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2003 DIGILAW 1983 (ALL)

Oriental Insurance Co. Ltd. v. Kishore Kapoor

2003-09-02

JANARDAN SAHAI

body2003
JUDGMENT : Janardan Sahai, J. A suit for rent and ejectment was filed by the Respondent in the Court of Judge Small Causes. The suit was decreed. The Plaintiffs' case was that Act No. 13 of 1972 is not applicable as in the previous proceedings u/s 21(8) of U.P. Act No. 13 of 1972 instituted by the Plaintiff Respondent the applicant tenant who was the Defendant in that case took the plea that the Act is not applicable. The Plaintiff alleged that the tenancy of the Defendant was terminated by a notice u/s 106 of the Transfer of Property Act dated 8.6.1998 and as the Defendant did not vacate the premises despite notice, hence the suit. The defence was that the notice u/s 106 Transfer of Property Act was invalid; that after the notice the landlord accepted the rent as such the notice was waived; that the suit was not maintainable as it was filed by an incompetent person, the Plaintiff being mentally retired (retarded) person and lastly that the allegations in the plaint were not proved. The Judge Small Cause framed the points for determination, including the points whether Act No. 13 of 1972 is applicable to the building in dispute and also as to whether the notice was invalid and whether the suit was filed by incompetent person. All the points were decided against the applicant and in favour of the landlord. The suit was decreed. 2. I have heard Sri Manish Goel counsel for the applicant and Sri. B.D. Mandhyan counsel for the Respondent. 3. Four points were raised by Sri Goel. First that the notice was invalid. He placed before me the copy of the notice, which has been annexed as Annexure-1 to the affidavit accompanying the stay application in this revision. The submission of Sri Goel is that there was in it no intention to terminate the tenancy. He relies upon para 3 of the notice and submits that that paragraph contains an admission that Act No. 13 of 1972 is applicable. He also relies upon the last para of the notice which gives opportunity to the tenant to enter into a fresh contract of tenancy. I am unable to accept the contention. He relies upon para 3 of the notice and submits that that paragraph contains an admission that Act No. 13 of 1972 is applicable. He also relies upon the last para of the notice which gives opportunity to the tenant to enter into a fresh contract of tenancy. I am unable to accept the contention. In para 7 of the notice it is stated that in view of the tenant's admission U.P. Act No. 13 of 1972, is no more applicable and the tenancy is liable to be terminated by notice u/s 106 of the Transfer of Property Act and the same "is hereby determined by this notice." In para 8 the tenant has been called upon to deliver the possession of the premises in his tenancy after expiry of 30 days from the service of notice. Sri Goel submitted that the effect of the words "hereby determined" is the determination of tenancy in the praesenti. He relied upon the decision of this Court in Haji Ziaul Islam v. Mohd. Rafi alias Rafi Ahmad 1971 AWR 121, in which it has been held that the notice terminating the tenancy in the praesenti is invalid and is in breach of the provisions of Section 106 of the Transfer of Property Act. Reliance was also placed upon the Division Bench decision of this Court in Abdul Jalil Vs. Haji Abdul Jalil, AIR 1974 All 402 , and upon the Full Bench decision in Bradley v. Atkinson, ILR 1885 (7) All 899. The question is whether on the terms of the notice referred to above the intention was to determine the tenancy in the praesenti. This intention can be gathered from the fact that possession has been demanded after the expiry of 30 days. A notice u/s 106 of the Transfer of Property Act is not to be read in a pedantic manner but the intention has to be gathered by reading the notice as a whole vide Smt. Samundari Devi v. Spl. and Additional District Judge, Azamgarh and Ors. 1999 (1) AWC 224 . In Abdul Jalil it was stated that a notice has to be liberally construed. The intention is to be gathered from the reading of the language as a whole. The term 'hereby' in the notice indicates merely what was being done by the notice, namely that the tenancy was being determined by it. 1999 (1) AWC 224 . In Abdul Jalil it was stated that a notice has to be liberally construed. The intention is to be gathered from the reading of the language as a whole. The term 'hereby' in the notice indicates merely what was being done by the notice, namely that the tenancy was being determined by it. It does not signify the determination of tenancy in the praesenti but only the determination by means of the notice. The fact that possession was demanded after thirty days rather indicates that the intention was to determine the landlord tenant relationship after 30 days. In my opinion, the notice in this case is of class E categorised in Abdul Jalil where the notice used the words "your tenancy is terminated by this notice" and it was held that such a notice is valid. In Haji Ziaul Islam the notice terminated the tenancy 'with effect from today'. It was thus a notice to terminate the tenancy in praesenti. In Badley's case the tenancy was not determined at all. It is also submitted that no specific date has been given on which date the tenancy stood terminated. This contention has no force. From the very fact that the tenancy has been determined and the demand for possession has been made just after the expiry of 30 days it is evident that the tenancy was determined after 30 days only, tenant required to hand over possession immediately after the period of 30 days was over. 4. It was then submitted by the counsel for the applicant that the notice was waived. It is stated that the notice was given on 8.6.1998 and on 7.7.1998 the tenant tendered the rent not only for the period which was covered by the notice but also for the period upto July 1998. On this basis it is submitted that as the rent even for the period which was subsequent to the notice was accepted by the landlord, the notice stands waived. Reliance was placed upon the Full Bench decision of the Calcutta High Court in Mohamaya Goopta and Ors. v. Nilmadhab Rai ILR 1885 (11) Cal 533. The facts of Calcutta case are altogether distinguishable as would appear from the discussion now to follow. Reliance was placed upon the Full Bench decision of the Calcutta High Court in Mohamaya Goopta and Ors. v. Nilmadhab Rai ILR 1885 (11) Cal 533. The facts of Calcutta case are altogether distinguishable as would appear from the discussion now to follow. In the Calcutta case the notice called upon the tenant to pay rent at enhanced rate or quit and the suit was for payment of enhanced rate of rent or ejectment in the alternative. In the present case, after the rent was tendered on 7.7.1998, a reply was sent by the landlord on 24.7.1998 and in that reply it is stated that the cheque would not be encashed and would be returned to the tenant should he not agree to the payment being appropriately adjusted partly towards the arrears of rent and partly towards mesne profit. No doubt this letter was followed by a subsequent letter of the tenant that he was treating the rent as payable for the period until July, 1998. The notice u/s 106 of the Transfer of Property Act was followed by a suit on 21.7.1998 which the landlord pursued with full diligence. It cannot be inferred from the landlord's correspondence and conduct that there was any intention to waive the notice. In Anish Ahmad v. Spl./Additional District Judge, Saharanpur, 1997 AWC 215, it was held that acceptance of rent for a period subsequent to the date of termination of tenancy would not amount to waiver of notice in absence of circumstances indicating intention of the landlord to treat the lease as subsisting. This submission also fails. 5. The third submission of the counsel for the applicant is that the suit was filed by an incompetent person. It is submitted that the Plaintiff Respondent was a mentally retarded person. He relied upon the statement made by P.W. 1 the son of the Plaintiff admitting that his father was a 'mentally retarded' person and he does not do any act by himself. The trial court considered the question of mental infirmity and has recorded a finding that the Plaintiff was not a mentally infirm person unable to understand the effect of his actions. The trial court has observed that the signatures of the Plaintiff are like any ordinary person. The finding is one of fact. The trial court considered the question of mental infirmity and has recorded a finding that the Plaintiff was not a mentally infirm person unable to understand the effect of his actions. The trial court has observed that the signatures of the Plaintiff are like any ordinary person. The finding is one of fact. Sri Manish Goel relies upon Order XXXII, Rule 15, Code of CPC and upon the decision in Vidya Devi Vs. Himachal Road Transport Corporation, Simla and Others, AIR 1990 HP 19 , in which it has been held that a person suffering from paralysis is a mentally infirm person. It was said that a suit filed by such a person through next friend was maintainable and delay of 12 years in filing a claim petition under the Motor Vehicles Act was sufficiently explained. He also relied upon the decision In re Periaswami Goundan AIR 1954 Mad 810 , in which a deaf and dumb person has been described as mentally infirm for whom a guardian ad litem could be appointed and also upon the decision in Duvvuri Rami Reddi Vs. Duvvudu Papi Reddi and Others, AIR 1963 AP 160 , in which the concept of mental infirmity was discussed. It is to be noted that in this case the Court emphasised, that an order appointing a guardian takes away the right of a person to conduct his own case. None of these cases helps the applicant. This is not a case where the Plaintiff is seeking to undo his act on the ground that it was an act of a person of unsound or infirm mind. It is the Defendant who is raising this plea. That apart the trial court has recorded a finding that the Plaintiff was competent to file the suit as he was not a person who could not understand the effect of his actions, which is a finding of fact. From the statement of P.W. 1 no inference can be drawn that the Plaintiff was a mentally retarded person and falls within the definition of Order XXXII, Rule 15, Code of CPC of being a person suffering from mental infirmity and incompetent to file the suit. 6. The last submission of Sri Manish Goel was that the Plaintiff allegations have not been proved as the Plaintiff himself did not appear in the witness box and rather his son appeared as P.W. 1. 6. The last submission of Sri Manish Goel was that the Plaintiff allegations have not been proved as the Plaintiff himself did not appear in the witness box and rather his son appeared as P.W. 1. In support of his contention reliance was placed on the decisions in Vidyadhar v. Mankikrao and Ors. 1999 (1) ALR 738; Ishwar Bhai C. Patil v. Harihar Bahera 1999 (1) ALR 755. He submitted that both these decisions have been considered by the single Judge in Mahendra Kumar v. Harbans Lal and Ors. 2003 (2) 83. On the strength of these authorities, he submits that it has not been established that the notice u/s 106 of the Transfer of Property Act was authorised by the Plaintiff and an adverse inference ought to have been drawn for non-production of the Plaintiff. This plea is liable to be rejected at the outset. Sri Goel failed to show any pleading in the written statement that the notice u/s 106 of the Transfer of Property Act was not authorised and that the counsel had no authority to send notice. The point was, therefore, not in issue whether the counsel was authorised to send the notice. I have considered the statement of P.W. 1 upon the point. P.W. 1 has stated that he had gone to instruct the counsel. The Plaintiff had also telephonic talk with the counsel. In view of this statement made by the witness the submission cannot be accepted on facts either. That apart the decisions in Ishwar Bhai C. Patil and Vidyadhar have been considered in Umesh Chandra Srivastava v. Sheela Srivastava 2000 (1) AWC 215 , and it was held that a father who is acquainted with the handwriting of his daughter the land lady could in view of the provisions of Section 47 Evidence Act prove a notice by his daughter. It was also held that when a lawyer sends a notice stating therein that he was doing so on instructions from his client, the Court, unless the contrary is proved, has to presume that the common course of business has been followed in view of Section 114(f) of the Evidence Act. 7. No other point has been argued. 8. Lastly Sri Goel prayed that the tenant may be given six months' time to vacate the premises. Sri B.D. Mandhyan has no objection provided his client's interest is safeguard by a suitable undertaking. 7. No other point has been argued. 8. Lastly Sri Goel prayed that the tenant may be given six months' time to vacate the premises. Sri B.D. Mandhyan has no objection provided his client's interest is safeguard by a suitable undertaking. Accordingly the applicant is granted time upto 15th April, 2004, to vacate the premises subject to his giving undertaking before the trial court within two months from today that he will hand over the vacant possession to the landlord on or before 15th April, 2004. 9. There is no merit in this revision and subject to the aforesaid directions it is dismissed.