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1982 DIGILAW 79 (KER)

KRISHNA PILLAI v. MADHAVAN NAIR

1982-03-07

BALAKRISHNA MENON

body1982
Judgment :- 1. The plaintiff is the appellant. The suit is for eviction of a shop-building with arrears of rent from June 1971. The building is in the occupation of the 1st defendant under Ext. Al rent-deed executed by him on 11-11-1957 agreeing to pay a monthly rent of Rs 4/-on the 11th day of every month. Rent was enhanced to Rs. 10/- from January 1970 and the 1st defendant has not paid rent from June 1971 onwards. The 2nd defendant is the son of the 1st defendant, and he is impleaded in the suit as the panchayat licence for a tea shop in the premises stands in the name of the 2nd defendant. The defendants denied the enhancement of rent and claimed fixity of tenure under S.106 of the Kerala Land Reforms Act. They pleaded discharge of rent due till 30th Dhanu 1149. 2. The trial court found that the plaintiff is entitled to a decree for recovery of possession of the shop-building with arrears of rent from June 1971, at the rate of Rs. 4/- per mensem. The enhancement of rent pleaded by the plaintiff as well as the discharge of rent till 30th Dhanu, 1149 pleaded by the defendants were found against by the trial court. 3. In appeal, the lower appellate court has confirmed the finding of the trial court that the rent of the building is only at the rate of Rs. 4/- per mensem. The enhancement of rent pleaded is not proved and the defendants have failed to prove the discharge of arrears of rent til) 30th Dhanu 1149. The court below has however vacated the decree for eviction on the ground that there is no valid notice to quit as required by S.106 of the Transfer of Property Act, and there was no valid termination of the tenancy of the 1st defendant. The decree for arrears of rent from 1st June 1971 was confirmed by the lower appellate court. It is against this that the plaintiff has come up in Second Appeal 4. The Learned Counsel for the appellant challenges the decision of the lower appellate court rejecting the plaintiff's claim for eviction on the ground that there had been no termination of the tenancy as required by S.106 of the Transfer of Property Act. A notice issued by. It is against this that the plaintiff has come up in Second Appeal 4. The Learned Counsel for the appellant challenges the decision of the lower appellate court rejecting the plaintiff's claim for eviction on the ground that there had been no termination of the tenancy as required by S.106 of the Transfer of Property Act. A notice issued by. the plaintiff to the 1st defendant was sought to be produced by the defendants as per I. A. No. 374 of 1975 filed before the trial court. That Court rejected the application on the ground that the evidence in the case was closed on 6-2-1975 and the notice produced on 10-2-1975 cannot be accepted in evidence. The lower appellate court has admitted the notice produced as additional evidence as per I. A. No. 893 of 1976 filed by the defendants under 0.41, R.27, CPC. There was no counter to this application to admit the notice as additional evidence. The lower appellate court has marked the notice as Ext B1 apparently because there was no objection for the admission of the notice as additional evidence, by the plaintiff, Ext. BI notice is dated 10-4-1974 requiring the defendants to vacate the premises within 15 days of the notice. The postal receipt Ext, A2 produced by the plaintiff shows that the notice was actually despatched only on 14-5-1974, after the period of 15 days for surrender of the premises stated in the notice. There is no dispute that the tenancy commenced as per Ext. Al on 11-11-1957. There is also no dispute that there is a tenancy by holding over after the expiry of the terms fixed under Ext Al. Learned Counsel for the appellant does not dispute the finding of the lower appellate court that Ext. BI notice is not in conformity with the requirements of S.106 of the Transfer of Property Act, for the reason that there was neither a termination of the tenancy by the end of the month of the tenancy, nor did Ext. BI allow 15 days time to the tenant to vacate the premises. 5. BI notice is not in conformity with the requirements of S.106 of the Transfer of Property Act, for the reason that there was neither a termination of the tenancy by the end of the month of the tenancy, nor did Ext. BI allow 15 days time to the tenant to vacate the premises. 5. The argument of the learned Counsel for the appellant is that in the absence of a plea by the defendants that there is no valid termination of the tenancy, the lower appellate court should not have allowed the point to be raised and the prayer for eviction should not have been rejected for want of a proper notice to quit. In Para.6 of the plaint it is stated as follows: The defendants in their written statement do not deny the statement in Para.6 of the plaint. Nor have they raised any plea of want of proper notice to quit terminating the tenancy. It is for the reason of the absence of such a plea that the learned Counsel submit that the court below should not have allowed the point to be raised at the appellate stage. The learned Counsel relies on the decision of the Supreme Court reported in Bhagat Singh & Others v. Jaswant Singh ((1961) 1 KLR. 539) in support of his contention that where a claim has been never made in the defence presented no amount of evidence can be looked into upon a plea which was never put forward" The same principle is stated in the decision in Smt Chander Kali Bai & Others v. Shri Jagdish Singh Thakur ((1978) (1) SCWR. 260). 6. The learned Counsel for the respondents does not dispute the above proposition of law. But according to him the plea should be of the plaintiff that there was a valid termination of the tenancy. The learned Counsel points out that the pleading in Para.6 of the plaint extracted above, does not disclose a valid termination of the tenancy as required by law before a suit could be instituted for eviction of a tenant. The facts mentioned in Para.6 are not required to be traversed by the defendants in their written statement as they do not dispute the demand for surrender or the notice issued requiring surrender of the premises to the plaintiff. The facts mentioned in Para.6 are not required to be traversed by the defendants in their written statement as they do not dispute the demand for surrender or the notice issued requiring surrender of the premises to the plaintiff. In the absence of a plea of a valid termination of the tenancy, the plaintiff is not entitled to a decree for eviction of the defendants-tenants. In support of this proposition the learned Counsel for the respondent relies on the decision of the Full Bench of the Patna High Court in Niranjan Pai & another v. Chaitanyalal Ghosh & another (AIR. 1964 Pat. 401) wherein it is stated at page 40S thus: "20. If I am right in the view which I have expressed above that the lease must be determined before the landlord can maintain an action for eviction of the tenant under S.11 of the Control Act, it is for the plaintiff to mention in his plaint the fact of determination of the lease as one of the facts constituting the cause of action which he is required to give under R.1 of Order VII of the Code of Civil Procedure. He has also to prove the fact. If the plaintiff has not done that, it seems manifest that the defendant can take the point for the first time in second appeal. I may refer in this connection to Subba v. Nagappa ILR.12 Mad. 353, Vithu v Dhondi, ILR.15 Bom. 407, Narayanan Nair v. A Kunhan Mannadiar, AIR. 1949 Mad. 127 and Siddarama v. Kalappa. AIR. 1959 Mys. 63 in which it was held that a point of this kind could be taken for the first time in second appeal." In Ramayan Prasad v. Mt. Gulabo Kuer & Another (AIR. 1967 Patna 35), it is stated at page 39, as follows: "9 If the plaint itself suffers from an infirmity in the sense that it does not contain a statement about the determination of a lease by giving the requisite notice under S.106 of the Transfer of Property Act, then the plaintiff would not be entitled to get a decree for eviction and the matter has to be considered from this point of view in a suit for ejectment". In Batoo Mal v. Rameshwar Nath (AIR. 1974 Delhi 98) it is held at page 106 as follows: "20. In Batoo Mal v. Rameshwar Nath (AIR. 1974 Delhi 98) it is held at page 106 as follows: "20. Ordinarily a landlord suing or applying for the eviction of a tenant must plead that the contractual tenancy has been terminated. If the tenant does not take the plea that the suit or the application is untenable due to the non-termination of the contractual tenancy then he would be either deemed to have admitted the allegation of the landlord by non traverse or to have waived the benefit of the protection of S.106 of the Transfer of Property Act." The learned judges of the Delhi High Court were not however prepared to agree with the view expressed by the Full Bench of the Patna High Court in AIR. 1964 Patna 401 that the plea regarding termination of the contractual tenancy constitutes the cause of action for a suit for eviction. According to the Delhi High Court, the facts constituting the rest of the cause of action would still be before the Court, the non-compliance with S.106 of the Transfer of Property Act does not relate to the jurisdiction of the Court, and its compliance is not a jurisdictional condition nor does the inherent jurisdiction of the court depend on the satisfaction of this condition. Compliance to the requirements of S 106 of the Transfer of Property Act must however be pleaded by the landlord. 7. From these decisions it is clear that it is for the plaintiff to plead a valid termination of the tenancy before he could sustain a suit for eviction of the defendant tenant. Para.6 of the plaint quoted above does not mention the date of the notice. Nor does it show that there has been a notice of the nature contemplated by S.106 of the Transfer of Property Act. There is no averment that the notice had given 15 days time to the tenant to vacate, nor does it show that the notice required the defendant to vacate by the end of the month of the tenancy. The plaint does not state that there had been a valid termination of the tenancy. To get over the lack of pleadings in the case, the learned Counsel for the appellant relies on the decision in Kedar Lal Seal and another v. Hari Lal Seal (AIR. 1952 SC. The plaint does not state that there had been a valid termination of the tenancy. To get over the lack of pleadings in the case, the learned Counsel for the appellant relies on the decision in Kedar Lal Seal and another v. Hari Lal Seal (AIR. 1952 SC. 47) wherein at page 52 the Supreme Court has stated thus in Para.51: "51. I would be slow to throw out a claim on a mere technicality of pleading when the substance of the thing is there and no prejudice is caused to the other side, however clumsily or inartistically the plaint may be worded. In any event, it is always open to a Court to give a plaintiff such general or other relief as it deems just to the same extent as if it had been asked for, provided that occasions no prejudice to the other side beyond what can be compensated for in costs." The decision of the Supreme Court arose out of a suit for contribution by a mortgagor against his co-mortgagors. It was not a case relating to the eviction of a tenant requiring a pleading that the tenancy had been validly terminated. For the want of such a plea in the present case it cannot be said there is no prejudice to the defendants if the suit is to be decreed without a valid termination of tenancy. 8. The learned Counsel next relies on the decision in Dooni Lal Seal and another v. Smt. Giniya Devi Rateria & Others (A.I R.1970 Cal. 452), wherein it is held at page 456 thus: "18. In my opinion, even though the words "determination of the lease" had not been pleaded expressly, yet, there is sufficient pleading of determination of the lease by the lessors against the lessee by necessary implication. In Halsbury's Laws of England Vol. 23 Simonds Edition, Art.1155 it is provided as follows: "Determination by landlord. Anything which amounts to a demand of possession, although not expressed in precise and formal language, is sufficient to indicate the determination of the landlord's will. In Halsbury's Laws of England Vol. 23 Simonds Edition, Art.1155 it is provided as follows: "Determination by landlord. Anything which amounts to a demand of possession, although not expressed in precise and formal language, is sufficient to indicate the determination of the landlord's will. Thus, the landlord may expressly demand possession or state that the tenant is in against his will, or send for the keys; and if the notice states terms, and intimates that if they are not accepted the landlord will take steps to recover the premises, and the terms are rejected, that is a sufficient notice to determine the tenancy". 19. It is no doubt true that the factum of determination is a cause of action in a suit for ejectment against the tenant but the purpose of pleading determination can be fulfilled if by the language used in the pleading, its sense can be otherwise conveyed or ascertained. The language must be such that it must express the paramount intention to put an end to the lease." I do not think that the language used in Para.6 of the plaint in the present case, is sufficient to indicate a determination of tenancy in conformity with the provisions of S.106 of the Transfer of Property Act. Further in the decision of the Supreme Court in J.C. Chatterjee & Others v. Shri Sri Kishan Tandon and another (A.I R.1972 SC. 2526) it is held in Para.7 as follows: "7. The landlord had alleged in the suit that by a notice dated 26-6-1962 served upon the tenant, the tenancy had been duly terminated. This was not denied in the written statement nor was an issue demanded at the time of the trial, However, the point being essentially a point of law, the learned judge in Second Appeal permitted both sides to address him on the point and came to the conclusion that the contractual tenancy had been duly terminated by a notice. In these circumstances, we do not think that there is any substance in the submission of the learned Counsel for the appellant before us that the learned judge should have remanded the case for a determination of that question." 9. As adverted to above, there was no pleading in the plaint of a valid termination of the tenancy as required by law. The notice Ext. As adverted to above, there was no pleading in the plaint of a valid termination of the tenancy as required by law. The notice Ext. BI produced in the case is not in conformity with S.106 of the T.P Act and the notice was admitted in appeal without objection by the plaintiff. Under these circumstances, even though there was no specific plea in the written statement of the defendants that there is no valid termination of the tenancy that does not preclude them from raising the point of law against the validity of the notice especially in view of the fact that it was incumbent on the plaintiff himself to have pleaded a valid termination of the tenancy I do not see any merit in the Second Appeal. It is accordingly dismissed. There will be no order as to costs. Dismissed.