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2015 DIGILAW 357 (ORI)

Rajesh Vig. v. Shiv Prakash Munra

2015-06-17

D.DASH

body2015
JUDGMENT : D. Dash, J. This appeal has been filed challenging the judgment and decree passed by the learned Addl. District Judge, Champua in RFA No. 15/53 of 2011-2009 allowing the appeal in part and also the counter-claim in part and directing the appellant to vacate the tenanted premises within a year of passing of the decree with payment of arrear house rent till the date of disposal of the appeal in four equal quarterly instalments within that period. 2. For the sake of convenience, in order to bring clarity and avoid confusion, the parties hereinafter have been referred to as they have been arrayed in the court below. 3. The present appellant as the plaintiff filed the suit i.e. C.S. No. 44 of 2004 in the Court of learned Civil Judge (Sr. Divn.), Champua praying for issuance of permanent injunction against the defendant-respondent restraining him from disturbing in his possession in respect of the suit house and from evicting him without following due process of law. The plaintiff admitted his status as a tenant under the original house owner one Debendra Prasad Pandiya. It is stated that after purchase of the house by the defendant, he continued to remain as such under the defendant so far as the tenanted premises is concerned. The original rent which was being paid to the erstwhile owner and with whom he had an agreement, was increased and the plaintiff has been paying rent to the defendant every month. In the month of April, 2004 when the rent offered by the plaintiff was not accepted by the defendant, he had sent it by money order which was accepted. Again the same got repeated and lastly the rent for the month of June and July was not accepted by the defendant even though sent by money order. It is further stated that there was an attempt to evict the plaintiff by force which was somehow thwarted. Therefore, the plaintiff had to approach the Court with the suit claiming the relief as stated above. The defendant-respondent filed the written statement admitting the relationship. It is further stated that there was an attempt to evict the plaintiff by force which was somehow thwarted. Therefore, the plaintiff had to approach the Court with the suit claiming the relief as stated above. The defendant-respondent filed the written statement admitting the relationship. It is stated in the written statement that on 2-10-2004 i.e. during pendency of the suit which was instituted on 30-8-2004, he had sent a notice to quit to the plaintiff terminating the tenancy and seeking vacant possession of the suit house with effect from 1-11-2004 and as the plaintiff did not vacate, in the said written statement filed by the defendant, he advanced a counter-claim seeking relief of eviction of plaintiff from the suit house with prayer for realisation of arrear house rent from June, 2004 onwards at the rate of Rs.630/- per month till the end of October, 2004 and further claiming damage at the rate of Rs.30/- per diem from the 1st day of November, 2004 till actual eviction. The counter-claim though was served upon the plaintiff, he preferred not to file any written statement. 4. The trial Court dismissed the suit decreed the counter-claim directing the plaintiff to vacate the suit house and pay the arrear rent and damage. 5. The plaintiff being aggrieved by the said judgment and decree passed in the suit and counter-claim preferred one appeal and sought for a decree to be passed in his suit praying further to dismiss the counter-claim. The lower appellate Court so far as the principal relief in the suit and counter-claim are concerned confirmed the judgment and decree passed by the trial Court. However, those were modified so far as the claim of damage as advanced by the defendant. 6. The appeal has been admitted on the following substantial questions of law being certified to be answered:- "(i) Whether the lower appellate Court is right in holding that the evidence on record is insufficient to prove due service of notice under Section 106 of the T.P. Act and thereby taking a contrary view to what had been held by the trial Court? (ii) Whether the lower appellate Court having concluded that the evidence being insufficient to prove due service of notice under Section 106 of the T.P. Act is right in holding that the averment in the written statement filed by defendant is sufficient notice of termination of tenancy in conformity with law?" 7. Learned counsel for the appellant submits that the findings of the Courts below that there has been valid service of notice under Section 106 of the T.P. Act terminating the tenancy of the plaintiff by the defendant are contrary to law and the Courts below have erred in law by arriving at the finding that there has been due termination of tenancy as required under law. Therefore, he contends that the proper course ought to have been to decree the suit of the plaintiff and dismiss the counter-claim of the defendant leaving him to work out his remedy, if so advised, in a properly constituted suit being filed in the competent Court. 8. Learned counsel for the respondent having entered appearance submits that the concurrent findings of fact that there has been due termination of tenancy by serving proper notice under Section 106 of the T.P. Act upon the plaintiff are not liable to be interfered with since there remains absolutely no perversity in it. According to him, the lower appellate Court has further in an elaborated manner held the service of said notice to have been made upon the plaintiff especially when that fact has remained uncontroverted by not filing the written statement to the counter-claim in denial of the termination of tenancy as well as questioning the validity of notice to quit. The Court below had rightly held the said fact to have been proved on account of remaining non-traversed. 9. The relationship between the defendant and plaintiff as the landlord and tenant stands admitted. In the instant case, when the tenant filed the suit for permanent injunction with the principal relief of restraining defendant from evicting him without following the due process of law, the defendant in the said written statement has set up a counter-claim for eviction of the plaintiff having pleaded that there has been due termination of tenancy in accordance with law. Practically, the fate of the suit and counter-claim has been decided by the Courts below in answering issue Nos. 5 and 6. Practically, the fate of the suit and counter-claim has been decided by the Courts below in answering issue Nos. 5 and 6. It has been clearly held that the plaintiff is not liable to be evicted by force without following due process of law. The only controversy remains here is with regard to the termination of tenancy. There is no legal bar for a defendant in a suit filed by the tenant for permanent injunction restraining the landlord from evicting him without following due process of law, to advance a counter-claim with the relief of eviction, arrear house rent and damage. In view of the admitted relationship, such a counter-claim can never by said to be not maintainable in the eye of law. The controversy boils down only with regard to termination of tenancy of the plaintiff, if is in accordance with law. In the counter-claim when the factum of issuance of notice terminating the tenancy has been pleaded so also its valid service of notice, the same has gone totally uncontroverted. The plaintiff has not filed any written statement to the same and therefore, the rule of non-traverse very well comes into operation. So, it was not required for the defendant to further prove those facts which have to be deemed to have been admitted as per the provision of Order 8, Rule 5 of the Code of Civil Procedure. However, as it is seen from the judgment of the lower appellate Court that it has gone to discuss the factual aspects by examining the evidence, as regards the notice sent by registered post with A.D. It has been held by the trial Court that service of notice is to be presumed. It has again been said that when in the written statement, the defendant has clearly expressed about said termination of the tenancy and delivery of vacant possession to the plaintiff, the same itself is a notice of termination of tenancy and therefore, the plaintiff having not vacated tenanted premises, the deficiency even if any gets wiped out and pales into insignificance. The lower appellate Court has of course held the address given for service of notice to be insufficient and therefore has refused to draw the presumption under Section 27 of the General Clauses Act. The lower appellate Court has of course held the address given for service of notice to be insufficient and therefore has refused to draw the presumption under Section 27 of the General Clauses Act. However, it has taken a view that the service of notice under Section 106 of the T.P. Act can be taken to be the date of filing of service of copy of the written statement containing the counterclaim with the relief of eviction and accordingly, the issue has been answered that there is valid service of notice upon the plaintiff terminating the tenancy and hence the entitlement of the defendant to the decree for eviction has been ultimately favoured with. 10. In the case in hand the prayer for eviction of the plaintiff from the suit premises has been made by the defendant in the counter-claim advanced with the written statement in the suit filed by the plaintiff for injunction restraining the defendant from evicting him without following due process of law. The counter-claim having been set up under Order 8, Rule 6A of the Code of Civil Procedure, it has the effect as a cross suit and as provided in Order 8, Rule 3 of the Code, the plaintiff is at liberty to file a written statement in answer to the counter-claim of the defendant within such period as may be fixed by the Court; the said counter-claim being treated as a plaint for the purpose as indicated in Order 8, Rule 4 of the Code and the rules relating to a written statement by defendant applies to a written statement filed in answer to a counter-claim. Also Order 8, Rule 6E , of the Code provides that if the plaintiff makes the default in putting in a reply to the counter-claim made by the defendant, the Court may pronounce the judgment against the plaintiff in relation to the counterclaim made against him, or make such order in relation to the counter-claim as it thinks fit. At this juncture, the question arises as to if the objection to the validity or sufficiency of notice or its due service under Section 106 of the T.P. Act should be deemed to have been waived by the plaintiff. At this juncture, the question arises as to if the objection to the validity or sufficiency of notice or its due service under Section 106 of the T.P. Act should be deemed to have been waived by the plaintiff. The plaintiff having not questioned the validity of the notice as also its due service upon him, by specifically so averring in the written statement that he had all the opportunity to file against the counter-claim and rather he has chosen not to file the written statement at all, he will be estopped from raising any issue in this regard at any later stage which he has done in this case during the hearing when the defendant tendered evidence in proving the notice Ext. He and H/1 which have been marked with objection. 11. In this connection the decision of Apex Court in case of Dharam Pal v. Harbans Singh, (2006) 9 SCC 216 has to be taken note of. It has been held:--- "Law is well settled that an objection as to invalidity or insufficiency of notice under Section 106 of the Transfer of Property Act should be specifically raised in the written statement failing which it will be deemed to have been waived." In that case even though the objection was taken in the written statement that the notice issued by the plaintiff was illegal, null and void and ineffective upon the right of the defendant, the same was not held to be in specific terms and thus the waiver was held. The High Court of Delhi in case of Bandhu Machinery v. Om Prakash, AIR 2009 Delhi 33 has followed the ratio of the above decision. It is worthwhile to state here that in case of Dharam Pal (supra) when even as in consonance with the provisions of Section 106 of the T.P. Act as it stood prior to the amendment effected by T.P. (Amendment) Act, 2002 w.e.f. 13-1-2002 which was holding the field so far as that case is concerned, the twin requirements of a valid notice (i) it must give clear 15 days-time for the tenant to vacate; and (ii) the notice must expire with end of the month of the tenancy were not satisfied, still those were not allowed to be raised by the tenant applying the principle of waiver on account of want of any specific defence in that regard in the written statement. The trial Court thus even having not framed any issue on that score, no fault was found for the same. In fact this Court in cases of Bijili v. Gourishankar, (1981) 52 CLT 389 and Debi Dayal v. Ramesh Kumar, AIR 2009 Orissa 19 has held that want of notice under Sections 106 and 114-A of the T.P. Act had to be specifically pleaded and in the absence of the pleading being there in the written statement the Court did not permit those questions to be raised at a later date. In view of the above, in my considered opinion, the lower appellate Court ought to have held that the objection as regards sufficiency and valid service of notice under Section 106 of the T.P. Act as untenable having been waived having not been so specifically pleaded in defence in the written statement to the counter-claim. There was thus no necessity to examine the other aspect as regards the correctness of the address. 12. Although, the aforesaid discussions and reasons provide the answers to the substantial questions of law as framed, still when really an interesting point has emerged out in this case, this Court feels to delve into the same and address it. The question is:--- Whether in a suit by tenant seeking protection by injunction against the landlord from not being dispossessed without due process of law, the landlord in the written statement while setting up the counter-claim of eviction pleads about termination of tenancy to have been made by notice as required under Section 106 of the T.P. Act and when even does not prove prior sending of notice and its service upon the tenant, whether that very averment in the counter-claim could be taken as notice of termination of tenancy and the filing and service of said written statement with counter-claim would be held as the service of notice in adherence to the provision of Section 106 of the T.P. Act? 13. Notice to quit means a notice to terminate a tenancy (whether periodical tenancy or a tenancy for a term of years certain or monthly) in accordance with the provisions of Section 106 of the T.P. Act. The object of the provision as to notice is to enable the tenant to gather up the fruits of his labour. 13. Notice to quit means a notice to terminate a tenancy (whether periodical tenancy or a tenancy for a term of years certain or monthly) in accordance with the provisions of Section 106 of the T.P. Act. The object of the provision as to notice is to enable the tenant to gather up the fruits of his labour. Notice is not a part of cause of action although it is a condition precedent for the commencement of the suit. As a matter of fact, the notice is first step in litigation when the cause of action is complete. It only provides a mode of procedure for getting a relief in respect of cause of action, and does not constitute the relief itself. A statutory notice although essential provisionally for a valid suit, does not make it a part of the cause of action in the suit itself. At this juncture, let us advert to the position of law as it stands after amendment in the year 2002 by Amendment Act 3 of 2003 coming into force on 31-12-2002. The first most important change that has been brought about in para 1 of the existing section is deletion of the words "expiring with the end of a year of tenancy and expiring with the end of a month of January. In the instant case we are concerned with the new provisions standing after amendment. So now fifteen days notice is necessary and as provided in sub-section (3) of Section 106 of the T.P. Act, even that notice shall not be deemed to be invalid because of any shortage in the period when the suit is filed after the expiry of the period. The objects and reasons of Act 3 of 2003 is to prevent the situations of dismissal of the suits on the lone technicality being filed in ignorance of the legal position and to take care of the hardship faced by the suitor in serving fresh notice and filing fresh suit despite the fact that the defendant had more time available to him than the prescribed period of notice by the date when suit is filed to evict him or even by the date of judgment dismissing the suit. Feeling the same to be of severe hardship that the suitor is facing, in the amendment by insertion of sub-section (3) the provision of sub-section (2) as regards the notice under sub-section/shall not be deemed to be invalid....." have been made to apply retrospectively to all notices in pursuance of which any suit or proceeding is pending on the date of commencement of the Amendment Act and to all notices issued prior to the coming into force of that Amendment Act where even no suit or proceeding filed before such commencement. 14. The above provisions of the law as discussed makes it clear that a notice under Section 106 of the Act is to be given by allowing 15 days time to the lessee. A landlord is entitled to eject a tenant after notice to quit, unless the tenant can prove that he has a right to remain on the land permanently and the onus to prove that lies on the tenant. It has been held in case of Nagendra v. Jotish, AIR 1952 Cal 221 and Kunj Behari v. Acharaya Hari, AIR 1975 Raj 138 that a notice should be liberally construed. The essential point is whether the tenant was asked to vacate. In that notice it is not necessary to state any ground and a suit for ejectment need not be on the same ground as stated in the notice (Amarendra v. Bibhuti, AIR 1952 Cal 773 ). It is the settled law that a notice to quit must be construed broadly not with a desire to find fault with it which would render it defective, but it must be construed ut res magis valeat quam pereat, that is, in a manner that it may rather become operative than null. 15. In Bhagabandas v. Bhagabandas, AIR 1977 SC 1120 , the Hon'ble Apex Court has also held that from the language used, it must be endeavoured to ascertain the intention of the parties and the effect thereof. It should be conjointly read not with an intention to split up a straw or in a hypercritical manner or by pedagogic pedantism or over-refined subtlety but it must be construed in a common sense way. The principle laid down in case of Burmah-Shell Oil Distributing Co. It should be conjointly read not with an intention to split up a straw or in a hypercritical manner or by pedagogic pedantism or over-refined subtlety but it must be construed in a common sense way. The principle laid down in case of Burmah-Shell Oil Distributing Co. v. Khaja Midhat Noor, AIR 1988 SC 1470 is that the notice to quit must be read in the context of the facts of each case having regard to the situation of the parties to whom it is addressed. 16. Furthermore, the provisions of sub-section (4) of Section 106 of the T.P. Act, prescribes that the notice must be in writing, signed by or on behalf of the person giving it and that it be either 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 in case of those be impracticable, it may be done by affixture on a conspicuous part of the property. In view of all these above, if a defendant makes an averment as regards such termination of tenancy seeking vacation of the tenanted premises while setting up a counter-claim of ejectment, all the requirements of law are to be taken to be satisfied and after expiry of fifteen days therefrom the date of service of the same upon the plaintiff or his lawyer representing him in the case, the same can well be said to be a valid cross-suit, the right to sue having arisen from that date of expiry of the period of fifteen days. If the plaintiff wants that counter-claim is to be excluded, he has to promptly take the step for its exclusion with the aid of the provision of rule of Order 8, Rule 6C of the Code and once the period of fifteen days expires, the prematurity gets wiped out. 17. The above view derives support from the ratio of the decision in case of Vithalbhai Pvt. Ltd. v. Union of India, AIR 2005 SC 1891 wherein it has been held that even in case of premature suit, it need not be dismissed if on the date of filing the written statement or on the date of the decree the tenancy has expired. In that case:--- "xxx xxx xxx the suit was filed twelve weeks before the date on which the lease was to expire by efflux of time within the meaning of clause (a) of Section 111 of the Transfer of Property Act, 1882. The written statement was filed on 24-8-1994. One of the pleas taken in the written statement was that the suit was premature and hence was not maintainable. In our opinion, a suit based on a plaint which discloses a cause of action is not necessarily to be dismissed on trial solely because it was premature on the date of its institution if by the time the written statement came to be filed or by the time the Court is called upon to pass a decree, the plaintiff is found entitled to the relief prayed for in the plaint. Though there is no direct decision available on the point but a few cases showing the trend of judicial opinion may be noticed. Under Section 80 of the CPC no suit shall be instituted against the Government or a public officer until the expiration of two months next after service of notice in writing in the manner set out in the provision and if filed before the expiry of said period, the suit is not maintainable because there is clearly a public purpose underlying the provision. `The object of the Section is the advancement of justice and securing of public good by avoidance of unnecessary litigation.' (See Bihari Chowdhary v. State of Bihar, (1984) 2 SCC 627 ) : AIR 1984 SC 1043 . In (Vaddadi) Butchiraju v. Doddi Seetharamayya, AIR 1926 Madras 377 the suit was for a sum of money which had not become payable on the date of the suit but became payable since. Visvanatha Sastri, J. (as His Lordship then was) held that the Court could pass a decree for the recovery of money. Reliance was placed on a Full Bench decision in A.T. Radhava Chariar v. O.M. Srinivasa Raghava Chariar, (1917) ILR 40 Mad 308 : AIR 1917 Mad 630 (FB) and a few other cases. Visvanatha Sastri, J. (as His Lordship then was) held that the Court could pass a decree for the recovery of money. Reliance was placed on a Full Bench decision in A.T. Radhava Chariar v. O.M. Srinivasa Raghava Chariar, (1917) ILR 40 Mad 308 : AIR 1917 Mad 630 (FB) and a few other cases. Here, in all fairness, it may be mentioned that in (Mylavarapu) Rangayya Naidu v. Basana Simon, AIR 1926 Madras 594, Spencer, J. has held that if a suit is premature at the date of institution, though not at the date of decision, a decree cannot be granted and the only course in such cases is to dismiss the suit with liberty to bring a fresh suit upon a proper cause of action. It is pertinent to note that Butchiraju case was decided on 5-10-1925 while Rangayya Naidu's case was decided on 7-10-1925 but the former decision though of a prior date was not brought to the notice of the Court deciding the latter case. Tarak Chandra Das v. Anukul Chandra Mukherjee, AIR 1946 Calcutta 118 is a Division Bench decision of Calcutta High Court wherein the suit was declaratory in nature filed under Section 42 of the Specific Relief Act, 1877. The defendant sought the dismissal of the suit on the ground that the right asserted by the plaintiff was not an existing right but a future and contingent one and whether it would at all come into being or not was dependant upon an uncertain event which might or might not happen. Justice B.K. Mukherjea (as His Lordship then was) speaking for the Division Bench held that though the right must be an existing one, it need not necessarily be a right which is vested already. A person having even a contingent right in a property may sue for a declaration. The Court in the exercise of its discretion may refuse to make such declaration if it considers the claim to be too remote or if the declaration given would be ineffectual and abortive. The question really is not one of jurisdiction but one of discretion to be exercised by the Court. Sankara Pillai v. Mathunni Ittiera, 1958 KLT 220 : AIR 1958 Ker 245 the suit was for redemption of a mortgage. The mortgage became redeemable on 12-10-1957 but the suit was filed on 23-8-1952. The suit was undoubtedly premature when it was brought. Sankara Pillai v. Mathunni Ittiera, 1958 KLT 220 : AIR 1958 Ker 245 the suit was for redemption of a mortgage. The mortgage became redeemable on 12-10-1957 but the suit was filed on 23-8-1952. The suit was undoubtedly premature when it was brought. The Division Bench held that the mortgage having become subsequently redeemable it would be unnecessary and unjust to drive the plaintiff to a separate suit. To mitigate hardship of this kind and to shorten litigation the Court can take notice of the subsequent event of the mortgage having become redeemable during the pendency of the suit and grant relief provided the substantive rights of the parties were not affected. The Court decreed the suit but directed the plaintiff to bear the costs incurred by the defendant. Kathringa v. Lonappan, 1969 KLT 334 was a suit for eviction filed under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965. The suit could be filed only one year after the date of transfer inter vivos in favour of the plaintiff. The plaintiff acquired title by purchase on 1st December, 1962 and the proceedings for eviction were instituted on 11-6-1963. However, there was no objection taken in the written statement to the maintainability of the suit. When the case came up for hearing on 10th February, 1965 by which date more than two years and three months had elapsed, the objection was urged. The learned single Judge held that at that stage it was a matter of discretion vesting in the Court and the Court could depart from the general rule that the rights of parties must be determined as on the date of the institution of the action. However, the single Bench decision in Kathringa v. Lonappan, 1969 KLT 334 was cited before a Division Bench of Kerala High Court in Hameed v. Ittoop, 1970 KLT 501 and was overruled. The Division Bench formed the opinion that the statutory bar enacted in Section 11(3) of Kerala Buildings Act pertain to jurisdiction of the Court. The Court is deprived of power to entertain the petition for eviction by the transferee landlord filed before the expiry of one year of the date of assignment in his favour. The Division Bench formed the opinion that the statutory bar enacted in Section 11(3) of Kerala Buildings Act pertain to jurisdiction of the Court. The Court is deprived of power to entertain the petition for eviction by the transferee landlord filed before the expiry of one year of the date of assignment in his favour. The Division Bench relied on the decision of this Court in V.N. Sarin v. Ajit Kumar Poplai, AIR 1966 SC 432 wherein interpreting a pari materia provision contained in Delhi Rent Control Act, this Court held that the underlying object behind such a provision is to serve a public purpose and is based on public policy to prevent the mischief of unscrupulous landlords entering into transaction of transferring title to property with a view to enable the purchaser to evict the tenant and thereby defeat the legislative intention of protecting tenants from unmerited evictions. A Full Bench of Kerala High Court in Themmalapuram Bus Transport, Palghat v. Regional Transport Authority, Palghat, 1967 KLT 122 : AIR 1967 Ker 285 (FB) reiterated the well-settled principle that the general rule is that the relief claimed in the suit must be confined to matters existing at the date when the suit was instituted. But that is a rule of discretion and can be departed from in certain circumstances except where such departure would cause manifest advantage or disadvantage to one party. In Subbaraya Chetty v. Nachiar Ammal, (1918) VII LW 403 : AIR 1918 Mad 143 money under the mortgage bond did not become payable until a few days after the institution of the suit for its recovery. In Zadba Sadasheo Balpande v. Maharashtra Revenue Tribunal, 1964 Mh LJ 559 : AIR 1965 Bom 19 application for possession was filed 8 days before the date of termination of lease. In both the cases, the respective Division Bench have allowed relief to the plaintiff on the ground that driving the plaintiff to institute another suit would be hardship and no prejudiced was caused to the defendant. In our opinion, the correct position of law flows from the above-noted decisions. In both the cases, the respective Division Bench have allowed relief to the plaintiff on the ground that driving the plaintiff to institute another suit would be hardship and no prejudiced was caused to the defendant. In our opinion, the correct position of law flows from the above-noted decisions. In Samar Singh v. Kedar Nath, 1987 Supp SCC 663 : AIR 1987 SC 1926 this Court while dealing with an election petition has held that the power to summarily reject conferred by Order 7, Rule 11 of the Code of Civil Procedure can be exercised at the threshold of the proceedings and is also available, in the absence of any restriction statutorily placed, to be exercised at any stage of subsequent proceedings. However, the Court has also emphasised the need of raising a preliminary objection as to maintainability as early as possible though the power of the Court to consider the same at a subsequent stage is not taken away. In Gurdit Singh v. Munsha Singh, (1977) 1 SCC 791 : AIR 1977 SC 640 it was held that the Court trying a premature suit does not suffer from inability or incapacity to entertain the suit on the grounds of lack of jurisdiction. Dealing with the `narrower sense' and `more comprehensive sense' in which the expression `cause of action' is at times employed, the Court has indicated that the cause of action may suggest all those essential facts without the proof of which the plaintiff must fail in his suit but `right to sue' may have a different connotation the accrual of which need not necessarily be treated as an ingredient of cause of action but would be more relevant for the purpose of determining the commencement of the period of limitation. No amount of waive or consent can confer jurisdiction on a Court which it inherently lacks or where none exists. The filing of a suit when there is cause of action though premature does not raise a jurisdictional question. The claim may be well-merited and the Court does have jurisdiction to hear the suit and grant the relief prayed for but for the fact that the plaintiff should have waited a little more before entering the portals of the Court. In such a case the question is one of discretion. The claim may be well-merited and the Court does have jurisdiction to hear the suit and grant the relief prayed for but for the fact that the plaintiff should have waited a little more before entering the portals of the Court. In such a case the question is one of discretion. In spite of the suit being premature on the date of its institution the Court may still grant relief to the plaintiff if no manifest injustice or prejudice is caused to the party proceeded against. Would it serve any purpose, and do the ends of justice compel the plaintiff being thrown out and then driven to the need of filing a fresh suit are pertinent queries to be posed by the Court to itself. Where the right to sue has not matured on the date of the institution of the suit an objection in that regard must be promptly taken by the defendant. The Court may reject the plaintiff if it does not disclose the cause of action. It may dismiss the suit with liberty to the plaintiff to file a fresh suit on its maturity. The plaintiff may himself withdraw the suit at that stage and such withdrawal would not come in the way of the plaintiff in filing the suit on its maturity. In either case, the plaintiff would not be prejudiced. On the other hand, if the defendant by his inaction amounting to acquiescence or waiver allows these suit to proceed ahead then he cannot be permitted to belatedly urge such a plea as that would cause hardship, may be irreparable prejudice, to the plaintiff because of lapse of time. If the suit proceeds ahead and at a much later stage the Court is called upon to decide the plea as to non-maintainability of the suit on account of its being premature, then the Court shall not necessarily dismiss the suit. The Court would examine if any prejudice has been caused to the defendant or any manifest injustice would result to the defendant if the suit is to be decreed. The Court would examine if any prejudice has been caused to the defendant or any manifest injustice would result to the defendant if the suit is to be decreed. The Court would also examine if in the facts and circumstances of the case it is necessary to drive the plaintiff to the need of filing a fresh suit or grant a decree in the same suit inasmuch as it would not make any real difference at that stage if the suit would have to be filed again on its matured for filing. We may now briefly sum up the correct position of law which is as follows: A suit of a civil nature disclosing a cause of action even if filed before the date on which the plaintiff became actually entitled to sue and claim the relief founded on such cause of action is not to be necessarily dismissed for such reason. The question of suit being premature does not go to the root of jurisdiction of the Court; the Court entertaining such a suit and passing decree therein is not acting without jurisdiction but it is in the judicial discretion of the Court to grant decree or not. The Court would examine whether any irreparable prejudice was caused to the defendant on account of the suit having been filed a little before the date on which the plaintiffs entitlement to relief became due and whether by granting the relief in such suit a manifest injustice would be caused to the defendant. Taking into consideration the explanation offered by the plaintiff for filing the suit before the date of maturity of cause of action, the Court may deny the plaintiff his costs or may make such other order adjusting equities and satisfying the ends of justice as it may deem fit in its discretion. The conduct of the parties and unmerited advantage to plaintiff or disadvantage amounting to prejudice to the defendant, if any, would be relevant factors. A plea as to non-maintainability of the suit on the ground of its being premature should be promptly raised by the defendant and pressed for decision. It will equally be the responsibility of the Court to examine and promptly dispose of such a plea. The plea may not be permitted to be raised at a belated stage of the suit. A plea as to non-maintainability of the suit on the ground of its being premature should be promptly raised by the defendant and pressed for decision. It will equally be the responsibility of the Court to examine and promptly dispose of such a plea. The plea may not be permitted to be raised at a belated stage of the suit. However, the Court shall not exercise its discretion in favour of decreeing a premature suit in the following cases: (i) When there is a mandatory bar created by a statute which disables the plaintiff from filing the suit on or before a particular date or the occurrence of a particular event; (ii) when the institution of the suit before the lapse of a particular time or occurrence of a particular event would have the effect of defeating a public policy or public purpose; (iii) if such premature institution renders the presentation itself patently void and the invalidity is incurable such as when it goes to the root of the Court's jurisdiction, and (iv) where the Us is not confined to parties alone and affects and involves persons other than those arrayed as parties, such as in an election petition which affects and involves the entire constituency. (See: Samar Singh v. Kedar Nath, 1987 Supp SCC 663 : AIR 1987 SC 1926 . One more category of suits which may be added to where leave of the Court or some authority is mandatorily required to be obtained before the institution and was not so obtained. 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 defendant's 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 where after 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. 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 defendant's 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." Thus the position emerges out is that:--- "xxx xxx xxx where a suit is filed even before the expiry of the lease period, where the right to sue has not matured on the date of the institution of the suit, an objection in that regard must be promptly taken by the defendant, the Court may reject the plaintiff if it does not disclose the cause of action, as it dismisses the suit with liberty to the plaintiff to file a fresh suit on its maturity, even plaintiff may himself withdraw the suit at that stage and such withdrawal would not come in the way of the plaintiff in filing the suit on its maturity. In either case, the plaintiff would not be prejudiced. On the other hand, if the defendant by his inaction amounting to acquiescence or waiver allows the suit to proceed ahead then he cannot be permitted to belatedly urge such a plea as that would cause hardship, may be irreparable prejudice, to the plaintiff because of lapse of time. If the suit proceeds ahead and at a much later stage the Court is called upon to decide the plea as to non-maintainability of the suit on account of its being premature, then the Court shall not necessarily dismiss the suit. It is observed by the Apex Court that, it is the responsibility of the Court to examine and promptly dispose of such a plea. It is observed by the Apex Court that, it is the responsibility of the Court to examine and promptly dispose of such a plea. The plea may not be permitted to be raised at a belated stage of the suit. However, the Court shall not exercise its discretion in favour of decreeing a premature suit in cases where there is a mandatory bar created by a statute which disables the plaintiff from filing the suit on or before a particular date or the occurrence of a particular event, when the institution of the suit before the lapse of a particular time or occurrence of a particular event would have the effect of defeating a public policy or public purpose, if such premature institution renders the presentation itself patently void and the invalidity is incurable such as when it does to the root of the Court's jurisdiction and where the lis is not confined to parties alone and affects and involves persons other than those arrayed as parties, such as in an election petition which affects and involves the entire constituency or where leave of the Court or some authority is mandatorily required to be obtained before the institution and was not so obtained. In such circumstances, the Apex Court observed that the suit can be dismissed at any stage of the proceedings. The plea of non-maintainability of the suit is to be raised without delay and the Court is also required to dispose of this plea as expeditiously as possible. The transitory provision introduced in relation to notice under Section 106 has in fact taken care of this situation." 18. In the same analogy, in my considered view, the counter-claim with averments in adherence to the provision of Section 106 of the T.P. Act would suffice the purpose and the prematurity cannot be called in question after the expiry of the period of fifteen days when also the Court will not be under the obligation to decide that issue of prematurity. In the similar line if in the counter-claim all is stated about service of notice terminating the tenancy and seeking eviction and the Court even if finds that such notice was either not sent or served upon the tenant, the averments in counter-claim themselves can constitute notice as mandated under Section 106 of the T.P. Act which matures upon the expiry of fifteen days from the date of its service upon the tenant or his counsel and its prematurity if has not been raised and disposed of within that period, the said counterclaim would well stand as a cross suit for decision in accordance with law. In that view of the matter, in the present case even accepting that there was no service of prior notice terminating tenancy as mandated under Section 106 of the T.P. Act, the averments made to that effect in the written statement setting up the counter-claim is to be taken as notice and that being served is to be considered as due service upon the plaintiff-tenant. Therefore, although this Court finds that the lower appellate Court has not gone for an elaborate discussion in the matter which it ought to have been made but for my discussion and reasons, the ultimate finding on that score is unassailable. The substantial questions of law as indicated in para 6 of this judgment are accordingly answered. 19. In the wake of aforesaid, the appeal stands dismissed and the judgment and decree passed by the lower appellate Court are hereby confirmed. No order as to cost. Appeal dismissed.