Nazir Ahmad v. Kanhaiya Lal — 1971 DIGILAW 361 (ALL)

JUDGMENT Jagmohan Lal, J. - This second appeal filed by the defendant arises out of a suit for ejectment and recovery of arrears of rent filed by the plaintiffs-respondents in the court of Munsif North, Lucknow. The premises to which the suit related are governed by the provisions of the U. P. (Temporary) Control of Rent and Eviction Act, 1947. The plaintiffs alleged that the defendant had committed default in payment of arrears of rent due from him for more than three months which be did not pay within one month of the service upon him of a notice.of demand under section 3 (l)(a) of the said Act. The plaintiffs gave a notice to the defendant on 10-7-1962 which was served on him on 19-7-1562 asking him to vacate the accommodation in a month's period failing which a suit for ejectment shall be filed against him. When the defendant failed to comply with the notice, a suit for recovery of rent and ejectment was instituted against him on 10.11.1962. The defendant contested the suit. 2. The learned Munsif held that the defendant had committed default within the meaning of section 3(11(a) of the Act but he was of the opinion that the notice sent by the plaintiffs did not satisfy the requirements of law as contained in section 106 of the Transfer of Property Act. He accordingly dismissed the plaintiffs' suit for ejectment and granted them a decree for arrears or rent only. 3. In appeal the learned Civil Judge while agreeing with the trial court that the defendant was in default found that the notice under section 106 was a valid notice. He, therefore. passed a decree for ejectment also. The defendant has now filed this second appeal. 4. I heard the learned counsel for the parties. The learned counsel for the appellant contended that the notice sent under section 105 of the Transfer of Property Act was not a valid notice and that the defendant had not committed any default so as to make him liable to ejectment under section 3(1)(a). 5. The notice dated 10-7-1962 which was received by the defendant on 19-7-1962 is Exhibit 1. In that notice the plaintiffs after mentioning that a sum of Rs. 125/- was due by the defendant on account of arrears of rent at the rate of Rs. 5. The notice dated 10-7-1962 which was received by the defendant on 19-7-1962 is Exhibit 1. In that notice the plaintiffs after mentioning that a sum of Rs. 125/- was due by the defendant on account of arrears of rent at the rate of Rs. 15/- per month up to June, 1962, stated as follows : "That you are called upon to pay the accrued arrears of rent within a month. That we want you to vacate the said accommodation and deliver its vacant possession to us. That you are called upon to vacate the said accommodation in a month's period. That in default we shall be compelled to file a suit for arrears of rent as well as for ejectment at your risk and expenses." 6. The learned counsel for appellant contended that the notice does not in terms determine the tenancy of the defendant and as such it is not a valid notice. In this connection he referred to a decision of this court in Bradly v. Atkinson, VII I.L.B. (Allahabad) 899. In that case the tenancy of the defendant was from month to month according to English calendar. The landlord gave him a notice dated 11th December, 1882 in the following terms : "If the roams you occupy in the house No. 5, Thornhill Road, are not vacated within a month from this date, I will file a suit against you for ejectment, as well as for recovery of rent due at the enhanced rate." Section 106 of the Transfer of Property Act, as it stood at that time, provided that a lease of immovable property from month to month was terminable by 15 days' notice expiring with the end of the month of the tenancy. In the notice, as produced above the landlord had required the tenant to vacate the premises within a month from the date of the notice which was 11-12-1882. It was, therefore, obvious that he did not give him a notice as contemplated by section 106 so as to determine his tenancy by fifteen days' notice expiring with the end of a month of the tenancy. This notice interms gave option to the tenant to continue to occupy the premises as a tenant, if he so liked, upto 10-1-1883 and he could quit them on 11-1-1883. The notice did not, therefore, determine the tenancy at the expiration of the month. This notice interms gave option to the tenant to continue to occupy the premises as a tenant, if he so liked, upto 10-1-1883 and he could quit them on 11-1-1883. The notice did not, therefore, determine the tenancy at the expiration of the month. Section 106 as amended in its application to this State by U. P. Act XXIV of 1954 now provides that a lease of immovable property from month to month shall be terminable by thirty days' notice on the part of either lessor or lessee, without containing a requirement that this period should expire at the end of the month of the tenancy. As such the decision in Bradley v. Atkinson (supra) can have no application to the present case. 7. The learned counsel then referred to a Division Bench decision of this Court in Ahmed Ali v. Mohd. Jamal Uddin, 1963 A.L.J. In that case the notice that came for interpretation before the Bench was as follows : "Rent from 1-9-57 to 31-7-58 at a rate of Rs. 15/- per month amount in to Rs. 165/- ........................are due which please pay. "Since my client does no wish to you a tenancy is terminated and you are hereby asked to vacate the premises in your occupation on the 30th day after the receipt of this notice failing which legal action shall be taken against you for the costs of which you shall be held responsible." It was contended in that case on behalf of the tenant that the words "your tenancy is terminated" used in that notice indicated that the tenancy was terminated just then and not after the expiry of thirty days from the receipt of the notice and as such it is a valid notice under Section 106. This contention was repelled by the Bench and it was held that it was clear from the fiotice that the appellant did not intend to terminate the tenancy on the date on which he gave the notice and that the requirement contained in this notice that the tenant should vacate the premises on the 30th day after the receipt of the notice clearly indicated that he means to retain him as his tenant for thirty days and the tenancy was to be determined only after that period. Before that Bench also the decision in Bradley v. Atkinson (supra) was relied upon on behalf of the tenant. Before that Bench also the decision in Bradley v. Atkinson (supra) was relied upon on behalf of the tenant. The learned Chief Justice while distinguishing that ruling made the following observation at page 570 of the report : "The notice evidently only asked for delivery of possession without any reference to the termination of the tenancy and it was because of this that the Full Bench held that it was not a notice terminating the tenancy. A notice terminating the tenancy may include a demand for possession but a notice only demanding possession cannot be interpreted as a notice terminating the tenancy. There is nothing to prevent a landlord's asking his tenant to deliver possession without his terminating the tenancy and this is what was done by the landlord in Bradley's case. Since there was no termination of tenancy his suit for ejectment of the tenant was dismissed." 8. On behalf of the appellant it is contended that if a notice only makes a demand for possession without terminating the tenancy it will not be a valid notice according to the above observation and that the notice in the present case is also no more than a notice demanding possession and not terminating the tenancy. We shall shortly examine the notice Exhibit 1 to Judge if this contention is correct. Before doing so, I may also refer to another decision which was relied upon by the learned counsel for the appellant. It is Kailash Saran v. Murli Manohar, 1968 A.L.J. 718. The notice that came for interpretation by the Court in that case was worded as follows : "You are hereby given notice that you should pay the entire amount of arrears of rent within one month of the receipt of the notice, otherwise, your tenancy shall be terminated and a suit for recovery of arrears of rent and for ejectment shall be filed against you, and you will be liable for damages and costs." In this case it was held that the words "your tenancy shall be terminated" used in this notice indicated that the landlord did not want to determine the tenancy by the same notice but he proposed to do so at some later date if the tenant failed to pay the arrears of rent within one month of the receipt of notice and as such it was not a valid notice under Section 106. 9. 9. The last case referred to by the learned counsel for the appellant on this point was Ram Bhusan v. Kalu Ram Chakraverty, 1971 R.C.J. 892. In this case the notice given by the landlord to the tenant was in the following terms : "You are required to deposit Rs. 195/- arrears of rent within one month of the receipt of notice, failing which you should vacate the portions of the premises which are in your tenancy on expiry of 30 days from receipt of the notice otherwise on expiry of the said period necessary legal proceedings will be taken against you." It was held by Trivedi J. in this case that the notice did not comply with the requirements of Section 106 in so far as it did not specifically determine the tenancy nor did it contain a threat to file a suit for ejectment against the tenant if he did not vacate the premises after the expiry of period of notice so as to bring it within the purview of the decision of the Supreme Court in Mangilal v. Sugan Chand Rathi, AIR 1965 Supreme Court 1010. It was further observed that the expression "on the expiry of the said period necessary legal proceedings will be taken against you" did not necessarily mean that a suit for ejectment was contemplated and it could mean only a suit for recovery of the arrears of rent. In view of this lacuna in the notice it was distinguished from the notice which was considered by the Supreme Court in Mangilal's case and it was found to be an invalid notice. 10. It may be stated that Section 106 of the Transfer of Property Act does not prescribe any specific words in which a notice to determine a lease should be couched. All that it-lays down is that a tenancy from month to month can be determined by thirty days notice given either by the lessor or the lessee. From Section 111 (h) of the Transfer of Property Act it is evident that one of the modes of determination of lease of immovable property is on the expiry of the notice to determine the lease, or to quit, or of intention to quit, the property leased, duly given by one party to the other. From Section 111 (h) of the Transfer of Property Act it is evident that one of the modes of determination of lease of immovable property is on the expiry of the notice to determine the lease, or to quit, or of intention to quit, the property leased, duly given by one party to the other. This clearly shows that a lease can be determined by giving a notice to determine the lease or to quit provided that the time stipulated in that notice is as required by Section 106. The distinction between a notice to determine the lease and a notice to quit is only verbal and not substantial. The notice under Section 106 is sometimes drafted by a lawyer engaged by a landlord and sometimes it is drafted by a landlord himself who may not be well versed in legal terminology. So long as the import of the notice is clear and it substantially fulfils the requirements of Section 106, no undue emphasis should be laid on the terminology of the notice and any unartfulness in expression or a slight inexactitude of terminology would not invalidate it unless the inexactness has the effect of depriving the tenant of the statutory benefit he is entitled to. It was observed by the Privy Council in Harihar Banerji v. Ramshashi Roy, AIR 1981 Privy Council 102. "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 ut res magis valeat quam pareat D o." 11. The Supreme Court had also occasion to consider this matter in Mangilal v. Sugan Chand Rathi (supra). The Supreme Court had also occasion to consider this matter in Mangilal v. Sugan Chand Rathi (supra). In that case the landlord gave a composite notice to the tenant requiring him to pay the arrears of rent under section 4(a) of the Madhya Pradesh Accommodation Control Bell (which corresponds with section 3(1)(a) of the U.P. (Temporary) Control of Rent and Eviction Act) and under section ion of the Transfer of Property Act. The notice after requiring the tenant to pay the rental arrears due up to the end of March, 1959 within one month from the date of service of the notice proceeded to bay "failing which suit for ejectment will be filed" It was held by the Supreme Court that these recitals clearly indicated the intention of the landlord to terminate the tenancy of the defendant under the relevant provisions of both he Acts. This notice was. however, held invalid on the ground that it did not give clear 15 days to the tenant before terminating his tenancy as required by section 106 of the Transfer of Property Act. While referring to the observations of the Privy Council in the case of Harihar Banerji v. Ramshaslu Ruy, AIR 1918 Privy Counsel 102, as quoted above, it was held that a liberal construction of a notice which would deprive the tenant of the facility of having the benefit of the minimum period of 15 days within which to vacate is not permissible. Since in the notice in question the tenant had not been given clear 15 days' time to vacate, the notice was held invalid on that ground. 12. In the light of the above decisions if we scan the impugned notice Exhibit 1 we find that though the landlords did not specifically use the expression that the tenancy of the defendant was being determined their intention to do so was quite clear. The defendant was n it only called upon by this notice to pay the accrued arrears of rent within a month, he was also intimated that the landlords wanted him to vacate the said accommodation and deliver its possession to them. He was then called upon to vacate the said accommodation in a month's time with a clear warning that if he did not do so, a suit for ejectment shall be filed against him. He was then called upon to vacate the said accommodation in a month's time with a clear warning that if he did not do so, a suit for ejectment shall be filed against him. In my opinion it was clearly a notice to determine the tenancy and also a notice to quit within the meaning of section 111(h) read with section 106 of the Transfer of Property Act. 13. It was then argued by the learned counsel for the appellant that this notice required the tenant to vacate the accommodation" in a month's period" and not on the expiry of thirty days. In my opinion, this distinction between the two expressions is a distinction without a difference. The month of July in which this notice was given is of 31 days. It cannot, therefore, be said that the notice was short of thirty days in any manner. It was held by a Bench of this Court in Misri Lal v. Jwala Prasad, 1962 A.L.J. 222, that the word "mah" should be interpreted to mean a period of 30 days and not a calendar month and that section 3(27) General Clauses Act was inapplicable to the interpretation of a private document like a notice to quit. Again it was held by a learned-Judge of this Court in Ram Swarup v. Brij Nandan Prasad, 1963 A.L.J. 22 (General Section). that a notice requiring a tenant to vacate an accommodation within a month means that be should not take more than a month to do so and not that he must vacate within less than a month and as such a notice containing these words was a valid notice under section 106. 14. It was also contended that the notice called upon the defendant to vacate the said accommodation in a month's period without specifying from which date this period shall be reckoned and as such it could as well mean that this period was to commence from the date of the notice. In my opinion, this argument is also without any substance. The notice does not say that the accommodation is to be vacated in a month's period from that date. The defendant on receiving ibis notice on 19-1962 could not be under any misapprehension on a reading of it that be had been given less than 30 days' time to notice the premises. The notice does not say that the accommodation is to be vacated in a month's period from that date. The defendant on receiving ibis notice on 19-1962 could not be under any misapprehension on a reading of it that be had been given less than 30 days' time to notice the premises. If he was to read that notice on the date he received it, he could clearly understand that he had been called upon to vacate the accommodation in a month's period from the date of his receipt of the notice). The defendant himself is a practising Advocate and he had admitted, as held by the courts below, that on reading this notice he had correctly understood its import and its consequences. The notice had specifically warned him that in case of default a suit for arrears of rent as well as for ejectment shall be filed against him. These words clearly denoted the intention of the landlords to terminate the tenancy as was held by the Supreme Court in Mangilal's case. I, therefore, hold that the notice to quit served in this case on the defendant was a valid notice and it determined his tenancy. 15. The last point that was argued on behalf of the appellant was that the default of the defendant to pay the arrears of rent within the meaning of section 3(1) (a) of the U.P. (Temporary) Control of Rent and Eviction Act had not been proved. This is a question of fact on which both the courts below have recorded a concurrent finding that the defendant had failed to pay the arrears within one month of the receipt of the notice of demand sent to him. According to the defendant's own version he had not paid the full amount of arrears till 19.8.196 2 and up to that date he had paid only Rs. 120/- out of Rs. 125/- which too had subsequently been returned to him by the landlords Hence this point is also without any substance. 16. As a result of the above findings the appeal is dismissed with costs. The stay order dated 14.11.63. is discharged.