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Mangaldas Pitamberdas Rana Vs. Nalinkumar Mugallal Jayaswal - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtGujarat High Court
Decided On
Judge
Reported in(1977)18GLR508
AppellantMangaldas Pitamberdas Rana
RespondentNalinkumar Mugallal Jayaswal
Cases ReferredGulabchand v. Kurji
Excerpt:
.....obligation on the landlord to mention different and distinct particulars in respect of two different tenancies created by the same landlord in favour of the same tenant, and if he has not complied with the same, the notice to quit is bad in law. majmudar submitted, that in the instant case, the lower appellate court did come to a conclusion that there were two separate tenancies created in favour of the petitioner-tenant in two separate and distinct premises, and the rent in respect of the shop as well as the residential premises was different. 31, is bad in law and that on that account the entire suit which has been filed by the appellant-landlord should be dismissed. a notice to quit though it may not be strictly accurate or consistent in the statements embodied in it may still be..........separate particulars have been set out by the opponent-landlord in respect of each of the two different tenancies. he stated that one composite notice setting out different and distinct particulars in regard to the arrears of rent in respect of both the tenancies are not mentioned in the notice to quit-ex. 31. he also stated that section 12(2) of the rent act read with section 106 of the transfer of property act does not permit the landlord to give one composite notice to terminate the two different and distinct tenancies in respect of two different premises when setting out the relevant and the material particulars in regard to the nonpayment of the standard rent or permitted increases due and payable by the tenant to the landlord. mr. majmudar emphasised the fact that in the instant.....
Judgment:

A.N. Surti, J.

1. The petitioner-tenant was aggrieved by the impugned decree of eviction passed by the learned 3rd Extra Assistant Judge, Baroda in Civil Appeal No. 317 of 1972 and which had arisen out of the judgment and decree passed by the learned Joint Civil Judge, (J.D.). Baroda in Regular Civil Suit No. 293 1969.

2. A few relevant facts giving rise to the present revision application may be stated in brief. The opponent-landlord filed Regular Civil Suit No. 293 of 1969 in the Court of the Joint Civil Judge. J.D. Baroda for getting an eviction decree essentially on two grounds viz., (1) for arrears of rent for a period of more than six month, and (2) for bona fide personal requirement. It may be mentioned at this stage that it was the case of the plaintiff that the defendant is a tenant of the shop on the ground floor of the premises in question and its monthly rent was fixed at Rs. 10/ - in the year 1961. It is also the case of the plaintiff that two residential rooms on the upper floor were also let out to the defendant and its monthly rent was fixed at Rs. 15/- per month in the year 1958.

3. The plaintiff terminated the tenancy in respect of both the afore said premises by a notice dated 25-11-1968 Ex. 31. By the said notice to quit, the plaintiff called upon the defendant-tenant to pay to him the arrears of rent plus the education cess.

4. The suit was resisted by the defendant-tenant on several grounds, It may be mentioned at this stage that one of the grounds was that the notice to quit Ex. 31 was not in accordance with law. Both the courts passed an eviction decree under Section 12(3)(a) of the Rent Act against the defendant-tenant.

5. It is under these circumstances that the defendant-tenant was aggrieved by the impugned judgment and decree passed by both the courts below and has filed this revision application in this Court.

6. At the time of hearing of this revision application, Mr. Majmudar, the learned advocate appearing for the defendant-tenant submitted that in the instant case, no decree can be passed as the landlord claimed not only the arrears of rent but also the education cess. In order to justify the submission, Mr. Majmudar placed reliance on the reported decision of this Court in Civil Revision Application No. 1344 of 1968 decided on 17th October, 1976 (Coram: J.B. Mehta and M.C. Trivedi, JJ. (Dayalal Gangaram v. Bhimani Bhupatrai XVII GLR 349). In this view of the matter, Mr. Majmudar is right that no decree of eviction can be passed against the tenant under Section 12(3)(a) of the Act.

7. The next point urged by Mr. Majmudar, was that in the instant ease, the notice to quit, Ex. 31 is bad in law. He stated that, in the instant case, firstly in the year 1958 the upper portion of the building in question was let out to the petitioner tenant and that the shop portion of the building situated on the ground floor was let out to the defendant on a monthly rent of Rs. 10/- in the year 1961. He stated that in view of these premises, two different and distinct tenancies were created by the opponent-landlord in favour of the petitioner. He stated that bearing these facts in mind, when one turns to notice to quit. Ex, 31, the notice does not comply with the requirements of law. Mr. Majmudar emphasised the fact that in the instant case, no distinct and separate particulars have been set out by the opponent-landlord in respect of each of the two different tenancies. He stated that one composite notice setting out different and distinct particulars in regard to the arrears of rent in respect of both the tenancies are not mentioned in the notice to quit-Ex. 31. He also stated that Section 12(2) of the Rent Act read with Section 106 of the Transfer of Property Act does not permit the landlord to give one composite notice to terminate the two different and distinct tenancies in respect of two different premises when setting out the relevant and the material particulars in regard to the nonpayment of the standard rent or permitted increases due and payable by the tenant to the landlord. Mr. Majmudar emphasised the fact that in the instant case, it is the statutory obligation on the landlord to mention different and distinct particulars in respect of two different tenancies created by the same landlord in favour of the same tenant, and if he has not complied with the same, the notice to quit is bad in law.

8. Section 12(2) of the Rent Act provides as follows:

12(2) No suit for recovery of possession shall be instituted by a landlord against a tenant on the ground of non-payment of the standard rent or permitted increases due, until the expiration of one month next after notice in writing of the demand of the standard rent or permitted increases has been served upon the tenant in the manner provided in Section 106 of the Transfer of Property Act, 1882.

9. Section 106 of the Transfer of Property Act, 1882 provides 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, lessee, by six month' 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 discussion of the lower appellate Court in para 13 of the impugned judgment is in the following words.--

It is an admitted fact that the defendant was put in possession of the first floor and the second floor of the suit premises in A.D. 1958 with a monthly rent of Rs. 15/. At that time, there was a shop of washerman on the ground floor of the said building. The tenant of that building vacated his portion and the present defendant was put in possession of the ground floor in A.D. 1961 with a monthly rent of Rs. 10/-. This shows that two portions were rented to the defendant on the different dates. It may be noted that there is no evidence to show that there was one tenancy for both the premises. The plaintiff has not produced any rent note to show that the defendant had executed a writing at the time when the suit shop was rented to him. To show that one tenancy was created for both the premises we are left with the circumstances of the case.

10. The lower appellate Court in para 14 has also observed as follows: 'Looking lo the facts and the conduct of the parties, it is clear that they treated both the tenancies to be separate one. Batuklal who is examined in this case has stated that he is maintaining the account books and making the entries of the rent in the same but has not produced any account book to show that the particular amount was credited towards the business premises or the suit premises.'

11. From the aforesaid discussion and the finding of the lower appellate Court, Mr. Majmudar submitted, that in the instant case, the lower appellate Court did come to a conclusion that there were two separate tenancies created in favour of the petitioner-tenant in two separate and distinct premises, and the rent in respect of the shop as well as the residential premises was different. In the circumstances, Mr. Majmudar stated that the notice to quit, Ex. 31, is bad in law and that on that account the entire suit which has been filed by the appellant-landlord should be dismissed.

12. Mr. Mehta, the learned advocate resisted with vehemence the second contention raised by Mr. Majmudar. Mr. Mehta drew my attention to Ex. 31 notice, Ex. 32 reply given by the defendant-tenant and Ex. 35, a letter addressed by the tenant to the landlord. In substance, Mr. Mehta's submission was that this Court should take into consideration the conduct of the parties in arriving at the conclusion as to whether the landlord complied with the statutory obligation or not. Mr. Mehta submitted that on reading Exs. 31, 32 and 35 it is clear that the opponent treated both the tenancies as one tenancy, and hence, the notice to quit Ex. 31 is valid in law.

13. In this behalf, Mr. Mehta also invited my attention to the reported decision of this Court in Gulabchand v. Kurji 3 G.L.R. 113 and read out before me the following portion from the head note:

A notice to quit though it may not be strictly accurate or consistent in the statements embodied in it may still be good and defective in law, the test of sufficiency would be satisfied if the notice to quit conveys to the tenant that his tenancy would be terminated at a certain and definite time expiring with the month of the tenancy and the court must construe the notice to quit not with a view to finding faults in it which would render it defective but must construe it ut res magis, valeat quam pereat

14. With respect, it is not possible for me to agree with the submissions made by Mr. Mehta. In the instant case, the lower appellate Court having appreciated the evidence on the record of the case did come to a conclusion that there is no evidence to show that there was one tenancy for both the premises. He also observed in para 14 of the impugned judgment that the parties did treat both the tenancies to be separate ones. In this view of the matter, and on a plain reading of Section 12(2) of the Rent Act and Section 106 of the Transfer of Property Act, I am convinced that it is the duty of the landlord to terminate both the tenancies by giving different and distinct particulars in regard to each tenancy, though it may be open to give only one notice. From this view point, I did peruse Ex. 31 and I did not find any such particulars in respect of each tenancy in the said notice to quit. In this view of the matter, Mr. Majmudar is right in bringing to my notice that in the instant case, the notice to quit is bad in-law.

15. As a result of the aforesaid discussion, the revision application succeeds. The suit filed by the opponent-landlord fails and must be dismissed. Accordingly, the rule is made absolute, but having regard to the intentions raise by the parties, there will be no order as to costs.


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