SUDARSHAN KUMAR v. RATTAN LAL DHINGRA — 1972 DIGILAW 255 (DEL)

V. S. DESHPANDE, J. (Oral) ( 1 ) THE premises of the landlord Rattanlal were let out to the tenant Sudharshan Kumar by a rent note executed on 12/08/1963 in which the material words are as follows :- "tenancy will commence from to-day or this day". The tenancywas to be for a period of eleven months. The rent was payable according to the English calendar month. The landlord filed a petition foreviction against the tenant on two grounds covered by clauses (c)and (j) of the proviso to section 14 (1) of the Delhi Rent Controlact, 1958, namely, user of the premises for a purpose other than thatfor which they were let and that the tenant has caused substantialdamage to the premises. The pleadings of the landlord on the questionof termination of the tenancy by a notice to quit under section 106of the Transfer of Property Act were as follows :-Para 14: "the Premises were let to the respondent on 1 2/08/1963. (Copy of the rent note is attachedhereto ). "para 18 (b) : "notice terminating the tenancy of the tenant wasgiven to him under Regd. A/d cover which was dulyreceived by him on 23-10-1967. The contractual tenancy thus stood determined on the expiry of the lastday of the month of November 1967. Copy of thenotice is attached. "para 19 sub-para two.-"the monthly tenancy commences on the1st of each English calendar month and ends on thelast day of the same month". ( 2 ) THE Controller granted an order for eviction to the landlord underclause (c) of the proviso to section 14 (1 ). But this order was variedby the Rent Control Tribunal in the first appeal filed by the tenant bygranting the conditional order for eviction under clause (j) of the saidproviso, the condition being under sub-section (10) of section 14 namely,that the tenant shall carry out repairs to the damage caused by him tothe satisfaction of the Controller within one month and it is only if hefails to do so that the order for recovery of possession could be made. Against this order of the Rent Control Tribunal both the landlordand the tenant have filed appeals. ( 3 ) A preliminary question arises as to whether the tenancy was terminated by the landlord before the filing of the application for eviction. Against this order of the Rent Control Tribunal both the landlordand the tenant have filed appeals. ( 3 ) A preliminary question arises as to whether the tenancy was terminated by the landlord before the filing of the application for eviction. The Controller only remarked in para 10 of his order that the tenancywas terminated by the notice Exhibit A-3 with effect from 11-12-1967. The Rent Control Tribunal did not allow the tenant to argue the validity of the notice on the ground that he had not raised this pointspecifically in the written statement and had not pleaded that the tenancy month was from 13th of each month after the expiry of theoriginal tenancy for 11 months. ( 4 ) TWO questions, therefore, arise for decision:- (1) Whether, on the pleadings of the landlord himself, he hasshown that the tenancy was validly terminated? and (2) If so, whether the tenant is precluded from disputing thevalidity of the tenancy by failure to make a specific denial oflandlord s claim and to raise a specific plea as to how the termination of tenancy was invalid? ( 5 ) IN dealing with the first point, we have only to consider whetherquite apart from any defence made by the tenant and assuming thatthe pleadings made by the landlord are true, they amount in law toshowing that the tenancy was validly terminated. The tenancy wascreated by a rent note which is referred to in the pleading of the landlord and which is filed by him. It is in Urdu but the crucial wordsare that it was to commence "from to-day or this day". The firstparagraph of section 110 of the Transfer of Property Act is as follows:- "whether the time limited by a lease of immovable property isexpressed as commencing from a particular day, in computingthat time, such day shall be excluded". ( 6 ) SHRI Choudhry for the tenant contends that the lease or the rent notewas expressed "as commencing from a particular day" within themeaning of the first sentence of the first paragraph of section 110. This contention has merit. The first sentence of the first paragraph ofsection 110 embodies the same principle which finds place in section9 of the General Clauses Act, 1897 and section 12 of the Limitationact, 1963. This contention has merit. The first sentence of the first paragraph ofsection 110 embodies the same principle which finds place in section9 of the General Clauses Act, 1897 and section 12 of the Limitationact, 1963. The rule is that whenever time is to be computed "from"a day specified, then the said day of the commencement of the timeis to be excluded in calculating the total period. The reason whythe provision was made is that it is conceivable that a written leaseor rent note may express the time limited by it as commencing froma day which is other than the day on which the written lease or rentnote is executed. Such a day may be prior or subsequent to the dayon which the lease or the rent note was executed. This does notmean, however, that the day of the commencement cannot be the dayon which the lease is executed. The first sentence of the first paragraphof section 110 is, therefore, applicable to all the three types of cases,namely:- (1) in which the day of the commencement of the lease is the dayon which the lease is executed; (2) when such a day is prior to the day on which the lease is executed ; (3) when such a day is subsequent to the day on which the leaseis executed. ( 7 ) ON a plain reading of the first sentence of the first para of section 110it was entirely at the discretion of the parties to express the commencement of the lease to be from any day whatever. ( 8 ) SHRI G. L. Seth for the landlord argues that this provision of Lawapplies only when the day from which the commencement of the leaseis expressed is different from the day on which the lease is executed. He has not, however, been able to cite any authority for this propositionand there is nothing in the language of the first sentence of the firstparagraph of section 110 which supports this contention. I am,therefore, unable to agree with it. ( 9 ) AS the lease is governed by the first sentence of the first para ofsection 110, the day from which the lease was expressed to commencehas to be excluded in computing the period of time of the lease. Thelease was executed on 12-8-1963. I am,therefore, unable to agree with it. ( 9 ) AS the lease is governed by the first sentence of the first para ofsection 110, the day from which the lease was expressed to commencehas to be excluded in computing the period of time of the lease. Thelease was executed on 12-8-1963. The day of commencement, namely,12-8-1963, has to be excluded in computing the period of 11 months forwhich the lease was given. The period of II months has, therefore,to be computed from 13-8-1963. So computed, the lease came to anend on the 12th of July 1964. Thereafter it continued as lease frommonth to month. It is to be noted that the provision in the rent notethat the rent was payable according to the English calendar months isconsistent with the month of tenancy being from the 13th of eachmonth. It is only when the lease does not specify the day on which itcommences that a presumption is drawn from the way the rent is paid. Had this lease been silent as to the date of its commencement, then thepresumption would have beenthat the lease was from the 1st of eachenglish calendar month. This presumption cannot be drawn in thepresent case in view of the express language of the rent note. ( 10 ) THE landlord himself seems to be in two minds. He has giventhe notice of termination of the lease which is Exhibit A-3. In draftingthe notice, the landlord omitted to take into account the effect of section110 of the Transfer of Property Act. He, therefore treated the leaseas beginning from the 12th of each English calendar month. He,therefore, purported to terminate the lease with effect from the 11th ofdecember 1967. This was wrong inasmuch as the effect of section 110is that the monthly tenancy commenced on the 13th of each month andcould have been terminated only by the 12th of a particular month. The pleading of the landlord in the petition is contrary to his ownnotice. For, while in para 14 he has pleaded that the premises werelet to the tenant on 12/08/1963 as per the rent note of that datein para 18 (b) and second sub-para of para 19, the landlord has pleadedthat the tenancy stood terminated on the expiry of the last day of themonth of November 1967 because it begins on the first day of eachenglish calendar month. This is completely contradictory of thenotice given by the landlord. On the landlord s own pleading, therefore, the notice given by him was illegal. Secondly, the notice wasillegal because of section 110 of the Transfer of Property Act. It isunfortunate that the Controller did not scrutinise the legality of thenotice before passing an order for eviction in favour of the landlord. It was the duty of the landlord to disclose a cause of action beforehe could get an order for eviction. The landlord was guilty of severalcontradictions, namely:- (A) the pleading in para 14 was opposed to the pleading in paras18 (b) and 19; (b) the notice given by the landlord was contrary to both thesestands taken in the pleading; and (c) the notice was also contrary to section 110 of the Transfer ofproperty Act. ( 11 ) I, therefore, find that, on the landlord s own pleading, he has failed toprove his own case and, therefore, even if the tenant had not defendedat all and the petition of the landlord had to be considered ex parte, itcould not have succeeded and was bound to fail for the above reasons. ( 12 ) IN considering the second question only the relevancy of the pleadingmade by the tenant arises. The tenant has denied the pleadings of thelandlord but did not specifically raise the issue that the monthly tenancycommenced from the 13th of each month after the expiry of the fixedterm tenancy of II months and that the notice was bad because itpurported to terminate the monthly tenancy from the 11/12/1967. If the landlord had made out a consistent pleading of his own,then the tenant could be taken to task for not specifically denying thepleadings of the landlord. It is only the that he could have beenprevented from raising the specific pleas in argument. But in thisparticular case, the landlord has not made out a cause of action atall and, therefore, his petition was bound to fail on his own pleading. The consideration of the tenant s pleading does not, therefore, arise. ( 13 ) SHRI G. L. Seth later drew my attention to a statement of the tenantmade before the Controller on 13/03/1968 in which he purportedto admit the claim made by the landlord and said that he was preparedto remove all the objections urged by the landlord and wanted to begranted time. ( 13 ) SHRI G. L. Seth later drew my attention to a statement of the tenantmade before the Controller on 13/03/1968 in which he purportedto admit the claim made by the landlord and said that he was preparedto remove all the objections urged by the landlord and wanted to begranted time. The landlord also stated that a compromise was beingnegotiated and that if the tenant were to remove the objections, thenhe would withdraw the petition. Nothing was heard later of the movefor compromise and the parties fought out the case which resulted in anorder for eviction. Even in the appeal before the Rent Control Tribunalor in the second appeal before me, none of the parties has relied on theproposed compromise. In ground No. 2 of the second appeal by thelandlord, however, it is said for the first time that the Rent Controltribunal committed an error in ignoring the admission of the tenantand that the Rent Control Tribunal should have held that the trialcourt should not have proceeded further after the admission. Butthe admission has to be read in its proper context. The statementmade by the landlord has also to be read with the statement made bythe tenant. The two statements read together amount to this: Thatthe parties were proposing that if the tenai removed all the objectionsthen the landlord would withdraw the petition for eviction. It is inthat sense that the claim of the landlord was admitted by the tenant. Neither the tenant removed the objections nor has the landlord withdrawn his petition. It is obvious therefore, that the proposed compromise did not go through. The Controller cannot, therefore, beblamed for passing an order for eviction on the merits of the caseignoring the proposed move for compromise. In the appeal by thetenant before the Tribunal the landlord could have supported theorder of the Controller on the ground of the admission of the tenant. But there is no reference in the order of the Tribunal that the landlorddid so. This would mean that neither in the trial Court nor in thefirst appellate Court either of the parties relied upon the proposedcompromise. The landlord cannot, therefore, raise this point for thefirst time in the second appeal. ( 14 ) FOR the above reasons, the preliminary point urged by the tenantin S. A. O. No. 279 of 1972 succeeds and the appeal of the landlords. A. O. No. 308 of 1972 fails. The landlord cannot, therefore, raise this point for thefirst time in the second appeal. ( 14 ) FOR the above reasons, the preliminary point urged by the tenantin S. A. O. No. 279 of 1972 succeeds and the appeal of the landlords. A. O. No. 308 of 1972 fails. In view of the decision on the questionof notice which goes to the root of the maintainability of the petitionfor eviction by the landlord, it is not necessary to decide the furtherquestion whether the landlord has proved his case under clauses (c)and (j) of the proviso to section 14 (1 ). S. A. O. No. 279 of 1972 is,therefore, allowed and the orders for eviction passed by the Rentcontrol Tribunal as well as the Rent Controller are both set aside andthe petition for eviction of the landlord is ordered to be dismissed onthe preliminary point that the tenancy was not terminated in accordance with section 106 read with section 110 of the Transfer of Property Act. The decision of no other questions would be res judicatabetween the parties. For the same reasons, S. A. O. 308 of 1972 isdismissed. The parties will bear their own costs as incurred in boththe appeals.