Rafi Uddin v. IV Additional District Judge — 1980 DIGILAW 814 (ALL)

JUDGMENT : A.N. Varma, J. This is a tenant’s petition arising out of a suit filed by the Plaintiff-Respondent No. 2 for ejectment of the Petitioner from a shop. 2. The trial court dismissed the suit on the finding that the notice given by the Plaintiff-Respondent did not legally determine the Petitioner’s tenancy. The Plaintiff-Respondent thereupon filed a revision u/s 25 of the Provincial Small Cause Courts Act, which has been allowed by the order dated 19-7-1979 against which this petition is directed. The learned District Judge has upheld the validity of the notice. 3. Two points were urged in support of this petition. These are- 1. The notice dated 29-5-1971 did not legally determine the tenancy of the Petitioner. 2. The payment and deposits made by the Petitioner were sufficient to comply with the requirements of Section 39 of U.P. Act No. XIII of 1972, and that the courts below, therefore, erred in law in decreeing the suit for ejectment. 4. Having heard Learned Counsel for the parties, I find no merits in either of the two points. 5. The second point can easily be disposed of. Before the trial court as well as in the written statement, the only plea raised in regard to the applicability of U.P. Act No. XIII of 1972 or any provision thereof was that the suit was barred by Section 20. No plea was raised at any time before either of the two courts below as regards compliance of Section 39 of the aforesaid Act. Obviously, Section 20 could have no application as the suit had been filed prior to the coming into force of U.P. Act No. XIII of 1972. In regard to Section 39 of the said Act, the trial court observed under issue No. 7 as follows: Admittedly, the Defendant has not complied, with the requirements of Section 39 of U.P. Act No. XIII of 1972, therefore, the suit will continue to proceed as before and provisions of Act No. XIII of 1972 cannot be attracted. Issue No. 7 is decided against the Defendant. 6. The above statement of fact contained in the order of the trial court has not been challenged in the petition, and there is no reason to think that the observations made by the trial court are incorrect. Before the revisional court also, the plea was not raised at all. Issue No. 7 is decided against the Defendant. 6. The above statement of fact contained in the order of the trial court has not been challenged in the petition, and there is no reason to think that the observations made by the trial court are incorrect. Before the revisional court also, the plea was not raised at all. Learned Counsel for the Respondent rightly protested against the attempt of the Petitioner to raise the plea. At any rate, admittedly the Petitioner had not made any application u/s 39 before either of the two courts below. Furthermore, Learned Counsel was unable to satisfy me that all the deposits required to be made u/s 39 had been made by the Petitioner. I, therefore, find no substance in the second point. 7. The first point raised by counsel for the Petitioner, is equally devoid of merit. The argument of the Learned Counsel for the Petitioner was that the notice dated 29-5-71, upon which the present suit is founded, merely contains a threat to determine the tenancy, if the Petitioner did not pay the enhanced rent demanded by the landlord. Counsel submitted that according to the finding of both the courts below, the rate of rent was Rs. 40/- per month, whereas the notice in question demanded arrears of rent at the rate of Rs. 200/- per month from February 1971. Such a notice, contended counsel for the Petitioner, was in substance a demand that if the Petitioner did not agree to the payment of enhanced rent, his tenancy would be determined. Relying on two decisions of this Court in Bradley v. Atkinson ILR 7 All. 899 and Chidda Ram Vs. Naru Mal and Another, AIR 1965 All 323 . Learned Counsel contended that the notice in question was not a valid notice capable of determining the tenancy. 8. Having given the matter a careful consideration, I find myself unable to accept the above contention. 899 and Chidda Ram Vs. Naru Mal and Another, AIR 1965 All 323 . Learned Counsel contended that the notice in question was not a valid notice capable of determining the tenancy. 8. Having given the matter a careful consideration, I find myself unable to accept the above contention. In order to appreciate the argument of the Learned Counsel for the Petitioner, it will be convenient to have the relevant part of the notice dated 29-5-71 extracted here: That on account of your non-payment of rent as well as submission of application u/s 7(c) and creating legal complications, this notice is being given to you requiring you to vacate the shop on the expiry of thirty day of receipt of this notice, terminating your tenancy therefrom and to pay up the arrears of rent due from 1st February 1971 upto date at the rate of Rs. 200/- per month, to the undersigned within thirty days of the receipt of this notice, failing which the undersigned will be compelled to file a suit for ejectment, recovery of arrears of rent and compensation also for unauthorised use and occupation of the said shop at the rate of Rs. 250/- per month against you and in that case you shall be liable for all expenses and other incidental charges Incurred by the undersigned. 9. Whether a notice legally determines the tenancy of a tenant under the Transfer of Property Act, would, in my opinion, depend on whether it betrays a clear and unequivocal intention on the part of the lessor to terminate the contract of tenancy. If, however, it contains merely a threat leaving an option with the lessee to prevent the consequence of the termination of the tenancy by performing some act, required to be performed under the notice, it would not determine the tenancy. 10. Construed in the light of what has been stated above, there could be little doubt that the notice in question irrevocably determines the tenancy of the Petitioner, and though by means of the said notice, the lessor demanded an enhanced rent (according to the findings of the courts below) it had left no option whatsoever with the lessee to prevent determination of tenancy by payment of the enhanced rent demanded by the lessor through the said notice. I do not agree with the Learned Counsel for the Petitioner that in substance what the notice said was: If you do not pay the rent at the enhanced rate of Rs. 200/- per month your tenancy would stand determined. If you pay the enhanced rent, you could continue to remain in occupation of the accommodation but at the enhanced rate of rent. 11. The notice in question does not admit of such a construction as suggested by the Learned Counsel for the Petitioner. It would be stretching the words used in the notice far too much and would amount to reading in the notice words which are not there if the construction canvassed by the Learned Counsel for the Petitioner is accepted. The words “This notice is being given to you requiring you to vacate the shop on the expiry of 30 days of receipt of this notice terminating your tenancy therefrom...” leave no room for any doubt that the lessor intended irrevocably to determine the tenancy of the Petitioner by means of the said notice. The mere fact that the lessor demanded a higher rent than the contractual rate did not by itself have the effect of rendering ineffectual the notice determining the tenancy. Furthermore, according to the landlord, the rate of rent was Rs. 200/- and not Rs. 40/- per month. The fact that the courts subsequently found that the rate of rent was Rs. 40/- and not Rs. 200/- per month would not be relevant for ascertaining the intention of the lessor to determine the tenancy. If the landlord had admitted in the notice that the rate of rent was Rs. 40/- per month and inspite of that he would have demanded a higher rent, something could have been said in favour of the argument advanced by the Learned Counsel for the Petitioner. 12. Another fact which is relevant for determining the validity of the notice is that the lessor had clearly stated in the notice that if the lessee did not vacate the premises and pay the arrears of rent demanded, the Petitioner would be liable to pay damages for unauthorised occupation at the rate of Rs. 250/- per month. This circumstance also makes it clear that the intention of the lessor was to determine the tenancy irrevocably and to treat the Petitioner as a trespasser after expiry of the period of the notice. 13. 250/- per month. This circumstance also makes it clear that the intention of the lessor was to determine the tenancy irrevocably and to treat the Petitioner as a trespasser after expiry of the period of the notice. 13. And now the cases cited by the Learned Counsel for the Petitioner. In Bradley v. Atkinson (supra), the notice in question ran thus: If the rooms you occupy in 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 the rents due at the enhanced rate. 14. This notice was construed by the learned Chief Justice as a mere demand by the lessor from the lessee to vacate or to pay the penalty. The learned Chief Justice observed that the notice was not sufficient to terminate the tenancy as it was a mere threat. The majority of the learned Judges of the Full Bench, however, founded the decision on a shorter ground, namely, that inasmuch as the landlord did not terminate the tenancy with the last day of the month, it was insufficient to determine the tenancy. 15. The aforesaid decision has been subject of comment in various cases decided by this Court. In the case of Ahmad Ali v. Mohammad Jamal Uddin 1963 AWR 490, a Division Bench of this Court had the occasion to consider the decision in Bradley's case, supra. The Division Bench observed that in Bradley's case, the notice only asked for delivery of possession without any reference to the termination of tenancy. Such a notice, the Division Bench observed, was obviously invalid as the notice merely contained a request or threat without reference to the termination of the tenancy. With respect, I agree with that construction. In my view also, the notice in Bradley's case differs in material aspects from the notice in hand. In the present case, the notice categorically states that the tenancy of the Petitioner was being terminated. As already observed, the notice does not leave any option with the tenant. It determines the tenancy irrevocably. There is another aspect of significance. In my view also, the notice in Bradley's case differs in material aspects from the notice in hand. In the present case, the notice categorically states that the tenancy of the Petitioner was being terminated. As already observed, the notice does not leave any option with the tenant. It determines the tenancy irrevocably. There is another aspect of significance. Section 106 of the Transfer of Property Act, In so far as it requires that the notice must provide for termination of tenancy with the end of the month, has been amended by U.P. Act No. 30 of 1954, doing away with that requirement, and the Full Bench was mainly concerned with the question whether the notice complied with the said requirement. 16. The other case cited by the Learned Counsel for the Petitioner, namely, Chidda Ram v. Narul Mal, supra, is equally distinguishable. The notice In that case has been quoted in extenso in the Report. Upon the terms of that notice, it was construed as leaving with the tenant an option to arrest the effect of the notice, if the tenant agreed to pay a higher rate of rent. The learned Judge at page 325 of the Report observed thus- As I understand the law, the notice terminating the tenancy must be unconditional, unequivocal and clear, that is to say, a tenant whose tenancy is intended to be terminated and who is asked to quit has no power left to arrest the effect of it and a tenancy must stand terminated on the expiry of the notice period. 17. I am in respectful agreement with the above statement of the law, but in the present case, according to my reading of the notice, the tenant had not been left with any option or alternative to prevent the termination of the tenancy or to arrest the effect of the notice. This case too therefore, affords no assistance to the contention raised by the Learned Counsel for the Petitioner. 18. I am in entire agreement with the view of the learned District Judge that the notice in question conveys an intention, express and explicit, to determine the tenancy of the Petitioner irrevocably. The first ground, therefore, also fails. 19. No other point was urged in support of this petition. 20. In the result, the petition fails and is dismissed. There will be no order as to costs. 21. The first ground, therefore, also fails. 19. No other point was urged in support of this petition. 20. In the result, the petition fails and is dismissed. There will be no order as to costs. 21. The Petitioner is, however, granted three months' time to vacate the shop. He will hand over vacant possession of the shop to the Plaintiff-Respondent within this period. The parties shall bear their own costs.