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Uttam Chand Shah Vs. Anguri Devi - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 265 of 1969
Judge
Reported inILR1973Delhi740
ActsTransfer of Property Act, 1882 - Sections 106
AppellantUttam Chand Shah
RespondentAnguri Devi
Advocates: R.K. Makhija and; S.S. Shukla, Advs
Cases ReferredBatto Mal v. Ranwshwar Nath
Excerpt:
tenancy - notice - sections 106 and 111(8) of transfer of property act, 1882 - mere recital in rent note - non-payment of rent render tenant liable to ejectment - no implied or express waiver in respect of requirement of notice of tenancy - breach of express condition as envisaged by section 111(g) would require notice by lesser in writing of his intention to determine lease. - - the appellant contested his liability to ejectment, inter-alia, on the ground that the respondent having failed to give noticesf of termination of the tenancy of the appellant as required by the provisions of section 106 of the transfer of property act before the institution of the petition, the petition was not maintainable and was accordingly liable to be dismissed. a mere recital in the rent-note that the..........in occupation of house no. 1582/2. navin shahdara, ddhi-32 as a tenant under the respondent vide rent-note of june 3, 1962 at a rental of rs. 75 per mensem. a petition under section 14 ofthe delhi rent control act 1958 being suit no. 122/69/217/65 was filed against the appellant by the respondent on july 28. 1966 spiking ejectment of the appellant from the demised premises onthe ground that the appellant had not paid area'sof rent for the period from august 1, 1965 to june 13, 1966 amounting to rs. 825/ despite the notice of demand. it is not disputed that no notice terminating the tenancy of the appellant as envisaged by the provisions of section 106 of the transfer of property act was ever given to the appsllant. the appellant contested his liability to ejectment, inter-alia, on the.....
Judgment:

H.L. Anand, J.

(1) This appeal must be accepted on the short ground that the petitition under section 14 of the Delhi Rent Control Act 1958 which was filed by the respondent for the ejectment of the appellant from the demised premises out of which the present appeal has arisen, was not maintainable in the absence of a notice terminating the tenancy of the appellant as required by section 106 of the Transfer of Property Act and was. thereforee, liable to be dismissed. The appeal has arisen, in the following circumstances:-

'the appellant has been in occupation of house No. 1582/2. Navin Shahdara, Ddhi-32 as a tenant under the respondent vide rent-note of June 3, 1962 at a rental of Rs. 75 per mensem. A petition under section 14 ofthe Delhi Rent Control Act 1958 being suit No. 122/69/217/65 was filed against the appellant by the respondent on July 28. 1966 spiking ejectment of the appellant from the demised premises onthe ground that the appellant had not paid area'sof rent for the period from August 1, 1965 to June 13, 1966 amounting to Rs. 825/ despite the notice of demand. It is not disputed that no notice terminating the tenancy of the appellant as envisaged by the provisions of section 106 of the Transfer of Property Act was ever given to the appsllant. The appellant contested his liability to ejectment, inter-alia, on the ground that the respondent having failed to give noticesf of termination of the tenancy of the appellant as required by the provisions of section 106 of the Transfer of Property Act before the institution of the petition, the petition was not maintainable and was accordingly liable to be dismissed. Certain other picas were also taken, but it is not necessary to refer these pleas for our present purpose.'

(2) By an order made on 23-5-1969 the Rent Controller ordered the ejectment of the appellant from the premises in dispute under section 14(1) read with proviso to section 14(2) of the Delhi Rent Control Act 1958 on the ground that the appellant had made default in the payment of rent despite the notice of demand. The Controller dispelled the plea of the appellant that the petition was not maintainable as the respondent had not given notice of termination of the tenancy to the appellant as envisaged by section 106 of the Transfer of Property Act as the Controller held that the tenancy in dispute was of a period prior to December 1, 1962 and that the termination of such a tenancy was not necessary in view of the observations of the then Chief Justice of the Delhi High Court in the case T.C. Rakhi v. Usha Gltjral reported as 1968 Delhi HC 206 and the case of Des Raj v. Ronjit Lal reported as 1968 Delhi High Court Motes 208 The Controller further held that it had been settled law that in cases under the Delhi Rent Control Act 1958 notice terminating the tenancy was not required.

(3) Aggrieved by the order of the Controller the appellant filed an appeal under section 38 of the Act to the Rent Control Tribunal being R.C.A. No. 594/69 which was dismissed by the Rent Control Tribunal by an order made on July 31, 1969 in liming on the short ground that inasmuch as the appellant was not entitled to adjust the amount alleged to have been spent by him on the repairs, the appellant had made default in the payment of rent despite notice of demand sent to the appellant. The Rent Control Tribunal, however, did not advert to the question as to the maintainability or otherwise of the petition by virtue of absence of a notice terminating the tenancy although a specific plea to that effect had been raised by the appellant in the grounds of appeal. Aggrieved by the aforesaid orders the appellant had filed the present appeal.

(4) The principal contention raised on behalf of the appellant is that in view of the decisions of the Supreme Court in the case of Manujendra Duff v. Purendu Prosad Roy Choudhury & Ors. : [1967]1SCR475 which has since been followed by a Division Bench o this Court in the case Batto Mal v. Ranwshwar Nath reported as 1970 R.C.R. 532 a notice terminating the tenancy, even though the tenancy was in respect of the period prior to December 1, 1972, was necessary as envisaged by the provisions of section 106 of the Transfer of Property Act and that the petition of the respondent for ejectment of the appellant was not maintainable and was liable to be dismissed as the respondent had admittedly not given any such notice to the appellant.

(5) Counsel for the respondent did riot dispute the correctness of the aforesaid proposition and conceded that a notice of termination of tenancy was a condition precedent to the institution of the petition for ejectment in view of the law laid down by the Supreme Court of India and this Court, but contended that having regard to the terms of the rent-note dated June, 1962 forming the basis of the tenancy, no such notice was necessary in the present case by virtue of the provisions of section 111 of the Transfer of Propsrty Act inasmuch as (a) the tenancy in the present case was for a fixed period and was terminated by efflux of time, (b) the petitioner had waived the condition with regard to the notice by the rent-note in question and (c) the tenancy in the present case stood determined by forfeiture in terms of section 111(g) of the Transfer of Propertyf Act.

(6) In support of the contention that the tenancy in the present case was for a fixed period and stood terminated by efflux of time Counsel 'for the respondent relied on the rent-note which is Ex. R.3. According to the rent-note the tenancy is described as for a period of 'less than one year' but, no period is mentioned in the document. Counsel was, however, unable to place any decision before me which may support the contention of the respondent that on the language of the rent-note it could be said that it was tenancy for a fixed period, and thereforee stood terminated by efflux of time, thereby obviating the necessity of a notice for the termination of the tenancy.

(7) On the contrary Mr. Makhija for the petitioner relied on at least two decisions of this Court in support of the proposition that the language of the rent-note could not be construed as constituting a tenancy for a fixed period and that such a language could only be construed as creating a tenancy for an indefinite period, and could not, thereforee, stand terminated by efflux of time. The first case relied upon by him is reported as 1943 P.L.R. 454(s) in which on a construction of somewhat similar language it was held that it could not be said to be a tenancy for a fixed period and there was, thereforee, no question of determination by efflux of time. Similar was the decision in the case reported as 1972 R.L.R. 204.C The contention of the respondent that the tenancy was for a fixed period and stood terminated by efflux cf time obviating the necessity of a notice terminating it cannot, thereforee, be accepted.

(8) In support of his other contention that the tenant had waived the requirement of a notice by agreeing in the rent-note that in the event of non-payment of rent the tenant would be liable to be ejected, the respondent relied on opening words of section 106 of the Transfer of Property Act and contended that in view of the afore-said recital in the rent-note, the appellant would be deemed to have waived the requirement of a notice of termination. Counsel for the respondent was, however, unable to cite any decision in support of the contention that a mere provision in the rent-note that the non-payment of rent would render the tenant liable to ejectment could be legitimately construed as constituting a waiver in respect of the notice and I do not find any merit in this contention of the respondent. While it is true that waiver may be either express or implied but, where it is sought to be implied such an implication must be clear and unambiguous. A mere recital in the rent-note that the nonpayment of rent would render the tenant liable to ejectment does not appear to me to be either implied or express waiver in respect of the requirement cf notice of termination of the tenancy and I am afraid this contention of the respondent must also fail.

(9) The last contention of counsel for the respondent that no notice of termination was necessary in view of the alleged determination of the lease by forfeiture in that the tenant committed a breach of the express condition in respect of payment cf rent is also devoid of any substance. In the first instance the forfeiture referred to in clause (g) cf section 111 is c fan 'express condition which provides that, on breach, thereof, the Lesser may re-enter' and not of any other condition of the lease. The provision in the present rent-note to the effect that on now- payment of rent the tenant would be liable to ejectment does not tantamount to an express condition regarding re-entry. Secondly, even the breach of an express condition as envisaged by clause (g) of section 111 would also require a notice by the Lesser in writing of his intention to determine the lease, which has admittedly not been done in the present case.

(10) Two other questions were also raised before me by Mr. Makhija for the appellant as to the right of the appellant to adjust the amount claimed to have been spent on repairs in the amount claimed by the landlord and as to the power of the Rent Control Tribunal to dismiss the appeal in liming and the propriety of such a procedure in the present case, but, in view of my decisions with regard to the maintainability of the petition on account of the absence of the notice terminating the tenancy, I do not consider it necessary to deal with these contentions.

(11) In view of the afore-said discussion I hold that the petition of the respondent for ejectment of the appellant was not maintainable in the absence of a notice of termination and the petition is liable to be dismissed on this ground. The appellant is accordingly entitled to succeed in the appeal.

(12) In the result the appeal is accepted, the orders of the Controller and that of the Rent Control Tribunal are set aside and the petition of the respondent for the ejectment of the appellant is dismissed.

(13) I, however, make no order as to costs in the circumstances of the case.


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