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J&K High Court · body

2005 DIGILAW 233 (JK)

Gh. Rasool Khan v. Gh. Hassan

2005-08-12

S.N.JHA

body2005
1. This second appeal by the defendant-tenant arises from a suit for eviction and recovery of rent and is directed against the judgment of the Additional District Judge, Srinagar affirming the judgment of the City Judge, Srinagar decreeing the plaintiff™s suit. 2. The case of the plaintiff, Mohd Shaban (who died during trial of the suit, now represented by the respondents), is that in July, 1967 the suit premises which is shop was let out to the defendant for eleven months on annual rental of Rs. 450 but rent was payable on monthly basis. A rent deed to that effect was executed by the defendant. From 6th July 1981 he stopped paying rent despite notice. Finally a registered notice was sent asking him to pay the rent which had accumulated to Rs. 1350. The defendant did not take notice nor paid rent. Having committed three defaults during eighteen months after service of notice, the defendant was liable to eviction from the shop in terms of the Jammu and Kashmir Houses and Shops Rent Control Act, 1966 (hereinafter referred to as the Act). The plaintiff also sought eviction on the ground that he required the shop for personal use - his own as well as children™s - for carrying on business. He stated that being pensioner it was difficult for him to sustain his family which included unmarried daughters. The plaintiff also alleged that the shop was let out for doing business but was being used for manufacture of utensils i.e. for purpose other than for which it had been rented out. 3. The defendant-appellant denied the plaintiff™s case in the written statement stating that he had paid rent upto 1982. He had tendered rent in advance for 1983 which the plaintiff refused to accept whereafter the rent was sent by money order, but that too was refused. He then deposited the amount of Rs. 800 being rent upto September 1984 with the Rent Controller. The appellant also denied the plaintiff™s case that he required the shop for his own use or that the premises was being used by him (defendant) in contravention of the purpose for which it was given to him. 4. On pleadings of the parties, the trial court framed the following issues for decision: 1. Whether a notice of payment of arrears of rent has been served on defendant by registered AD? 2. 4. On pleadings of the parties, the trial court framed the following issues for decision: 1. Whether a notice of payment of arrears of rent has been served on defendant by registered AD? 2. On proof of issue no. 1, whether defendant has committed three legal defaults thereafter within a period of eighteen months? 3. Whether the premises is required by the plaintiff for his own use and his dependents? 4. Whether defendant is using the shop in contravention of the purpose for which it was rented? 5. In case of ejectement what are the comparative advantages and disadvantages of the parties? 6. Whether partial eviction will suffice the need of the plaintiff? 5. On consideration of evidence adduced by the parties, the trial court accepting the plaintiff™s case of default in payment of rent and use of the premises otherwise than the purpose for which it had been let out, decided issue nos. 1, 2 and 4 in his favour. However, it did not accept the plaintiff™s case as regards personal requirement and, accordingly, decided issue nos. 3, 5 and 6 against him, but in view of the findings on the grounds of default and contravention of the terms of tenancy, decreed the suit on 20th December, 1994. The appellate court of Additional District Judge, Srinagar noticed that the trial court had decided the issues cursorily and in a slipshod manner without making any attempt to evaluate and discuss the evidence and recorded the findings in a very casual and mechanical manner. The appellate court discussed the evidence and recorded findings on different issues and finally, agreeing with the trial court, dismissed the appeal. The defendant has come in second appeal to this Court. 6. Before proceeding further it is relevant to mention that while the suit was pending in the trial court, the plaintiff died on 14th January 1993. On 18th February, 1983 the respondents filed two applications, one for their substitution and the other for a direction upon the defendants to deposit rent - arrears as well as current - in terms of Section 12(4) of the Act. The defendant agreed to the prayer for substitution which was allowed on 11th March 1993 but filed objections to the application under Section 12(4) of the Act on 9th June, 1993 in which he stated that he had deposited the amount of Rs. The defendant agreed to the prayer for substitution which was allowed on 11th March 1993 but filed objections to the application under Section 12(4) of the Act on 9th June, 1993 in which he stated that he had deposited the amount of Rs. 2250 as rent with the Rent Controller and paid Rs. 1000 to the father i.e. the original plaintiff, and after adjusting these payments was liable to pay Rs. 1150 which he was ready to pay. 7. The case of the appellant is that no order was passed either on the plaintiff™s application under Section 12(4) or on his objections and the case was fixed evidence on 29th April, 1994 and statement of one witness was recorded. On his request the suit was adjourned to 10th June 1994, as he had to go for Haj. On 10th June 1994 he learnt that the defence had been struck out for his failure to deposit rent under Section 12(4) of the Act for which order had been passed on 10th May 1994 - which was not a date fixed in the suit. He challenged the order in civil revision no. 54/1994 in this Court which was dismissed on 6th September 1994. In the meantime, on 26th August 1994 he had filed an application under Section 151 CPC seeking review of the earlier order and permission to deposit rent. According to the defendant, on 2nd September 1994 the court accepted the deposit of the amount as arrears of rent. On receipt of the record from the High Court after disposal of the civil revision, the trial court took up the hearing of the suit and finally decreed it without considering his defence on the ground that the defence stood struck out. 8. Mr. M.A. Qayoom, learned counsel for the appellant, submitted that the trial court committed an error in striking out defence in absence of the defendant when he had gone on pilgrimage prior to the date fixed in the suit. He submitted that even though the civil revision against the order sticking out defence was dismissed by this Court, he is entitled to challenge the order in second appeal in terms of Section 107 and Order 41 rule 33 of the CPC. He submitted that even though the civil revision against the order sticking out defence was dismissed by this Court, he is entitled to challenge the order in second appeal in terms of Section 107 and Order 41 rule 33 of the CPC. He alternatively submitted that the appellant having been allowed to deposit the arrear of rent by order dated 2nd September 1994, and such deposit accepted by the court, the effect of non-compliance of the order under Section 12(4) stood wiped out and the court, therefore, should not have decided the suit without considering his defence. Mr. Qayoom further submitted that arrear of rent as a ground of evidence under clause (i) Section 11(1) of the Act is subject to the landlord serving a registered notice under proviso to clause (i), and further subject to Section 12 which provides a two-fold protection to a tenant First, if the tenant deposits the amount determined by the court as legally payable rent alongwith interest, the suit is to be dismissed under Section 12(3); and second, the landlord has to prove that the tenant committed three defaults after notice. According to the counsel, for every default there should be separate notice, and the cause of action for filing the suit accrues to the landlord only after eighteen months. In the instant case the suit was filed before eighteen months period, and, therefore, should have been dismissed as pre-mature and incompetent. 9. Mr. Qayoom also submitted that the tenancy being annual, the cause of action could accrue only after three defaults i.e. three yearly defaults and for this reason too the suit was premature. Finally, he submitted that the alleged use of the shop for a different purpose than for which it was leased out is not covered by any of the grounds specified in Section 11 of the Act and therefore the finding on issue no. 4 that the appellant contravened the terms of tenancy is irrelevant for one™s eviction under Section 11 of the Act. Alternatively, he submitted, even if it is accepted that defendant was using the shop for manufacture of utensils in the premises in contravention of the purpose of tenancy, it was with consent of the landlord and, therefore, that cannot be a ground of his eviction. 10. Mr. Alternatively, he submitted, even if it is accepted that defendant was using the shop for manufacture of utensils in the premises in contravention of the purpose of tenancy, it was with consent of the landlord and, therefore, that cannot be a ground of his eviction. 10. Mr. Z. A. Qureshi, learned counsel for the respondents, submitted that the appeal was admitted without framing any substantial question of law nor, indeed, any question of law, muchless a substantial question, arises in this appeal which is concluded by findings of fact. The plea that the tenancy was annual and the rent was payable annually was neither taken in the written statement nor an issue to that effect was framed and, therefore, cannot be raised for the first time in second appeal. In any view, the plea is contrary to the express terms of the rent deed from which it is clear that rent was payable month by month. He submitted that defence of the appellant having been struck out and the civil revision against the order having been dismissed by this Court, the trial court could not have considered his defence qua ejectement nor there was any occasion for deposit of the arrear of rent; as a matter of fact, the record of the trial court does not bear out the appellant™s submission that the appellant was permitted by order dated 2nd September 1994 or by any other order to deposit the outstanding rent and/or such rent was indeed deposited. Counsel also submitted that the contention that the suit can be filed only after eighteen months and that there should be separate notice with respect to each default is contrary to the decision of the Full Bench of this Court in Kewal Krishan v Harish Kumar, AIR 1964 J&K 67. As regards finding that the shop was being used for a purpose other than for which it was let out, it was submitted that the ground is covered under clause (d) read with Section 108(o) of the J&K Transfer of Property Act, 1977. Both the courts having recorded concurrent findings not only on the point of default but also use of the premises contrary to the provisions of Section 108(o) of the Transfer of Property Act, there is no scope for interfere in second appeal. 11. Both the courts having recorded concurrent findings not only on the point of default but also use of the premises contrary to the provisions of Section 108(o) of the Transfer of Property Act, there is no scope for interfere in second appeal. 11. Before considering the submissions of the counsel for the parties, it would be appropriate to refer to the relevant provisions of J&K Housing and Shops Rent Control Act, 1966. Section 11 of the Act protects the tenant against eviction notwithstanding anything contained to the contrary in any other Act or law except under decree for recovery of possession in any suit on the ground(s) specified in the section. The grounds are as many as twelve in number. In the instant case eviction was sought on grounds as set out in clause (d), (h) and (i) but the plaintiff™s case of personal requirement - the ground mentioned in clause (h) - having been disbelieved by the courts below, we are really concerned with clauses (d) and (i) which read as under: (d) where the tenant has done any act contrary to the provisions of clause (m), clause (o) or clause (p) of Section 108 of the Transfer of Property Act, 1977; ¦ ¦ ¦ ¦ (i) subject to the provisions of section 12, where the amount of two months rent legally payable by the tenant and due from him is in arrears by not having been paid within the time fixed by contract, or in the absence of such contract by the fifteenth day of the month next following that for which the rent is payable or by not having been validly deposited in accordance with section 14; Provided that no such amount shall be deemed to be in arrears unless the landlord on the rent becoming due serves a notice in writing through Post Office under a registered cover on the tenant to pay or deposit the arrears within a period of thirty days from the date of the receipts of such notice and the tenant fails to pay or deposit the said arrears within the specified period.� Clause (i) is subject to provision of Section 12 and, therefore, Section 12 of the Act may also be quoted as under: When a tenant can get the benefit of protection against eviction. - (1) If in a suit for recovery of possession of any house or shop from the tenant the landlord would not get a decree for possession but for clause (i) of the proviso to sub-section (1) of Section 11, the Court shall determine the amount of rent legally payable by the tenant and which is in arrears taking into consideration any order made under sub-section (4) and effect thereof up to the date of the order mentioned hereafter, as also the amount of interest on such arrears of rent calculated at the rate of nine and three eighths per centum per annum from the day when the rent became arrears up to such date, together with the amount of such cost of the suit as if fairly allowable to the plaintiff-landlord, and shall make an order on the tenant for paying the aggregate of the amounts (specifying in the order such aggregate sum) on or before a date fixed in the order. (2) Such date fixed for payment shall be the fifteenth day from the date of the order, excluding the day of the order. (3) If, within the time fixed in the order under sub-section (1), the tenant deposits in the court the sum specified in the said order, the suit, so far it is a suit for recovery of possession of the house or shop, shall be dismissed by the Court. In default of such payment the Court shall proceed with the hearing of the suit; Provided that the tenant shall not be entitled to the benefit of protection against eviction under this section, if, notwithstanding the receipt of notice under proviso to clause (i) of the proviso the sub-section (1) of Section 11, he makes a default in the payment of the rent referred to in clause (i) of the proviso to sub-section (1) of Section 11 on three occasions within a period of eighteen months. (4) If the tenant contests the suit, as regards claim for ejectment, the plaintiff-landlord may make an application at any stage of the suit for order on the tenant-defendant to deposit month by month rent at a rate at which it was last paid and also the arrears of rent, if any, and the Court, after giving an opportunity to the parties to be heard, may make an order for deposit of rent at such rate month by month, and the arrears of rent, if any, and on failure of the tenant to deposit the arrears of rent within fifteen days of the date of the order or the rent at such rate for any month by the fifteenth day of the next following months, the Court shall order the defence against ejectment to be struck out and the tenant to be placed in the same position as if he had not defended the claim to ejectment. The landlord may also apply for permission to withdraw the deposited rent without prejudice to his right to claim decree for ejectment and the Court may permit him to do so. (5) The power given under sub-section (4) may be exercised by Courts of appeal with necessary adaptation.� 12. I propose to consider the ground of arrear of rent i.e. default in payment of rent first. Shorn of verbosity, in simple words, arrears of rent equivalent to two months rent i.e. non-payment of two months™ rent is a ground of eviction but the tenant is deemed to be not in arrears (for the purpose of eviction) unless registered notice in writing is served on him to pay or deposit the arrear within thirty days of receipt of such notice and he fails to pay or deposit the arrears within that period. Under Section 12 of the Act - where eviction is sought on the ground of rent i.e. default - the Court is required to determine the arrear legally payable by the tenant as also the amount of interest on such arrear in the manner indicated in sub-section (1), and pass an order directing the tenant to pay/deposit the amount so determined within fifteen days. If the tenant deposits the amount so determined within fifteen days. If the tenant deposits the amount the suit is to be dismissed. If the tenant deposits the amount so determined within fifteen days. If the tenant deposits the amount the suit is to be dismissed. But this protection is available to him only if he did no commit three defaults within a period of eighteen months after service of registered notice on him. It would thus appear that, where the tenant committed defaults in payment of rent and is in arrears of two months rent, the landlord cannot secure eviction without first serving a registered notice on him. On his failure to pay or deposit the arrears the landlord may bring suit for his eviction. In such suit the court at the first instance would determine the amount of arrears and pass an order calling upon the tenant to deposit the amount. But if the tenant is found to have committed three defaults within eighteen months after service of the registered notice, he forfeits the right to pay the arrears and defeat the landlord™s claim and becomes liable to be evicted. 13. In the instant case the defence of the appellant stood struck out on his failure to deposit the arrear of rent in terms of Section 12(4) of the Act. As seen above, under sub-section (4) of Section 12, where defence against ejectment is struck out, the tenant is placed in the same position as if the had not defended the claim to ejectment�, and, therefore, defence of the appellant that he had paid rent to the respondents™ father or deposited with the Rent Controller, and was not a defaulter cannot be considered. 14. It was submitted that the provision regarding striking out of defence is not mandatory notwithstanding the use of ˜shall™ in sub-section (4) as held by a Full Bench of this Court in Paras Ram v Sudershan Kumar Khanna, 1987 KLJ 383. The argument is totally irrelevant in the instant case. Indeed, the question as to whether the provision regarding striking out the defence as a result of failure to deposit rent pursuant to court™s order is directory or mandatory stands settled by a decision of the Supreme Court in Ganesh Prasad Sah Kesari v. Lakshmi Narayan Gupta, (1985) 3 SCC 53, wherein considering an identical provision of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, it was held that mere use of the word ˜shall™ does not make the provision imperative. If the word ˜shall™ is treated as mandatory, the net effect would be that even where the default in complying with the direction given by the court is technical, fortuitous, unintended or on account of circumstances beyond the control of the defaulter, yet the court would not be able to grant any relief or assistance to such a person. Once a default is found to be of a very technical nature in complying with the earlier order, the court must have power to relieve against a drastic consequence all the more so if it is satisfied that there was a formal or technical default in complying with its order�. The Supreme Court in this connection noticed section 148 of the Civil Procedure Code which empowers the court to extend the period for compliances of any order. 15. The ratio of the above decision can be applied where a defaulting tenant comes forward with an application to condone the delay, extend the period and permit him to deposit the arrears/ current rent. In the instant case, an application was no doubt filed on 26th August 1994 seeking permission to deposit rent but before any order could be passed the civil revision which the appellant had preferred against the order of 10th May 1994 was dismissed on 6th September 1994. This court rejected the argument that the default was not willful or intentional because he had gone on pilgrimage and was not available in town, and recorded finding that the order impugned is in accordance with law and does not suffer from any infirmity. In view of the said order, the court below could not have passed a favourable order and it is not possible at this stage to go behind the order dated 10th May 1994 by which the appellant was directed to deposit rent and the consequences of non-compliance of the order. 16. At this stage it may be mentioned that counsel for the appellant gave an impression as if the suit was taken up on 29th April, 1994 when the evidence of one witness was recorded and on request the suit was adjourned to 10th June, 1994 because the defendant was to go for Haj, but before the date fixed, on 10th May, 1994 order was passed for deposit of rent under section 12(4) behind his back. Perusal of the record of the trial court reveals that the plaintiff™s evidence was closed on 7th September, 1987 and the examination of the defendant™s witnesses commenced on 16th October, 1987. On 29th April, 1994 the last witness was examined and the defendant™s case was closed. The record further reveals that the main suit was fixed for 10th June, 1994; the order dated 10th May 1994 was separately passed on the plaintiff™s application under Section 12(4) of the Act. The said order was passed, as per the order sheet, in presence of the defendant and after hearing his advocate. 17. Be that as it may, be reason of striking out of the defence by operation of law, with which the this Court did not interfere; the appellant was placed in the position as if he had not defended the claim to ejectment. Therefore, the submission that the defence of the appellant was not taken into consideration is totally misconceived and fit to be rejected. By reason of the order dated 6th September, 1994 in Civil Revision no.54 of 1994 the order striking out the defence attained finality, and the issue cannot be re-opened. It is well known that res-judicata operates between two stages of the same suit or proceeding. Section 105 of the Code of Civil Procedure no doubt permits the appellant aggrieved by the ultimate decision in the suit to challenge any order against which no appeal lies if it affects the decision buts where the order is challenged in revision and the revision is dismissed by the High Court by a speaking order, the High Court in second appeal cannot re-open the matter and review its own order. 18. Counsel for the appellant placed reliance on R. S. Lala Praduman Kumar v Virendra Goyal, (1969) 1 SCC 714. In that case suit was filed for ejectment in default of payment of rent and for payment of rent and compensation under the general law. The tenants paid certain amount which was not sufficient and the trial court dismissed the suit. In appeal the tenants deposited further amount, which was found to be in excess of the due. In these facts, applying the provisions of Section 114 of the Transfer of Property Act, the appellate court granted them the relief against forfeiture. The tenants paid certain amount which was not sufficient and the trial court dismissed the suit. In appeal the tenants deposited further amount, which was found to be in excess of the due. In these facts, applying the provisions of Section 114 of the Transfer of Property Act, the appellate court granted them the relief against forfeiture. Section 114 of the Transfer of Property Act provides that where lease of immovable property is determined by forfeiture for non-payment of rent, and the lessor sues the lessee for eviction, if the lessee pays, or tenders, the rent in arrear along with interest and full costs, or gives security to the satisfaction of the court, the court may relieve the lessee against forfeiture in lieu of passing a decree of ejectment against him. The distinguishing feature of the present case is that suit was filed under the Rent Control Act, the provisions whereof are to determine the course and result of the suit, and provisions of Section 114 of the Transfer of Property Act are not applicable. 19. However, notwithstanding that the defence was not to be considered the plaintiff is required to prove the foundational facts that he had served notice on the appellant, and despite such notice he committed three defaults within the period of eighteen months. On the first point, besides evidence of the plaintiff, the court below relied on the evidence of PW Muhammad Kamal, the Postman of Maharajgunj Post Office. In his evidence he stated that he had delivered registered letter to the defendant who refused to accept it. The witness accordingly made note of refusal on the envelope and returned it to the Post office. He proved his endorsement on the envelope. He stated that he personally knew the defendant who was also identified by witnesses. The court below has observed that in view of the provision of Section 27 of the General Clauses Act and Section 114 of the Evidence Act when notice is sent by registered post on the correct address there is presumption of service and this coupled with the evidence of Muhammad Kamal leaves no room for doubt that registered notice had validly been served as required under proviso to clause (i). 20. 20. As seen above, the plaintiff has to further prove that the defendant committed three defaults within eighteen months after service of notice, the intermediate stage is the stage when under section 12(1) the court is required to determine the amount legally payable. It is relevant to point out what while determining the amount, the court has to take into consideration any order made under sub-section (4) of Section 12 and effect thereof�. The court had already determined the arrears while passing the order under sub-section (4) which the tenant failed to deposit and thereby forfeited the benefit of protection against eviction under sub-section (1) read with proviso to sub-section (3) of Section 12. Under sub-section (3) in case of failure to deposit amount determined under sub-section (1) the suit is to be taken up on merit and at that stage the plaintiff is required to prove three defaults within a period of eighteen months. 21. There is no dispute that the arrears determined under Section 12 (4) - which was obviously after service of registered notice - or the current rent was also not paid amounting to more than three defaults. The submission of the counsel however was that there should be separate notice with respect to each default and that the plaintiff must wait for eighteen months before filing the suit. In Kewal Krishen v Harish Kumar, AIR 1964 J&K 67, decided by a Full Bench of this Court, both the submissions were considered and rejected in these words: Returning now to the interpretation of the amended proviso to sub-section (1), (2) and (3) of Section 12 of the Act, we find that this proviso has a separate sphere of its own. The object and the ambit of the proviso to sub-section (i) to section 11 and that of the proviso to Section 12 appear to be wholly different. While the proviso to sub-section (i) merely lays down the grounds on the basis of which a landlord has right to eject a tenant, the proviso the section 12 hits the right of a tenant to get relief against forfeiture by complying with the provisions of section 12(1) of the Act. In other words, the proviso deprives the tenant of the protection given to him by section 12(1) of the Act. In other words, the proviso deprives the tenant of the protection given to him by section 12(1) of the Act. In other words the conditions laid down in the proviso if fulfilled would completely exclude the operation and application of section 12(1), (2) and (3) of the Act. Thus if a landlord succeeds in proving the conditions as laid down in proviso to section 12 of the Act, he would get an absolute and indefeasible right to eject the tenant - a right that will not be subject to the provisions of section 12(1), (2) and (3) of the Act. Furthermore, the proviso to sub-section (i) of section 11 applies only in case of a single default in which case also it confers a right on the landlord to bring a suit for ejectment subject to the provisions of sub-section (1) of section 12 of the Act. The proviso to section 12(1) of the Act does not deal with a single default but deals with cases where there have been three or more defaults. 22. Having regard, therefore, to the separate sphere in which the provisos act, we have not to interpret the language employed in the proviso to section 12(1) of the Act. There is no express provision in this proviso that the landlord is bound to give a notice on every default and hence such a requirement cannot be projected or imported into the proviso which is not there and this, in our opinion, cannot be achieved without doing violence to the language employed in the proviso. Moreover, whereas the proviso to sub-section (i) refers to arrears of rent as becoming actionable on a notice being given to the tenant, there is no reference to ˜arrears™ in the proviso to section 12 of the Act. The words used are ˜makes a default in payment of rent referred to in clause (i) of the proviso to sub-section (1) of section 11 of the Act™. This means that the default in the payment of rent must be a default contemplated by sub-section (i), that is to say, a default of at least two months rent due which is legally payable by the tenant. This means that the default in the payment of rent must be a default contemplated by sub-section (i), that is to say, a default of at least two months rent due which is legally payable by the tenant. The reference to the proviso to sub-section (i) of section 11 in the proviso has been made in juxtaposition to the preceding words, ˜Notwithstanding receipt of notice under proviso to clause(i)™ and would seem to indicate that a notice as contemplated by the proviso to sub-section (1) of section 11 has been given and not complied with. The reference to the proviso does not govern or qualify the words ˜three occasions™, on which the defaults may be committed. The Act does not appear to take any notice of a default of less than two moths rent due. Reading, therefore, the proviso as it stands all that it requires is that a notice as contemplated by the proviso to sub-section (i) must have been given and after that is done, the tenant has defaulted in payment of rent due and legally payable by him on three occasions within a period of eighteen months. 23. If the intention of the Legislature was that a notice for all the three successive defaults as contemplated by the proviso must be given, there was no reason, why this should not have been expressed in clear and unambiguous terms. Moreover, if the contention of the respondent, that a notice for each successive default should be given to the tenant, is accepted then the result will be most anomalous and the contingency contemplated by the proviso would seldom arise. A tenant in order to defeat the right conferred to the landlord would always make some payment and continue defaulting in the payment of rent and thus deprive the landlord of his absolute right to eject the tenant on the ground of non-payment of rent. This could not be the intention of the Legislature. On the other hand, it seems to us that the intention of the Legislature was that whereas a tenant who had made stray defaults may be protected under tenant who had made stray defaults may be protected under the Act but no protection should be given to tenants who are habitual and willful defaulters. On our interpretation, therefore, of the amended proviso referred to above, the following propositions emerge: 1. On our interpretation, therefore, of the amended proviso referred to above, the following propositions emerge: 1. A landlord can bring a suit for ejectment in case of a single default if he proves that the tenant had defaulted in payment of two months rent which is due, of which notices as provided by proviso to sub-section (i) of section 11 have been given. But such a suit will be subject to the provisions of sub-sections (1), (2) and (3) of section 12 of the Act. 2. That where even one notice as contemplated by the proviso to sub-section (i) of section 11 has been given and three successive defaults have been committed despite and said single notice, the landlord has an absolute right to eject the tenant and on proof of these circumstances, the tenant will not be entitled to the protection given to him by section 12(1), (2) and (3). In such cases the application of provisions of section 12(1), (2) and (3) would be completely excluded. 3. That the amended proviso to sub-section 12(1) of the Act does not contemplate the giving of notice on each successive default and the provisions of this proviso would be complied with if the notice for the first default has been given by the landlord.� 24. In view of the clear and authoritative pronouncement of law, the conclusion is irresistible that the landlord is not required to serve notice for each default and that the suit can be filed well within eighteen months. The submission of Mr. Qayoom is accordingly rejected. 25. The question which next arises for consideration is whether rent was payable annually? It is clear that where rent is payable annually three defaults within the meaning of section 12(3) would spread over the period of three years which would really render the entire scheme unworkable. Under proviso the sub-section (3) of section 12 there must be three defaults within the period of eighteen months to make the tenant liable to eviction an if rent is payable annually, the provision would be virtually redundant. However, it is not necessary to go into this academic question in view of the clear stipulation in the rent deed the relevant part of which runs as follows: ¦ I have taken one shop belonging to Mohammad Shaban on lease for my use and occupation from today on a yearly rent of Rs. However, it is not necessary to go into this academic question in view of the clear stipulation in the rent deed the relevant part of which runs as follows: ¦ I have taken one shop belonging to Mohammad Shaban on lease for my use and occupation from today on a yearly rent of Rs. 450 for a period of eleven months. At this time I have paid out of my free will six months rent in advance to the lessor and after that I will pay rent month to month to him and on my failure, besides being liable to pay one and a half, I shall also be liable for eviction ¦�. (emphasis supplied) To the same effect is averment in the plaint the relevant part of which runs as under: The plaintiff from the share of his property has leased out one shop ¦ on an annual rent of Rs. 450, on the terms and conditions mentioned in the rent deed for a period of 11 months. Among other terms and conditions the defendant has agreed that he will pay rent month to month to the plaintiff�. 26. The averment, it is relevant to mention, was not specifically denied by the defendant and, therefore, will be deemed to be admitted in terms of order 8 Rules 3 and 5 of the CPC. Plaintiff Mohd Shaban appearing as his own witness made statement in court. Thus it is not only the plaintiff™s case but also a specific term of the rent deed that the rent was payable month to month. It is true that reference to yearly rent of Rs. 450� at first gives an impression as if it was yearly tenancy but it is to kept in mind that the words on a yearly rent of Rs. 450� are followed by the words for a period of 11 months�. It the tenancy was for a period of eleven months, it is clear that it cannot be construed to be a yearly tenancy. It is well settled that in construing the deed the intention of the parties is to be gathered from the words used. To me it appears that rent of Rs. 450 was used as denominator of the rental payable which in terms of months words out to Rs. 37.50 per month. It is well settled that in construing the deed the intention of the parties is to be gathered from the words used. To me it appears that rent of Rs. 450 was used as denominator of the rental payable which in terms of months words out to Rs. 37.50 per month. In any case, the rent deed clearly stated that the rent was payable month to month. The rent deed, therefore, leaves no room for doubt that it was a case of monthly tenancy and three defaults therefore would mean three defaults in payment of monthly rent. No separate notice being necessary with respect to each default as held by the Full Bench of this Court, in the absence of any payment of rent whatsoever not to speak of non-payment for three months, it has to be held that the appellant committed three defaults within the meaning of proviso to section 12(3) of the Act making him liable to eviction. 27. Though one ground specified under section 11 of the Act is enough to grant the decree of possession, I am of the view that the appellant is also liable to eviction on the second ground, namely contravention of the terms of tenancy within the meaning of clause (d) of section 11(1) of the Act, an I now propose to take up the aforesaid ground. 28. Clause (d), as seen above, refers to acts done by the tenant in contravention of the provisions of clauses (m), (o) and (p) of section 108 of the Transfer of Property Act, 1977. It the instant case the plaintiff relies on clause (o). It may be mentioned here that section 108 of the J&K Transfer of Property Act, 1977 contains provisions relating to rights and liabilities of the lessor and lessee. It lays down: In the absence of a contract or a legal usage to the contrary, the lessor and lessee of immovable property, as against one another, respectively, posses the rights and are subject to the liabilities mentioned in the rules next following or such of them as are applicable to the property leased. It lays down: In the absence of a contract or a legal usage to the contrary, the lessor and lessee of immovable property, as against one another, respectively, posses the rights and are subject to the liabilities mentioned in the rules next following or such of them as are applicable to the property leased. - (o) the lessee may use the property and its products (if any) as a person of ordinary prudence would use them if they were his own; but he must not use, or permit another to use, the property for a purpose other than that for which it was leased, or fell or sell timber, pull down or damage buildings, belonging to the lessor, or work mines or queries not open when the lease was granted, or commit any other act which is destructive or permanently injurious thereto. ¦ ¦ ¦� (emphasis supplied) 29. The case of the plaintiff is that the defendant was using the shop for the work of copper smithy though the shop had not been given to him for the said purpose. ¦ He has committed breach of agreement and the suit property and the house of the plaintiff have suffered lot of damage and on this ground also the defendant is liable to eviction�. Dealing with the said averment in paragraph 4 of the plaint, the defendant in paragraph 4 of the written-statement, while denying paragraph 4, stated that, the plaintiff (sic for defendant?) has been using the shop for the said purpose from the very beginning itself�. The defendant, it would thus appear, virtually admitted the plaintiff™s case regarding the manner of use of the shop. His defence was that the he had been using the shop for the said purpose from the very beginning. In view of the express condition of the rent deed it is not understandable as to how he could use the shop for doing copper smithy work, and if the was doing that, it amounted to breach of the condition of lease, and further breach of the condition contained in clause (o) of section 108 of the Transfer of Property Act. The rent deed specifically prohibited doing any copper smithy work. The rent deed specifically prohibited doing any copper smithy work. The relevant part of the rent deed may usefully be quoted as under: Further, I will not do copper smiths work in the shop nor will I lit fire therein in the event of which I shall be liable for eviction.� 30. Mr. Qayoom submitted that if the defendant was doing any manufacturing work in the shop from the very beginning of tenancy i.e. 1967, it would follow that the plaintiff had consented to the shop being used in that manner amounting to waiver of the right of the lessor envisaged in clause (o) of section 108 of the Transfer of Property Act. In this connection he placed reliance on a decision of the Calcutta High Court in Ratanlal Bansilal v Kishorilal Goenka, AIR 1993 Cal. 144. He made particular reference to the observations in paragraph 154 of the judgment to the effect that the omission to take steps against unauthorized construction by the tenant for four years would reasonable lead to a presumption that the construction was made with the consent of the landlord. The submission of the counsel proceeds on the assumption that the defendant was using the shop for doing copper smithy work since the very beginning. In the absence of any finding to that effect it is not possible to accept the submission. No such evidence was brought to my notice. As a matter of fact, in his evidence the plaintiff stated that the shop was rented out to the defendant for selling utensils but for the last four-five years he was using the shop also for manufacturing utensils due to which the house has suffered damage. Be that as it may, in view of the concurrent findings recorded by both the courts below on the point, in second appeal it is difficult to take a different view and upset the finding. 31. We are thus satisfied that the plaintiff is entitled to the relief of recovery of possession of the suit premises also on the ground of breach of the lessor™s right under clause (o) of section 108 of the Transfer of Property Act and the terms of lease. 32. A good deal of argument was made on the scope of second appeal. 32. A good deal of argument was made on the scope of second appeal. Whereas according to the respondents in the absence of any substantial question of law, the second appeal is not maintainable in view of the decisions in Santosh Hazari v Purushottam Tiwari, (2001) 3 SCC 179 and Govindaraju v. Mariamman, 2005 AIR SCW 916: (2005) 2 SCC 500, on behalf of the appellant it was submitted that even in case of concurrent findings the High Court in second appeal can interfere where the finding is perverse and based on conjectures and surmises. Reference was made to Kulwant Kour v Gurdial Singh Man, AIR 2001 SC 1273: (2001) 4 SCC 262 and Jai Singh v Shahuntala, AIR 2002 SC 1428: (2002) 3 SCC 634. A halfhearted attempt was made to treat this second appeal as first appeal in view of the fact that the first appellate court had undertaken the exercise of reappraisal of evidence and recorded findings of fact for the first time. This submission has been noticed to be summarily rejected. The quality of the findings recorded by the courts below would not determine the nature and scope of further appeal. The appeal has been filed under section 100 of the Code of Civil Procedure and is, therefore, to be decided within its parameters. It has been consistently held by the apex court that second appeal can be heard only on substantial question of law. No substantial question was framed at the time of admission, and though it is open to the Court to hear the appeal on a substantial question of law not formulated by it at the time of admission, submissions of the counsel for the appellant on merit being devoid of merit, in ultimate analysis, it transpires that the appeal is concluded by the findings of fact, and the impugned judgments of the court below do not require any interference. In the result, I do not find any merit in this second appeal which is, accordingly, dismissed but without any order as to costs.