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1976 DIGILAW 187 (ALL)

Chokhey Lal v. Ganeshi Lal

1976-03-19

M.P.SAXENA

body1976
JUDGMENT M.P. Saxena, J. - This is a defendant's revision under section 115 of the Code of Civil Procedure against the judgment and order dated 15.5.1975 passed by the learned District Judge, Agra. 2. Briefly stated the facts giving rise to this revision application are that the plaintiff opposite party filed a suit for ejectment of the defendant revisionist from shop No. 25/61-B situate in Gandhinagar Agra and for the recovery of Rs. 117/- as pendentilite and future damages etc., on the allegation that the shop was constructed in 1969 and the provisions of U.P. Act No. 13 of 1972 did not apply to it and that a valid notice to quit was given to the defendant of 28.1.1974, but in vain. 3. The defendant contested the suit inter alia on the grounds that the shop was constructed before 1964 and was governed by the provision of U.P. Act No. 13 of 1972 ; that the lease was for manufacturing purposes and the notice to quit was invalid. In the alternative, he also claimed the benefit of section 114 of Transfer of Property Act, as he had deposited the entire rent, interest and costs of the suit. 4. The learned Small Causes Court Judge held that the shop was constructed in 1968 and the provisions of Act 13 of 1972 were not applicable to it that the tenancy was not for manufacturing purposes and was from month to month. Therefore the notice to quit was valid. He decreed the suit for ejectment and for the recovery of Rs. 105/- with interest at the rate of Rs. 6/- per cent per annum as well as for pendente lite and future damages at the rate of Ks. 40/- per month. The defendant filed a revision under section 25 of the Small Causes Court Act and the learned District Judge agreeing with the findings of the learned trial court dismissed it ; hence this revision. 5. The learned counsel for the applicant has pressed only two points before me. Firstly, that the learned lower courts were wrong in holding that the shop was constructed in 1968 and the provisions of Act 13 of 1972 were not applicable to it and secondly, that the lower court were wrong in holding that the notice to quit was valid. 6. Firstly, that the learned lower courts were wrong in holding that the shop was constructed in 1968 and the provisions of Act 13 of 1972 were not applicable to it and secondly, that the lower court were wrong in holding that the notice to quit was valid. 6. So far as the first point is concerned section 2(2) of Act 13 of 1972 lays down that the provisions of this Act shall not apply to a building during a period of ten years from the date on which its construction is completed. The explanation appended to this sub-section lays down that the construction of a building shall be deemed to have been completed on the date on which the completion thereof is reported to or otherwise recorded by the local authority having jurisdiction, and in the case of a building subject to assessment, the date on which the first assessment, thereof comes into effect. In the instant case, a copy of Municipal assessment for the period 1964 to 1969 was filed and in columns Nos. 9 and 10 there is a specific mention that the assessment came into force from 1.10.1968. The learned lower courts were right in holding that this shop will be deemed to have been completed on 1.10.1968. As a period of ten years has not expired so far, the provisions of Act 13 of 1972 cannot apply to it. 7. So far as the second point is concerned, the validity of the notice is assailed on two grounds. In the first place it is argued that the shop was let out for manufacturing purposes and the tenancy should have been terminated on the expiry of six months but in the instant case it was not done. I have gone through the evidence on the record and I find that there is no satisfactory evidence to show that the lease was for manufacturing purposes. In his statement the plaintiff had stated that the defendant had taken the shop for dealing in grains but later on he had started a flour mill. His statement was believed by both the lower courts and 1 see no reason to interfere with their appreciation of evidence in revision. In his statement the plaintiff had stated that the defendant had taken the shop for dealing in grains but later on he had started a flour mill. His statement was believed by both the lower courts and 1 see no reason to interfere with their appreciation of evidence in revision. The contention of the learned counsel for the defendant that the plaintiff will be deemed to have given tacit consent for such a lease when the flour mill was started within his knowledge carries no weight. No tenancy can be created by subsequent conduct of the defendant even if the plaintiff did not raise any objection. In this connection reference may be made to the case of Manzoor Ali Usmani v. Mst. Lal Devi and another, AIR 1951 Allahabad 359 in which it was held that : "in considering whether a lease is for manufacturing purpose the Court must look to the original intention of the parties which can be gathered from the deed itself and not to the subsequent conduct of the lessee. If after taking a lease for a show-room, the lessee began to carry on any manufacturing operation upon the premises, the lease is not converted into one for manufacturing purposes". It is thus clear that nature of the tenancy cannot be determined from the conduct of the defendant. There was admittedly no fresh agreement that the shop will be for manufacturing purposes. Therefore, six months' notice was not necessary. 8. In the second place it is urged that by means of the notice the tenancy was terminated in presenti and it was invalid on the score. The relevant portion of the notice reads as follows :- "That my client does not want to keep you as his tenant and your tenancy is hereby terminated. You are called upon to hand over vacant possession of the shop to my client on the next day after remaining in possession for full 30 days of the receipt of the notice failing which a suit shall be filed against you for eviction and you shall be saddled with costs". 9. The question for consideration is what is the meaning of the word "hereby". Does it have any connection with the point of time ? 9. The question for consideration is what is the meaning of the word "hereby". Does it have any connection with the point of time ? In Lakshmi Devi v. Chandramani Devi, AIR 1971 Allahabad 506 it has been held that the word "hereby" used in business and legal correspondence does not connote the point of time. It always means through. When it is said that the tenancy is hereby terminated, it will mean that the tenancy is terminated through the notice. This principle was followed in the case of Mohammad Haji v. Umanand Kamath, AIR 1976 Kerala 26 and M/S. General Auto Agencies v. Hazari Singh, AIR 1976 Rajasthan 56. Therefore, the words "tenancy is hereby terminated" cannot be construed to mean that the tenancy was terminated in presenti. They simply mean that the tenancy was terminated by means of the notice. The defendant was required to vacate the premises on the expiry of 30 days from the date of receipt of notice. Therefore, the notice was clearly valid. 10. The result of the aforesaid discussion is that the revision has no force. It is accordingly dismissed with costs to the opposite party, but the revisionist is allowed three months' time hereof to vacate the premises.