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Allahabad High Court · body

2009 DIGILAW 3404 (ALL)

DEENA NATH SINGH v. SHIV PRASAD DUBEY

2009-11-04

SHISHIR KUMAR

body2009
JUDGMENT Hon’ble Shishir Kumar, J.—Heard Sri P.K. Ganguley, learned counsel for the petitioner and Sri Ajai Kumar Singh, learned counsel for the respondent. 2.This writ petition has been filed by a tenant against an order passed by the Judge Small Causes Court by which the landlord’s suit for arrears of rent and ejectment has been decreed and the revision filed by the petitioner has been dismissed. 3.Though this writ petition is liable to be dismissed without affording opportunity to the petitioner or giving an opportunity of hearing in view of the fact that petitioner has concealed the relevant fact regarding filing of Writ Petition No. 63793 of 2008 which was dismissed on 11.12.2008 in the same proceeding but in the interest of justice the petitioner has been heard. 4. The main argument raised on behalf of the petitioner is that the notice sent under Section 106 of the Transfer of Property Act is invalid in view of the fact that tenancy of the petitioner has been terminated in the notice and arrear of rent from 1982 to 2000 was demanded . It is admittedly barred by time. As the validity of the notice was challenged and it is not in consonance with the provisions of law, the total proceeding is vitiated. Reliance has been placed upon a judgment delivered in the case of Hakim Ziaul Islam v. Mohd. Rafi, AIR 1971 All 302 . The learned counsel for the petitioner has placed reliance upon paragraphs 4 and 5 of the said judgment which are quoted below: “4. The notice, a copy of which is Ex. V on record, is dated 7.10.1963 and was served on the defendant on 8.10.1963. It is a combined notice demanding arrears of rent and calling upon the defendant to vacate the house. The material part of the notice translated by me and relevant for my purposes is as follows: “Your tenancy of the aforesaid house is determined with effect from today. It is a combined notice demanding arrears of rent and calling upon the defendant to vacate the house. The material part of the notice translated by me and relevant for my purposes is as follows: “Your tenancy of the aforesaid house is determined with effect from today. Therefore, within one month from the date of receipt of this notice after vacating the house deliver its actual possession tome otherwise upon the expiry of the aforesaid period I will be compelled to take action against you in a competent Court of law.” The contention of the learned counsel for the appellant was that the notice was invalid inasmuch as it terminated the tenancy, that is, the relationship of landlord and tenant in praesenti and not a month hence from the date of the receipt of it by the tenant, therefore, the notice failed to comply with the statutory requires of Scion 106 of the Transfer of Property Act and will, be invalid. The submission was that the landlord having terminated the tenancy on the day the notice was written, he manifested an intention to keep the defendant not as a tenant but as a mere licencee or on sufferance for one month then asking him to deliver possession within that period and threatening him with legal action on his failure to do so. To put in other words, the submission was that the notice could not be construed as one terminating the tenancy on the expiry of one month from the date of receipt and then asking the tenant to quit. The learned counsel for the plaintiff-respondent did not seriously contest the interpretation or the construction put on the language of the notice on behalf of the appellant. But he attempted to justify the notice as meeting the requirement of law by submitting that since under the law a tenancy could not be terminated or determined unless a notice of one month is given the first part thereof be ignored as it failed to bring about a legal termination of the tenancy then the second part of it demanding vacation of the premises on the expiry of one month from the receipt thereof would be effective in law as a notice to quit under Section 111(h) read with Section 106 of the Transfer of Property Act. 5. 5. A large number of decided cases have been cited at the bar by the learned counsel for the parties. A notice terminating the tenancy or a notice to quit, it has been held, should not be interpreted and construed pedantically with a view to find fault which it and discovering purposely defects so as to vitiate it. It should be interpreted in a liberal manner and if it were found that a manifest and clear intention was expressed to put an end to the contract of tenancy or relationship of landlord and tenant between the parties on the expiry of one month from the date of receipt thereof then it would be a valid and effective notice complying with the Provisions of law. Here in the instant case howsoever liberally I construe the notice i am afraid I cannot discern a manifest intention therein on the part of the landlord that he intended to terminate the tenancy or put an end to the relationship on the expiry of one month from the date of the receipt thereof by the tenant. Such an intention cannot be interpreted in face of the words “Your tenancy of the aforesaid house is determined with effect from today.”The language is as clear as it can be and is capable of only one meaning and one meaning alone that the tenancy was being terminated or determined with effect from 7.10.1963 the day on which the notice was signed. To attribute an intention to the landlord that the notice intended to terminate, the tenancy with effect from 8-11-1963, that is, one month after the receipt thereof on 8-10-1963 by the tenant would amount to contradicting the author himself. I am not aware of any rule of construction or reading of a document which will justify an interpretation of the said notice that it manifested an intention to terminate the tenancy at some future date fixed by the notice. If I am correct in my interpretation then the argument of the learned counsel for the plaintiff-respondent that the landlord having demanded vacation of the house by the tenant within one month of the receipt of the notice would be in compliance with law as it would manifest an intention that he wanted to keep the relationship of landlord and tenant for a period of one month will appear to be hollow and without substance. For the respondent great reliance was placed on a Division Bench decision of this Court in the case of Ram Chandra v. Lala Duli Chand, AIR 1958 All 729 . I do not think the respondent can derive any assistance from the ratio of that case. In that case the facts were different. Earlier the notice for termination of the tenancy had been given and the subsequent notice which was the subject -matter of consideration by the Division Bench was a mere notice claiming damages for the period which began after the earlier termination of the tenancy at the end of which the tenant was called upon to vacate the building and deliver possession to the landlord. It was held that the subsequent notice, though not a notice to determine the tenancy was a notice to quit that satisfied one of the requirements of Section 111(h). In the instant case the tenancy was never terminatade. It is difficult for me to agree with the submission of the learned counsel for the respondent that the ratio of the decision in the case of AIR 1958 All.729 (supra) lays down the law that a notice which terminates the tenancy in ‘praesenti’ and demands possession of the demised premises from the tenant within one month of the receipt thereof, can be justified as a notice to quit manifesting an intention of terminating the tenancy on the expiry of one month from the receipt thereof within the meaning of Section 111 (h) and read with Section 106 of the Transfer of Property Act. A reference to certain observations of Desai,C.J., in the case of Ahmad Ali v. Mohammad Jamal Uddin, 1963 All. L.J. 567 : ( AIR 1963 All 581 ) may be of some help in this connection. The learned Chief Justice’s observation at page 570 of the report is as follows : “There is undoubtedly a distinction between terminating the tenancy at once and calling upon the tenant to deliver possession after 30 days and terminating tenancy after 30 days in the former case the relationship of landlord and tenant comes to an end at once and the tenant is given a right to remain in possession for 30 days either as a licensee or as a tenant or sufferance, whereas in the later case he remains a tenant for 30 days.” I hold the notice Ext. V, the material part of which is quoted above, does not meet the requirements of Section 111 (h) read with Section 106 of the Transfer of property Act. It, therefore failed to terminate the tenancy and the defendant tenant was not liable to be ejected.” 5. It has been submitted by the learned counsel for the petitioner that as the defence of the petitioner was struck of under Order XV Rule 5 C.P.C, therefore, all the defence made by the petitioner has not been taken into consideration. 6. On the other hand, learned counsel for the respondent submitted that the intention of the landlord in giving the notice under Section 106 of the Transfer of Property Act has to be seen alongwith the contents and gist of the notice. It has not to be seen that the language is not strictly in accordance with the provisions of law. If it has been mentioned regarding determination of tenancy and termination immediately on the date of receipt of notice and to vacate the premises within 30 days, the said notice will be deemed to be sufficient and will be treated in accordance with law. Reliance has been placed upon a judgment of this Court delivered in the case of Widow of Sardar Ali v. Karuna Shanker Dubey and others, 1984 (1) ARC 564 and reliance has been placed upon paragraphs 8 and 9 of the said judgment which are quoted below: “8. As an aid to interpretation, the learned counsel for the defendant appellants referred to Type (D) of the various notice considered by our High Court in the case of Abdul Jalil v. Haji Abdul Jalil, AIR 1974 All 402 which is as follows : “Your tenancy is terminated with effect from today and you are required to vacate the premises on the expiry of 30 days from the date of service of this notice upon you.” It is clear enough that the recital in this notice specifically terminated the tenancy with effect from “today”, which is not the position in the present case. Learned counsel for the respondent contended, and the lower appellate Court correctly agreed, that the notice in the present case is closer to the Type (E) set-forth in the above ruling. The expression used in the above ruling. Learned counsel for the respondent contended, and the lower appellate Court correctly agreed, that the notice in the present case is closer to the Type (E) set-forth in the above ruling. The expression used in the above ruling. The expression used in that Type was as follows: “Your tenancy is terminated and you are required to vacate the premises on the expiry of thirty days from the date of service of this notice failing which a suit for ejectment shall be filed against you.” The Hon’ble High Court held that a notice of that sort did not immediately terminated the tenancy and was a valid notice. The contention of the learned Counsel for the appellants, therefore, has no force and is rejected. 9. Learned counsel for the appellants referred to the Oxford Dictionary meaning of the words “hereby” and “do” to signify that they respectively mean “by this means” and “bring to an end, have done". The contention is that the expression used by the landlord means that by means of the impugned notice the tenancy was terminated immediately. There can be no doubt that tenancy was terminated by means of that notice, and even if the expression “do” may mean “bring to an end, have done” it does not signify the completion of an act at that very particular moment. It just means that the tenancy is terminated and the tenant is permitted to continue in possession for 30 days and to vacate it at the expiry of that period.” 7. Further reliance has been placed upon a judgment of this Court delivered in the case of Mahesh Dubey alias Mahesh Narayan Dwivedi v. Shivaji Katiyar and others, 2008 (2) ARC 295 and reliance has been placed upon paragraph 8 of the said judgment which is quoted below : “8. There is no prescribed form or language in which a notice under Section 106 of the Act has to be given. In such circumstances the notice has to be liberally construed and has to be read as a whole. All that is necessary is that the notice should express clearly the intention to terminate the tenancy. The language of the notice is immaterial and in such a case the word ‘terminate’ may not be used at all.” 8. In such circumstances the notice has to be liberally construed and has to be read as a whole. All that is necessary is that the notice should express clearly the intention to terminate the tenancy. The language of the notice is immaterial and in such a case the word ‘terminate’ may not be used at all.” 8. Taking support of the aforesaid judgments, learned counsel for the respondent submits that the intention of law is that the notice has to be liberally construed and has to be read as a whole and the ingredients have to be mentioned in the notice. There is no prescribed proforma for the purpose of giving a notice by the landlord to the tenant. 9. I have considered the submissions made on behalf of the parties and have perused the record. From the record it is clear that the suit was filed in the year 2000. In spite of the service of notice the petitioner has not complied with the order and has not deposited the amount, therefore, the defence of the petitioner was struck of. Against that order the petitioner has filed a writ petition before this Court which was dismissed on 23.10.2008. Subsequently, another writ petition was filed which was also dismissed holding therein that the petitioner from time to time by making various applications has adopted delaying tactics by not permitting the Court below to proceed to decide the case on merit. Under the Act such type of proceedings should have been decided within a reasonable period of six months or one year. But due to the action of the petitioner who is admittedly a tenant and who wants to retain the possession anyhow, has not permitted the Court to decide the case on merit. 10. It is further found from the finding recorded by both the authorities that a finding of fact has been recorded regarding service of notice .The contents of notice may not be very happily worded but the gist and meaning of the notice are very clear which terminates the tenancy of the petitioner immediately on the date of receipt of notice and to vacate the premises within 30 days. In my opinion this is the only requirement in law for giving notice under Section 106 of the Transfer of Property Act. In my opinion this is the only requirement in law for giving notice under Section 106 of the Transfer of Property Act. The notice cannot be sought to be invalid unless and until it is proved by the person concerned that there is no mention in the notice that he is in arrears for more than 3 months or there is no whisper in the notice regarding termination of the tenancy immediately after the expiry of 30 days from the date of receipt of the notice. A clear finding has been recorded by the Judge Small Causes Court as well as by the revisional authority. In the notice, it has clearly been mentioned that within a period of 30 days, he has to vacate the premises. 11. In view of the aforesaid fact, I find no merit in the writ petition. The writ petition is devoid of merit and is hereby dismissed. 12. No order is passed as to costs. ————