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1966 DIGILAW 58 (ALL)

Kishori Lal Sharma v. Manmohan Lal Verma

1966-02-03

RAJESHWARI PRASAD

body1966
JUDGMENT Rajeshwari Prasad, J. - This is a plaintiffs appeal. The plaintiff filed a suit against the defendant for recovery of arrears of rent and ejectment of the defendant on the allegation that the defendant was a tenant in the premises in suit on behalf of the plaintiff. 2. The ground on which the suit for ejectment was filed was that permission to file such suit had been obtained under the provisions of Sec. 3 of the U.P. Control of Rent and Eviction Act. 3. The suit was resisted by the defendant on the plea that the permission accorded under Sec. 3 of that Act was a permission granted without jurisdiction and consequently illegal. That being so the suit was not maintainable. It was further contended that the notice relied upon by the plaintiff had called upon the defendant to vacate the premises within 30 days and consequently it was an invalid notice. It was further alleged by the defendant that it was not the defendant alone who was the tenant of the premises but his brothers were also joint tenants with him and as no permission had been obtained for filing the suit against all the tenants, the suit was not maintainable. 4. The trial court decreed the suit for ejectment of the defendant and also awarded a decree for Rs. 62/12/ -by way of rent and damages accrued to the plaintiff upto the date of the suit. Pendente lite and future damages at the rate of Rs. 24/- per mensem was also awarded to the plaintiff. The defendant went up in appeal to the lower appellate court and the lower appellate court allowed the appeal, set aside the decree of the trial court so far as it related to the ejectment of the defendant as well as, so far, as it related to the recovery of a sum of Rs. 27/12/- as damages for use and occupation. Aggrieved from the said decision of the lower appellate court the plaintiff has filed the present Second Appeal to this Honble Court. 5. The lower appellate court confirmed the various findings arrived at by the trial court, but differed with the trial court on the question of sufficiency of notice. The lower appellate court took the view that the notice which called upon the tenant to vacate the premises within 30 days was not a valid notice. 5. The lower appellate court confirmed the various findings arrived at by the trial court, but differed with the trial court on the question of sufficiency of notice. The lower appellate court took the view that the notice which called upon the tenant to vacate the premises within 30 days was not a valid notice. It has been urged before me on behalf of the appellant that the view of law taken by the lower appellate court is not correct. A Full Bench decision of this Court in Gorakh Lal v. Maha Prasad Narain Singh, A.I.R. 1964 Alld. 260, has taken the view that a notice calling upon the tenant to vacate the premises within 30 days is a valid notice and entitles a landlord to base his suit for ejectment on such a notice. The learned counsel appearing for the respondent has submitted that it is true that the Full Bench has taken that view but his further contention is that the decision of the Full Bench requires reconsideration. Sitting as a single Judge I am bound by the decision of the Full Bench. Consequently I am unable to agree with the view taken by the lower appellate court that the notice was invalid and if the notice was not invalid, all other findings being in favour of the landlord, the plaintiff was entitled to a decree for ejectment of the defendant also. 6. It was, however, argued on behalf of the respondent that the finding of fact that the defendant alone was the tenant of the premises arrived at by the courts below is incorrect. He has referred to me to the contents of Ex. 13 dated 7th March, 1956 which purports to be an agreement regarding the contract of tenancy between the parties. The two signatories to the document are on the one hand the plaintiff and on the other hand the present defendant. It is true that it has been recited in the said agreement that the defendant is in possession as a tenant along with his brothers but this phrase is open to two interpretations. It may be that the real tenant was the defendant and his brothers were residing in the premises with him. It is true that it has been recited in the said agreement that the defendant is in possession as a tenant along with his brothers but this phrase is open to two interpretations. It may be that the real tenant was the defendant and his brothers were residing in the premises with him. Apart from it the finding is a finding of fact and the view taken by the courts below on the materials on record on this point is one of the possible views. I, therefore, do not see any compelling circumstance to interfere with that finding of fact. 7. It was next argued on behalf of the respondent that the order passed by the Commissioner in revision on 12th of February, 1960 was an order without jurisdiction inasmuch as the order of the Rent Control and Eviction Officer which was the subject-matter of the revision was not an.order either rejecting the permission or granting the permission to file a suit for ejectment. I have considered the reasonings given by the courts below for holding that the order of the Commissioner could not be said to be an order without jurisdiction and I agree with it. The final effect of the order of R. C. E. O. was that the prayer for filing the suit for ejectment of the defendant stood refused. In that view of the matter it cannot be said that the order was not an order which could be the subject matter of the revision. 8. It was next argued that the tenancy in the present case started prior to the passing of the U.P. Civil Laws (Reforms and Amendment) Act, 1954 and as such the notice issued by the plaintiff should have complied with the law as it was prior to the amendment. Consequently, it was necessary for the landlord to give a fifteen days notice terminating on the last date of the month of tenancy. It was not open to the landlord to give a notice as required by the amended provision under the amending Act. Reference has been made to Sec. 3 sub-Clause (1) of the U.P. Civil Laws (Reforms and Amendment) Act, 1954. It was not open to the landlord to give a notice as required by the amended provision under the amending Act. Reference has been made to Sec. 3 sub-Clause (1) of the U.P. Civil Laws (Reforms and Amendment) Act, 1954. The relevant provision reads as follows : "Any amendment made by this Act shall not affect the validity, invalidity, effect or consequence of anything already done or suffered, or any right, title, obligation or liability already acquired, accrued or incurred or any release or discharge of or from any debt, decree, liability, or any jurisdiction already exercised, and any proceeding instituted or commenced in any Court prior to the commencement of this Act shall, notwithstanding any amendment herein made continue to be heard and decided by such Court." 9. It is urged that as a specific set of rights and obligations had already accrued at the time of the contract of tenancy, these rights could not be disturbed on account of the saving clause referred to above. It was also submitted that this would be so even though the notice in question was given after the law had been amended. It has been strenuously argued that the tenant had a right to receive a fifteen days notice terminating with the last day of the month of tenancy and if such a notice was not received the right accrued to him to remain in possession for another month. The right secured to the tenant under the Transfer of Property Act unamended by the Amending Act was to remain in possession of the tenant and not to be ejected without compliance with the condition prescribed for notice in a particular manner. The courts below have correctly taken the view that it was the amended Act alone which applied to this particular notice and not the unamended provisions of Sec. 106 of the Transfer of Property Act. The lower appellate court dismissed the suit for ejectment on the consideration that the notice calling upon the tenant to vacate the premises within 30 days was invalid but made observations indicating that the view taken by it was that the notice should have been a notice under the old provision and not under the amended provision. The act done in the present case was the issue of a notice for terminating the tenancy and calling upon the tenant to vacate. The act done in the present case was the issue of a notice for terminating the tenancy and calling upon the tenant to vacate. This particular act was done after the amending law had come into force and consequently this would not be saved by the saving clause given in Sec, 3(1) of the Amending Act. Apart from it the actual substantive right available to the tenant under the provisions of the Transfer of Property Act is to remain in possession until evicted according to law. The notice or the terms of the notice were only conditions for the enforcement of the right of eviction by the landlord. It cannot, therefore, be said that because there was a condition under the old law that the notice should terminate on the last date of the month of tenancy it resulted in giving the tenant any substantive right. I am further persuaded to take this view on the consideration that the convenience that is allowed to the tenant by giving 30 days notice excelled the convenience that might have been the result of 15 days notice under the old Act. Further the last day of the month of tenancy is bound to fall on one of the 30 days which is granted to the tenant by a notice under the amended Act. This being so, I am in agreement with the view taken by the trial court on this point also. 10. No other point was urged in this appeal. 11. I, therefore, allow the appeal, set aside the judgment and decree of the lower appellate court and restore that of the trial court. The plaintiff's suit for ejectment and mesne profit is also decreed. Under the circumstances, I do not make any order as to costs of this appeal. Appeal allowed.