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H.M. Yusuf Vs. Mohammed Shafi and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Second Appeal No. 651 of 1972
Judge
Reported in1974WLN(UC)219
AppellantH.M. Yusuf
RespondentMohammed Shafi and ors.
DispositionAppeal dismissed
Excerpt:
.....by the defendant.;(b) landlord & tenant - notice--validity of--yearly tenancy changed into monthly tenancy--tenant agreed that ejectment notice be for a reasonable period--held, it is not necessary that tenancy must expire with end of month.;the tenancy was in the first instance for one year, and after the expire of one year, the tenancy became month to month and further the tenant agreed to vacate the premises after notice of a reasonable period. in these circumstances it is not necessary that the tenancy must expire with the end of the month of tenancy.;(c) practice - question not pressed in trial court--held, it cannot be allowed in appeal. - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986,..........it is mentioned that a notice of some definite period would be given. the notice specifies one month's period and calls upon the defendant to vacate the premises, and further provides that after the expiry of the period of notice the suit would be brought for ejectment.5. learned counsel urges that the notice ought to have expired with the end of the month of tenancy. it may be mentioned that the tenancy was in first instance for one year, & after the expiry one year the tenancy became month to month and further the tenant agreed to vacate the premises after notice of a reasonable period. in these circumstances it is not necessary that the tenancy must expire with the end of the month of tenancy. apart from that when the defendant himself did not press this question before the trial.....
Judgment:

C.M. Lodha, J.

1. This is a defendant-tenant's second appeal arising out of a suit for ejectment from a flat. The trial court decreed the suit and the appellate court has affirmed the judgment and decree by the trial court.

2. The suit was based on the ground of bonafide personal necessity of the landlord. Though several objections were raised by the appellant in the written statement but at the time of arguments, only Issue No. 3 was argued on his behalf. Issue No. 3 was with respect to the defendant's plea that he had paid rent upto the end of the year 1970. The trial court decided all the issues in favour of the plaintiffs. In the appellate court the defendant wanted to advance arguments on all the issues but the learned appellate Judge debarred him from arguing the other issues except issue No. 3. As regards issue No. 3 he found that the statements of the defendant and his witness D.W. 2 Jenowauddin were unreliable and the payment of rent upto 1970 AD was not proved. This finding appears to be quite just and proper.

3. learned Counsel for the appellant has urged before me that the defendant's tenancy bad not been terminated in accordance with law, and, therefore, the suit for ejectment should have been dismissed. In the first place it appears that in the trial court the defendant did not choose to rely on this contention as there is a specific mention in the judgment of the trial court that no contest was raised on behalf of the defendant on the other issues except Issue No. 3. Apart from that, in his written statement as a witness the defendant has not at all pointed out as to how the notice was invalid. Receipt of notice was denied though there is an endorsement of refusal on the notice. The plaintiff has stated that the notice was given through his counsel. The defendant has nowhere stated that he did not refuse the notice. In this state of evidence the trial court is justified in holding that it was proved that the notice was refused by the defendant.

4. As regards validity of the notice the complaint of the learned Counsel for the appellant is that it did not expire with the end of the month of tenancy and that it mentions that within one month the premises may be vacated. It may be pointed out that in the rent note it is mentioned that a notice of some definite period would be given. The notice specifies one month's period and calls upon the defendant to vacate the premises, and further provides that after the expiry of the period of notice the suit would be brought for ejectment.

5. learned Counsel urges that the notice ought to have expired with the end of the month of tenancy. It may be mentioned that the tenancy was in first instance for one year, & after the expiry one year the tenancy became month to month and further the tenant agreed to vacate the premises after notice of a reasonable period. In these circumstances it is not necessary that the tenancy must expire with the end of the month of tenancy. Apart from that when the defendant himself did not press this question before the trial court, he cannot be allowed to urge it at the appellate stage. In this view of the matter, I do not see any force in this appeal, and hereby dismiss it but without any order as to costs.

6. learned Counsel for the appellant prays that the appellant may be granted reasonable period to find out alternative premises. In the circumstances, I grant four month's time after the expiry of which the respondents shall be entitled to execute the decree for eviction. The appellant shall pay to the respondents or deposit in the trial court arrears of rent, if any, within one month from to-day and will go on depositing monthly rent within 15 days of its falling due. In case he fails to comply with this direction the respondents shall be entitled to take out execution forthwith.


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