Punjab-Haryana High Court
H.M. Traders vs Bhupinder Singh on 6 April, 2005
Equivalent citations: (2005)141PLR246
Author: Adarsh Kumar Goel
Bench: Adarsh Kumar Goel
JUDGMENT Adarsh Kumar Goel, J.
1. The respondent filed a suit for eviction and recovery of arrears of rent, alleging that the premises were let out to the defendant-appellant and were exempted from the provisions of the Rent Act. Notice of termination of tenancy was duly served but the defendant-appellant failed to vacate the premises.
2. The appellant contested the suit, interalia on the plea that no valid notice was served under Section 106 of the Transfer of Property Act, 1882 (for short, the Act). Exemption from Rent Act was not denied. It was further pleaded that after service of notice of termination, the plaintiff also filed a petition under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 for eviction alleging that the defendant-appellant was tenant which amounted to waiver of notice of termination.
3. The trial court dismissed the suit. It was held that since sewerage connection was granted on 15.10.1976 and suit was filed on 13.5.1981, the provisions of the Rent law did not apply in view of exemption for a period of five years from the date of sewerage connection. Notice of termination, Ex.PI was held to be invalid since tenancy was terminated forthwith, though time to vacate for 15 days was given. Relevant part of the notice, which was noticed by the trial court is as under:-
"Through this notice, your tenancy is hereby terminated and you are called upon to vacate and hand over the vacant possession of the premises in your occupation on or before the expiry of 15 days from the date of receipt of this notice."
4. Reference was made to decision of the Andhra Pradesh High Court in Yerrabhothula Krishna Murty and Ors. v. Addepalli Subha Rao, , judgment of a Full Bench of this Court in Bhaiva Ram v. Mahavir Parshad, (1968)70 P.L.R. 1011, was distinguished. The plea of waiver was rejected on the ground that intention of parties had to be seen and since suit for eviction was pending, filing of petition for eviction on the ground of non-payment of rent before the Rent Controller could not give an inference that the tenancy was intended to be created thereby.
5. On appeal, the lower appellate court reversed the judgment of the trial court, mainly on account of reversal of finding on the issue of validity of notice of termination. The lower appellate court relied upon the view taken by the Allahabad High Court in an identical situation in Chandika v. Sukhnandan, , holding:-
"The word 'hereby' used in notice terminating the tenancy only means that such termination is done through that notice and when the notice read as a whole conveys that the termination is intended to take effect at the end of 30 days, the word 'hereby' cannot be taken to mean that the termination is forthwith and, therefore, not in accordance with law." Hence, this second appeal.
6. Learned counsel for the appellant submitted that the trial Court had taken a correct view in the matter on the question of validity notice and the lower appellate court erred in preferring the view taken by the Allahabad High Court over the view taken by the Andhra Pradesh High Court. It was also submitted that both the courts below erred in not accepting that both the courts below erred in not accepting the plea of waiver of notice of termination on account of conduct of the plaintiff in filing petition for eviction notice of termination. Learned counsel for the appellant relied upon judgment of the Privy Council in Gooderham and Worts Ltd. v. Canadian Broadcasting Corporation, A.I.R. 1949 Privy Council 90, Para 20.
7. Learned counsel for the respondents supported the findings recorded by the lower appellate court and also relied upon decisions of this Court in Usha Jain v. R.P. Rehal, 1986(2) R.C.R. 622 and Smt. Jiwan Kaur v. Amar Singh deceased represented by his legal heirs, 1991(1) R.C.R. 624, to submit that filing of a petition for eviction with a view to claim rent for subsequent period, after notice of termination when suit for eviction was still pending, did not amount to waiver of termination of tenancy.
8. I have considered the rival contentions and perused the record.
9. As regards the first contention as to validity of notice, period of 15 days has been given in the notice. The notice has to be read as a whole and use of the expression "hereby" has been rightly held to be to mean "by this notice", in Chandika (supra). Same view has also been taken in General Auto Agencies v. Hazari Singh, . The judgment of the Andhra Pradesh High Court in Yerrabhothula Krishna Murty (supra) was of a case where Section 106 of the Act was applicable and termination of tenancy was required to be with expiry of the month of the tenancy, which is not the case here. In Bhaiya Ram (supra), a Full Bench of this Court in its conclusion (vi) held:-
"The notice required to be served in the Punjab (where the statutory provisions of Section 106 of the Transfer of Property Act do not apply and merely its equitable principles have been applied) has to be a notice to quit or a notice terminating the tenancy and such notice must give reasonable time to quit. Considering the law laid down in various decided cases, fifteen days appear to be the minimum reasonable period of such a notice. In the Punjab, however such a notice need not necessarily terminate strictly with the end of a month of the tenancy."
10. In the judgment of the Apex Court in Bhagawandas Agarwala v. Bhagwandas Kanu and Ors., , which has also been relied upon in Yerrabhathula Krishna Murty (supra), the Apex Court observed that validity of notice to quit ought not to turn on the splitting of a straw. It must not be read in a hyper critical manner nor must its interpretation be affected by pedagogic pedantism or over refined subtlety, but it must be construed in a common sense way.
11. The first contention raised on behalf of the appellant is, thus, liable to be rejected.
12. Coming to the next contention raised on behalf of the appellant that filing an eviction petition, during pendency of the suit, amounted to waiver of termination of tenancy under Section 113 of the Act, the view taken by the Courts below cannot be held to be erroneous and the same is consistent with the decisions of this Court in Usha Jain and Smt. Jiwan Kaur (supra). Further, view which has been taken by this Court is also supported by the following decisions:-
(i) Hashmatrai and Anr. v. Tarachand and Ors., A.I.R. 1979 Bombay 95. In para 7, it was observed:-
"Mr. Mohta contended that Section 113 of the T.P. Act would come into picture only when there is an act on the part of the lessor showing an intention to treat the lease as subsisting. According to him, there could not be any occasion for the landlord to show such an intention when he has already filed a suit on the basis of the termination of tenancy. Mr. Mohta further submitted that in such a case, it is the suit that has to be decided and mere payment of some amount of rent, would be irrelevant, unless a party pleads and proves that on account of the said payment, there was a compromise of the suit. I think that there is much substance in this contention. This very point has been considered by the Qudh High Court in Kamlapat Sahai v. Mt. Manho Bibi, A.I.R. 1948 Qudh. 127 wherein it is held that once a suit for ejectrhent has been instituted, it cannot possibly be said that any act of the lessor shows an intention to treat the lease as subsisting unless he withdraws the suit. He may renew the lease, in which case it would not be a question of waiver but a question of fresh lease. In the present case also the plaintiffs had filed the suit and as such acted on the termination of the tenancy. They cannot be said to have waived notice by accepting some amount during the pendency of the suit."
(ii) New India Assurance Company Limited and Ors. v. Ghanshyam Das and Ors., A.I.R. 1997 Allahabad 383. In para 9, it was observed:-
"In the case again, a question had arisen concerning waiver of a notice. In explaining Section 113 of the T.P. Act, the Hon'ble Judge of the Lucknow Bench of this High Court held that a waiver under Section 113 can be brought about by the action of the landlord if after determining the tenancy by notice, the landlord had chosen to accept rent again from the tenant. In such an event, under Section 113, a notice for determining a tenancy given by the landlord to the tenant, would be deemed to have been waived. No question of waiver, however, would arise if the landlord had brought a suit on the basis of valid notice given for determination of the lease. If such a suit had been brought, there could be no waiver though it was always open for the landlord to renew the lease any time be liked."
13. Judgment of the Privy Council in Gooderham (supra) is distinguishable. In that case, acceptance of rent after termination of tenancy was not during pendency of the suit and an inference of continuing the tenancy was raised, while in the present case, such an intention could not be inferred as per the consistent view taken by the Court in Hashmatrai, Ghanshyam Das as well as Usha Jain and Smt. Jiwan Kaur (supra). This contention is also without any merit.
14. Since the contentions raised on behalf of the appellant are already covered by decisions of this Court, no substantial question of law arises.
15. Accordingly, the appeal is dismissed with costs throughout. However, having regard to the facts of the case, the appellant-tenant is granted one year's time to vacate and hand over possession of the suit premises to the landlord, subject to the following conditions:-
(i) The appellant files an undertaking within one month from today to this court to vacate and hand over vacant possession on or before April 5, 2006.
(ii) The appellant pays all arrears of rent within one month from today; and (iii) Continues to pay future charges for use and occupation at the rate of Rs. 5,000/- per month (rent of Rs. 1900/-) per month was fixed more than 25 years ago).
16. On failure of any of the above conditions, the decree will be executable forthwith.