Baseshwar Dayal v. Nand Kishore — 1964 DIGILAW 9 (ALL)

ORDER M.H. Beg, J. - This is a Defendant's appeal, arising out of a suit for recovery of possession over a portion of bungalow in Meerut Cantonment and some land lying in front of it, and for recovery of Rs. 1100/- as arrears of rent from 1.8 59 to 31.5.60, and for Rs. 1270/- towards mesne profits from 1.6.60 to 17.5.61. The Plaintiff Respondent purchased the abovementioned bungalow and land by a sale deed dated 10th April, 1961 which purported to transfer the ownership of the property and also the right to collect arrears of rent from 1.8.59 to 31.5. 60, and, thereafter, mesne profits in respect of the accommodation in dispute, and the suit was filed on 19.5.60. Before the sale, the Plaintiff's vendor had, in the capacity of the landlord, given several notices to the Defendant Respondent with the object of terminating the tenancy of the Defendant Appellant and demanded arrears of lent. The notice which was the basis for the suit for ejectment in this case was dated 4th April, 1960. The Plaintiff's case was that this notice complied with the requirements of Section 106 of the Transfer of Property Act as well as Section 3 of the U.P. (Temp.) Control of Rent and Eviction Act, III, 1947 (hereinafter referred to as the Act), and that it ter-minated the tenancy with effect from 31.5.60, after calling upon the Defendant Appellant to pay up arrears o rent for more than three months within one month of the service of the notice of demand upon him. The contesting Defendant Appellant was alleged to be a month to month tenant together with Defendant No. 1 who did not contest the Plaintiff's claim. The Defendant Appellant, however, denied that he has committed any default in the payment of rent, and he alleged that he had made payments towards rent in cash and in kind which wiped off the liability of the Defendant Appellant to pay rent except to the extent of Rs. 194/4/-on the date of purchase by the Plaintiff Respondent. The Defendant Appellant also alleged that the Plaintiff's predecessor in interest went on postponing acceptance of rent due which had to be sent by Money Order but was refused. 194/4/-on the date of purchase by the Plaintiff Respondent. The Defendant Appellant also alleged that the Plaintiff's predecessor in interest went on postponing acceptance of rent due which had to be sent by Money Order but was refused. As regards the notice of demand of rent and termination of tenancy, apart from vaguely pleading that the notice was illegal, the Defendant Appellant only set up the case that the notice of demand sent by the plaintitf's predecessor in interest could not be taken advantage of by the Plaintiff. No other case was set up regarding the invalidity of this notice. 2. The trial court held that the plea of payment by the Defendant Appellant was untruthful. It also found that there had been a wilful default in the payment of rent. It, therefore, decreed the Plaintiff's suit for possession over the bungalow and land in suit after the ejectment of the Defendant Appellant, and for the recovery of rent upto 31.5.1960, and of mesne profits after 10.4.1961, when the Plaintiff Respondent became the owner of the bungalow and the land. The claim for mesne profits from 1st June to 9th April 1961 was dismissed by the trial court on the ground that this was hit by the provisions of Section 6(e) of the Transfer of Property Act. The Defendant Appellant appealed against the decree for his ejectment and for the arrears of rent and for mesne profits from 10.4.61 onwards. The Plaintiff Respondent filed a cross objection against the rejection of his claim for mesne profit from 1st June 1960 to 9th April 1961. The lower appellate court dismissed the Defendant's appeal and also the Plaintiff's cross objection. There are, there-fore, a Defendant's second appeal and a Plaintiff's cross-objection before me. 3. It has been argued on behalf of the Defendant Appellant that the notice of demand, dated 4th April 1960, was not capable of providing the Plaintiff Respondent with a cause of action for a suit for the ejectment of the Defendant Appellant. The argument was that the right conferred by Section 3(1)(a) of the Act was a personal right of the particular landlord who had served the notice upon the Defendant tenant. It was argued by Mr. S.N. Misra, appearing for the Appellant, that the personal and individual right of a landlord could not be taken advantage of by his successor in interest. It was argued by Mr. S.N. Misra, appearing for the Appellant, that the personal and individual right of a landlord could not be taken advantage of by his successor in interest. Reliance was placed on behalf of the Appellant on the case of Sajjan Singh v. Jamuna Bala (1) ( AIR 1960 All. 410 ) in order to support the contention that rights conferred by Section 3(1) (a) were personal rights, In this case, it was held by my brother, Dhavan,J.: In view of the scheme of Section 3, the permission granted to a landlord under this section to file a suit for the ejectment of the tenant confers on him a personal right which is not transferable to his successor in interest. If the latter, after becoming the owner of the accommodation, wants to eject the tenant on any ground other than those enumerated in Clauses (a) to (g), he must take out his own case before the "District Magistrate and cannot upon the permission obtained by the previous landlord. Clause (1) to Section 3 of the Act runs as follows: No suit shall, subject to any order passed under Sub-section (3) without the permission of the District Magistrate, be filed in any civil court against a tenant for his eviction from any accommodation, except on one or more of the following grounds: (a) that the tenant is in arrears of rent for more than three months and has failed to pay the same to the landlord within one month of the service upon him of a notice of demand; Then follow grounds (b), (c), (d), (e), (f) and (g) constituting other exceptions to the bar against suits without permission. 4. It is apparent that Section 3 of the Act does not really confer rights upon any persons. It only imposes a restriction upon the rights of all landlords in general who may be governed by the provisions of the Act to file suits against their tenants. This general restriction upon landlords, within areas to which the Act applies, is subject to certain exceptions made in favour of landlords in certain specified contingencies. 5. It only imposes a restriction upon the rights of all landlords in general who may be governed by the provisions of the Act to file suits against their tenants. This general restriction upon landlords, within areas to which the Act applies, is subject to certain exceptions made in favour of landlords in certain specified contingencies. 5. On a reasonable view of the Act as a whole, it could be held that the permission which the District Magistrate may grant u/s 3 of the Act to a particular landlord will depend upon the particular needs and circumstances of the landlord vis a vis a tenant. The discretion possessed by the District Magistrate u/s 3 of the Act is always exercised with reference to particular individuals after the District Magistrate has applied his mind to the facts and circumstances of the particular case placed before him. The decision of a District Magistrate taken with regard to one landlord, in relation to one tenant, may be very different from his decision relating to another tenant. The permission granted by the District Magistrate to a landlord u/s 3 of the Act to file a suit, therefore, could be held to give rise to an essentially personal right which is attached, so to speak, to the person of a particular individual as a landlord. It could be reasonably held that it cannot be taken advantage of by another individual succeeding to the capacity of the landlord who must, keeping in view the purposes of the Act and the nature of the discretionary power exercised by the District Magistrate, seek a fresh permission from the District Magistrate if he wants to file or continue a suit against a tenant. At any rate, unless this view is superseded by the view that the permission to sue merely removes a bar to the suit of the landlord, and does not give rise to a personal right to sue, it must be held to be the correct view. On the other hand, the right to evict a tenant for failure to pay rent for more than three months inspite of a notice of demand upon him, u/s 3(1)(a) of the Art, does not carry with it any individual qualifications or requirements. On the other hand, the right to evict a tenant for failure to pay rent for more than three months inspite of a notice of demand upon him, u/s 3(1)(a) of the Art, does not carry with it any individual qualifications or requirements. The right to take advantage of Section 3(1)(a) appertains to the capacity of a landlord in relation to a tenant who has incurred certain liabilities by failure to comply with the notice. It is a right appertaining to or attached to the capacity of a landlord as a landlord. It can, and, on ordinary principles of interpretation, is intended to pass from a landlord to his successor. Therefore, the decision relied upon by the Appellant cannot help him in this case. 6. Moreover, Section 2(c) of the Act defines the term 'landlord' in such a way as to include his heir or assignee. It is argued for the Respondent by Mr. Brij Lal Gupta that Section 3(1)(a) of the Act does not exclude from its purview the case of a transferee who wants to take advantage of a notice served by his transferor as a landlord. The term 'landlord', as used in Section 3(1)(a), must, it is argued, be interpreted, in its natural sense of any person possessing the capacity of a landlord. It cannot be confined to the particular landlord who serves a notice upon the tenant, without introducing words within the body of Section 3(1)(a) of the Act which are not to be found in it. If an authority was needed for the proposition that the words of a statute must be interpreted in their natural and ordinary sense, without introducing words into it in order to suit a particular point of view, reliance may be placed on the case of Dr. Ishwari Prasad Vs. Registrar, University of Allahabad and Others, AIR 1955 All 131 where it was held: ...It is, however, well known rule of construction that if there is anything to modify or qualify the language which the Statute contains, it must be construed in the ordinary and natural meaning of the words. In that case also Mootham, C.J., had refused to accept an argument which involved reading words into the terms of a provision which were not there. In that case also Mootham, C.J., had refused to accept an argument which involved reading words into the terms of a provision which were not there. In the present, the argument put forward on behalf of the Appellant involves the introduction of words denoting that only the particular landlord could bring a suit covered by Section 3(1)(a) of the Act who had served a notice himself, although the term 'landlord' would include every one who may be enjoying the capacity of the landlord of a particular accommodation. 7. Reliance has also been placed on behalf of the Defendant Appellant upon two authorities relating to the interpretation of Section 80 Code of Civil Procedure. These authorities are Bachchu Singh v. Secretary of State (3) (ILR 25 All. 187) and Mahadev Dattatraya Rajarshi Vs. Secretary of State for India, AIR 1930 Bom 367 where the Allahabad case has been followed. I do not think that decisions based on the particular language of Section 80 Code of Civil Procedure, which has been held to require that a Plaintiff can only take advantage of a notice u/s 80 CPC if he himself served that notice. can possibly help the Appellants in the present case. On the other hand, Section 80 CPC provides an instance in which a provision containing a bar to suits against the Government or Public Officers required, as a condition precedent to the lifting of that bar, the particulars of a Plaintiff's name, residence, and description before the bar could be lifted. This meant that the name of the individual who later figures as a Plaintiff, and not just his capacity, are material tor the purposes of lifting the bar to a suit by a notice u/s 80 Code of Civil Procedure. If the intention of Section 3 of the U.P. Act had been similar, we could have found similar language used in this section. A comparison with the provisions of Section 80 CPC lends support to the view adopted by me. 8. Another argument which has been advanced is that the notice to evict the Defendant was merely a threat to evict him but not a notice contemplated either by Section 106 of the Transfer of Property Act or by Section 3 of the Act. Reliance has been placed upon the judgment of my brother Dhavan, J. in Sunder Lal v. Ram Krishan and Anr. Reliance has been placed upon the judgment of my brother Dhavan, J. in Sunder Lal v. Ram Krishan and Anr. (5)( 1960 AWR 96 ) where it was held: ...taking into consideration the fact that the landlord had sent repeated notices like this, the notice was capable of the interpretation that it was another demand for rent coupled with a threat to terminate the tenancy and in such situation the benefit of the doubt should go to the tenant and therefore this notice did not indicate a clear decision to terminate the tenancy.... The notice in that case was as follows: Now you will kindly pay the end of July 1956 a sum of Rs. 50/- in respect of rent and also vacate the house and handover possession to us or else at the expiry of the period of this notice, suitable action will be taken against you in law courts. 9. On the other hand, in the case before me, the notice is to terminate the tenancy of the Defendant Appellant. The Defendant Appellant so clearly understood this notice to have been intended to terminate his tenancy and to have had the effect of terminating it that six out of ten grounds of appeal in this Court repeat the one and the same submission, couched in slightly different language in each ground, that "the Appellant having been treated a trepasser after the tenancy had been terminated, the courts below could not decree the Plaintiff's suit for ejectment." Further more, the Defendant Appellant did not set up any such case at all in the courts below. Such a case must necessarily involve investigation into facts relating to the intention to be gathered from repeated notices and whether they were treated by the landlord and the tenant as anything more than threats. There certainly are successive notices upon the record, but the question relating to the inference from such notices is a question of fact which could only be investigated if the Defendant Appellant had taken up the case, in his written statement, that the notice of 4th April, 1960, was neither intended by the landlord to operate as a notice terminating the tenancy nor so understood by him. In the absence of such a case, either in the written statement or at any other stage before arguments in this Court, the question cannot be raised before me at all. 10. In the absence of such a case, either in the written statement or at any other stage before arguments in this Court, the question cannot be raised before me at all. 10. It was then contended that the suit filed by the Plaintiff Respondent was a suit against an alleged trespasser which could not be filed u/s 3 of the Act. It is argued that "a suit u/s 3 of the Act" lies only against a tenant and not against a trespasser. This argument is based upon a misconception about the nature of a suit by a landlord against a person whose tenancy has been terminated and also about the purpose of Section 3 of the Act. A landlord does not file a suit u/s 3 of the Act at all, but he files it against a person who has rendered himself liable to ejectment from his property by virtue of the right and title of the landlord as owner of the property. Section 3 of the Act merely prescribes the conditions under which a landlord may obtain a decree for ejectment against a person who has been tenant of an accommodation to which the Act is applicable. It only regulates and restricts the right of a landlord who gets the power to file a suit relating to his property by reason of his ownership of that property and not because of Section 3 of the Act. 11. The contention, as I understand it, is also that Section 3 of the Act enables a landlord to file a suit against a tenant only, and not against a trespasser. It is true that Section 3 of the Act imposes a bar upon suits by landlords against tenants subject to specified exceptions, but the terms 'a tenant' obviously mean a person who has become liable to eviction as a result of the termination of his tenancy. It could not mean a person who remains a tenant even at the time the suit is filed. If it were the intention of this provision to confine its application to suits by landlords against persons who are actually tenants at the time of the filing of the suits, the section will become quite meaningless and nugatory. It could not mean a person who remains a tenant even at the time the suit is filed. If it were the intention of this provision to confine its application to suits by landlords against persons who are actually tenants at the time of the filing of the suits, the section will become quite meaningless and nugatory. The operation of the bar could easily be avoided, in every case, by serving a notice upon the tenant which terminates his tenancy u/s 106 of the Transfer of Property Act. After that the person whose tenancy was terminated would no longer be a "tenant". Therefore, a suit could be filed against that person without any permission of the District Magistrate. It is clear to me that this could not possibly be the intention of the provision which contemplates suits by landlords who have terminated the tenancy of their tenants in accordance with law before filing the suits. If a tenancy is not termi-nated no occasion for suing for ejectment could arise. 12. Lastly, it was attempted to be argued that the lease in question was "a manufacturing lease" so that the notice of termination of tenancy was not valid because such a "manufacturing lease" did not create a monthly tenancy. I have dealt with this question separately also by means of an order passed upon the Defendant's application seeking to introduce this case by attempting to file fresh documentary evidence in this Court on this matter, after I had rejected an appli-cation for the amendment of the pleadings at this stage. No such case was taken in the written statement. But, this question was discussed at some length by the trial court which considered the evidence of the parties, including the admissions of the Defendant Appellant, and which recorded a finding of fact that it was not a manufacturing lease. The question does not appear to have been seriously raised before the lower appellate court which observed: It was alleged in para 5 of the grounds of appeal that the lease in dispute was for manufacturing purposes & the notice of ejectment was bad on this score. This point was not pressed before me by the learned Counsel for the Appellant but I would observe that the lease of demised premises was not for a manufacturing purpose and as such the notice for ejectment was not invalid. This point was not pressed before me by the learned Counsel for the Appellant but I would observe that the lease of demised premises was not for a manufacturing purpose and as such the notice for ejectment was not invalid. This question again is one of fact which cannot be reopened in second appeal. I also find that the trial court has given very good reasons, based upon a thorough consideration of evidence upon the matter, for coming to the conclusion that the lease of the Defendant Appellant was not a manufacturing lease. Such a lease can only be executed by means of a registered document in view of Section 107 of the Transfer of Property Act. It is a matter of admission between the parties that there was no registered lease in this case. In the absence of a registered instrument, the tenancy could only be deemed to be a monthly tenancy. 13. Coming to the cross objection filed by the Plaintiff Respondent, I find that the courts below have held that the right to collect arrears of rent and mesne profits transferred to the Plaintiff Respondent by his vendor, under the sale deed which made the Plaintiff Respondent the owner of the accommodation in dispute, could not entitle the Plaintiff Respondent to a decree for mesne profits from 1st June, 1960, to 9th April, 1961, in view of Section 6(e) of the Transfer of Property Act. A decree for arrears of rent was given from 1st of August, 1959, to the termination of the tenancy on 31st of May, 1960, on the ground that arrears of rent were transferable as they constituted actionable claims within the meaning of that term given in Section 3 of the Transfer of Property Act. A decree for mesne profits was also awarded from 10.4.61, the date on which the Plaintiff Respondent became the owner of the accommodation in dispute, up to the date of the suit, which was 18.5. 1961 at the rate of Rs. 110/- per month. The claim for mesne profits from 1st of June, 1960, to 9th of April, 1961, was dismissed on the above mentioned ground. 14. The lower appellate court upholding the view taken by the trial court also dismissed the claim for mesne profits from 1st of June 1960 to 9th of April 1961. 110/- per month. The claim for mesne profits from 1st of June, 1960, to 9th of April, 1961, was dismissed on the above mentioned ground. 14. The lower appellate court upholding the view taken by the trial court also dismissed the claim for mesne profits from 1st of June 1960 to 9th of April 1961. The lower appellate court observed that the view taken in a number of cases supported the contention put forward on behalf of the 'Plaintiff "that when the property is transferred and alongwith it a right to recover damages or compensation in respect of that property, the assignment of this right is a valid assignment and is not hit by Clause (e) of Section 6". It pointed out that this view was supported by the view taken in most cases of other courts and some cases of this Court. This view is taken in the following cases: Ganga Din and Another Vs. Piyare ; Bans Gopal Sheo Narain and Another Vs. P.K. Banerji and Others, AIR 1949 All 433 ; Parma Shan v. U.P. (8) ( AIR 1939 Oudh. 196 (DB)); Murulidhar Agarwalla and Others Vs. Rupendra Mitter and Another, AIR 1953 Cal 321 ; Shankarappa Kotrabasappa Harpanhalli Vs. Khatumbi Jamaluddinsab, AIR 1932 Bom 478 and Benumetcha Gangaraju Vs. Veluri Gopala Krishnamurthi and Another A number of other cases of various High Courts, adopting this very view, could be cited. I may, however, quote and respectfully adopt exposition of the view by An-dhra Pradesh High Court in Benu mutch Gangaraju's case (supra) decided by a Full Bench of that Court. The basis of the rule contained in Section 6(e) of the Transfer of Property Act was thus explained: Under the common law ordinary choses in action were not assignable, but were generally speaking, assignable in equity. In case of legal choses, equity compelled "the assignor to allow his name to be used for their recovery in legal proceedings, and, in the latter case, the assignee could sue in equity in his own name. The exception to the rule was that the equity did not give validity to the assignment of what came to be called 'a bare right of action', and the real reason why equity did not allow the assignment was on the ground that it savoured of or was likely to lead to maintenance. The exception to the rule was that the equity did not give validity to the assignment of what came to be called 'a bare right of action', and the real reason why equity did not allow the assignment was on the ground that it savoured of or was likely to lead to maintenance. The basis of the exception being that the transaction savouring of maintenance (sic)r champerty should not be recognised, (sic) follows that a transaction not open (sic) the charge would be upheld. Therefore, soon an exception to the rule of a bare right of action being an assignable came to be recognised. This exception provides that a right of action may be assigned if it be incidental or subsidiary to a conveyance of property. From the aforesaid historical background, it is clear how closely Section 6(e) of the Transfer of Property Act, which provides that a mere right to sue cannot be transferred, is in association with the exception of the bare right of action not being assignable. It is equally clear that the provision being aimed against transactions which according to English Law would amount to champerty and maintenance, whenever a transaction be free of such a charge it would be valid. The lower appellate court felt unable to take what it seems to have thought was the better view on this question because of the judgment of a Division Bench of this Court in Bal Krishna Sharma Vs. Paij Singh and Another where this Court, purporting to follow a decision of the Patna High Court, had held that the right to sue for mesne profits was not transferable. I have gone through this decision with care and find that there was a separate sale deed by which the vendor had transferred the right to damages or mesne profits for the years 1333 Fasli and 1334 Fasli. It was an independent and separable transfer unconnected with the transfer of the property itself. The ratio decidendi of such a case would not be applicable to the present case. A perusal of the judgment of a Division Bench of this Court in Bansgopal v. P.K. Banerji (supra) makes the distinction between a mere right to sue and a right to sue resulting from a right to the property itself very clear. The ratio decidendi of such a case would not be applicable to the present case. A perusal of the judgment of a Division Bench of this Court in Bansgopal v. P.K. Banerji (supra) makes the distinction between a mere right to sue and a right to sue resulting from a right to the property itself very clear. There it was pointed out: "where a right to sue for damages arises out of an antecedent right, which is a right of property, it is not a 'mere' right to sue for damages. But where it arises out of an antecedent right which is not a right of property, it may be termed as a "mere" right to sue for damages." 15. In my opinion, the ratio decidendi of the Bal Krishna's case (supra) was not applicable to the present case which is fully covered by other authorities mentioned above. 16. I, therefore, dismiss this second appeal and allow the cross objection of the Plaintiff Respondent. The Plaintiff's suit will stand decreed for an additional amount as mesne profits from 1st of June 1960 to 9th of April 1961 also at the rate of Rs. 110/ per month. The Plaintiff had claimed Rs. 1270/-as mesne profits from 1st of June 1960 to 17th of May 1961 out of which the claim for mesne profits was decreed only to the extent of Rs. 141.94 nP. This decree is modified and converted into a decree for Rs. 1270/- towards mesne profits. The Plaintiff Respondent will get his costs throughout from the Defendant Appellant.