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2007 DIGILAW 441 (KAR)

P. HONNAMMA v. B. JANNATH

2007-07-19

V.JAGANNATHAN

body2007
V. JAGANNATHAN, J. ( 1 ) THE short question involved in this appeal is, whether the courts below committed error of law in wrongly interpreting the quit notice issued by the appellant-plaintiff to the respondents-defendants? ( 2 ) THIS appeal has arisen following the dismissal of the suit filed by the appellant herein and the said suit was filed in O. S. No. 102/1994 for delivery of vacant possession and also mesne profit, in respect of the suit schedule property on the ground that the respondents who are the defendants before the trial court were the tenants of the suit schedule property pursuant to the rent bond executed as per Ex. D-2 between the appellant and the second defendant. The said suit of the appellant was resisted by the respondents by contending that the quit notice was defective in nature inasmuch as it was issued in contravention of Section 106 of the Transfer of Property Act and therefore, the suit is not maintainable. Learned trial judge found that there was no dispute between the appellant and the respondents as landlord and tenant respectively and even the monthly tenancy was also an admitted fact because as a co-owner, the appellant was also entitled to issue the quit notice. However, as the notice was not in accordance with Section 106 of the Transfer of Property Act and on the said sole ground, the trial court dismissed the suit of the appellant and the appeal preferred by the appellant in R. A. No. 30/2000 also met with the same fate though for different reasons as could be seen from the judgment and decree of the lower appellate court. The said court also found that there was no dispute with regard to the capacity of the appellant as the co-owner and the tenancy relationship between the appellant and the respondents. The lower appellate court concurred with the finding of the trial court in respect of Section 106 of the T. P. Act and found that there was no valid termination of the tenancy. Aggrieved by the dismissal of the appeal, the plaintiff is before this Court. ( 3 ) I have heard the learned counsel for the appellant sri. S. S. Sripathy. None represented on behalf of respondent No. 1 and respondent No. 2 though served remained absent. Aggrieved by the dismissal of the appeal, the plaintiff is before this Court. ( 3 ) I have heard the learned counsel for the appellant sri. S. S. Sripathy. None represented on behalf of respondent No. 1 and respondent No. 2 though served remained absent. ( 4 ) THE substantial question of law framed by this court at the time of admission reads as under: "whether the courts below committed an error of law in wrongly interpreting the quit notice dt. 6. 1. 94 which is marked as Ex. D-13? ( 5 ) LEARNED counsel for the appellant drew my attention to ex. D-13 the quit notice. Aplain reading of the quit notice will go to establish that the requirement of 15 days notice as contemplated under section 106 of the Transfer of Property Act, 1882 (1882 Act) has been satisfied and therefore, both the courts were in error in not reading the said document Ex. D-13 in proper perspective. ( 6 ) AS the whole case rests on Ex. D-13, aperusal of the same clearly establishes that though in page 3 of the quit notice dated 6. 1. 1994, it is stated that the respondents are called upon to quit and surrender the vacant possession by the end of 4. 2. 1994. In the subsequent paragraph at page 4 of the said notice, it is made clear that the landlord had sought vacant possession of the premises by the end of tenancy month. In view of the said statement being made in ex. D-13, I am of the view that the requirement of Section 106 of 1882 Act has been satisfied. ( 7 ) ANOTHER aspect of the matter, as rightly submitted by the appellant's counsel is that Sub-Section (3) of Section 106 also mentions that 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 the said sub-section, where a suit or proceeding is filed after the expiry of the period mentioned in that sub-section. In the instant case, sub-section 3 has been complied by the appellant inasmuch as the suit was filed after the expiry of the period mentioned in Sub-Section (1) of Section 106. In the instant case, sub-section 3 has been complied by the appellant inasmuch as the suit was filed after the expiry of the period mentioned in Sub-Section (1) of Section 106. Yet, another aspect to be taken note of is the observation of the Apex Court in the case of Bhagabandas agarwalla V/s. Bagwandas Kanu and others ( AIR 1977 SC 1120 )wherein it has been observed thus: "held that the notice to quit requiring the tenant to vacate the premises "within the month of October 1962 otherwise he would be treated as trespasser from the 1st November, 1962" made the intention of the authors of the notice clear that they were terminating 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 tenancy was, therefore, sought to be determined on the expiration of the month of october 1962 and not earlier and the notice to quit expired with the end of the month of tenancy as required by Section 106. It was in the circumstances a valid notice which effectively determined the tenancy of the tenants with effect from the midnight of 31st October, 1962. " ( 8 ) THEREFORE, it is clear that a quit notice must be construed not with a desire to find faults in it, but it must be construed in a common sense way. ( 9 ) FOR the aforesaid mentioned reasons, the conclusion reached in court below, that the quit notice under Section 106 of the Transfer of Property of Act cannot be sustained in law is error out and therefore, the substantial question of law raised is answered accordingly and I, therefore, proceed to pass the following order: the appeal is allowed. The judgments and decrees passed by both the courts below are set aside and the suit filed by the appellant-plaintiff is decreed as prayed for. Six months time is granted to the respondents to vacate and handover vacant possession of the suit schedule property to the appellant. No order as to costs.