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G.K. Krishnan Vs. Meenakshikutty Amma - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKerala High Court
Decided On
Case NumberCivil Revn. Petn. No. 575 of 1977
Judge
Reported inAIR1977Ker199
ActsTransfer of Property Act, 1882 - Sections 106; Code of Civil Procedure (CPC) , 1908 - Sections 115
AppellantG.K. Krishnan
RespondentMeenakshikutty Amma
Appellant Advocate P. Balagangadhara Menon and; V. Divakaran Poti, Advs.
Respondent Advocate M.K. Narayana Menon and; P.K. Jose, Advs.
DispositionRevision dismissed
Cases ReferredD. G. Mehta v. B. D. Chudasama
Excerpt:
.....of the notice in that case was such that it was difficult to come to the conclusion that the tenant must necessarily have understood the notice to mean that he was required to hand over properties upon the expiry of the full and clear year as defined in the relevant section of the act. i had occasion to observe that the statutory requirements of section 106 by which a landlord is to terminate the monthly tenancy by the end of the month and the yearly tenancy by the end of the year are but relics of the past causing confusion to the lawyers as well as litigants, and need modifications. in the petition, the ground under section 11(3) has been clearly put forward. the conclusion arrived at by the revisional court does not therefore call for interference at my hands, 8. it is well..........r. c. no. 56 of 1970 was filed against him seeking eviction on the ground of arrears of rent and bona fide need. the rent control court found bona fide need in favour of the respondent and ordered eviction which was confirmed by the appellate authority and the revisional court. this revision challenges the order passed by the district judge, ernakulam in r. c. r. p. no. 94 of 1976 directing the petitioner to surrender the building to the respondent.2. two important questions are raised by the counsel for the petitioner before me. the first question is that the court below committed an error of jurisdiction in so far as the petition for eviction was not preceded by a valid notice under section 106 of the transfer of property act which according to him is a statutory mandatory.....
Judgment:
ORDER

V. Khalid, J.

1. A tenant in a Rent Control proceedings is the petitioner before me, R. C. No. 56 of 1970 was filed against him seeking eviction on the ground of arrears of rent and bona fide need. The Rent Control court found bona fide need in favour of the respondent and ordered eviction which was confirmed by the appellate authority and the revisional court. This revision challenges the order passed by the District Judge, Ernakulam in R. C. R. P. No. 94 of 1976 directing the petitioner to surrender the building to the respondent.

2. Two important questions are raised by the counsel for the petitioner before me. The first question is that the court below committed an error of jurisdiction in so far as the petition for eviction was not preceded by a valid notice under Section 106 of the Transfer of Property Act which according to him is a statutory mandatory requirement to sustain an application for eviction. The second point urged is that the bona fide need put forward by the respondent is not really bona fide and is falsified by various circumstances which he brought to my notice during his submissions at the Bar. I shall deal with these two questions separately.

3. Whether a notice under Section 106 of the Transfer of Property Act is necessary or not is a question not free from doubt. But in this case the respondent's counsel conceded before me, for the purpose of this petition, that a notice under Section 106 of the Transfer of Property Act is necessary. According to him there is a notice in this case satisfying the requirements of that section.

4. The tenancy was created on 13-4-1956. The respondent issued a notice to the petitioner on 15-12-1969. Ext. 1 is the copy of the notice so sent. The original is and should be with the petitioner. This is not produced. It is seen from Ext. A-1 that the petitioner was called upon to surrender the property by the end of the month, January 1967. Ext. A-2 dated 26-12-1969 is the reply to the said notice. No objection was taken in Ext. A-2 about the insufficiency or the invalidity of the notice sent.

5. In the petition for eviction, it is clearly averred in paragraph. 5, that a notice terminating the tenancy ending with January. 1970 was issued to the petitioner. This averment is of course controverted in the counter filed by the petitioner that the notice sent terminating the tenancy is not valid in law. The question for consideration is whether the notice in question is a valid one. The date given in Ext. A-l is clearly a mistake. One does not know what is the date given in the original. By a notice issued in 1969, the tenant cannot be called upon to surrender the property in January, 1967. This is imoossible of performance No argument is necessary to conclude that what was meant was that the tenant should surrender in January, 1970. It should be presumed that the tenant also understood it to be so. To defeat the claim of the landlord on the basis of this accidental error committed in Ext. A-1 will be to defeat justice and to make a mockery of law. However, the counsel for the petitioner would contend that Section 106 of the Transfer of Property Act should be construed strictly. The mandate of the section is that there should be a valid notice. The benefit of any accidental error or a slipshod phraseology in the notice should go to the tenant. I can agree with the counsel for the petitioner that in certain circumstances errors in a notice can be taken advantage of by the tenant while invoking the benefit of Section 106 of the Transfer of Property Act. But this case has to be construed on its own facts and if it is so construed I have absolutely no hesitation in holding that this mistake in Ext. A-l cannot be made use of by the tenant to defeat the rightful claim of the landlord, if he is able to establish the claim for eviction.

6. The matter has been considered in various decisions and the decision reported in Tika Ram v. Sri Thakur (AIR 1934 All 787), that of a Division Bench, is on all fours with the facts of this case. In that case a notice dated 9th November, 1927 called upon the defendants that they should vacate the land on 13th May, 1927. This, as in this case, is impossible of per-formance. The tenant to whom notice was issued on 9-11-1927 cannot vacate the premises on 13th May, 1927. The Division Bench of the Allahabad High Court consisted of Sulaiman, C. J. and Mukerji, J. Mukerji, J. speaking for the Bench, relied upon the decision of the Judicial Committee of the Privy Council reported in Harihar Banerji v. Ramahashi Roy (AIR 1918 PC 102) and other authorities held that a notice should ordinarily be liberally construed and where in a case like this, there is no danger of the tenant being misled, action for eviction should not be allowed to be defeated. In the Privy Council case ateo a similar mistake occurred. Their Lordships observed:

'There was no danger of the tenant being misled. This is certainly a lame and inaccurate notice, but such as it is, we must endeavour to give it a rational interpretation. This is not drawn with strict precision but I think it is sufficient-Iv clear.'

Following the decision of their Lordships of the Privy Council the Allahabad High Court held the notice to be sufficient and decreed the suit. The counsel for the petitioner contended that the law laid down by the Allahabad High Court is not correct. According to him the law has been correctly laid down in a Division Bench case of the Bombay High Court in D. G. Mehta v. B. D. Chudasama (AIR 1956 Bom 113). In that case, the notice issued called upon the tenant to vacate and deliver possession before 31-3-1950. It was not clear what was meant by the expression, 'before 31-3-1950'. It was on this ambiguity in the notice that the Division Bench of the Bombay High Court held that the notice was not valid. The Court observed (at p. 114 Para 5):

'In our view, upon the language of this notice the tenant could contend that he was required to hand over possession of the properties to his landlord on any date before 31-3-1950 it may be 1-1-1950 or 10-1-1950 or 15-1-1950 or 1-2-1950, 10-2-1950 or 15-2-1950 or 1-3-1950 and so on.'

The Privy Council decision which was referred to by the Allahabad High Court was referred to by the Bombay High Court also. The learned Judges of the Bombay High Court while agreeing with the proposition of law that a notice should, as far as possible, be liberally construed and must not be allowed to be defeated merely by reason of certain minor errors or inaccuracies, held that the language of the notice in that case was such that it was difficult to come to the conclusion that the tenant must necessarily have understood the notice to mean that he was required to hand over properties upon the expiry of the full and clear year as defined in the relevant section of the Act. The Bombay case can be easily distinguished from the case on hand. I do not think it necessary to differ from the view expressed by the Bombay High Court so far as this case is concerned. This case, according to me, as already mentioned, is akin in all respect to the Allahabad case cited above. There is no possibility of a misunderstanding by the tenant. There is no ambiguity so far as the tenant is concerned. He was not in any way prejudiced by the notice. What is more, though the notice was issued only on 15-12-1969, the application for eviction was filed only 4 months after the notice. The Bombay High Court was considering the strict law contained in Section 106 of the Transfer of Property Act. I had occasion to observe that the statutory requirements of Section 106 by which a landlord is to terminate the monthly tenancy by the end of the month and the yearly tenancy by the end of the year are but relics of the past causing confusion to the lawyers as well as litigants, and need modifications. All that is necessary is to give the tenant a reasonable notice before taking an action for eviction. In this case, according to me, the notice is sufficient and the courts below rightly held that the petition cannot be dismissed for want of a notice under Section 106 of the Transfer of Property Act.

7. The second ground urged was that the bona fide need put forward by the respondent is not true. The argument is built first on the absence of this ground in Ext. A-1. secondly on the non-examination of the respondent and thirdly on the fact that her husband P.W. 1 who was examined to prove bona fide need, was disbelieved in part by the trial court. The respondent's counsel would contend that it is not necessary under the statute that a notice preceding a petition for eviction should contain all the grounds on which eviction should be sought. Under Section 11 when eviction is sought on the ground of arrears of rent there should be a notice. Ext. A-1 is that notice. In the petition, the ground under Section 11(3) has been clearly put forward. The petitioner controverted this ground with the plea that the respondent is living in her own house and that she has other buildings also. It was on these pleadings that the parties joined issue and the Rent Control Court found bona fide need in favour of the respondent. The appellate authority confirmed the order of eviction on the bona fide ground. The non-examination of the petitioner is not fatal in such a case. The admitted case of the petitioner is that it was P. W. 1 with whom he had dealings about the house and therefore he is a competent witness. The fact that the court accepted the case of settlement of accounts spoken to by C. P. W. 1, though denied by P. W. 1, cannot render the latter's evidence on the ground of bona fide need unacceptable. The Revisional Court, according to me. correctly understood its jurisdiction under Section 20 and held that the conclusion arrived at by the appellate court was reasonable and did not call for interference. The petitioner's counsel contended before me that the revisional court misconstrued its jurisdiction and did not re-evaluate the evidence. I have gone through the order passed by the revisional court. I find that the propriety and the regularity of the order passed by the court below were satisfactorily considered by the revisional court. The conclusion arrived at by the revisional court does not therefore call for interference at my hands,

8. It is well settled that the jurisdiction of this court under Section 115 is very limited and narrow. Even if the District Court exercises its jurisdiction under Section 20 wrongly as alleged, this court will be slow in exercising its jurisdiction to correct an error of law. It is only when a jurisdictional error is committed by the District Court that this court can interfere. On the facts and circumstances of this case I am not satisfied that the court below has committed any error of jurisdiction.

9. Counsel for the petitioner made an appeal that his client has been staying in this house from 1956 and that he may be given three months' time to surrender possession of the building. The petition itself was filed in 1970. This request does not come with any grace from the petitioner's side. But taking into consideration the hardships that the tenants have to experience in Ernakulam, I grant the petitioner time till 1-6-1977 to surrender property to the respondent.

10. The Civil Revision Petition is dismissed with costs. Issue carbon copy to the respondent's counsel on payment of requisite charges


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