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Ranumal Vs. Municipal Council, Ajmer - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtRajasthan High Court
Decided On
Case NumberSecond Appeal No. 327 of 1970
Judge
Reported inAIR1972Raj55; 1971(4)WLN387
ActsTransfer of Property Act, 1882 - Sections 106 and 111
AppellantRanumal
RespondentMunicipal Council, Ajmer
Appellant Advocate H.C. Jain, Adv.
Respondent Advocate S.K. Jindal, Adv.
DispositionAppeal allowed
Cases ReferredState of U. P. v. Satya Narain
Excerpt:
.....for the lessor to give notice in writing to the lessee of his intention to determine the lease. such a notice is a statutory requirement and cannot be dispensed with merely by an agreement of the parties to the contract.;on the face of the notice it is clear that it has not been given expressly on behalf of the principal. it is also not known whether shri jyoti swaroop had a general authority to give such a notice in the circumstances, therefore, the notice ex. 2 cannot be said to have been served by a competent person, and to all intents and purposes it must be held that no notice terminating the tenancy was given before the the institution of the present suit, with the result, that the suit is not maintainable. - - 4. after recording the evidence produced by the parties the..........of this notice has been placed on the record and marked ex. 2. the present suit was filed by the municipal council on 3-2-1965 asking for ejectment of the defendant from the premises in question as also for a decree of rs. 320/- on account of arrears of rent/mesne profits.3. the defendant resisted the plaintiff's suit and pleaded inter alia that the suit was not maintainable in absence of a valid notice terminating the defendant's tenancy. certain other pleas were also taken which it is however not necessary to reproduce here as the decision of this appeal turns solely on the question of validity of the notice of ejectment.4. after recording the evidence produced by the parties the munsif, aimer (rest) decreed the plaintiff's suit for ejectment as well as for arrears of rent as prayed......
Judgment:

C.M. Lodha, J.

1. This is a defendant's second appeal arising out of a suit for ejectment.

2. It is common ground between the parties that the defendant took on lease from the plaintiff a plot of land bearing AMG No. 21/310, situated outside Delhi Gate, Ajmer on a monthly rent of Rs. 25/- by lease deed Ex. 1 dated 26-6-1958. The period of lease was one year commencing from 1-4-1958 to 31-3-1959. It is also the admitted case of the parties that the defendant continued as tenant by holding over even after the expiry of the term fixed by the lease. The plaintiff's case is that the defendant had paid rent only upto 31-10-1963. It is further alleged that the plaintiff served a notice dated 25-9-1964 on the defendant calling upon the latter to vacate the premises by 31-10-1964 or on any other date on which the defendant thought his tenancy expired. A copy of this notice has been placed on the record and marked Ex. 2. The present suit was filed by the Municipal Council on 3-2-1965 asking for ejectment of the defendant from the premises in question as also for a decree of Rs. 320/- on account of arrears of rent/mesne profits.

3. The defendant resisted the plaintiff's suit and pleaded inter alia that the suit was not maintainable in absence of a valid notice terminating the defendant's tenancy. Certain other pleas were also taken which it is however not necessary to reproduce here as the decision of this appeal turns solely on the question of validity of the notice of ejectment.

4. After recording the evidence produced by the parties the Munsif, Aimer (Rest) decreed the plaintiff's suit for ejectment as well as for arrears of rent as prayed. Aggrieved by the judgment and decree of the trial court the defendant filed appeal, but the same was dismissed by the Additional Civil Judge, Ajmer by his judgment dated 3-9-1970. Consequently, the defendant has come in second appeal to this Court.

5. Learned counsel for the appellant has urged that the view of the learned Additional Civil Judge that the suit for ejectment was maintainable even in absence of a valid notice is erroneous. The necessity for taking this view arose before the learned Additional Civil Judge on account of the fact that the notice Ex. 2 was found by him to be not a valid and proper notice as it had been given by one Shri Jyoti Swaroop Gupta, Advocate without mentioning therein that he was giving and signing- this notice on behalf of the Municipal Council, Aimer or that he had been authorised to do so on its behalf.

6. The first point which, therefore, calls for determination is whether the suit is maintainable without serving a notice of termination of tenancy In this connection the learned Additional Civil Judge has relied on Clause (7) of the agreement of lease Ex. 1, which reads as follows:--

'That if the lessee commits a breach of any of the aforesaid conditions or fails to pay rent for one month, the lessor shall be entitled to determine the lease at any time without giving any notice and shall have power to re-enter plots of land and the lessee shall not be entitled to claim damages, if any, on this ground.'

Thus it is a case of determination of lease of immovable property by forfeiture, that is to say, in case the lessee breaks an express condition which provides that on breach thereof, the lessor may re-enter. In this connection reference may be made to Section 111(g) of the Transfer of Property Act which provides that lease of immovable property determines by forfeiture, that is to say, (i) in case the lessee breaks an express condition which provides that on breach thereof, the lessor may re-enter; or ............ and in (any of these cases) the lessor or his transferee gives notice in writing to the lessee of his intention to determine the lease.

7. It would be crystal clear from a bare perusal of Section 111(g) of the Transfer of property Act that for determination of lease by forfeiture it is obligatory for the lessor to give notice in writing to the lessee of his intention to determine the lease. Such a notice is a statutory requirement and cannot be dispensed with merely by an agreement of the parties to the contrary. It is significant that there are no such words in this section as, 'in the absence of a contract or legal law or usage to the contrary' as they occur in Section 106 of the Transfer of Property Act.

8. In Ramniranjan v. Gajadhar, AIR 1960 Pat 525 it was observed that the provision as to notice by the lessor has been inserted in Section 111(g) for the benefit of the lessee and is a protective stipulation which cannot be set at naught by the contract entered into between the parties; and construing the provisions of Section 111(g) in the context of the English principle of equity embodied in Section 114 of the Act, that a forfeiture clause for nonpayment of rent is merely security for the rent, the provision as to notice contained in the section cannot be waived by the act of parties. In this view of the matter it was held that there is no forfeiture of lease where the finding of fact is that a notice has not been given by the lessor to the lessee of the forfeiture of the tenancy for non-payment of rent even though an express term in the registered lease provides for an automatic forfeiture on non-payment of rent.

9. In Chandra Nath v. Chulai Pashi, AIR 1960 Cal 40 it was held that when there is a forfeiture, that is, when the lessee breaks an express condition which provides that on breach thereof the lessor may re-enter the lessor must give a notice in writing of his intention to determine the lease as provided in Section 111(g) of the Transfer of Property Act. It was further observed that the statutory requirement of notice specified in Section 111(g) of the Transfer of Property Act cannot be waived by contract and must prevail, and since there was no such notice served by the plaintiff, the latter was held not entitled to treat the lease as determined.

10. In Ramgopal v. Mangla, 1966 Raj LW 358 the rent note (Ex. 1) clearly provided that in case the rent fell in arrears the plaintiff would have a right to get the shop vacated without any notice. However, it was observed by the learned Judge that the plaintiff was bound to give notice determining the lease as provided in Section 111(g) of the Transfer of Property Act as in such a case, the lease was determined by forfeiture. Thus the position seems to be inescapable that when a lease of immovable property determines by forfeiture, that is to say, in case the lessee breaks an express condition which provides that on breach thereof the lessor may re-enter, the lessor is bound to give a notice in writing to the lessee of his intention to determine the lease, and then only the lease can be said to have been determined. Consequently, the view taken by the lower appellate court that even in absence of a notice the suit for ejectment was maintainable is erroneous, and cannot be maintained.

11. Being faced with this position learned counsel for the respondent tried to support the judgment under appeal by arguing that the notice Ex. 2 was a valid notice in the eye of law. In order to appreciate this contention it would be necessary to mention here, that the notice has been issued and signed by Shri Jyoti Swaroop Gupta, Advocate. It nowhere mentions that he has signed the notice on behalf of and/or under the instructions of the Municipal Council, Ajmer. Even in the body of the notice there is nothing to suggest that Shri Gupta had been authorised by the Municipal Council to serve the notice in question on the defendant. In this connection reference may be made to Section 106 of the Transfer of Property Act which provides inter alia that every notice under this section must be in writing, signed by or on behalf of the person giving it.

12. Learned Counsel for the respondent strenuously urged that Shri Jyoti Swaroop was a standing counsel of the Municipal Council, Ajmer and in the reply given by the defendant to the said notice the authority of Shri Jyoti Swaroop Gupta, to sign the notice on behalf of the Municipal Council was not challenged, and therefore, the learned counsel argues, the defendant must be taken to be aware of the fact that Shri Jyoti Swaroop Gupta was duly authorised to serve notice on behalf of the Municipal Council.

13. I have gone through the reply Ex. 3 to the notice and find that besides raising other contentions the defendant has also said that the notice was illegal. There is nothing therein to suggest that the defendant had in any way accepted the authority of Shri Jyoti Swaroop to serve notice on behalf of the Municipal Council, or that he was in any way aware of the fact that Shri Jyoti Swaroop was competent as a standing counsel of the Municipal Council to serve the notice.

14. In support of his contention learned counsel placed strong reliance on a Single Bench decision of this Court Thakurji Shriji Dwarkadheeshji v. Gappulal, 1969 Raj LW 164 wherein it was observed that the test to determine the authority for the giving of a notice is whether the notice is such that the tenant may act upon it with safety or, in other words, that it is a notice which is binding on the landlord. It appears from the facts of that case that the landlord was the Idol of Thakurji Shriji Dwarkadheeshji, and the notice was given by the Devendra Prasad as the Adhikari of the temple of Shri Dwarkadeeshji. The defendant in the written statement admitted that Devendra Prasad was appointed as the Manager of the temple with power to look after the temple and it was found as a fact that the tenant was aware that Devendra Prasad was functioning as Manager of the property of the temple and had given the notice in that capacity. It was further found from the reply given by the defendant to the notice that he definitely considered Devendra Prasad to be the person who had authority to manage the temple. Other material was also put on the record in that case to show that the properties of the temple including the shops in dispute had been entrusted to Devendra Prasad for management with authority to realise rents. In these circumstances the notice was held to be valid. In the present case, however, I do not find any of these things. There is absolutely nothing on the record to show that Shri Jyoti Swaroop was the standing counsel of the Municipal Council and was thus authorised to serve notice on its behalf.

15. Almost at the conclusion of the arguments learned counsel submitted an application under Order 41, Rule 27 Civil Procedure Code for admitting in evidence certain agreements alleged to have been entered into between the Municipal Council, Aimer and Shri Jyoti Swaroop retaining the latter as standing counsel of the Municipal Council. However, I do not see any ground for admitting these documents in evidence at this late stage, more so when the matter would still require to be investigated by recording evidence.

16. In this connection the following observations in Foa's General Law of Landlord and Tenant, 8th Edition, pages 606-607 may also be usefully referred to:

'The general common law rule is that a notice to quit need not be signed by the lessor personally; it is sufficient, if signed by his agent shown to be duly authorised in that behalf. If he acts under a special authority, he must give it in the name of the principal or expressly as agent on behalf of his principal; but if he acts under the authority incidental to a general agency to manage the demised property (e. g. where a cestui que trust is allowed by the trustees to have entire control of settled estates), he may give it in his own name...........'

'The notice must be such as the tenant may act upon with safety, that is, one which is in fact, and which the tenant has reason to believe to be, binding on the landlord.'

Lord Halsbury observes at page 524, paragraph 1176: Halsbury's Laws of England, Third Edition, Volume 23:

'1176. Notice given by agent. The notice may be given by the agent of either party, provided he is duly authorised, for that purpose at the time of giving it- If he is not so authorised, a subsequent ratification of the notice after the time for giving it has passed will not make it effectual, since the notice must be one which is, in fact, binding on the landlord when it is served. Moreover, the tenant must have reason to believe that it is thus binding, so that he may safely act on it, and if it is given by an agent having only a special authority, the notice must be given in the name of the principal or expressly on his behalf; but this is not necessary if the agent has been held out as having a general authority.'

17. In Lemon v. Lardeur, 1946 KB 613 it was held that, if the notice is given by an agent having only a special authority, the fact of his agency must appear on the face of the notice and the notice should be given expressly on behalf of the principal, who must be named or otherwise clearly identified.

18. In Jones v. Phipps, (1868) 3 QB 567 it was held that it was not necessary to the validity of a notice given by such a general agent that his agency should appear on the face of the document. In this case the trustees had given the cestui que trust full authority to manage the property and so he was entitled to give notice to quit as their agent. The case did not decide that the cestui que trust ordinarily acts as an agent for the trustees.

In this connection reference may also be made to State of U. P. v. Satya Narain, AIR 1970 SC 1199. In that case their Lordships were dealing with a notice of a cancellation of lease of tolls of public ferry under the Northern India Ferries Act, (1873). It was observed in the context of the relevant provisions of the Act that the notice of intention to cancel the lease cannot be an empty formality and the notice must be such that the lessee can safely act upon it and regulate his affairs. The notice was signed by an Executive Engineer and mentioned Section 10 of the Act, but it was not said in the notice that the officer had been authorised by the Government to give the notice. It was further observed that a notice under Section 10 of the Act must on its face show that what is being conveyed is Government's intention to cancel a lease, and that it is being conveyed either by Government itself or an officer duly authorised on its behalf. I am alive to the fact that their Lordships were dealing with a notice of cancellation of lease under Section 10 of the Ferries Act. But, in my opinion, the observations made by their Lordships apply to a considerable degree even in the case of a notice required to be served on the tenant under the provisions of the Transfer of Property Act. As already stated above, a notice of determination of tenancy under the Transfer of Property Act is also a statutory requirement and constitutes an important ingredient of the cause of action to file the suit.

19. In view of the foregoing discussion the conclusion is irresistible that it was the duty of the plaintiff to have shown in the facts and circumstances of the present case, that Shri Jyoti Swaroop had authority to serve the notice on behalf of the Municipal Council, Ajmer. As already stated, above, there is nothing in the notice to show that Shri Jyoti Swaroop had an authority on behalf of the Municipal Council Ajmer to sign the notice. On the face of the notice it is clear that it has not been given expressly on behalf of the principal. It is also not known whether Shri Jyoti Swaroop had a special authority or had a general authority to give such a notice In the circumstances, therefore, the notice Ex. 2 cannot be said to have been served by a competent person, and to all intents and purposes it must be held that no notice terminating the tenancy was given before the institution of the present suit, with the result, that the suit is not maintainable.

20. The result Is that I allow this appeal, set aside the judgments and decrees of the courts below and dismiss the plaintiff's suit as being not maintainable in absence of a valid notice terminating the defendant's tenancy. In the circumstances of the case the parties are left to bear their own costs throughout.

21. Learned counsel for the respondent prays for leave to appeal to D. B. Leave is refused.


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