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Sudarshan Kumar Vs. Rattan Lal Dhingra - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 279 of 1972
Judge
Reported inAIR1973Delhi272; ILR1973Delhi725
ActsTransfer of Property Act, 1882 - Sections 106; Code of Civil Procedure (CPC), 1908 - Order 8, Rule 3
AppellantSudarshan Kumar
RespondentRattan Lal Dhingra
Advocates: N.L. Chaudhary and; G.L. Seth, Advs
Excerpt:
.....tenant has denied the pleadings of the landlord but did not specifically raise the issue that the monthly tenancy commenced from the 13th of each month after the expiry of the fixed term tenancy of ii months and that the notice was bad because it purported to terminate the monthly tenancy from the 11/12/1967. if the landlord had made out a consistent pleading of his own,then the tenant could be taken to task for not specifically denying the pleadings of the landlord. but in this particular case, the landlord has not made out a cause of action at all and, thereforee, his petition was bound to fail on his own pleading. 279 of 1972 is,therefore, allowed and the orders for eviction passed by the rent control tribunal as well as the rent controller are both set aside and the petition for..........last day of the month of november 1967. copy of the notice is attached.'para 19 sub-para two.-'the monthly tenancy commences on the1st of each english calendar month and ends on the last day of the same month'.(2) the controller granted an order for eviction to the landlord under clause (c) of the proviso to section 14(1). but this order was varied by the rent control tribunal in the first appeal filed by the tenant by granting the conditional order for eviction under clause (j) of the saidproviso, the condition being under sub-section (10) of section 14 namely,that the tenant shall carry out repairs to the damage caused by him to the satisfaction of the controller within one month and it is only if he fails to do so that the order for recovery of possession could be made.against this.....
Judgment:

V.S. Deshpande, J.

(1) The premises of the landlord RattanLal were let out to the tenant Sudharshan Kumar by a rent note executed on 12/08/1963 in which the material words are as follows :-

'Tenancy will commence from to-day or this day'. The tenancy was to be for a period of eleven months. The rent was payable according to the English calendar month. The landlord filed a petition for eviction against the tenant on two grounds covered by clauses (c)and (j) of the proviso to section 14(1) of the Delhi Rent ControlAct, 1958, namely, user of the premises for a purpose other than thereforee which they were let and that the tenant has caused substantial damage to the premises. The pleadings of the landlord on the question of termination of the tenancy by a notice to quit under section 106 of the Transfer of Property Act were as follows :-Para 14: 'The Premises were let to the respondent on 1 2/08/1963. (Copy of the rent note is attachedhereto).'Para 18(b) : 'Notice terminating the tenancy of the tenant was given to him under Regd. A/D cover which was duly received by him on 23-10-1967. The contractual tenancy thus stood determined on the expiry of the last day of the month of November 1967. Copy of the notice is attached.'Para 19 sub-para two.-'The monthly tenancy commences on the1st of each English calendar month and ends on the last day of the same month'.

(2) The Controller granted an order for eviction to the landlord under clause (c) of the proviso to section 14(1). But this order was varied by the Rent Control Tribunal in the first appeal filed by the tenant by granting the conditional order for eviction under clause (j) of the saidproviso, the condition being under sub-section (10) of section 14 namely,that the tenant shall carry out repairs to the damage caused by him to the satisfaction of the Controller within one month and it is only if he fails to do so that the order for recovery of possession could be made.Against this order of the Rent Control Tribunal both the land lordand the tenant have filed appeals.

(3) A preliminary question arises as to whether the tenancy was terminated by the landlord before the filing of the application for eviction.The Controller only remarked in para 10 of his order that the tenancy was terminated by the notice Exhibit A-3 with effect from 11-12-1967.The Rent Control Tribunal did not allow the tenant to argue the validity of the notice on the ground that he had not raised this point specifically in the written statement and had not pleaded that the tenancy month was from 13th of each month after the expiry of the original tenancy for 11 months.

(4) Two questions, thereforee, arise for decision:-

(1)Whether, on the pleadings of the landlord himself, he has shown that the tenancy was validly terminated? and(2) If so, whether the tenant is precluded from disputing the validity of the tenancy by failure to make a specific denial oflandlord's claim and to raise a specific plea as to how the termination of tenancy was invalid?

(5) In dealing with the first point, we have only to consider whether quite apart from any defense made by the tenant and assuming that the pleadings made by the landlord are true, they amount in law to showing that the tenancy was validly terminated. The tenancy was created by a rent note which is referred to in the pleading of the landlord and which is filed by him. It is in Urdu but the crucial words are that it was to commence 'from to-day or this day'. The first paragraph of section 110 of the Transfer of Property Act is as follows:-

'whether the time limited by a lease of immovable property is expressed as commencing from a particular day, in computing that time, such day shall be excluded'.

(6) Shri Choudhry for the tenant contends that the lease or the rent note was expressed 'as commencing from a particular day' within them eaning of the first sentence of the first paragraph of section 110. This contention has merit. The first sentence of the first paragraph of section 110 embodies the same principle which finds place in section 9 of the General Clauses Act, 1897 and section 12 of the LimitationAct, 1963. The rule is that whenever time is to be computed 'from'a day specified, then the said day of the commencement of the time is to be excluded in calculating the total period. The reason why the provision was made is that it is conceivable that a written lease or rent note may express the time limited by it as commencing from day which is other than the day on which the written lease or rent note is executed. Such a day may be prior or subsequent to the day on which the lease or the rent note was executed. This does notmean, however, that the day of the commencement cannot be the day on which the lease is executed. The first sentence of the first paragraph of section 110 is, thereforee, applicable to all the three types of cases,namely:-

(1)in which the day of the commencement of the lease is the day on which the lease is executed;(2) when such a day is prior to the day on which the lease is executed ;(3) when such a day is subsequent to the day on which the lease is executed.

(7) On a plain reading of the first sentence of the first para of section 110 it was entirely at the discretion of the parties to express the commencement of the lease to be from any day whatever.

(8) Shri G. L. Seth for the landlord argues that this provision of Law applies only when the day from which the commencement of the lease is expressed is different from the day on which the lease is executed.He has not, however, been able to cite any authority for this proposition and there is nothing in the language of the first sentence of the first paragraph of section 110 which supports this contention. I am,therefore, unable to agree with it.

(9) As the lease is governed by the first sentence of the first para of section 110, the day from which the lease was expressed to commence has to be excluded in computing the period of time of the lease. The lease was executed on 12-8-1963. The day of commencement, namely,12-8-1963, has to be excluded in computing the period of 11 months for which the lease was given. The period of Ii months has, thereforee,to be computed from 13-8-1963. So computed, the lease came to an end on the 12th of July 1964. Thereafter it continued as lease from month to month. It is to be noted that the provision in the rent note that the rent was payable according to the English calendar months is consistent with the month of tenancy being from the 13th of eachmonth. It is only when the lease does not specify the day on which it commences that a presumption is drawn from the way the rent is paid.Had this lease been silent as to the date of its commencement, then the presumption would have been that the lease was from the 1st of each English calendar month. This presumption cannot be drawn in the present case in view of the express language of the rent note.

(10) The landlord himself seems to be in two minds. He has given the notice of termination of the lease which is Exhibit A-3. In drafting the notice, the landlord omitted to take into account the effect of section 110 of the Transfer of Property Act. He, thereforee treated the lease as beginning from the 12th of each English calendar month. He,therefore, purported to terminate the lease with effect from the 11th of December 1967. This was wrong inasmuch as the effect of section 110 is that the monthly tenancy commenced on the 13th of each month and could have been terminated only by the 12th of a particular month.The pleading of the landlord in the petition is contrary to his ownnotice. For, while in para 14 he has pleaded that the premises were let to the tenant on 12/08/1963 as per the rent note of that date in para 18(b) and second sub-para of para 19, the landlord has pleaded that the tenancy stood terminated on the expiry of the last day of the month of November 1967 because it begins on the first day of each English calendar month. This is completely contradictory of the notice given by the landlord. On the landlord's own pleading, thereforee, the notice given by him was illegal. Secondly, the notice was illegal because of section 110 of the Transfer of Property Act. It is unfortunate that the Controller did not scrutinise the legality of the notice before passing an order for eviction in favor of the landlord.It was the duty of the landlord to disclose a cause of action before he could get an order for eviction. The landlord was guilty of severalcontradictions, namely:-

(A)the pleading in para 14 was opposed to the pleading in paras18(b) and 19;(b) the notice given by the landlord was contrary to both these stands taken in the pleading; and(c) the notice was also contrary to section 110 of the Transfer of Property Act.

(11) I, thereforee, find that, on the landlord's own pleading, he has failed to prove his own case and, thereforee, even if the tenant had not defended at all and the petition of the landlord had to be considered ex parte, it could not have succeeded and was bound to fail for the above reasons.

(12) In considering the second question only the relevancy of the pleading made by the tenant arises. The tenant has denied the pleadings of the landlord but did not specifically raise the issue that the monthly tenancy commenced from the 13th of each month after the expiry of the fixed term tenancy of Ii months and that the notice was bad because it purported to terminate the monthly tenancy from the 11/12/1967. If the landlord had made out a consistent pleading of his own,then the tenant could be taken to task for not specifically denying the pleadings of the landlord. It is only the that he could have been prevented from raising the specific pleas in argument. But in this particular case, the landlord has not made out a cause of action at all and, thereforee, his petition was bound to fail on his own pleading.The consideration of the tenant's pleading does not, thereforee, arise.

(13) Shri G. L. Seth later drew my attention to a statement of the tenant made before the Controller on 13/03/1968 in which he purported to admit the claim made by the landlord and said that he was prepared to remove all the objections urged by the landlord and wanted to be granted time. The landlord also stated that a compromise was being negotiated and that if the tenant were to remove the objections, then he would withdraw the petition. Nothing was heard later of the move for compromise and the parties fought out the case which resulted in an order for eviction. Even in the appeal before the Rent Control Tribunal or in the second appeal before me, none of the parties has relied on the proposed compromise. In ground No. 2 of the second appeal by the landlord, however, it is said for the first time that the Rent Control Tribunal committed an error in ignoring the admission of the tenant and that the Rent Control Tribunal should have held that the trial Court should not have proceeded further after the admission. But the admission has to be read in its proper context. The statement made by the landlord has also to be read with the statement made bythe tenant. The two statements read together amount to this: that the parties were proposing that if the tenant removed all the objections then the landlord would withdraw the petition for eviction. It is in that sense that the claim of the landlord was admitted by the tenant.Neither the tenant removed the objections nor has the landlord withdrawn his petition. It is obvious thereforee, that the proposed compromise did not go through. The Controller cannot, thereforee, be blamed for passing an order for eviction on the merits of the case ignoring the proposed move for compromise. In the appeal by the tenant before the Tribunal the landlord could have supported the order of the Controller on the ground of the admission of the tenant.But there is no reference in the order of the Tribunal that the landlord did so. This would mean that neither in the trial Court nor in the first appellate Court either of the parties relied upon the proposedcompromise. The landlord cannot, thereforee, raise this point for the first time in the second appeal.

(14) For the above reasons, the preliminary point urged by the tenant in S.A.O. No. 279 of 1972 succeeds and the appeal of the landlordS.A.O. No. 308 of 1972 fails. In view of the decision on the question of notice which goes to the root of the maintainability of the petition for eviction by the landlord, it is not necessary to decide the further question whether the landlord has proved his case under clauses (c)and (j) of the proviso to section 14(1). S.A.O. No. 279 of 1972 is,therefore, allowed and the orders for eviction passed by the Rent Control Tribunal as well as the Rent Controller are both set aside and the petition for eviction of the landlord is ordered to be dismissed on the preliminary point that the tenancy was not terminated in accordance with section 106 read with section 110 of the Transfer of Property Act. The decision of no other questions would be rest judicata between the parties. For the same reasons, S.A.O. 308 of 1972 isdismissed. The parties will bear their own costs as incurred in both the appeals.


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