Radhey Shyam v. District Judge, Bulandsbahr — 1981 DIGILAW 854 (ALL)

ORDER N.D. Ojha, J. - The petitioner is the landlord of a shop of which respondent No. 3, Jugal Kishore, is the tenant. A suit was instituted by the petitioner against respondent No. 3 for his ejectment and for arrears of rent etc. on the allegation that the shop in question had been constructed in the year 1966 so that neither U.P. Temporary Control of Rent and Eviction Act 1947 nor U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act 1972 (hereinafter referred to as the Act) was applicable and that the tenancy of respondent No. 3 had been duly terminated by serving upon him a notice under section 106 of the transfer of Property Act. The suit was contested by respondent No. 3 inter ilia on the ground that the notice under section 106 of the Transfer of Property Act was invalid and that he was also entitled to the benefit of section 20(4) of the Act inasmuch as he had deposited the requisite amount contemplated by the said section on the first date of hearing of the suit. The defence of respondent No. 3 did not find favour with the Judge, Small Causes and the suit was decreed. Aggrieved by that order, respondent No. 3 preferred a revision before the District Judge under section 25 of the Provincial Small Cause Courts Act which was allowed by respondent No. 1. It was held by respondent No. 1 that the notice under section 106 of the Transfer of Property Act served on respondent No. 3 was invalid inasmuch as it did not give clear 30 days' time to the said respondent for vacating the shop in question. On this finding the decree for ejectment was set aside. The decree for recovery of arrears of rent was, however, maintained. The petitioner filed a second revision in this Court under section 115 of the Code of Civil Procedure challenging the aforesaid order of respondent No. 1. That revision was dismissed on the ground that it was not maintainable. Thereafter the petitioner instituted this writ petition with a prayer to quash the order aforesaid passed by respondent No. 1. 2. The petitioner filed a second revision in this Court under section 115 of the Code of Civil Procedure challenging the aforesaid order of respondent No. 1. That revision was dismissed on the ground that it was not maintainable. Thereafter the petitioner instituted this writ petition with a prayer to quash the order aforesaid passed by respondent No. 1. 2. It has been urged by counsel for the petitioner that the notice under section 106 of the Transfer of Property Act which was served on respondent No. 3, was valid and respondent No. 1 has committed a manifest error of law in taking a contrary view. The relevant portion of the notice in question has been quoted by the District Judge in the impugned order follows : "My client does not want to keep you tenant any more and so he terminates your tenancy through this notice under section 106 for termination of your tenancy is given to you that you vacate the said shop after keeping it in your possession for full 30 days and deliver the same to my client on the next following day failing which a suit for the recovery of damages for use and occupation and for ejectment shall be filed and in that case costs will be borne by you." The District Judge has taken the view that since the notice had been given on 3rd October, 1972 and was served on respondent No. 3 on 6th October, 1972, it did not give him clear 30 days inasmuch as respondent No. 3 was required to vacate the shop in question after keeping it in his possession for 30 days. According to the District Judge, since it had not been stated in the notice that respondent No. 3 was required to vacate the shop after keeping it in his possession for 30 days from the dare of service of the notice upon him, the period of 30 days on the plain language of the notice was to be counted from the date of the sending of the notice and not from the date of its service. 3. Counsel for the petitioner has urged that a notice under section 106 of the Transfer of Property Act was to be construed utress magis valeat quam pereat, as was held by the Privy Council in Harihar Banerji v. Ramshashi Roy, AIR 1918 PC 102 . 3. Counsel for the petitioner has urged that a notice under section 106 of the Transfer of Property Act was to be construed utress magis valeat quam pereat, as was held by the Privy Council in Harihar Banerji v. Ramshashi Roy, AIR 1918 PC 102 . So far as this submission is concerned, reference may be made to the decision of the Supreme Court in Mangilal v. Sugan Chand, AIR 1965 Supreme Court 101, where after referring to the decision of the Privy Council in Harihar Banerji's case (supra) it was held : "The decision really is of no assistance in this case because there the defect which was not said to invalidate the notice appertained to the description of the demised premises and the Privy Council held that the recipient of the notice would be quite conversant with the actual description and could know what the description stood for. Here the question is entirely different and that is whether the landlord had given the minimum period contemplated by section 106 of the 'Transfer of Property Act to the tenant within which to vacate the premises. The crucial question which, therefore, falls for consideration is about the interpretation of the notice under Section 106 of the Transfer of Property Act. Neither any principle nor authority has been brought to my notice by counsel for the petitioner to substantiate his submission that even in the absence of stating that 30 days time was to start from the date of service of the notice, the notice was to be construed in that manner, namely, that the starting point of 30 days was to be taken not from the date of sending of the notice but from the date of service of the, notice. At all events two views are possible on this point. It is well established that a writ of certiorari can be issued only if the impugned order suffers either from a manifest error of law or error of jurisdiction. In Nagendra Nath Boara v. Commissioner of Hilla Divisions, AIR 1958 Supreme Court 398, it was held that mere formal or technical errors, even of law, will not be sufficient to attract the extraordinary jurisdiction of issuing a writ of certiorari. Errors in appreciation of documentary evidence or affidavits, errors in drawing inferences or omission to draw inference are not errors apparent on the face of the record. Errors in appreciation of documentary evidence or affidavits, errors in drawing inferences or omission to draw inference are not errors apparent on the face of the record. In Satyanarayan v. Mallikarjun, AIR 1960 Supreme Court 137, it was held that an error which has to be established by long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record and such an error cannot be cured by a writ of certiorari. In the instant case since two views in regard to the interpretation of the notice under section 106 of the Transfer of Property Act were possible and the view taken by respondent No. 1 cannot be said to be such which no reasonable man could take, the finding recorded by respondent No. 1 cannot be said to suffer from a manifest error of law. In this view of the matter, in my opinion, the impugned order does not suffer from any such error which may justify interference under Article 226 of the Constitution. 4. Counsel for respondent No. 3 urged that respondent No. 3 was also entitled to the benefit of section 20(4) of the Act inasmuch as he made the requisite deposit contemplated by the said section in the court of the Judge, Small Causes in the year 1973. As seen above, a similar plea had been raised by respondent No. 3 before the Judge, Small Causes also. It was repelled on the ground that the suit for ejectment had not been instituted by the petitioner on the ground contemplated by Section 20(2)(a) of the Act and since sub section (4) of Section 20 applied only to such suits which had been instituted for ejectment of a tenant on the ground mentioned in sub-section (2)(a) of that section, respondent No. 3 was not entitled to its benefit. At this place it may further be pointed out that in regard to the date on which the construction of the shop is question was completed, the Judge, Small Causes has recorded a finding that its construction started in 1966 but was completed in 1967. At this place it may further be pointed out that in regard to the date on which the construction of the shop is question was completed, the Judge, Small Causes has recorded a finding that its construction started in 1966 but was completed in 1967. In view of a Full Bench decision of this Court in Gopal Krishna v. Vth Additional District Judge, 1981 A.W.C. 321, the Act would apply to the shop in question on the expiry of ten years from date on which its construction was completed in the year 1967. Consequently the Act applied to the shop som : time in the year 1977. The petitioner could not obviously be granted the benefit of section 20(4) of the Act on account of the deposit made by him in the year 1973. 5. Counsel for respondent No. 3 further urged that he had also made certain deposits in this Court in the revision which had been filed by the petitioner under section 115 C.P.C. against the impugned order passed by respondent No. 1 on 29th January, 1977 and he was entitled to the benefit of section 39 of the Act on account of the said deposit. I find it difficult to accept this submission either. Firstly, the benefit of section 39 can be given only if deposit contemplated by the said section is made before the court where the suit is pending. If the second revision under section 115 of the Code of Civil Procedure was not at all maintainable, it cannot be said that the suit was pending in this Court on account of the filing of the said revision. The second ground on which I find it difficult to accept the submission made by counsel for respondent No. 3 is that the deposit under section 39 has to be made within one month from the date of the commencement of the Act or from the date of the knowledge of the pendency of the suit. In the instant case, the period of one month would not start from the date of the knowledge of the pendency of the suit inasmuch as the suit had been instituted in the year 1972 before the commencement of the Act and its pendency was in the knowledge of the respondent no. 3 from the very inception. In the instant case, the period of one month would not start from the date of the knowledge of the pendency of the suit inasmuch as the suit had been instituted in the year 1972 before the commencement of the Act and its pendency was in the knowledge of the respondent no. 3 from the very inception. The period of one month could, however, be calculated from the date of commencement of the Act. In the absence of any specific finding in regard to the actual date on which the construction of the shop in question was completed in the year 1967 it is not possible to ascertain the starting point of the period of one month within which the deposit completed by section 39 was to be made. For the sane reason it is also not possible to arrive at a conclusion as to whether the deposit said to have been made on 29th January, 1977 conformed with the requirement of section 39. 6. In view of the foregoing discussion, the writ petition fails and is dismissed. But there shall be no order as to costs.