Patna High Court
Ram Sewak Lal vs Rajendra Prasad on 2 December, 1980
Equivalent citations: AIR1981PAT300, AIR 1981 PATNA 300, (1981) PAT LJR 231, (1981) RENCJ 535, 1981 BBCJ 222, (1981) BLJ 349
Author: Nagendra Prasad Singh
Bench: Nagendra Prasad Singh
JUDGMENT Nagendra Prasad Singh, J.
1. One of the plaintiffs is the appellant in this second appeal. The suit in question had been filed on behalf of the plaintiffs for eviction of the defendant-respondent from the premises fully described in the schedule of the plaint. The ground for eviction was of personal necessity and default in the payment of rent.
2. According to the case of the appellant, he had issued a notice dated 5th July, 1967, under Section 106 of the Transfer of Property Act, which was served on the defendant-respondent on 9-7-1967. The defendant-respondent sent a reply to the said notice on 19-7-1967.
3. The learned Munsif having held that there has been default on the part of the defendant-respondent in payment of rent, dismissed the suit of the plaintiffs on the ground that the notice which was issued on behalf of the plaintiffs under Section 106 of the Transfer of Property Act was served on the defendant on 18-7-1967 terminating the tenancy by 31st July, 1967, which was invalid and as such tenancy was never determined. On that finding the suit for eviction was dismissed. The Court of appeal below has also affirmed the said judgment and decree dismissing the suit of the plaintiffs on the ground of want of proper notice under Section 106 of the Transfer of Property Act.
4. Learned Counsel appearing for the appellant submitted that the finding regarding non-service of notice under Section 106 of the Transfer of Property Act is vitiated and the Courts below have committed an error of law on that question. Before I deal with the arguments raised on behalf of the parties, I may point out that the Provisions of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, which was. in force when the suit in question had been filed, was not made applicable to village Khusrupur, where the premises in question are situated. The suit had been filed in the year 1967, which was dismissed by the trial Court in the year 1972. Even the appeal filed on behalf of the plaintiffs was dismissed in the year 1974. The provisions of the aforesaid Act had been made applicable by a notification issued in the year 1977. As such, the claim of the parties have to be determined not in accordance with the provisions of the Bihar Buildings (Lease, Kent and Eviction) Control Act, 1947, but in accordance with the provisions of the Transfer of Property Act. It cannot be disputed that before a suit for eviction can be filed, tenancy must be determined in accordance with the provision of Section 106 of the Transfer of Property Act by serving fifteen days notice expiring with the end of a month of the tenancy. It is an admitted position that the notice dated 5-7-1967 purported to determine the tenancy with effect from 31st July, 1967 and as such a clear 15 days' notice had been given by the plaintiffs to the defendant. However, the Courts below have held that the said notice was served on 18-7-1967 and as such it will not be deemed that 15 days' notice had been given to ihe defendant.
5. On a first impression this finding appears to be a finding of fact and if that be a correct finding then the suit has been rightly dismissed. But the question which has been urged on behalf of the appellant is that it was never disputed by the defendant in his written statement that the notice dated 5-7-1967 was not served on him on 9-7-1967, as alleged by the plaintiffs in Ihe plaint, or it was ever asserted in the written statement that the said notice was served on him on 18-7-1967? The plaintiffs in Paragraph No. 13 of the plaint clearly stated that they had issued a notice dated 5-7-1967 under Section 106 of the Transfer of Property Act determining the tenancy of the defendant on the expiry of the month of July 1967, "which was duly received by the defendant on 9-7-1967 and the defendant has sent a reply to the above notice". In the written statement there is no specific denial of paragraph No. 13. There is no statement in the written statement that notice dated 5-7-1967 was never received by the defendant on 9-7-1967 or that it was received on 18-7-1967 by the defendant. In paragraph No. 18 of the written statement it has been stated as follows:
''That the notice for eviction is otherwise bad, illegal and not maintainable." As such, there should not be any difficulty in holding that the defendant never denied the assertion made by the plaintiffs regarding service of notice on 9-7-1967. On behalf of the defendant-respondent learned counsel urged that it is the duty of the plaintiffs to allege regarding service of notice under Section 106 of the Transfer of Property Act in cases where such notice is to be served and prove service thereof on the defendant before a suit for eviction can be decreed. There cannot be any dispute that whenever a suit for eviction is filed and in cases where such notice has to be served, plaintiff has to allege in the plaint regarding service of such notice. I have already mentioned that in the plaint the plaintiffs have specifically stated about the service of such notice. They have stated that fact on oath in evidence. The defendant did not deny that specific statement regarding service on 9-7-1967 in the written statement, as already stated above. In such a situation, can it be held that the plaintiffs have not discharged the onus placed on them.
6. Rule 3 of Order VIII of the Code of Civil Procedure requires the defendant to deny specifically the allegations made by the plaintiff in the plaint. Again Rule 4 of Order VIII Prohibits the defendant from making evasive denial in his written statement and it also contains an illustration how the assertions made in the plaint should be denied. Rule 5 of Order VIII as it was in force at the time of the institution of the suit (It may be mentioned that it has been made more rigorous by C. P. C. Amendment Act 1976) was as follows:--
"Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability".
7. Now, in such a situation can it be held that the defendant-respondent denied regarding service of notice on 9-7-1967 as required by law. In my view, the answer to this question is in negative. Even in the reply (Ext. 4) dated 19th July, 1967, which was sent by the defendant in reply to the notice under Section 106 of the Transfer of Property Act it was not stated that the notice under Section 106 of the Transfer of Property Act was received by him on 18-7-1967 and as such that notice was invalid. Even in this reply there was a evasive assertion that notice was invalid. In my opinion, the courts below have committed a substantial error of law in holding in the facts and circumstances of the case that the plaintiffs have not discharged their onus in alleging and proving that notice dated 5-7-1967 which was served on the defendant on 9-7-1967. They should not have held that it was served on 18-7-1967 merely because it was stated so by the defendant in his evidence. In view of Rule 5 of Order VIII of the Code of Civil Procedure they should have held that there was no denial by the defendant to the assertion made by the plaintiff in paragraph No. 13 of the plaint and it would be deem that the defendant had admitted regarding the service of notice on 9-7-1967. On that finding they should have held that the notice under Section 106 of the Transfer of Property Act was validly served on the defendant.
8. In view of the fact that the provisions of the Bihar Buildings (Lease, Rent and Eviction) Control Act was not applicable to the premises in question when the suit for eviction was filed or it was disposed of, the plaintiffs were entitled to evict the defendant by merely serving valid notice under Section 106 of the Transfer of Property Act.
9. As I have already stated that the said notice is valid, the appeal is allowed, the judgments and decrees of the courts below are set aside and the suit of the plaintiffs is decreed. However, there will be no order as to costs.