by the Advocate of the plaintiff on 17th August, 1968. In this letter, the relevant words are :
'MYclient gave you the aforesaid plots for one year only by charging Rs. 720.00 with his explicit option to get these plots vacated on giving one month notice after expiry of a year and as such he has served upon you the notice aforesaid before.'
(7) Learned counsel again states that this also shows that the notice has to be given one month after the expiry of the year. To my mind, this argument is without foundation and is merely based on the language used in the replication and the notice. In no way can these two documents be read as having any effect on the validity of the notice which is not to be judged by the language used in the Advocate's letter or in the ambiguous wording of the replication, but by determining whether the termination was lawful or not. In my view, the lease could only be terminated by giving one month's notice which had to expire with the lease as stated in Section 106 of the Transfer of Property Act. This point has no substance.
(8) The second contention is that the lease could only be terminated by giving one month's notice terminating on 1st August, 1968. For this purpose, reliance is placed on Section 110 of the Transfer of Property Act, which states that in computing time the first day of the lease has to be excluded. Thus, if a lease is for one year commencing on 1st August the lease will determine on 1st August of the next year and not on 31st July. However, in the present case, the lease is for a fixed period from 1st August, 1967 to 31st July, 1968 as stated in the agreement. There is, thereforee, no room for extending the lease by a further day. In this respect, the judgment of this Court in Sudarshan Kumar V. Rattan Lal Dhingra, IL.R. (1973) Del 725 1973. Rlr 51 & of Supreme Court in Dattonpant V. Vithabrao 1976. R.C.R. 128 have no application because in those cases the question was dependent on determining the first day of the lease and not last day. In the present case the lease was expressly shown to terminate on 31st July, 1968 and thereforee, there was no room for implying an extension of the lease by one more day. To put in another way if a lease is for one month commencing on the 9th day of the month, the Supreme Court has held that it will not end on the 8th day of the next month but on the 9th day of the next month. A similar view was expressed in the other case relating to yearly leases. In the present case, the days being fixed this question does not arise. thereforee, this contention is also rejected. As a matter of fact, the termination letter in this case does not operate on 1st August, 1968 because the wording of the notice is as follows :
'MYclient wants you to vacate the said two plots positively on 31-7-98 and had over the vacant possession to my client on 1-8-68 by getting a receipt to that effect, failing which you will be treated as a tresspasser liable for damages at the rate of Rs. 1200.00 per month, etc......'
(9) Thus, the time granted to tenant to vacate is up to 1st August, 1968 and would otherwise even be in the accordance with what has been held in the two aforementioned judgments. The date of the said notice was 27th June, 1968 which clearly shows that one month's notice was given.
(10) The third contention of the learned counsel is that the notice was waived. On this point, there is no pleading at all but, learned counsel says that it is apparent from the facts of the case that there has been a waiver. He also refers to Section 113 of the Transfer of Property Act, and especially on the second illustration which shows that if a second notice to quit is given, then the first notice is waived. To understand the full scope of the submission, it is necessary to refer to the fact that in this case, after the notice to quit had been given, the tenant wanted the lease to be extended for one year and wrote in this behalf. Then the letter Exhibit P-5, which I have already referred to, was written by the landlord's Advocate. In the 5th paragraph of this letter, it is stated :-
'YOUare accordingly advised to please vacate the plots within the month from the date of this notice or by the 30th September, 1968 the latest, failing which my client will be compelled to proceed against you for eviction from these plots in Law Court and in that case the entire costs of litigation and counsels fee etc. of my client will be recovered from you Along with the damages at the rate of Rs. 1200.00 per month. As already intimated to you in my previous notice, terminating your tenancy on 31-7-1698'.
(11) The contention of learned counsel that this is a waiver of the original notice does not seem to be at all justified. This letter only gave further time to the tenant to vacate the premises for the simple reason that the original notice to vacate had not been acted upon. I have, thereforee, no hesitation in holding that there is no waiver of the original notice to quit, but only an attempt to get back possession from the tenant by giving some more time. During such period the tenant could be described as holding over.
(12) The judgment of the Madras High Court in P. Ramaswami V. Venkataraman A.I.R. 1914, Madras 321, was referred to, to urge that the notice to quite had to be given after the end of the lease period. However, in that case, the lease was for 15 years and six months' notice had to be given to determine the lease. It was held on a construction of the lease agreement, that the notice had to be given after 15 years were over and not before. I am unable to hold that that judgment has any application to the present case, as Section 106 of the Transfer of Property Act enjoins that the notice period has to expire before the end of the lease. In fact, if no notice had been given before the end of the year, it would have resulted in an extension of the lease for a further period. thereforee, in view of the special terms in this agreement there is no doubt that the tenancy had to be determined during the first period of one year, otherwise, the lease would stand renewed.