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2006 DIGILAW 227 (AP)

B. Venkat Rao v. B. V. Rayudu

2006-02-21

C.V.RAMULU

body2006
JUDGMENT This Second Appeal is filed under Section 100 of the Civil Procedure Code being aggrieved by the Judgment and Decree dated 24-11-2004 made in A.S. No. 79 of 2004 on the file of the learned I Additional District Judge. Ranga Reddy district at Hyderabad, wherein the Judgment and Decree dated 28-4-2004 made in O.S.No.472 of 2002 on the file of the learned Principal Junior Civil Judge. Hyderabad West and South, Ranga Reddy district, dismissing the suit, was partly allowed. 2. The appellant is the plaintiff and the respondent is the defendant in the above suit, which was laid seeking eviction of the defendant from the suit premises and to handover the same to the plaintiff and to direct the defendant to pay the plaintiff a sum of Rs.27,900/- and also for future mense profits at RS.10,000/- per month from the date of suit till the date of vacating and handing over the possession of the suit premises. 3. Here, it may be necessary to note that the defendant-tenant also filed a suit in O.S.No.71 of 2002 seeking injunction against the landlord from interfering with his peaceful possession, which was decreed. On filing the appeal against the said Judgment and Decree, while confirming the Judgment and Decree of the trial Court, the appellate Court held that the only course left open to the appellant (plaintiff in the present suit)is to evict the tenant under due process of law. Therefore, the present appeal is being pursued by the plaintiff in O.S.No.472 of 2002. The parties are hereinafter referred to as they were arrayed in O.S.No.472 of 2002. 4. It is the case of the plaintiff that the defendant is the tenant of the premises bearing H.No. MIG 235 situated at KPHB Colony, Kukatpally, Hyderabad, which is owned by him. The defendant is running a hotel and travel agency in the schedule premises on a monthly rent of Rs.5,200/- by the date of the suit. It is his complaint that the defendant is not properly maintaining the property and he sought eviction on the said ground and also on the ground of personal occupation. The tenancy is a monthly one and the rent is payable on or before 10th day of every month. It is his complaint that the defendant is not properly maintaining the property and he sought eviction on the said ground and also on the ground of personal occupation. The tenancy is a monthly one and the rent is payable on or before 10th day of every month. A quit notice under EX.A-1, dated 23-3-2002 was issued terminating the lease with effect from 1-5-2002, pleading that the rent for the months from October to December, 2001 amounting to Rs.12,900/- was not paid by the defendant, as the cheque was bounced. Apart from that, mesne profits at the rate of Rs.15,000/- per month was also claimed for· one month, after termination of the lease. Thus, the total amount of Rs. 27,900/- is claimed towards the arrears of rent. The plea of the defendant, while admitting that the tenancy is a monthly tenancy, is that it was agreed between them that three months notice is necessary, by either side, for vacating the premises. Earlier, he filed O.S. NO.71 of 2002 seeking injunction against the plaintiff-landlord from interfering with his possession. He claimed that an amount of Rs.20,000/- was given as advance, which is to be refunded at the time of vacation of the premises; therefore, there were no arrears of rent. Learned Junior Civil Judge clubbed both the suits and disposed them by a common judgment. The learned Judge took a view that six months quit notice is necessary and for want of that notice, the plea for eviction was rejected. However, with regard to arrears of rent, though specific issue was framed, no finding was given by the trial Court. As stated above, the other suit (O.S. NO.71 of 2002) for injunction was decreed, as there was no dispute with regard to the possession of the premises by the defendant. Aggrieved by the judgment and decree refusing to grant eviction as well as arrears of rent, the plaintiff preferred the present appeal in A.S. No.79 of 2004 on the file of the learned I Additional District Judge, Ranga Reddy District. Aggrieved by the judgment and decree refusing to grant eviction as well as arrears of rent, the plaintiff preferred the present appeal in A.S. No.79 of 2004 on the file of the learned I Additional District Judge, Ranga Reddy District. The appellate Court, after re-appreciation of the entire evidence on record and on perusal of the Judgment of the trial Court, came to the conclusion that in view of specific term of the contract between the parties that three months notice, by either side, is required for termination of the tenancy, Ex.A-1 notice issued in the month of March, 2002 terminating the tenancy by the end of April, 2002 cannot be considered as valid quit notice. It was, however, held that the plaintiff is entitled for a decree for Rs.27,900/- as arrears of rent, prior to and subsequent to the suit from 1-5-2002. Thus, the appeal was allowed in part. Challenging the said judgment of the appellate Court, the present Second Appeal is filed by the plaintiff-landlord. 5. Heard both sides. 6. The only substantial question of law raised by the learned counsel for the appellant is that, whether in the teeth of Section 106 read with Section 107 of the Transfer of Property Act (for short the Act), the admission made by the appellant-plaintiff that there was an agreement that for the purpose of eviction, three months notice should be issued, the notice issued under Ex.A-1 becomes invalid. 7. Learned counsel for the appellant strenuously contended that simply because the appellant-plaintiff as P.W.1 admitted that the defendant-respondent is entitled for three months notice in view of their oral agreement, it cannot be said that the notice issued under Ex.A-1 does not satisfy the requirements of Section 106 of the Act. Whether there was an agreement of three months or not for the purpose of issuing notice of eviction, once the conditions of Section 106 of the Act are satisfied, the notice under Ex.A-1 is valid and the appellant-plaintiff is entitled to a decree for eviction. 8. Here, it may be necessary to notice a few provisions of law, i.e. Sections 106 and 107 of the Act, which read as under: "Section 106. Duration of certain leases in absence of written contract or local usage. 8. Here, it may be necessary to notice a few provisions of law, i.e. Sections 106 and 107 of the Act, which read as under: "Section 106. Duration of certain leases in absence of written contract or local usage. (1) In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months notice; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days notice. (2) Notwithstanding anything contained in any other law for the time being in force, the period mentioned in subsection (1) shall commence from the date of receipt of notice. (3) A notice under sub-section (1) shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under that sub-section, where a suit or proceeding is filed after the expiry of the period mentioned in that sub-section. (4) Every notice under sub-section (1) must be in writing signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property. Sec. 107 Leases how made :- A lease of immovable property from year to year, or for any term exceeding one year or reserving a yearly rent, can be made only by a registered instrument. All other leases of immovable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession. Sec. 107 Leases how made :- A lease of immovable property from year to year, or for any term exceeding one year or reserving a yearly rent, can be made only by a registered instrument. All other leases of immovable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession. Where a lease of immovable property is made by a registered instrument, such instrument or, where there are more instruments than one, each such instrument shall be executed by both the lessor and the lessee: Provided that the State Government may, from time to time, by notification in the Official Gazette, direct that leases of immovable property, other than leases from year to year, or for any term exceeding one year, or reserving a yearly rent, or any class of such leases, may be made by unregistered instrument or by oral agreement without delivery of possession." 9. According to the learned counsel for the appellant, Section 106 of the Act contemplates that a lease of immovable property including the property of this nature shall be deemed to be a lease from month to month terminable on the part of either lessor or lessee by issuance of fifteen days notice. In fact, in the instant case, one month notice was given under EX.A-1. Therefore, EX.A-1 is a valid notice under Section 106 of the Act. Further, the learned counsel contended that under Section 107 of the Act, how the lease of immovable property is to be made is contemplated and since it is asserted by the defendant that earlier he had lease for three years and thereafter, it was agreed .to be extended for another five years, the same is liable to be registered. Since, both the parties have not placed written agreements, it must be deemed that there was no lease between the parties at all and if it is there, it must be a registered one only. 10. I am not impressed by the arguments advanced by the learned counsel for the appellant, for the reason that while giving a reply (Ex.A-2) to EX.A-1 notice, the defendant had categorically asserted that as per the terms of lease agreement, the lease is terminable with three months notice and the plaintiff in a hurried manner gave Ex.A-1 notice terminating the tenancy. Further, the plaintiff admitted in his evidence that if the defendant wants to vacate the premises, he wanted that he should pay1hree months rent and then he has to vacate the premises and further admitted that he has to give three months notice to the defendant to vacate the suit schedule premises, if at all he wants eviction. Therefore, in the teeth of the agreement between the parties, notice of eviction issued under Ex.A-1 asking the defendant to vacate the premises within one month cannot be said to be a valid notice, as found by both the Courts below. The contention of learned counsel for the appellant, therefore, that whether the requirement of the contract is three months notice or not, since the condition of issuance notice under Section 106 has been complied with, it must be deemed that Ex.A-1 notice is a valid notice, cannot be accepted. May be, in a case like this, the agreement is not in tune with Section 106 of the Act; but, it cannot be said that it is either immoral or illegal one, in the absence of any prohibition of such agreement between the parties to a lease; therefore, the sine qua non being satisfying the condition as agreed between the parties in a contract and not satisfying the requirements of Section 106 of the Act. The lower appellate Court rightly came to the conclusion that the general principle of 6 months notice for lease of agricultural or manufacturing purposes or 15 days notice for other leases, is subject to the clause of absence of any contract between the parties. Section 106 of the Act applies only in the absence of a contract to the contrary and not where there exists a contract. Where there is an express contract providing for the manner in which the tenancy is to be terminated, the notice under Section 106 of the Act is of no significance. The requirements of Section 106 of the Act are subject to a contract or local law or usage to the contrary. This means, the parties may, by contract, provide for a different period of ejectment and may also provide, in addition, that notice of ejectment may not end with a month, or year, or the tenancy. The requirements of Section 106 of the Act are subject to a contract or local law or usage to the contrary. This means, the parties may, by contract, provide for a different period of ejectment and may also provide, in addition, that notice of ejectment may not end with a month, or year, or the tenancy. In the instant case, as per the terms of agreement between the parties, three months notice on either side was agreed to be given for vacation of the premises. That being the case, in the teeth of specific contract between the parties, the general principle of 15 days notice, though a monthly lease, as envisaged under Section 106 of the Act would not apply for termination of the leases and three months notice is necessary In this case, admittedly, under EX.A-1, only 30 days notice was given; therefore, it cannot be said to be a valid notice for termination of lease. 11. Learned counsel for the appellant further contended that assuming that three months notice period is required and though by the time of filing of the suit three months period was not elapsed, at least, by the time of filing of the written statement, it was more than three months from the date of issuance of EX.A-1. Therefore, the defect stands cured in view of the amended provision of Section 106 of the Act. In this regard, the learned counsel relied upon the Judgment in Namala Ramachandra Rao v. Kakileti Bhaskara Rama Murthy1 and has drawn attention of the Court to paragraph 11, which reads as under: "11. Though, this Section {Sec.1 06 (3)} came into force with effect from 31-12-2002, the amendment was given retrospective effect and the amendment applies to the pending appeals also. In this case, though the EX.A-5 notice was given on 27-7-1983 to vacate the premises by 31-8-1983, the suit was filed only on 12-4-1984 i.e. long after expiry of six months quit notice to be given under Section 106 of Transfer of Property Act for terminating the lease involved in the manufacturing process. In this case, though the EX.A-5 notice was given on 27-7-1983 to vacate the premises by 31-8-1983, the suit was filed only on 12-4-1984 i.e. long after expiry of six months quit notice to be given under Section 106 of Transfer of Property Act for terminating the lease involved in the manufacturing process. On this ground also, the appellant cannot succeed in this case and the Second Appeal is liable to be dismissed confirming the judgment and Decree passed by the Courts below." He has also relied upon the Judgment of the Apex Court reported in Vithalbhai Pvt. Ltd. v. Union of India wherein it was held as under: "24. In the case at hand, the act of the plaintiff filing the suit before 25-6-1984 cannot be said to be malicious or intended to overreach the Court. The defendants reply dated 8-11-1983 prompted the plaintiff in filing the suit inasmuch as the plaintiff reasonably thought that a cloud was already cast on his entitlement to recover the property and he should promptly approach the Court. True, the defendant could have changed his mind and thought of delivering the possession of the property to the plaintiff on or after 25-6-1984 the date whereafter only the suit could ordinarily have been filed and in that case there would have been no occasion at all for filing the suit. The defendant filed its written statement much after that date. The objection as to maintainability of the suit was taken in the written statement. If only it would have been pressed for decision and the Court would have formed that opinion at the preliminary stage then the plaintiff could have withdrawn the suit or the court could have dismissed the suit as premature. In either case, the plaintiff would have filed a fresh suit based on the same cause of action soon after 25-6-1984. By the time, the suit came to be decided on 12-2-1992, the dismissal of the suit on the ground of its being premature would have been a travesty of justice when the plaintiff was found entitled to a decree otherwise. The learned single Judge rightly overruled the defendants objection and directed the suit to be decreed. By the time, the suit came to be decided on 12-2-1992, the dismissal of the suit on the ground of its being premature would have been a travesty of justice when the plaintiff was found entitled to a decree otherwise. The learned single Judge rightly overruled the defendants objection and directed the suit to be decreed. The Division Bench ought not to have interfered with the judgment and decree passed by the learned single Judge." and submitted that by the time the written statement came to be filed, it was more than three months; therefore, the defect stands cured in view of the amended law, which has retrospective effect as held in the above case. Therefore, the suit is liable to be decreed. 12. The above decisions have no relevance to the facts of this case. In the case on hand, it is the contention of the learned counsel for the appellant that by the date of filing of the suit, admittedly, three months period was not elapsed. Now, the learned counsel for the appellant wants that the theory must be extended further to the date of filing of the written statement. Such submissions cannot be accepted. 13. Looking from a different angle, in a given case, if the landlord, who gave a defective notice, says that though the suit was filed within one month and the written statement was also filed thereafter within three months, since the issues were not framed or the evidence was not commenced, it should be treated that the defect in the notice is cured in view of Section 106 (3) of the Act, it has to be rejected outright. The theory of extension cannot be allowed for the advantage of the landlord and it has to be construed strictly in accordance with law and nothing more. 14. For all the above reasons, the substantial question of law raised by the appellant pales into insignificance and the Second Appeal is liable to be dismissed. Accordingly, the Second Appeal is dismissed. No order as to costs.