Research › Search › Judgment

Orissa High Court · body

2015 DIGILAW 630 (ORI)

IVA DUTTA v. PRATAP KUMAR DEY

2015-11-16

D.DASH

body2015
JUDGMENT : D. Dash, J. - This appeal has been filed challenging the judgment and decree passed by the learned Additional District Judge, Balasore in R.F.A. No.26/18 of 2005-04. By the said judgment and decree the learned Additional District Judge while dismissing the appeal filed by the present appellant has confirmed the judgment and decree passed by the learned Civil Judge (Jr. Division), Balasore in Title Suit No.810 of 1994 in decreeing the suit for eviction of the appellants. However, in so far as the decree for payment of arrear house rent by the appellants as against the trial court's computation of the period from October, 1991 to August, 1994 for said payment having been set aside the arrear house rent is directed to be paid by the appellants from May, 1994 onwards. 2. For the sake of convenience, in order to bring in clarity and avoid confusion, the parties hereinafter have been referred to as they have been arraigned in the court below. 3. The case of the plaintiff is that Sudhir Chandra Dey and Anil Chandra Dey, the two brothers are the original owners of the suit land with a row of pucca shop rooms consisting of 14 blocks each having two rooms standing over it. They had equal interest over the said land and the houses standing over it. They had let out those 14 blocks of rooms to different tenants on monthly rent basis. The plaintiff and proforma defendant nos.5 to 10 are the successors-in-interest of Sudhir Chandra Dey whereas the defendant nos.11 to 16 are the successors-in-interest of Anil Chandra Dey. Anil died on 04.12.1960 and Sudhir died on 18.10.1963. It is stated that in the year 1977, there was an amicable partition amongst the successors of Anil and Sunil, i.e., the defendant nos.11 to 16 on one hand and the plaintiff with defendant nos.5 to 10 on the other. In the said partition suit houses consisting of block nos.1 to 7 were allotted to the plaintiff and defendant nos.5 to 10 whereas those under block nos. 8 to 14 were allotted to the defendant nos.11 to 16. It is also stated that subsequent thereto there has been amicable division amongst the plaintiff and defendant nos.5 to 10 and the suit block no.7 was allotted to the plaintiff in his share and thus he became the absolute owner of the said block. 8 to 14 were allotted to the defendant nos.11 to 16. It is also stated that subsequent thereto there has been amicable division amongst the plaintiff and defendant nos.5 to 10 and the suit block no.7 was allotted to the plaintiff in his share and thus he became the absolute owner of the said block. He was also collecting rent from the tenants, i.e., defendant nos.1 to 4 who remained in occupation of the rooms under block no.7 being the legal heirs of the original tenant Debendranath Dutta, their father. It is said that Debendranath was inducted as a tenant in respect of the suit plot on a monthly rent of Rs.40/- It is alleged that the defendant nos.1 to 4 wilfully defaulted in making the payment of the house rent from the month of October, 1991 onwards. It is also stated that the plaintiff's wife being an educated lady who was then unemployed being desirous to run a beauty parlour in the room under that suit block no.7, there was the requirement for those rooms to be used for the purpose. Therefore, the plaintiff had requested the defendant nos.1 to 4 several times to vacate the rooms under the suit plot on the payment of the arrear house rent. However, as that was not paid any heed to, notice was sent to them through his lawyer asking them to vacate the rooms under the suit block in their occupation as tenants and to pay the arrear house rent. No response being received after service of the said notice, the suit was filed. 4. The defendant nos.1 to 4 while traversing the plaint averments have gone to deny the factum of partition said to have taken place amongst the successors of Anil and Sudhir in the year 1977, as also the subsequent partition amongst the successors of Sudhir and that these rooms under the suit block to have been allotted in the share of the plaintiff. Thus, they challenge the maintainability of the suit on the ground that the same has not been filed by all the legal heirs of both the branches in making the prayer for eviction. It is further pleaded that they were all along paying the rent to the mother of the plaintiff and when she refused to receive the same, they deposited the said house rent in the bank. It is further pleaded that they were all along paying the rent to the mother of the plaintiff and when she refused to receive the same, they deposited the said house rent in the bank. They also deny the bona fide requirement of the rooms under the suit block by the plaintiff for the purpose as stated. It is said that such move for eviction is either for induction of another tenant at an enhanced house rent or in order to sale the same. 5. On such rival pleadings, the trial court framed five issues. Taking into consideration the evidence on record, the trial court has rendered the finding in favour of the plaintiff that he is the owner of the rooms under the suit block and that he has the bona fide requirement for occupation of the same. It has also rendered the finding that the defendant nos.1 to 4 are in arrear of house rent to be paid to the plaintiff since October, 1991 till vacation. With such finding, the trial court decreed the suit and directed the defendant nos.1 to 4 to vacate the rooms under the suit block and pay the arrear house rent as stated in schedule 'Kha' of the plaint. The defendant nos.1 to 4 being aggrieved by the said judgment and decree carried an appeal. In the said appeal, the lower appellate court on independent analysis of evidence on record concurred with the findings of the trial court that it is the plaintiff, who is the absolute owner of the rooms under the suit block. The lower appellate court then having gone to address the submission of the learned counsel for the plaintiffs that the suit is not maintainable because of non-compliance of provision of section 106 of the T.P. Act has finally negated the same. Lastly, going to decide the arrear house rent, if any, payable by the defendant nos.1 to 4, it has found that the defendant nos.1 to 4 are liable to pay the house rent from May, 1994 onwards while agreeing with the finding of the trial court that the rooms under the suit block are required by the plaintiff for their user by his wife for running a beauty parlour. With all these it has ultimately confirmed the judgment and decree passed by the trial court. 6. With all these it has ultimately confirmed the judgment and decree passed by the trial court. 6. The appeal has been admitted on the following substantial questions of law : (i) "Whether there is any specific pleading that after the said partition the plaintiff gave any notice of attornment to the defendants to accept him as landlord and continue to pay rent" ? (ii) "Whether the finding of the learned Trial Court as well as first Appellate Court with regard to the validity of notice under Section 106 of the T.P.Act is entirely contrary to law and as such the very institution of the suit is bad and the plaintiff is bound to be non-suited" ? 7. Learned counsel for the appellant submits that the view taken by the trial court that in the case in hand, it is not necessary for termination of the tenancy in accordance with the provision of section 106 of the T.P. Act is untenable in the eye of law. According to him, as the plaintiff's suit is founded upon the relationship of landlord and tenant between him and the defendant nos.1 to 4, provision of section 106 of the T.P. Act are required to be complied with so as to put an end to the relationship of landlord and tenant in accordance with law, for maintaining the suit. It is his next submission that even if it is held that the said notice was issued, it ought to have been held that it was not served upon the defendant nos.1 to 4 and even if it is said to have been duly served, the same being a highly defective one, the suit as laid ought to have been held to be not maintainable. Thus, he contends that the second substantial question of law as framed has to be answered in favour of the defendant nos.1 to 4 and that is enough to non-suit the plaintiff. Thus, he contends that the second substantial question of law as framed has to be answered in favour of the defendant nos.1 to 4 and that is enough to non-suit the plaintiff. His submission with regard to the first substantial question of law is that the plaintiff has not proved any such partition between the successors-in-interest of Anil on one hand and Sudhir on the other to have ever been informed to the defendant nos.1 to 4 and that they were aware of it and similarly the subsequent partition between the heirs of Sudhir has also not been brought to the notice of the defendant nos.1 to 4 and they have not been finally made aware that the plaintiff got the rooms under the suit block in his share and became the owner. Thus, he contends that all those facts being not communicated to the defendant nos.1 to 4 and their being no attornment as per law, they cannot be said to be the tenants under the plaintiff by virtue of attronment. Therefore, he contends that the first substantial question of law is also to be answered in favour of the defendant nos.1 to 4. 8. Per contra, learned counsel for the respondent submits that the trial court having made a vivid analysis of evidence on record has come to a definite conclusion that notice under section 106 of the T.P. Act terminating the tenancy of the defendant nos.1 to 4 has been duly served upon them and it is not at all a defective one and the said finding in unassailable. He further contends that there has been due termination of tenant in accordance with law and thus the suit is very much maintainable for the reliefs claimed. He next contends that here the plaintiff has arraigned the legal heirs of Sudhir and also Anil Ray as defendants and even during trial his brother as also his uncle's son have been brought to the witness box as P.W.2 and 3 and they in clear terms have admitted the factum of partition between Anil and Sudhir and then amongst the heirs of Sudhir while stating further that the rooms under the suit block had fallen to the share of the plaintiff. Thus, he submits that with such evidence on record, the plaintiff having got the rooms under the suit block in his share and when admittedly Debendranath and thereafter these defendants 1 to 4 are in occupation of the rooms under the suit plots as tenants being inducted by the plaintiff's predecessor-in-interest, the plaintiff can well be said to have stepped into the shoes of landlord of those defendant nos.1 to 4. Thus, he contends that the substantial questions of law framed in this appeal are to be answered in favour of the plaintiff and consequently, the appeal being devoid of merit is liable to be dismissed. 9. It is the trite proposition that a landlord cannot split the unity and integrity of the tenancy and recover possession of a part of the demised premises from the tenant. But section 109 of the T.P. Act provides a statutory exception to this rule and enables an assignee of a part of the reversion to exercise all the rights of the landlord in respect of the portion respecting which the reversion is so assigned subject, of course, to the other covenant running with the land. There is no need for a consensual attornment. The attornment is brought about by the operation of law. The limitation on the right of the landlord against splitting up of the integrity of the tenancy, inhering in the inhibitions of his own contract, does not visit the assignee of the part of the reversion. There is no need for the consent of the tenant for the severance of the reversion and assignment of the part so severed :- (See - Mohar Singh v. Devi Charan, AIR 1988 SC 1365 . As between the lessee and lessor there can be no splitting up of the tenancy and even the Court cannot by its decree or otherwise split up a tenancy unless there is a specific provision in the statute for such splitting up. Thus, the lessor cannot unilaterally split up the tenancy and claim ejectment in respect of the part of the property leased. But when a partition is effected, then it amounts to a splitting up of the respective part of the property within the meaning of section 109 of the Act and the partition brings about splitting up of the tenancy and the co-owner can eject a tenant from the property allotted to him in a partition. But when a partition is effected, then it amounts to a splitting up of the respective part of the property within the meaning of section 109 of the Act and the partition brings about splitting up of the tenancy and the co-owner can eject a tenant from the property allotted to him in a partition. However, in a case where the owner's interest in the leased property is transferred, then the co-lessor cannot alone determine the tenancy or sue for ejectment without joining other co-lessor unless he gets partition effected. Section 109 of the Act creates an exception to the general rule that a tenancy cannot be split up by a unilateral act of lessor. It creates what may be called statutory attornment which substitutes and has the same effect as contractual attornment and the transferee ipso facto acquires all the rights of the lessor and new relationship is created between the transferee and the lessee. It is not dependent on the consent of the lessee and the letter of attornment is not necessary. The transferee can determine the lease of the part transferred in any of the circumstances enumerated in section 111 of the Act. 10. More elaborately the settled law need be stated that one of the joint lessors cannot alone terminate a lease. Lease must be determined by all the lessors. If one of the lessors desires to determine the tenancy and the other does not, the former has to effect a partition and get his share separated. Then, in respect of the part, which the former acquires by partition, he becomes the sole lessor vis-a-vis the lessee. A partition between co-owners is a transfer on the respective parts of the property within the meaning of Section 109, although, strictly speaking, in respect of the part acquired by a particular coowner, there is "surrender" by the others of their interest. (See Vinayak v. Moreshwar, (AIR 1944 Nag 44 (FB)) Pyarelalsa v. Garanchandsa, (AIR 1965 Madh Pra 1); Skattar Singh v. Rawela AIR 1952 J.&K. 18 and Banarsilal v. Bhagwan AIR 1955 Raj 167 .) A partition brings about splitting of the tenancy and the coowner in respect of the part of the property allotted to him in the partition is entitled to eject the tenant. In that case his right to determine the lease or to eject the tenant will not be dependent on the other separated co-owners joining hands with him; otherwise, the partition will have no meaning and it will amount to this that if one of the co-owners does not want a tenant to be ejected, he could never be ejected either during the continuance of joint ownership or even after partition. This demonstrates that the law recognises splitting of tenancy in circumstances where the original tenancy is substituted either by contract or by statutory effect. It cannot be the law that one of the co-owners can absolutely defeat the right of the other co-owners as regards ejectment of the tenant. He can exercise his veto so long as he continues to be a joint owner. But, after partition, his veto is abolished along with his interest in the part not allotted to him. In Manikkam v. Rathansami, AIR 1919 Mad 1186, it was held : "The words used as 'all the rights' and the expression is very comprehensive. There does not seem to be any reason why the words should be held not to include the right to recover possession by terminating the tenancy of a previous lessee by giving the necessary notice to quit. That is one of the rights of the lessor as to the property transferred". It has been held that one of the several joint lessors, who had become separately entitled to a share of the land leased, is entitled to enforce the forfeiture clause in the lease deed separately as regards his share of the lands. It gives sufficient cause of action to the lessor to bring a suit for ejectment. (See Korapalu v. Narayana (1915) ILR 38 Mad 445 = (AIR 1915 Mad 813) where Cutting v. Derby (1776) 96 ER 633 and Doe De Whayman v. Chaplin (1810) 128 ER 49, have been referred to. See also Syed Ahmad v. Magnesite Syndicate Ltd. (1916) ILR 39 Mad 1049 = (AIR 1917 Mad 151).) 11. All these problems are solved by Section 109 of the Act. See also Syed Ahmad v. Magnesite Syndicate Ltd. (1916) ILR 39 Mad 1049 = (AIR 1917 Mad 151).) 11. All these problems are solved by Section 109 of the Act. In my considered opinion, that section creates what may be called statutory attornment which substitutes, and has the same effect, as contractual attornment, so that because of a transfer of the leased property, or a part thereof, the transferee ipso facto acquires "all the rights" of the lessor, and a new relationship is created between the transferee and the lessee. Letter of attornment is not necessary to complete title to the assignee of the reversion under Section 109. Title of the assignee is complete on the execution of the deed of assignment and is not postponed till the notice of the assignment. (See Pulin Bihary v. Miss Lila Dey AIR 1957 Cal. 627 ). This relationship is statutory. It is not dependent on the consent of the lessee (liabilities of the lessor apart). This is by force of the statute. There is no absolute bar to splitting up of tenancy. What is not permissible is that the lessor cannot unilaterally split up the tenancy and claim ejectment in respect of a part only of the properly leased. This is because the lessor cannot create transfer in his own favour of a part of the leased property; nor effect a partition with himself. 12. In view of the above, if at all the plaintiff can be found to have proved that the suit block rooms had fallen in his share in amicable partition amongst his brother and sisters, which had earlier fallen in the share of his father in the amicable partition with his brother, then it is not so required to be pleaded in the plaint that after the said partition necessary notice of attornment being required to be given to the defendants to accept the plaintiff as their landlord and to continue to pay the rent was so given. Thus, the first substantial question of law is accordingly answered. However, the fate of the case at the instance of the plaintiff wholly depends upon the finding that it is the plaintiff who got the suit block rooms in his share in a partition. In the present case the courts below have concurrently found so in favour of the plaintiff. Thus, the first substantial question of law is accordingly answered. However, the fate of the case at the instance of the plaintiff wholly depends upon the finding that it is the plaintiff who got the suit block rooms in his share in a partition. In the present case the courts below have concurrently found so in favour of the plaintiff. The cosharers have come to the witness box to depose the said factum of partition. P.Ws.2 and 3 are such witnesses. All the co-sharers having been joined in the suit as parties, none have chosen to contest the suit denying the factum of partition between Sudhir and Anil and then amongst the heirs of Sudhir and also the fact as pleaded in the plaint that the suit block rooms had fallen in the share of the plaintiff in the last partition. None is also putting up any objection to such move of ejectment of the defendants as made by the plaintiff. These two witnesses P.Ws.2 and 3 have all supported the case of the plaintiff and their evidence corroborate the evidence of P.W.1. The defendant nos.1 to 4, on the other hand, have not led any such clinching evidence showing some circumstances for drawal of even any inference that there was no such partition. The concurrent finding on the score rendered by the courts below is found to be based on due and proper appreciation of evidence on record. Thus the said finding is unassailable. When, that stands, the attornment becomes automatic. It is not a question of splitting up of tenancy but a case of splitting up of the property and it having been proved that the tenanted suit block rooms having fallen in the share of the plaintiff, he can well be said to be the landlord of defendant nos.1 to 4 and is entitled to all the rights as such. Thus, I find that the courts below have committed no error in holding the suit to be maintainable for the relief of ejectment of defendant nos.1 to 4 being the tenants in respect of the suit block rooms and for arrear house rent. 13. Now coming to answer the second substantial question of law with regard to notice under section 106 of the T.P. Act in addressing the rival submission, let us first of all have a look at the rival pleadings of the parties. 13. Now coming to answer the second substantial question of law with regard to notice under section 106 of the T.P. Act in addressing the rival submission, let us first of all have a look at the rival pleadings of the parties. In para-11 of the plaint, it has been pleaded that the registered notice was sent on 16.07.1994 to the defendant nos.1 to 4 asking them to vacate the suit house within one month. The defendant nos.1 to 4 though at the end of the para 17 of the written statement state that the plaintiff has never issued any notice to the defendants to vacate the suit house, in the very next para, i.e., para-18 they have gone to aver that the so-called notice dated 16.07.1994 is not legal and it is also not in accordance with law. The copy of the notice has been proved as Ext.2. It has been said that the defendant nos.1 to 4 have refused to receive the said notice. The trial court has thus held that there has been due service of notice. The plaintiff as P.W.1 has deposed about such service of notice. The defendant nos.1 and 2 has been examined as D.W.1. He has just gone to deny the factum of service of notice. So, the pleading being conflicting that at one stage, the defendant nos. 1 to 4 state that the notice was not served; at the next blush it is said to be defective in the eye of law which go to show their knowledge of said notice and the denial in that event about service of notice is bound to be held nothing but evasive. In that view of the matter, the finding of the trial court relying upon the evidence of P.W.1 cannot be said to be the outcome of perverse appreciation of evidence in the back drop of the rival pleading and this provides the answer to the second substantial question of law which runs against the appellants. 14. Let it now be examined from a different angle even assuming for a moment that prior to suit no notice in terms of section 106 of the T.P. Act was in fact served upon the defendant-tenants. 14. Let it now be examined from a different angle even assuming for a moment that prior to suit no notice in terms of section 106 of the T.P. Act was in fact served upon the defendant-tenants. 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 have a glance at 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". 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 short fall 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 of 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. 15. The above provisions of 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 valiat quam pereat, that is in a manner that it may rather become operative than null. 16. 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 pendantism or over-refined subtlety, but it must be construed in a commonsense way. It should be conjointly read not with an intention to split up a straw or in a hypercritical manner or by pedagogic pendantism or over-refined subtlety, but it must be construed in a commonsense way. The principle laid down in case of Burmah-Shell Oil Distributing 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. 17. 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, in my considered opinion if a suitor makes an averment as regards such termination of tenancy seeking vacation of the tenanted premises in the plaint with the prayer of ejectment, all the requirements of law are to be taken to be satisfied and after expiry of fifteen days from the date of service of the same upon the defendant-tenant or his lawyer representing him in the case, the same can well be said to be a valid suit, the right to sue having arisen from that date of expiry of the period of fifteen days. If the defendant wants that plaint is to be rejected, he has to promptly take the step for its rejection with the aid of the provision of rule of Order 7, Rule 11 of the Code but once the period of fifteen days expires, the prematurity gets wiped out and then questioning the suit's maintainability looses its legal significance. 18. The above view of mine 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 : "xx xx xx 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 and Another v. State of Bihar and Ors. (1984) 2 SCC 627 ). In (Vaddadi) Butchiraju and Ors. v. Doddi Seetharamayya and Ors. (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. Raghava Chariar v. O.M. Srinivasa Raghava Chariar (1917) ILR 40 Mad. 308 and a few other cases. Here, in all fairness, it may be mentioned that in (Mylavarapu) Rangayya Naidu v. Basana Simon and Ors. Reliance was placed on a Full Bench decision in A.T. Raghava Chariar v. O.M. Srinivasa Raghava Chariar (1917) ILR 40 Mad. 308 and a few other cases. Here, in all fairness, it may be mentioned that in (Mylavarapu) Rangayya Naidu v. Basana Simon and Ors. (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 and Ors.'s 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 and Anr. 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 ) 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 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 ) 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 intervivos 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 pertains 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 pertains 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 & Ors. ( 1967 KLT 122 ) 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, 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 and ors. 1964 Mh LJ 559, application for possession was filed 8 days before the date of termination of lease. In both the cases, the respective Division Benches have allowed relief to the plaintiff on the ground that driving the plaintiff to institute another suit would be hardship and no prejudice 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 and Ors. 1987 Supp. In both the cases, the respective Division Benches have allowed relief to the plaintiff on the ground that driving the plaintiff to institute another suit would be hardship and no prejudice 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 and Ors. 1987 Supp. SCC 663, 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 emphasized 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 and Ors. v. Munsha Singh and Ors. (1977) 1 SCC 791 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 waiver 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 plaint 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 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. 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 having 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 plaintiff's 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 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. (See : Samar Singh v. Kedar Nath and Ors. 1987 Supp. SCC 663). 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 : "xx xx xx 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 plaint 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 goes 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." 19. In the same analogy in my considered view the plaint with averments in adherence to the provision of Section 106 of the T.P.Act would suffice the purpose and the defect or prematurity cannot be called in question after the expiry of the period of fifteen days from the service of the plaint when also the Court will not be under the obligation to decide those issues of prematurity or defect. In the similar line if in the plaint 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 plaint themselves can very well constitute notice as mandated under Section 106 of the T.P.Act which matures on expiry of fifteen days from the date of its service upon the tenant or his counsel and its prematurity if has not been specifically raised then and disposed of within that period, the said plaint would well stand as a 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 plaint setting up the prayer for ejectment can be taken as notice and that being served is to be considered as due service of notice upon the defendant-tenants. The defect as pointed out has also no legal impact in view of the amendment of section 106 of the Act by the Act 3 of 2003 which has been made retrospectively applicable to any suit or proceeding pending on the date of commencement of the Amendment Act and the present appeal thus gets covered by that. On both the counts as per my discussions and reasons as above, the second substantial question of law receives the answer in the negative and that runs against the defendant-appellants. The rival submissions on this score thus get addressed. The net result stands that the judgment and decree passed by the lower appellate court confirming as that of trial court are not liable to be interfered with and this Court therefore declines to do so. 20. In the wake of aforesaid, the appeal stands dismissed and the judgment and decree passed by the lower appellate court are hereby confirmed. 21. No order as to cost. Final Result : Dismissed