B. Durga Prasad v. B. Rama Kant — 1950 DIGILAW 368 (ALL)

JUDGMENT Bind Basni Prasad, J. - This defendant is admittedly the tenant of the plaintiff-respondent. The latter brought a suit for the arrears of rent and ejectment of the defendant from the house. The trial court decreed the suit in part, as regards the arrears of rent, but dismissed it for the ejectment on the ground that the notice u/s 106 of the Transfer of Property Act was invalid. The lower appellate court disagreed with this finding and decreed the claim for ejectment also. The defendant comes in appeal to this Court. 2. Two points have been argued in this Court : The first point is that the plaintiff obtained the permission of the District Magistrate u/s 3 of the U.P. (Temporary) Control of Bent and Eviction Act ,of 1947 (Act III of 1947). for the institution of the suit of ejectment on the ground that he had no accommodation for himself. It is contended that after the suit had been decided by the trial court, the plaintiff was able to obtain the possession of another house for his residence. The plaintiff, therefore, does not any longer require the house in suit for his residence. Hence despite the fact that the District Magistrate has granted the permission, the suit should be dismissed as the object of the U.P. (Temporary) Control of Bent and Eviction Act is to afford relief to the tenants of houses and this object will be defeated if the suit is decreed on a ground which no longer exists. 3. The legal position is this According to the Transfer of Property Act every landlord has an unfettered right to evict tenants at will. During the war when there was difficulty about accommodation, Orders were issued under the Defence of India Rules to avoid the harassment of tenants and afford protection to them-With the expiry of the Defence of India Act, the Orders issued under it also came to an end. Ordinances were then made to continue the same protection to the tenants. Subsequently these ordinances were replaced by the U.P. (Temporary) Control of Rent and Eviction Act of 1947 (Act III' of 1947). According to it the right of the landlords to eject the tenants has been restricted. Ordinances were then made to continue the same protection to the tenants. Subsequently these ordinances were replaced by the U.P. (Temporary) Control of Rent and Eviction Act of 1947 (Act III' of 1947). According to it the right of the landlords to eject the tenants has been restricted. Section 3 read with Section 10 of the Amending Act of 1948 would show that if a tenant is sought to be ejected for any of the grounds mentioned in Section 3, then the permission of the District Magistrate is not necessary for the institution of such a suit. If, however, it is intended to institute a suit for the ejectment of a tenant on any ground other than those mentioned in Section 3, then the landlord has to obtain the permission of the District Magistrate. The District Magistrate has been given a discretion to refuse or grant the permission. The grounds upon which he may refuse or grant -the permission are not specified in the Act. It appears that in the present case, the District Magistrate granted the permission to the plaintiff because the latter was in need of accommodation for himself. The allegation that the plaintiff has been able to secure another house for himself has not been proved. Learned counsel contends that he was not given an opportunity to establish this, and requests that he should be given such an opportunity. Assuming that the plaintiff has been able to secure another house for his residence, the question is now does it affect the merits of this case. With the grant of permission by the District Magistrate, the bar of the institution of the suit imposed by Section 3 was removed for the plaintiff. Subsequent events cannot re-impose that bar. The grant of the permission u/s 3 created a position so far as plaintiff was concerned so as to make available to him the rights which he has, as a landlord under the Transfer of Property Act. Learned counsel, contends that subsequent events should be taken into consideration by the Courts in appeal for the disposal of the cases. Reliance is placed on AIR 1941 5 (Federal Court) Nitanjan Lal Bhargava v. Mr. Ram Kali Devi A.L.R. 1950 All. Learned counsel, contends that subsequent events should be taken into consideration by the Courts in appeal for the disposal of the cases. Reliance is placed on AIR 1941 5 (Federal Court) Nitanjan Lal Bhargava v. Mr. Ram Kali Devi A.L.R. 1950 All. 396 In both these cases the subsequent events which happened after the decision of the case by the lower court way the enactment of a fresh law and it was held that the courts should take them into consideration. Another case which has been relied upon is AIR 1948 1 (Nagpur) In this cage one of the parties died and the question was whether the maintainability of the suit is affected by reason of the death of the minor plaintiff after the institution of the suit. Learned Judges held : A suit must be tried in all its stages on 'the cause of action as it existed at the date of its commencement. The Court, however may in suitable cases take notice of events which have happened since the institution of the suit and afford relief to the parts on the basis of the altered conditions. This doctrine is of an exceptional character and is applied in cases where it is shown that the original relief claimed has. by reason of subsequent change of circumstances, become inappropriate, or, that it is necessary to base the decision of the Court on the altered circumstances in order to shorten litigation or to do complete justice between the parties. 4. The present case is distinguishable from the three cases just referred to. There has been no alteration in the law nor has there been any event of the nature which happened in the Nagpur case just referred to. It is still a disputed fact whether or not the plaintiff needs the house in suit to his residence. Learned counsel for the respondent contends that the plaintiff has a large family and he is still in need of the house in suit. In these circumstances, the subsequent event, even if it has actually happened, cannot be taken into consideration in the decision of this appeal. In fact, I am inclined to the view that this subsequent event cannot re impose a bar against the plaintiff which was removed by the grant of permission to him by the District Magistrate. The bar once removed cannot be re-imposed. 5. In fact, I am inclined to the view that this subsequent event cannot re impose a bar against the plaintiff which was removed by the grant of permission to him by the District Magistrate. The bar once removed cannot be re-imposed. 5. The second ground taken is that the notice u/s 106 of the Transfer of Property Act was invalid. The relevant facts are these : it was a monthly tenancy and it commenced from the first of every calendar month. On the 17th May, 1948, the plaintiff sent a notice to the defendant through his lawyer, the last paragraph of which ran as follows :- 6. I therefore on behalf of my client ask you to vacate the portion of House No. 82 Laskar Line, Cemetry Road under your occupation on first of July 1948 and to hand over its possession to my (sic) and pay off all the rents etc. due to my client by that time otherwise my client will be compelled to sue you in a court of law for ejectment and recovery of arrears of rent at Rs. 10 P. M., and you shall be responsible for his costs as well." 7. Learned counsel for the appellant can-tends that inasmuch as the defendant was required to vacate the house on the 1st July, the notice was bad. His contention is that if by the notice the defendant had been required to vacate the house by the 30th June 1948, it could have been in compliance with section 106 of the Transfer of property Act and no valid objection could be taken to it. The relevant part of Section 106 is as follows : a lease, of immoveable property for any other purpose shall be deemed to be a lease from month to month terminable, on the part of either lesser or lessee, by fifteen days' notice expiring with the end of a month of the tenancy. 8. The whole question is whether the notice which the plaintiff sent to defendant in the present case 'can be treated as one expiring with the end of the month of the tenancy. I am of opinion that it must be held to be so. It is clear from the notice, which has been quoted above, that the plaintiff treated the defendant as a tenant upto the 3oth June, 1948 only. That was the last date of the tenancy. I am of opinion that it must be held to be so. It is clear from the notice, which has been quoted above, that the plaintiff treated the defendant as a tenant upto the 3oth June, 1948 only. That was the last date of the tenancy. The fact that he asked the defendant to vacate the premises on the 1st July, 1949, proves that the plaintiff was not willing to treat him as his tenant on the 1st July, 1948. 9. Learned counsel for the appellant has relied upon several authorities and I propose to deal with them now. The first is the Full Bench case of Bradley v. Atkinson ILR VII, Alld. 899 . Far from helping the appellant this case goes against him. At page 903, Straight J. observed as follows :- It appears to me that the words in section 106 of the Transfer of Property Act. fifteen days' notice expiring with the end of a month of the tenancy" mean what they purport to mean. In the present case, the tenancy began on the 1st July 1882, and a good notice to quit would have to be so dated as to require the tenant to quit upon the first of a month. 10. This exactly what has happened in the present case. 11. The next case is Seoti Bibi v. Jagannath Prasad 18 A.LJ. R 854 The facts of that case are distinguishable from those of the present one. In that case a house was let on a monthly tenancy terminating on the 26th of each month according to the Hindu calendar. Notice to quit was issued on 28th December. 1915, and served on or before the 31st December, 1915. The notice required the tenant to vacate on or before the 31st of January, 1916. The 26th of the Hindu month falling next after the date of the notice was the 15th of January, 1916, and the next succeeding was the 14th of January, 1916. It was held that the notice was invalid as it did not fix a period which expired with the end of a month of the tenancy. It will be seen that there was an interval of 16 days between the expiry of the month of tenancy and the date on which the tenant was required to vacate it. It was held that the notice was invalid as it did not fix a period which expired with the end of a month of the tenancy. It will be seen that there was an interval of 16 days between the expiry of the month of tenancy and the date on which the tenant was required to vacate it. In the present case, the tenant was asked to vacate the house on the date immediately following the date of the expiry of the monthly tenancy, that is to say, not for a single day after the expiry of the month of the tenancy the defendant was treated as a tenant of the premises. Queen's Club Gardens Estates, Limited v. Bignell 1924 (i) K.B. 117 is the next case which has been relied upon. It was held in that case. In order that a weekly tenancy may be determined by a notice to quit, the notice must be one which expires at the end of a periodic week from the commencement of the tenancy. 12. A weekly tenancy ran from Saturday in each week to the sama day in the next week. The landlords on a Friday served upon the tenant a notice to quit, which was expressed to be " the requisite week's notice for the termination of your tenancy one week from Monday next". 13. It was held that the notice to quit was invalid, inasmuch as it was not a notice expiring at the end of the weekly term. This again is distinguishable. 14. The tenancy expired on the midnight of Friday, Whereas by the notice the tenant was asked to vacate on the midnight of Sunday. Thus for one day at least after the weekly tenancy sought to be terminated, the defendant was treated by the plaintiff as a tenant. 15. The next case relied upon is Preeion v. Reedie (1921) 2 K.B. 149. It was held in that cast that- In order that a monthly tenancy maybe determined by notice to quit, that notice, in the absence of special agreement, must be a month's notice expiring at the: end of a periodic month from the: commencement of the tenancy. A monthly tenancy began on the first, day of the month and so continued from month to month. A monthly tenancy began on the first, day of the month and so continued from month to month. On September 5, 1923, the tenant received by post from the landlord a notice dated September 1,1923, and purporting to give 'him "one month's notice to quit. 16. It was held that the notice to quit was invalid inasmuch as it did not expire at the end of the monthly term. This is; also distinguishable, because the monthly tenancy came to an end on the midnight of the last date of the month but notice; required the tenant to vacate it on September 5. 17. In Harihar Banerji v. Ramshashi Roy AIR 1918 P.C. 102 . their Lordships of the Judicial Committee held that. The principles governing the construction of a notice to quit laid down by English cases are equally applicable to cases arising in India and they establish that notices to quit though not strictly accurate or consistent in "the statements embodied in them, may still be good and effective, in law ; the test of their sufficiency is not what they would mean to a stranger ignorant of all the facts and circumstances touching the holding to which they purport to refer, but what they would mean to tenants presumably conversant with all those facts and circumstances, and further they are to be construed not with a desire to find fault in them which would render them defective but to be construed us res magis valeat quam pereat Doe. 18. The lower court has also relied upon A.S. Gnanaprakasam Pillai Vs. F.S. Vaz, AIR 1931 Mad 352 and Utility Articles Manufacturing Co. v. Raja Bahadur, Motilal Bombay Mills AIR 1943 19. I am of opinion that where a landlord in his notice requires a tenant to vacate the premises on a date immediately following the date of the expiry of the monthly tenancy, the notice complies with the provision of Section 106 of the Transfer of property Act. 20. I would, therefore, dismiss this appeal with costs. Sankar Saran, J. 21. I agree. By The Court 22. The appeal is dismissed With costs.