JHATKU v. SPECIAL AND ADDITIONAL DISTRICT JUDGE AZAMGARH
1998-10-16
J.C.GUPTA
body1998
DigiLaw.ai
J. C. GUPTA, J. This is tenants writ petition for quashing the judgment and orders dated 29-1-1986 and 25-1-1985 passed by respondent. Nos. 1 and 2 respec tively. 2. A suit for rent and ejectment was filed against the petitioners on the ground of default in payment of rent after serving notice on 28-6-1976 which was duly served upon Jhataku petitioner No. 2, who alone contested the suit. Second notice was sent on 17-8-76 to all the defendants which was served upon them by refusal. Rent was Claimed from 1-12-1966 to 15-7-1972 at the rate of Rs. 3 per month and from 16-7-72 upto the date of expiry of notice period at the rate, of Rs. 3. 75 per month. The suit was contested by Jhataku, petitioner No. 2 on the ground that no rent was due. The trial Court decreed the suit holding that the defendants were in arrears of rent and they committed default in pay ment thereof. It also came to the con clusion that the defendants were not en titled to the benefit of Section 20 (4) of the U. P. Act No. XIII of 1972, hereinafter referred to as the Act, as the requisite N deposit was not made on the date of first hearing. In the revision filed against the decree of the trial Court, the revisional Court modified the decree only to the ex tent that suit for arrears of rent was decreed only for a sum of Rs. 135 and for mesne profits at the rate of Rs. 3. 75 per month and the decree for eviction was upheld. 3. Before this Court Dr. R. G. Padia learned Counsel for the petitioners attack ed the impugned judgments only on two grounds: firstly, that it has not been proved that notice had been duly served upon all the petitioners, and. secondly, that the notice in question was invalid. From the side of the respondents it was, however, pointed out by the learned Counsel that none of the aforesaid grounds were raised either before the trial Court or the revisional Court. He pointed out that only a vague allegation was made in the written statement that notice sent by the landlord was wrong. Its service was neither dis puted in the pleadings nor any evidence was adduced in that behalf. 4. Dr.
He pointed out that only a vague allegation was made in the written statement that notice sent by the landlord was wrong. Its service was neither dis puted in the pleadings nor any evidence was adduced in that behalf. 4. Dr. R. G. Padia argued that service of a valid notice under Section 106 of the Transfer of Property Act (to be referred to as the tp. Act") and a notice under Section 20 (2) (a) of the Act are conditions prece dent to the institution of suit for eviction on the ground of default in payment of rent. Since in the judgment impugned no finding has been recorded with regard to the sendee of such notices, the impugned decree is not sustainable in law. In support of his argument reliance was placed on the case of Samiullah v. Ist Addl. District Judge Ballia and Ors. , 1984 AR. C. 70, wherein it was held that no decree for ejectment can be passed without recording a finding that a notice of demand as contemplated by section 20 (2) (a) of the Act had been served on the tenant and that within one month from the late of its receipt he failed to pay the arrears of rent and further that the tenancy was duly determined by a valid notice under Section 106 of TP. Act. It is noteworthy that in that case the defence of the defendants had been struck off by the order of the Court and it was in this context that the learned Judge who decided the aforesaid case, took the aforesaid view. The facts of the present case are, however, different. Here the petitioners contested the suit, filed their written statement and also adduced evidence. Neither in the pleadings nor in the evidence there was any denial with regard to the service of notice. On the other hand Jhataku, petitioner No. 2 admitted the receipt of notice. It is also noteworthy that no such point was raised even in the grounds of revision filed against the decree of the trial Court. It thus follows that the fact of service of notice was not challenged before the Courts below. Even in the present writ petition, no ground challenging the service of notice has been taken specifically.
It is also noteworthy that no such point was raised even in the grounds of revision filed against the decree of the trial Court. It thus follows that the fact of service of notice was not challenged before the Courts below. Even in the present writ petition, no ground challenging the service of notice has been taken specifically. It may be relevant to mention here that while deal ing with the issue regarding the tenants allegation of payment of rent, the trial Court found specifically that the allega tion of the defendant that he had paid two months rent to Shiv Nath after service of notice upon him was totally false. It there fore, cannot be said that the trial Court did not apply its mind whether or not notice had been served upon the tenant- petitioners. Accordingly petitioners can not be permitted to raise the aforesaid point for the first time in this writ petition. At any rate it is not disputed that notice was served upon petitioner No. 2, one of the joint tenants and in law service on one of the joint tenant is sufficient to bind other joint tenants. 5. The main thrust of the argument of the learned Counsel for the petitioners is that the notice in question is bad in law in as much as it is not in conformity with the requirement of Section 106 of T. P. Act. It was submitted that the notice in question terminated the tenancy of the petitioners in presenti and therefore, the same was wholly illegal and invalid and could not be made the basis of suit for ejectment. Ac cording to the learned Counsel for the petitioners, the notice in question simply called upon the petitioners to pay entire arrears of rent within a period of one month from the date of receipt of notice and to vacate the accommodation in ques tion within the said period and it did not indicate that the tenancy of the petitioner was to determine on the expiry of thirty days period. Learned Counsel for the petitioners placed reliance upon a number of decisions which may be referred to hereunder: 6. The first authority on which reliance has been placed is the case of Harish Chandra v. IInd Addl. District Judge, Moradabad and others, 1983 ARC 89.
Learned Counsel for the petitioners placed reliance upon a number of decisions which may be referred to hereunder: 6. The first authority on which reliance has been placed is the case of Harish Chandra v. IInd Addl. District Judge, Moradabad and others, 1983 ARC 89. It was held in that decision that while it is correct that the two notices, namely, one under Section 106 of TP. Act and the other demanding arrears of rent under Section 20 (2) (a) can be combined, the require ment of each must be separately and dis tinctly fulfilled. They cannot be mixed up so as to confuse the tenant. There must be a clear cut demand not leaving the tenant guessing whether it is simply a notice of termination of tenancy or of demand. In that case it was clear from the reading of the notice that there was no such demand that the defendant- tenant must pay the entire arrears of rent within thirty days from the receipt thereof and failing which he would render himself liable to eject ment, and the notice straightaway proceeded to terminate the tenancy of the tenant and in that context the defendant tenant was asked to pay the entire arrears of rent, taxes and damages. It was on these facts that the notice was held to be invalid. 7. Reliance was next placed on the decision in Sheo Kumar Gupta v. Bhikham Singh, 1991 (1) ARC 101, Honble M. L. Bhat, J. while deciding the aforesaid case, in paragraph 12 observed: "the notice, must expressly state that the tenant was required to vacate the premises on the expiry of 30 days from the date of service of the notice failing which a suit for ejectment will be filed against him. Such a notice is valid. Sine qua non for the validity of the notice is that it must demand eviction of the premises by the lessee at the expiry of the period of notice. " 8. The Honble Judge examined the contents of the notice given in that case 4 and found that the notice did not suffer from any infirmity and was a valid notice. 9. Reliance has also been placed on the case of H. Z. Islam v. Mohd. Rafi, AIR 1971 All.
" 8. The Honble Judge examined the contents of the notice given in that case 4 and found that the notice did not suffer from any infirmity and was a valid notice. 9. Reliance has also been placed on the case of H. Z. Islam v. Mohd. Rafi, AIR 1971 All. 302 , which was decided by Honble K. B. Asthana, J. (as he then was) the holding of that decision was that there is a distinction between terminating tenancy at once and calling upon tenant to deliver possession after 30 days and ter minating tenancy after 30 days. In the former case the relationship of landlord and tenant comes to an end at once and tenant is given a right to remain in possession 30 days as a licensee or as a tenant on sufference whereas in the latter case he remains a tenant for 30 days. In that case the notice stated: "your tenancy of the aforesaid house is determined with effect from today. Therefore, within one month from the date of receipt of the notice after vacating the house deliver its actual possession to me otherwise I will be compelled to take action against you in a competent Court, of law. " 10. It is thus clear that in the aforesaid case, tenancy was determined from the date of the notice itself, and it was not to be determined on the expiry of 30 days period. 11. The case of Mangi Lal v. Sugam Chand Rathi, AIR 1965 SC 101 , was also cited on behalf of the petitioners, which was a case under the M. P. Accommodation Control Act. It was held therein that provisions of Section 4 of the said Act are m addition to those of the Transfer of Property Act and before a tenant could be evicted by landlord, compliance of both the provisions of Section 106, TP. Act and those of Section 4 of the Accommodation Control Act were essential. The Apex Court further held that notice under Sec tion 106, T. P. Act was essential to bring to an end the relationship of landlord and tenant and unless the said relationship was validly terminated by giving notice under Section 106, the landlord did not get the right to obtain possession of the premises by evicting the tenant.
The Apex Court further held that notice under Sec tion 106, T. P. Act was essential to bring to an end the relationship of landlord and tenant and unless the said relationship was validly terminated by giving notice under Section 106, the landlord did not get the right to obtain possession of the premises by evicting the tenant. This decision is practically of no help to the petitioners because in the case in hand there is no quarrel before the Court that under the provisions of U. P. Rent Control Act also before a suit on "the ground of default in. payment of rent is brought in Court, it is necessary for the landlord to serve the tenant with a notice of demand as con templated under Section 20 (2) (a) of the Act as also a notice required under Section 106 of TP. Act. There can also be no dis pute that the landlord can meet put the requirement of the above provisions by serving a combined notice upon the tenant, of course the notice must clearly fulfil the requirement of each of the provisions and the tenant should not be. left in a state of confusion guessing whether the notice was simply a notice of termination of tenancy or of demand. 12. Reliance has also been placed on two more decisions of the Supreme Court in the cases of Dattonpant Gopal Varao, Devkate v. Vithalrao Marutirao, AIR 1975 SC 1120 and Bhagandas Agarwalla v. Bhagandas Kanu and Ors. , AIR 1977 (SC) 1120 . In both these decisions it was held by the Apex Court that notice to quite is a necessary condition for terminating the tenancy and without termination of the contractual tenancy by a valid notice or other mode set out in Section 111, TP. Act it was not open to the landlord to treat the defendant as a statutory tenant and seek his eviction without service of a notice to quit. 13. In the decision of Bhagandas (supra) the following observations are noteworthy: "now, it is settled law that a notice to quit must be construed not with a desire to find faults in it, which would render it defective, but it must be construed ut res magins valeat qucun pereat.
13. In the decision of Bhagandas (supra) the following observations are noteworthy: "now, it is settled law that a notice to quit must be construed not with a desire to find faults in it, which would render it defective, but it must be construed ut res magins valeat qucun pereat. "the validity of a notice to quit" as pointed out by Lord Justice Lindley, L. J. in Sidebotham v. Holland, (1895) 1qb 378, "ought not to turn on the splitting of a straw". It must not be read in a hyper-critical manner, nor must its interpreta tion be affected by pedagogic pendantism or over refined sublety, but it must be construed in. a common sense way. See Harihar Benerji v. Ramsashi Roy, 45 Ind App 222 (AIR 1918 PC 102 ). The notice to quit in the present case must be judged for its validity in the light of this well recognised principle of interpretation. " 14. It was further held that under Section 106of the Transfer of Property Act the notice to quit must expire with the end of the month of the tenancy, or in other words, it must terminate the tenancy with effect from the expiration of the month of the tenancy. If it terminates the tenancy with effect from an earlier date, it would be clearly invalid. In that case the notice to quite required the tenant to vacate the premises "within the month of October 1962" and intimated to the tenants that otherwise they would be "treated as trespassers from 1st November" in respect of the premises. The Supreme Court considered the question as to what is the meaning and effect of the words "within the month of October, 1962" in the context in which they were used in the notice to quit and it was held that the notice was valid because it made the intention of the authors of notice clear that they were ter minating the tenancy only with effect from the end of the month of October, 1962 and not with effect from any earlier point of time during the currency of that month.
The use of the words "that if the tenants do not vacate the premises within the month of October, 1962, they would be treated as trespasser from 1st November, 1962" clearly implied that they would lawfully continue as tenants upto the expiration of the month of October, 1962. 15. From the side of the respondents it was argued that question of validity of notice is a mixed question of fact and law and if not pressed before the Court below should not be allowed to be raised for the first time in writ jurisdiction. It was further contended that at any rate in the present case the landlord- respondent gave the petitioners a clear one months time to pay the entire arrears of rent to save themsel ves from being defaulter and by the same notice tenancy was also terminated and the notice were informed to vacate the premises in question within the aforesaid period of one month and it was further stated that failing which on the expiry of the said period suit for eviction and for arrears of rent would be filed and accord ingly the notice in question fulfilled the requirements of both the provisions i. e. Section 106 of T. P. Act and Section 20 (2) (a) of the Rent Control Act. Learned Counsel placed reliance on the decisions namely; Food Corporation of India andanr. v. Mis Durga Shakti Enterprises, 1996 (1) AR. C. 153: 1996 (1) JCLR 331 (A11); Addepalli Subba Rao v. Yerrabotula Krishnamurthy and Ors. , AIR 1987 SC 171 and Sylvania and Luxman Ltd. v. Raminder Singh and Am, 1997 (2) ARC 657:1997 (1) JCLR950 (A11 ). 16. In the case of Food Corporation of India v. Durga Shakti Enterprises (supra), Honble D. C. Srivastava, J. , took the view, that even where the notice is not very happily, worded, the mere recital in the notice that the tenancy is terminated does not render the notice invalid nor such ter mination of tenancy in presenti would in validate, the notice, especially when in sub sequent paragraph of the same notice the landlord had desired that within a month, of receipt of notice the tenant should; the entire rent and further after 30 possession should be delivered.
After ex amining the entire notice, the Honble Judge was of the view that the intention of the landlord was clear that he demanded that the rent should be paid within a month of receipt of notice and thereafter within 30 days the premises should be vacated. 17. In the case of Addeppalli Subba Rao (supra) the Supreme Court held that only a reasonable construction of notice should be made and the Court should not be unduly technical in constructing the notice. 18. In the case of Sylvania and Lux man Ltd. v. Raminder Singh and Anr. , 1997 (2) A. R. C. 657: 1997 (2) JCLR 950 (A11) it was observed: "the settled view regarding the notice under Section 106 of the Transfer of Property Act is that notice is to be interpreted liberally and not with a view to find out unnecessary faults in it. " 19. In the backdrop of the above legal position the notice in question may now be examined. In the said notice it was stated that the landlord was not prepared to keep. the defendants as his tenants and the tenancy was terminated and they were asked to clear off the entire arrears of rent and vacate and handover possession of the tenanted accommodation to the landlord within one month from the date of receipt of the notice. It was further stated therein that in case the notice failed to response, suit for ejectment and arrears of rent would be filed after expiry of notice period. Learned Counsel for the petitioners on the basis of contents of the notice argued that since the tenancy was terminated in presenti, therefore, for that reason the notice was rendered invalid and suit for eviction could not be validly instituted nor decree for eviction could be passed. The question that calls for consideration is whether the notice in question is invalid. No particular proforma has been prescribed either under the Act or under the TP. Act as to in what particular manner the notice should be given. There is also no hard and fast rule for the language to be used in the notice.
The question that calls for consideration is whether the notice in question is invalid. No particular proforma has been prescribed either under the Act or under the TP. Act as to in what particular manner the notice should be given. There is also no hard and fast rule for the language to be used in the notice. The only requirement is that the notice must be clear, unam biguous and absolutely understandable so as to indicate that the tenancy of the notice has been duly terminated and he might keep the demises premises under his tenancy for a period of not less than thirty days from the date of service of notice and thereafter hand over its possession to the notice-giver after vacating the same. The object of giving notice is only to give suffi cient time to the tenant to vacate the tenanted accommodation. The mere in clusion of the words "within 30 days of the service of notice" will not invalidate the notice if from the context in which the said expression has been used in the notice gives a clear intention of the landlord that the tenancy was to continue for the full period of notice and the tenant was called upon to hand over possession of the demised premises on the expiry of period of notice and not before that. Similar view was expressed by a Full Bench of this Court in Gorakh Lal v. Maha Prasad Narain Singh and Ors. , AIR 1964 All 260 . It was held therein that the words used in the notice asking the tenant to vacate the premises within 30 days from the date of service of the notice only fix the outer limit by which the tenant must vacate. The limit fixed was the last moment of 30th day of the notice, and the notice so construed was strictly according to the letter and spirit of the law and was valid. 20. The nature and purpose of the notice have to be gathered by reading the same as a whole and not from any par ticular words read out of the context or from any omission to the use of the formal language of a skilled drafter. Intention to terminate the tenancy is to be gathered not from any particular words or the sentence used in the notice in isolation from other words used in the notice.
Intention to terminate the tenancy is to be gathered not from any particular words or the sentence used in the notice in isolation from other words used in the notice. In the present case if the entire contents of the notice in question are read together in harmony with liberal construction, the only ines capable conclusion will be that the notice-giver intended not to terminate the tenan cy from the date of notice but the tenants were clearly intimated that they could keep the accommodation in their occupa tion for a period of one month from the date of service of notice and vacate the same thereafter. The mere use of the words "your tenancy is terminated" in present tense will not mean that there was ter mination of tenancy in presenti i. e. from the date of the notice. The words that followed the above expression cannot be left out from consideration while construing the notice. No unnatural meaning to the language used should be given and the Courts should find out the exact intention of the notice-giver, rather to construe the notice in a very strict and sensitive manner. Where the notice is sufficiently clear. though may not have been drawn with strict accuracy, it should be given a rational and reasonable interpretation and should not be allowed to be defeated by omission of a minor requirement or on a unduly technical construction. In the present case the notice in question fully fulfilled the requirements of Section 106 of TP. Act as well as of Section 20 (2) of the Rent Con trol Act and to hold that the notice in question prejudiced the tenant-petitioners and, therefore, was invalid as has been contended by the learned Coun sel, would be too technical and hairsplit ting. There was no uncertainty or am biguity which might have kept the petitioners in dark as they were in clear terms intimated that the lease was to terminate after one month from the date of receipt of notice when they were to hand over vacant possession of the tenanted accommodation to the landlord. For the above reasons, the argument of the learned Counsel for the petitioner cannot be accepted. 21. No other point was argued or urged. 22. For the reasons stated above, this writ petition has no force and must be dismissed. 23.
For the above reasons, the argument of the learned Counsel for the petitioner cannot be accepted. 21. No other point was argued or urged. 22. For the reasons stated above, this writ petition has no force and must be dismissed. 23. Writ petition is accordingly dis missed and the judgments of the Courts below are upheld. In the circumstances, no order as to costs is made. Petition dismissed. .