Andhra HC (Pre-Telangana)
P. Dharma Reddy vs B. Vijayalaxmi And Others on 15 November, 1999
Equivalent citations: 2000(1)ALD303, 2000(1)ALT99
Author: C.V.N. Sastri
Bench: C.V.N. Sastri
ORDER
1. This second appeal by the defendant-tenant arises out of a suit field by his landlord against him for ejectment and for recovery of the arrears of rent and damages for use and occupation. The tenancy is admitted and there is also not much controversy about the facts. The suit premises was leased out by the plaintiff to the defendant for running a tutorial college initially for a period of 11 months under a rental agreement dated 1-5-1987 marked as Ex.B3. The lease was renewed for a further period of 11 months under Ex.B2 dated 1-7-1988. It was again renewed for another period of 11 months under Ex.A1 dated 1-7-1989 on a monthly rental of Rs.1,300/-. On 27-8-1990 the plaintiff issued a quit notice marked as Ex.A2 terminating the tenancy with effect from 30-9-1990 and filed the suit on 8-11-1990.
2. The defendant filed a written statement contending that the suit was field only with a view to harass him and coerce him to increase the rent and the defendant is prepared to increase the rent reasonably as may be decided by the Court and there is no justification whatsoever for the plaintiff to demand delivery of possession. Subsequently the defendant sought leave to amend the written statement so as to incorporate a plea to the effect that the quit notice issued by the plaintiff is invalid and the suit is liable to be dismissed on that ground. As the trial Court dismissed the said application for amendment of the written statement, the defendant preferred a CRP in this Court. In the course of hearing of the CRP the learned Counsel appearing for the plaintiff submitted that if such a plea with regard to the invalidity of the notice issued under Section 106 of the Transfer of Property Act is raised even without a formal amendment of the written statement, the plaintiff would not raise any objection for advancing such argument. In view of the concession made by the learned Counsel for the plaintiff, the CRP was dismissed holding that no formal amendment needs to be made to the written statement.
3. The trial Court dismissed the suit holding that there was no valid quit notice as required under Section 106 of the Transfer of Property Act. On appeal, the appellate Court took a different view that the quit notice is valid and accordingly decreed the suit.
4. The only point, which, therefore, arises in this second appeal is whether the suit is liable to be dismissed for want of a valid quit notice as per Section 106 of the Transfer of Property Act.
5. It is not in dispute that the provisions of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960, are not applicable to the case since the monthly rent payable for the building exceeds Rs.1,000/-. The contention of the appellant as regards the invalidity of the quit notice runs like this:
Under Ex. A1 dated 1-7-1989 the tenancy period of 11 months commenced from 1-7-1989. Under Section 110 of the Transfer of Property Act, in computing the said period of 11 months, the date of commencement of the tenancy i.e., 1-7-1989 has to be excluded. The tenancy period, therefore, ended on 1-6-1990. By holding over, the tenancy continued from month to month from 2-6-1989 ending on the first date of the following month. However, the plaintiff, by issuing Ex.A2 notice dated 20-7-1990, which was received by the defendant on 10-9-1999 purported to terminate the tenancy with effect from 30-9-1990 instead of 1-10-1990. As such the quit notice is not valid as it did not expire with the end of the month of the tenancy. The end of the month of the tenancy is on the first date of the following month and not on the last day of the previous month.
6. On the other hand, it is the contention of the learned Counsel appearing for the respondent-landlord that the tenancy expired by efflux of time on 31-5-1990 and there was no need to issue any quit notice under Section 106 of the Transfer of Property Act. Only by way of abundant caution the plaintiff issued Ex.A2 notice. Even otherwise the said notice is perfectly valid. There was no plea in the plaint that after the expiry of the contractual tenancy, there was any fresh tenancy by holding over. In any case, Section 110 of the Transfer of Property Act has no application whatsoever to tenancy from month to month by holding over.
7. In support of their respective contentions, the learned Counsel for both parties have relied on several judgments which will be referred to presently. In Dattonpant v. Vithal Rao, AIR 1975 SC 1111, the Supreme Court held that no notice under Section 106 Transfer of Property Act is necessary if a lease of immovable property determines under clause (a) of Section 111 by efflux of the time limited thereby. However, on the facts of the said case, the Supreme Court found that though the contractual tenancy expired on 9-4-1946, by holding over the tenancy from month to month started from 10th April, 1946 ending on the 9th of the following month. The landlord, however, issued a notice terminating the tenancy ending on the 8th day of the following month. It was, therefore, hold that the quit notice was not valid. This judgment, in my view, has no application to the instant case as the facts are distinguishable. In the instant case, after the expiry of the contractual tenancy, the landlord has not either received the rents or otherwise assented to the continuance of the tenant in possession. On the contrary, the plaintiff refused to receive the money-orders sent by the defendant after 31-5-1990. It was only after the suit was filed, by virtue of the orders passed by the Court permitting him to withdraw the rents deposited by the defendant into Court, the plaintiff withdrew the same. As such the question of the tenancy continuing by holding over or waiver does not arise in this case.
8. In Santi Devi v. Amal Kumar, AIR 1981 SC 1550, the Supreme Court observed as follows:
"Undoubtedly, Section 111(a) of the Transfer of Property Act, which deals with determination of a lease by efflux of time., has to be read with Section 116 of the Act. But in the present case there is no allegation by the defendant that he was a tenant holding over within the meaning of Section 116 of the Act. Now, in order that lease should be deemed to have been contained in favour of the defendant it was necessary to show that he remained in possession of the premises demised after the determination of the lease granted to him and the plaintiff had expressly or by necessary implication assented to his continued possession. There being no such pea of holding over, the matter falls to be governed by Section 111(a) of the Transfer of Property Act. If the period of lease had expired on January 10, 1970, the relationship of landlord and tenant ceased and the defendant became a trespasser..... There was, therefore, no question of service of any notice under Section 106 of the Transfer of Property Act."
The above observations squarely apply to and govern the case on hand. I am, therefore, of the view that no quit notice under Section 106 of the Transfer of Property Act is really required in the present case. Even otherwise, I am inclined to agree with the view of the lower appellate Court that the quit notice Ex.A2 is valid.
9. In Bhagbandas v. Bhagwandas, , the Supreme Court held that a notice to quit must be construed not with a desire to find faults in it, which would render it defective but it must be construed ut res magis valeat quam pereat. In that case, the landlords issued a notice requiring the tenant to vacate the premises "within the month of October, 1962 otherwise he would be treated as trespasser from 1st November, 1962". It was held that the intention of the authors of the notice was clear that they were terminating the tenancy only with effect from the end of the month of October, 1962 and not with effect from any earlier point of time during the currency of that month and the notice was held to be valid. In this decision the earlier decision of the Supreme Court in Dattonpant v. Vithal Rao (supra) was, no doubt, not considered, but the same, in my view, does not make any difference insofar as the principle laid down in the later decision is concerned.
10. In The Bhagyanagar Khadi Samithi v. S.B. Chitnis, , a learned Judge of this Court, after referring to the aforementioned judgments of the Supreme Court, held that the notice under Section 106 of the Transfer of Property Act should be construed broadly and it should not be defeated by inaccuracies either in the description of the premises or name of the tenant or the date of the expiry of the notice. From the language used in the quit notice, it must be endeavoured to ascertain the intention of the parties and the effect thereof and it should not be read in hypercritical manner but should be construed in common sense way. In that case the contractual tenancy expired on 31-7-1983 and thereafter the tenant continued in possession as a tenant holding over. The landlord issued a quit notice dated 3-8-1986 terminating the tenancy and requesting the tenant to vacate and hand over the vacant possession of the leased premises by the end of August, 1986. However, at the end of the notice, the tenant was asked to vacate the premises by 30th August, 1986 instead of 31st of August, 1986. It was held that the mention of the date 30th August was a mistake by oversight or inadvertence or due to a clerical or a typographical mistake and that if the quit notice is read as a whole, an ordinary prudent man will understand that the landlord has determined the tenancy and the tenant is required to vacate the leased premises by the end of the calendar month of August, 1986. In the instant case also, it can be said that the parties have understood that the tenancy is a tenancy from month to month beginning with and ending with a calendar month and as such the notice terminating the tenancy by the end of September, 1990 is valid. It may also be mentioned in this context that two learned Judges of this Court in the decisions reported in M/s. P.S.P. Seshagiri Rao and Company v. Kalabai Rathi, , and in A.V. Prasad v. G.K. Ramaiah, , after considering the judgment of the Supreme Court in Dattonpant v. Vithar Rao (supra), held that Section 110 of the Transfer of Property Act is not applicable to a tenancy from month to month by holding over and that the said section applies only to the periodical lease with a specific date of commencement of lease.
11. For the aforesaid reasons, I do not find any merit in this second appeal and it is accordingly dismissed but without costs. However, having regard to the fact that the defendant is running a tutorial college in the leased premises, the defendant is granted three months' time from today to vacate the premises on condition that the defendant continues to pay rent/damages regularly every month and all the arrears, if any, due.