Abdul Karim v. K. S. E. B. — 1999 DIGILAW 298 (KER)

Judgment :- KA. Abdul Gafoor, J. Disposal of S. A. No. 419 of 1990 will result in the disposal of S.A. 416 of 1990. 2. The only dispute in this case is whether there is a valid notice in terms of S.106 of the Transfer of Property Act, terminating the tenancy after giving 15 days notice expiring with the end of the month of the tenancy concerned. There is not much dispute with regard to the facts. The respondents-plaintiffs instituted the suit for recovery of vacant possession of a plot of land belonging to it on termination of the lease. Lease was granted as seen from Ext. Al dated 21.10.75 for a period of one year from 6.9.75. It was in respect of 33.46 Sq. meters of land for the purpose of conducting a vegetable shop after constructing a temporary shed. Lease was in favour of the defendant. The defendant violated certain conditions and started fish trade as well, apart from encroaching the neighboring property of the plaintiffs. This resulted in Ext. A2 notice dated 25.7.86. The notice reads as follows : "Now my client is not willing to continue the lease arrangement between you and my client. Hence take notice that the lease arrangement between my client and you are hereby terminated by 31.8.1986. If you have a case that 30.8.86 is not the last day of tenancy month you may treat the arrangement to stand terminated by such date which you deem to be the end of the month of tenancy coming after one month of the receipt of this notice". There was no reply notice nor the demand in the notice was complied. Therefore, O.S.137/87 was filed. The suit was decreed and the decree was confirmed by the lower appellate Court. Therefore, the tenant has come up with this Second Appeal mainly raising the question with reference to Ext. A2 notice contending that it is not a valid notice in terms of S.106 of the said Act as the notice does not terminate the tenancy by giving 15 days expiring with the end of a month of tenancy. Month of tenancy is to start on the 6th of every month and to terminate on 5th of the succeeding month. A2 notice contending that it is not a valid notice in terms of S.106 of the said Act as the notice does not terminate the tenancy by giving 15 days expiring with the end of a month of tenancy. Month of tenancy is to start on the 6th of every month and to terminate on 5th of the succeeding month. It is also contended that the averments in the plaint were also to that effect The appellant specifically refers to the following sentence from paragraph 7 of the "Plaintiff issued lawyer's notice under S.106 of the T.P. Act on 25.7.1986 to the defendant terminating the tenancy by 31.8.1986 and requesting the defendant to vacate the plaint schedule property after clearing arrears of rent". He also points out the allegation in paragraph 10 of the plaint as follows: "The defendant's occupation in land after 31.8.1986 is unauthorised". He also points out the allegation with reference to the cause of action in the plaint to the effect that "cause of action for the suit arose from April 1986 when the defendant encroached on the plaintiff's property and from 1.9.1986, when the defendant's possession became unauthorised after termination of the tenancy....". Thus the plaintiff had abandoned the case set up with the notice with reference to any other date of expiry of the month of tenancy. This aspect has not been properly dealt with by the Courts below. Thus, a question of law had arisen in this case in his favour to reverse the concurrent decree rendered against him, the counsel submits. In support of this contention a decision of the Supreme Court reported in Dattonpant Gopalvarao Devakate v. Vithalrao Marutirao (AIR 1975 SC 1111) is relied on. That was a case on dispute regarding the date of expiry of the month of tenancy whether it was 9th April or 8th April. It was also held that such a notice shall be one by which tenancy is terminable by 15 days notice "ending with the tenancy month". In this case, the notice is not in such terms and it does not end with 5th of September 1986 or 5th of July, but specifically with reference to 31.8.96. So, Ext. A2 is not a valid notice. 3. In this case, the notice is not in such terms and it does not end with 5th of September 1986 or 5th of July, but specifically with reference to 31.8.96. So, Ext. A2 is not a valid notice. 3. The respondent contended that in the notice as extracted above, the plaintiffs had been given sufficient notice in terms of the said Section terminating the lease ending with 31.8.96 and an option had been given to the defendant that if he had a case that the tenancy month is expiring with any other date he can treat that notice with reference to such date. It is also contended by the respondent referring to Ext, Al document that the term regarding payment of rent was from month to month referring to the calender month even though it started on 6.7.1975. It was with reference to that terms contained in Ext. Al that notice was issued as if the tenancy month terminated on the end of every month. By sufficient precaution option was also given in the notice to the tenant to treat the tenancy month according to his calculation. But he did not respond to that notice, with specific option. Naturally it shall be taken that he is bound for payment of rent as contained in Ext. Al as if the tenancy month expired by the end of every month. Therefore, there was proper notice. He also relied on the decision of this Court in Packer v. Kammu (1989 (1) KLT (SN) 55 Case No. 87). The report reads as follows: "It is un disputable that under S.106 of the Transfer of Property Act the notice to quit must expire with the end of the month of the tenancy or in their words it must terminate the tenancy with effect from the expiration of the month of tenancy. If it terminates the tenancy with effect from an earlier date it would be clearly invalid. Notice to quit must be construed not with a desire to find fault with it which would render it defective but it must be construed utres magis valeat quam pereat. Since there is an alternative clause in the notice giving an option to the defendant to deem the tenancy terminated on that day falling after the lapse of 15 clear days it cannot be invalid. Defendant had 15 days clear notice expiring with the month of tenancy. Since there is an alternative clause in the notice giving an option to the defendant to deem the tenancy terminated on that day falling after the lapse of 15 clear days it cannot be invalid. Defendant had 15 days clear notice expiring with the month of tenancy. But in addition an option also is given. The tenant understood the purpose of the notice. -The notice need not be worded with the accuracy of a plea. The words "expiring with the end of the year of tenancy" and "expiring with the end of a month of tenancy" occurring in S.106 of the Transfer of Property Act have only lead to more unwanted litigation and therefore time has come for amending the section by deleting these words." Therefore, there arise no question of law in this case to be decided to interfere with the concurrent decree rendered against the appellant, the counsel submits. 4. It is a fact that the notice contained an option to the tenant as is discernible from the extracted portion of the notice. He did not respond to that notice. Necessarily, it has to be taken that he did not make an option and that he also treated the holding over of the tenancy as month to month expiring with the end of every calendar month. Otherwise, he would have opted for any other date. Therefore, according to me, the notice is a proper one in terms of S.106 of the T.P. Act. So, there arise no question of law to be answered in favour of the appellant. Appeal fails and it is accordingly dismissed. 5. S. A. 416/90 arises out of a suit filed by the tenant against the forcible eviction. Now, an eviction is granted in accordance with the due procedure in the suit where-from S.A. 419/90 arises and the decree stands confirmed. Therefore, there arise no relevance to the issue arising in the Original Suit wherefrom S.A. 416/90 arises. That has become infructuous. 6. The appellant in S. A. 416/90 was conducting a shop for sufficiently long period. He seeks reasonable time to find out alternate accommodation and to vacate the premises. He shall file an undertaking before the trial Court to the effect that he shall vacate the premises at the latest by 31.3.2000. That has become infructuous. 6. The appellant in S. A. 416/90 was conducting a shop for sufficiently long period. He seeks reasonable time to find out alternate accommodation and to vacate the premises. He shall file an undertaking before the trial Court to the effect that he shall vacate the premises at the latest by 31.3.2000. If such an undertaking is given within a month from today, he shall be granted that such time on further condition that he shall pay the rent payable by him, with arrears and that he shall vacate without any objection at the latest by 31.3.2000. No costs.