State of U. P. v. Mohan Devi — 1976 DIGILAW 661 (ALL)

JUDGMENT Gopi Nath, J. - The State of Uttar Pradesh and its officers are defendant-appellants in this appeal and it arises out of a suit for ejectment and arrears of rent. The only question requiring consideration is whether the notice under section 80 C.P.C served on the State which was a composite notice under section 3 of U. P. (Temporary) Control of Rent and Eviction Act (Act No. III of 1947) and section 106 of the Transfer of Property Act was valid one. The facts leading up to this appeal are as follows : 2. The plaintiff-respondent was the owner of the premises in dispute, which had been let out to the State of U. P. through its Collector at Jaunpur. The premises were used for the office of Superintending Engineer, Rural Man Power and Minor Irrigation by the defendant on a monthly rent of Rs. 56/-. The tenancy commenced from the 1st of each English Calendar month and ended on the last day of that month. The defendant were in arrears of rent amounting to Rs. 1,756-57 for the period 1.3.1964 to 1 -12-1966. Despite demands the defendant-appellants failed to pay the arrears. The plaintiff accordingly served a composite notice under section 3 of Act No. III of 1947 and section 106 of the Transfer of Property Act demanding the arrears within a month and terminating the tenancy in default and requiring the defendants to quit thereafter. The notice was handed over under section 80 C.P.C., Section 106 of the Transfer of Property Act and Sector 3 of Act No. III of 1947. The notice was issued on 9-9-1966 and was served on the defendant on 12-9-1966. The defendants failed to pay the arrears within the time allowed and did not vacate the premises either they however paid a part of the rent beyond the time specified but since the arrears claimed were not cleared within time the plaintiff filed the suit on the ground of default in the payment of rent. 3. The suit was contested on the allegations that the amount claimed was offered but the plaintiff refused to accept the same hence the defendants were not defaulters within the meaning the Section 3 of Act No. III of 1947. 3. The suit was contested on the allegations that the amount claimed was offered but the plaintiff refused to accept the same hence the defendants were not defaulters within the meaning the Section 3 of Act No. III of 1947. It was further pleaded that the composite notice under section 3 of U.P. Act No. III of 1947, section 106 of the Transfer of Property Act and Section 80 of the Code of Civil Procedure was bad in law the tenancy was not validly terminated. 4. Both the courts below have concurrently found that the defendants had not paid the rent due within the prescribed period and were defaulter within the meaning of Section 3 of Act No. III of 1947. They had accordingly incurred a liability of ejectment. They have further found that the combined notice under section 80 C.P.C., Section 3 of Act No. III of 1947 and Section 106 of the Transfer of Property Act was valid. The suit accordingly was decreed for the defendant's ejectment and for the recovery of the arrears claimed. 5. Aggrieved, the defendants have come up in second appeal and the only point urged on their behalf was that the combined notice under section 80 C.P.C., Section 3 of Act No. III of 1947 and Section 106 of the Transfer of Property Act was had. 6. A notice under section 3 of Act No. III of 1947 is a demand notice and the one under section 106 of the Transfer of Property Act is for termination of tenancy. By notice under section 80 C.P.C. the concerned Government and the Public Officers are given an opportunity to settle the claim, without litigation, if so advised. In the notice Ext. 1 the defendants were Informed that huge amount of arrears of rent was outstanding against them for a period over two years and that they were not paying the same inspite of repeated verbal and written demands. They had accordingly rendered themselves liable to eviction from the accommodation. It further said that their tenancy was terminated as required by Section 106 of the Transfer of Property Act but if they paid the rent within a period of one month of the service of notice of demand under Section 3 of Act No. III of 1947 their ejectment would not be sought, otherwise they will have to vacate the premises. The notice contained all the necessary averments as required by Section 80 of the Code of Civil Procedure , and gave the defendants an opportunity to settle the claim, failing which the plaintiff would be driven to filing of a suit for their eviction. It stated that cause of action bad accrued to the plaintiff for seeking their ejectment on the ground of their being defaulters in the payment of rent. 7. Learned counsel for the appellant urged that the suit could not be filed on the basis of this combined notice. It was urged that no cause of action for the defendants ejectment could accrue until after the expiry of one month's period prescribed for the payment of the arrears of rent under section 3 of Act No. III of 1947. The notice under section 80 C.P C. on the date it was given was premature. It was conceded that a notice under section 3 of U.P. Act No. III of 1947 and one under section 106 of the Transfer of Property Act could be combined. But it was urged that such a combined notice could not be combined with a notice under section 80 Civil Procedure Code. It was submitted that until the one month's period prescribed under section 3 of Act No. III of 1947 had expired no cause of action could arise for the issuance of a notice under section 80 C.P.C. In the circumstances the notice under Section 80 Civil Procedure Code was premature. Reliance was placed on Kessoram Poddar v. Secretary of State, AIR 1928 Calcutta 74. Chunni Lal v. State of Madras, AIR 1958 Andhra Pradesh 670 and Braham Dutt v. East Punjab Province ana others, AIR 1958 Supreme Court 670 for the proposition that a notice under section 80 Civil Procedure Code could be issued before the accrual of the cause of action. 8. We shall first consider the object of section 80 of C.P.C. and then examine whether the notice under section 80 Civil Procedure Code in the instant case was valid. The legislative intendment behind section 80 C.P.C. is that public money and time should not be wasted on unnecessary litigation and the Government and public officers he given a reasonable opportunity to examine the claim, consider the legal position and then make up their mind whether to settle the same outside court. The legislative intendment behind section 80 C.P.C. is that public money and time should not be wasted on unnecessary litigation and the Government and public officers he given a reasonable opportunity to examine the claim, consider the legal position and then make up their mind whether to settle the same outside court. The purpose is to advance the cause of justice. See Raghunaih Das v. Union of India and another, AIR 1969 Supreme Court 674. The State of Andhra Pradesh v. Gundugolo Vetkata Suryanarayana Gosu, AIR 1965 Supreme Court 11 and State of Madras v. C. P. Agencies and another, AIR 1960 Supreme Court 1309. in the notice the facts necessary to found the claim including the cause of action and the relief are required to be stated as in a plaint so that the Government may examine the matter and settle the claim without unnecessary litigation. It is also well settled that a notice under section 80 Civil Procedure Code is to be constructed reasonable and not pedantically, and substantial and material information of the claim if conveyed to the Government is a sufficient compliance of that provision. See Amar Nath Dogra v. Union of India, AIR 1963 Supreme Court 424. The object of Section 80 Civil Procedure Code is thus only to apprise the Government of the necessary facts and to inform it of the ground of complaint in order to enable it to settle the claim if possible without litigation. 9. Learned counsel's main argument was that since the cause of action has to be mentioned in the notice under section 80 C.P.C. it cannot be stated until it has accrued. In this case what the plaintiff purported to do by giving the notice was to tell the defendants that if they did not pay the arrears with in the prescribed time and further did not vacate the premises the plaintiff would sue them for possession on the ground of default in the payment of rent. The question is whether this kind of notice under section 80 C.P.C. was valid. We shall have to consider the scope of the U.P. (Temporary) Control of Rent and Eviction Act and the provisions of Section 106 of the Transfer of Property Act in order to appreciate the claim of a landlord to eject a defaulting tenant. The question is whether this kind of notice under section 80 C.P.C. was valid. We shall have to consider the scope of the U.P. (Temporary) Control of Rent and Eviction Act and the provisions of Section 106 of the Transfer of Property Act in order to appreciate the claim of a landlord to eject a defaulting tenant. Under the Transfer of Property Act the landlord has an unrestricted right of terminating the tenant's tenancy by a notice under Section 106 and then filing a suit for his ejectment. The U.P. (Temporary) control of Rent and Eviction Act imposed restrictions in the filing of such a suit. These restrictions are contained in Section 3 of U. P. Act III of 1947 which provides that no suit for eviction can be filed without the permission of the District Magistrate except on the grounds mentions d in the various sub-sections thereof. Sub-section (a) of Section 3 permit a landlord to sue a tenant for eviction if he had fallen in arrears of rent for a period of more than three months and has failed to pay the same within one month of the notice of demand. A combined notice under section 3 of Act III of 1947 and section 106 of the Transfer of Property Act has been consistently held as valid by this Court. See Ram Narain v. Kanhaiya Lal Vishwakarma, 1965 ALJ 298 and Mushtaq Husain v. Mohd. Saddiq, 1967 ALJ 764. If these two notices can be combined the only question which survives is whether there is any bar in combining with it the notice under section 80 C.P.C. by enclosing a copy of the proposed plaint. The object of the notice under section 80 C.P.C. is to enable the Government to settle the dispute without a litigation. This object can be achieved in an ejectment claim by giving the Government a reasonable opportunity to pay the arrears and save its ejectment. A 'cause of action' in common parlance means cause of complaint'. Such complaint against a defaulting tenant is his non-payment of rent for a particular period. This object can be achieved in an ejectment claim by giving the Government a reasonable opportunity to pay the arrears and save its ejectment. A 'cause of action' in common parlance means cause of complaint'. Such complaint against a defaulting tenant is his non-payment of rent for a particular period. By combining the notice under section 80 C.P.C. with the notice under section 3 of Act No. III of 1947 and Section 106 of the Transfer of Property Act the plaintiff-respondent informed the State Government of his intention of filing a suit on the basis of the Government default in payment of rent. The notice said that the defendant became liable for ejectment on the ground of being a defaulter in the payment of debt as also on the ground of causing substantial damages to the premises, and in case the rent was not paid within one month and the premises not restored to their original position a suit for ejectment would be filed. There is no dispute that all then material facts were set out. The only contention is that the notice under section 80 was premature as one month's time for payment of arrears had not elapsed. In State of U.P. and another v. Raj Kumar Jain and others, AIR 1972 Allahabad 444 a similar question arose. A notice under section 3 of U.P. Act III of 1947 and Section 106 of the Transfer of Property Act was combined with the notice under section 80 Civil Procedure Code. A similar contention was raised that the notice under Section 80 was premature. The contention was repelled and it was held that the notice was valid as the object of section 80 C.P.C. was only to apprise the Government of all the material facts and give it an opportunity to remedy the wrong. Such a combined notice is a conditional notice in the sense that in case the wrong is not remedied the suit would be filed. I respectfully agree with the view expressed in the case cited, A notice under section 77 of the Indian Railways Act and Section 80 Civil Procedure Code has been held to be valid by this Court in Madho Prasad v. Union of India, AIR 1961 Allahabad 433 . I respectfully agree with the view expressed in the case cited, A notice under section 77 of the Indian Railways Act and Section 80 Civil Procedure Code has been held to be valid by this Court in Madho Prasad v. Union of India, AIR 1961 Allahabad 433 . The Calcutta High Court also in Fushraj Thanmull v. Union of India, AIR 1960 Calcutta 458 held a combined notice under section 77 of the Railways Act and section 80 of the Civil Procedure Code as valid. The notice in question was thus valid in law and the suit was rightly decreed on its basis. 10. The appeal fails and is dismissed with costs.