Patna High Court
Mohammed Indris Mian vs Doman Sah on 23 August, 1977
Equivalent citations: AIR1978PAT82, AIR 1978 PATNA 82
Author: Nagendra Prasad Singh
Bench: Nagendra Prasad Singh
JUDGMENT Nagendra Prasad Singh, J.
1. Defendant is the appellant in this second appeal. The plaintiff-respondent filed a suit for eviction of the appellant from a house in which the appellant was a monthly tenant at a rental of Rs. 25/-. According to the plaintiff, the defendant had agreed to pay the aforesaid amount in the first week of the month following for which the rent became due. but later he defaulted in the payment of rent, and, as such, he was liable for eviction. A notice under Section 106 of the T. P. Act (hereinafter to be referred to as the Act) was sent by the plaintiff as the karta of the family to the defendant through registered cover, but the defendant refused to receive the same on 13-6-1969. In that notice, the plaintiff had asked the defendant to vacate the house by 30th June, 1969. When the defendant did not vacate the house in question by that date, the plaintiff filed the suit in question in the Court of learned Munsif. Arrah for eviction of defendant. The defendant appeared and his defence, inter alia, was that he was owner of a portion of the house in question, and, as such, there was no question of the house being in his possession as a tenant or the defendant having defaulted the payment of rent.
2. Learned Munsif, on a consideration of materials on record, came to the finding that there was relationship of landlord and tenant between the plaintiff and the defendant. He also held that the notice under Section 106 of the Act was validly sewed on the defendant and as the defendant had not paid rent to the plaintiff, he was liable to be evicted. The appeal filed on behalf of the defendant was dismissed by the learned Subordinate Judge affirming the findings of the learned Munsif; hence, this second appeal.
3. Learned counsel appearing for the appellant submitted that in the facts and circumstances of the present case, the tenancy in question was never terminated in accordance with the provision of Section 106 of the Act so as to give cause of action to the plaintiff for filing the suit in question. In this connection, learned counsel has drawn our attention to the notice under Section 106 of the Act (Ext. 2). That notice is in Hindi addressed to the defendant saying that the house in question had been given to the defendant at a rent of Rs. 25/- per month and as the defendant was not paying the said rent since Jan.. 1967 and also as the house was required for the personal use of the plaintiff, the notice was being given to the defendant to vacate the house in question by 30th June, 1869 so that the plaintiff may occupy the same by 1-7-1969. It has been also mentioned that if the defendant did not vacate the house in question by the date given therein, then the plaintiff will be forced to take legal steps. Learned counsel appearing for the appellant has pointed out that nowhere in the notice it has been stated that the monthly tenancy was being terminated by that notice which is a must for a notice under Section 106 of the Act. Learned counsel has submitted that Section 106 requires the lease to be terminated by a notice contemplated under that section and it cannot be terminated merely by asking the defendant to vacate the premises in question. It is now almost settled that before a suit for eviction can be filed against a lessee or a tenant, the lease has to be terminated. If the contention of the learned counsel appearing for the appellant is accepted that when a notice simply asks the lessee or a tenant to vacate the premises in question, there is no termination of the lease then the necessary corollary thereof will be that the suit of the plaintiff was not maintainable.
This leads to the question as to whether in a notice under Section 106 of the Act it has to be specifically stated that the lease was being terminated, in cases of yearly lease by the end of a year of the tenancy and in cases of monthly lease with the end of the month of the tenancy. Learned counsel in support of this proposition has drawn our attention to certain decisions of the Allahabad High Court. The earliest decision, which is on the point and has been referred to, is a Full Bench decision, Bradley v. Atkinson ((1885) ILR 7 All 899) (FB). In that case the landlord had given a notice to the tenant saying that the rooms in question were in his possession and if those rooms were not vacated within a month from that date, he would file a suit against him for ejectment as well as for recovery of rent. Thereafter, the suit in question was filed. It was held therein with reference to the terms of Section 106 of the Act it was not a notice as required by law inasmuch as it was not a notice of the lessor's intention to terminate the contract at the end of the month of tenancy. Straight, J., observed that it was merely a demand for possession of the premises. For the purpose of holding that notice was invalid, certain other circumstances were also pointed out including that no date was specified, which was a must in view of the provisions of Section 106 of the Act. Again, in the case of Ahmad Ali v. Jamal Uddin (AIR 1963 All 581), a Bench of the Allahabad Hieh Court, after referring the aforesaid Full Bench decision ((1885) ILR 7 All 899) (FB), observed:--
"A notice terminating the tenancy may include a demand for possession but a notice only demanding possession cannot be interpreted as a notice terminating the tenancy."
However, in that case, on proper construction of the notice it was held that the tenancy had been terminated. In the case of Hakim Ziaul Islam v. Mohd. Rafi (AIR 1971 All 302) a learned single Judge declared a notice under Section 106 to be invalid because the landlord had determined the tenancy in question with effect from the date of notice and had asked the tenant to deliver possession within a month from the date of receipt of the notice. It was held that as the tenancy was purported to be terminated on the date of notice, it was invalid under Section 106 of the Act. Learned counsel has also referred to another decision of Allahabad High Court in the case of Farooq Ahmad v. Muneshwar Bux Singh (AIR 1972 All 155) where a learned single Judge held a notice to be invalid in which the landlord had called upon the tenant to deliver possession on a particular date after receipt of the notice holding that the tenancy had not been terminated. Apparently, these cases help the contention raised on behalf of the appellant, but I shall immediately indicate that on proper consideration it cannot be accepted.
4. The English Law has recognised the principle that court should make lame and inaccurate notices sensible where the recipient cannot be misled as to the intention of the giver and it has been pointed out that a liberal construction should be put upon a notice to quit in order that it should not be defeated by the inaccuracies of the descriptions. Reference in this connection may be made to the cases of Doe d. Hunting-tower v. Culliford ((1824) 4 Dow. and Ry. (KB) 248), Doe d, Williams v. Smith ((1836) 5 Ad & E 350) and Wride v. Dyer ((1900) 1 QB 23). The Privy Council had also the occasion to consider this aspect of the matter in the case of Harihar Banerji v. Ramshashi Roy (AIR 1918 PC 102) where it was observed that while construing the notice under Section 106 of the Act the principles laid down by English Courts should be followed. In that connection it was observed by Lord Atkinson (at p. 107):
"If this were a case arising in England the English authorities would therefore be applicable. It has not been suggested, and could not their Lordships think, be successfuly contended, that the principles they lay down are not equally applicable to cases arising in India. They establish that notices to quit, though not strictly accurate or consistent in the statements embodied in them, may still be good and effective in law; that the test of their sufficiency is not what they would mean to a stranger ignorant of all the facts and circumstances touching the holding to which they purport to refer, but what they would mean to tenants presumably conversant with all those facts and circumstances, and, further, that they are to be construed not with a desire to find faults in them which would render them defective but to be construed ut res magis valeat quam pereat."
Of course, liberal construction must not ignore the fact that the provision is for the benefit of the lessee and a construction which deprives the tenant of minimum period of notice stipulated in this section is not permissible. But if in substance and spirit, there has been a compliance of Section 106 of the Act in the notice, then Courts have always upheld such notices. It appears that after the aforesaid judgment of the Privv Council different Courts in India have repelled the arguments raised for holding notices to be invalid, where it is possible to construe them as having complied, in substance, the requirement of Section 106 of the Act. Most of the cases relied on behalf of the appellant are based on the observations made in the aforesaid Full Bench decision ((1885) ILR 7 All 899) (FB) and and have not noticed the decision of the Privy Council which has been followed by almost all High Courts in India, including the Allahabad High Court.
5. In the case of Tika Ram v. Sri Thakur Dooji Maharaj (AIR 1934 All 787) a Bench presided over bv Sulaiman. C.J. and Mukherji, J. held a notice which was given on 9th Nov., 1927 asking the lessee to vacate by 13th May, 1927 to be valid because '1927' was held to be an accidental mistake for 1928'. After re-ferrins to the aforesaid Privy Council judgment (AIR 1918 PC 102), it was observed therein that such notices should be liberally construed and the only point to be considered in respect of such notices is as to whether the person on whom the notice was served could understand what was really meant by the notice. In the case of Ganga Prasad v. Prem Kumar Kohli (AIR 1949 All 173), a learned single Judge of Allahabad High Court, on the basis of the ratio of the aforesaid Privy Council judgment, held a notice to be valid which was not strictly in accordance with Section 106 of the Act, but the Court was satisfied that the appellant had fully understood the same as to what was meant by the notice. The same view has been expressed in the cases of Secy, of State v. Madhu Sudan (AIR 1933 Cal 260), A. S. GnanaPrakasam Pillai v. F. S. Vaz. (AIR 1931 Mad 352); Utility Articles Manufacturing Co. v. Motilal Bombay Mills Ltd. (AIR 1943 Bom 306), Aidew Sandiaue v. B. B. Bharadaj (AIR 1956 Assam 96); Gayaprasad Ganpatlal v. S. S. Munnilal Narayan Prasad (AIR 1952 Nag 101), Ayisabeevi v. Aboobacker (AIR 1971 Ker 231) and V. Kamalaksha Pai v. Keshava Bhatta (AIR 1972 Ker 110). A learned single Judge of this Court has also expressed a similar view in the case of Baijnath Pandit v. Smt. Narvada Devi Kejariwal (AIR 1973 Pat 286). Even the Supreme Court in the case of Mangilal v. Sugan Chand (AIR 1965 SC 101). made a reference to the aforesaid judgment of the Privy Council (AIR 1918 PC 102) and upheld a notice where period of more than 15 days had been given to the defendant to vacate the premises. The Supreme Court, however, pointed out that the matter will be different where minimum period contemplated by Section 106 of the Act is not mentioned in the notice, then that notice cannot be upheld even on the basis of the ratio of the Privy Council. It appears that most of the Courts in India have followed the principles laid down by the Privy Council in the aforesaid judgment, including the Allahabad High Court in its earlier judgments. Unfortunately, in the later judgments of the Allahabad High Court, the aforesaid Privy Council judgment was not noticed. If that principle is applied, then it has to be held that the notice in question cannot be held to be invalid merely because the term "the tenancy is being terminated" has not been used in the same. In my view, when the plaintiff after having said that the defendant had failed to pay the rent for several months and that the house in question was being required by the plaintiff for his personal use, asked the defendant to vacate the same, it will be deemed that the tenancy had been terminated as required by Section 106 of the Act, although it was not said in so many words. The defendant has not complained at any stage that he could not understand by that notice that his tenancy has been terminated. In such a situation, in my opinion, it is difficult to accept the contention raised on behalf of the appellant that the tenancy was never terminated so as to give cause of action to the plaintiff to file the suit in question.
6. It was then submitted that the notice under Section 106 of the Act is said to have been served on 13-6-1969, but there is no material on the record to show that it was actually served on that date. This aspect of the matter has been considered by the court of appeal below in para. 17 of its judgment and it has come to the conclusion that it was served on 13-6-1969. It is a finding of fact and the appellant cannot challenge the same before this Court.
7. Learned counsel also submitted that the plaintiff could not have given a notice under Section 106 of the Act to the defendant because it has been stated in the plaint that the house had been let out to the defendant by the nephew of the plaintiff. Learned counsel further submitted that although the plaintiff has stated in para. 6 of the plaint that he was the karta of the family, but in view of the averment in the plaint that the house was let out by this nephew, all the co-sharers should have been impleaded as party to the suit. In support of this contention, learned counsel placed reliance on the case of Indu Bhusan Bose Choudhry v. Hari Bhajan Singh (1976 BBCJ (HC) 141) : (AIR 1976 Pat 282); Arun Chandra v. Panchu Modok (AIR 1957 Assam 70) and Vagha Jesing v. Manilal Bhogilal (AIR 1935 Bom 262). In my view, this point cannot be urged for the first time before this Court. No such objection was taken in the written statement. No issue was framed on the question as to whether the suit by the plaintiff in absence of his other co-sharers was maintainable or not. The plaintiff has asserted in the plaint that he was the karta of the family. If that statement would have been challenged in the written statement, perhaps, the court below would have gone into that issue. In such a situation I am not inclined to entertain this objection at this stage.
8. Lastly, it was urged on behalf of the appellant that he being the owner of one-third share in the house in question cannot be evicted. In this connection, learned counsel mentioned different documents and evidence adduced on behalf of the defendant. It appears that in the year 1948, an agreement had been entered, to sell the house in question, between the defendant and one Bibi Mariam. It has been further stated that earlier to the agreement aforesaid Bibi Mariam had filed a money suit against one Dhaneshwar, the third brother of the plaintiff, which was decreed and one-
third share of Dhaneshwar in the house was sold and was purchased by Bibi Mariam. On the basis of the agreement, the defendant filed Title Suit No. 85 of 1949 for specific performance of contract, which was decreed on 9-3-1950. It is said that the defendant got possession over the whole house in execution of that decree sometime in the year 1950 or 1951. This very argument had been advanced before the Courts below saying that there is no relationship of landlord and tenant and the Courts below, on a consideration of the evidence on the record, have held that the defendant was inducted as a tenant in the house on a monthly rental of Rs. 25/- and he did not come in possession of the house on the basis of the delivery of possession effected in the earlier suit. In my view, it is difficult to interfere with the said finding. Learned counsel could not explain as to how having purchased only one-thrid share in the house at the sale held in execution of the decree, the defendant came in possession of the whole house. The Courts below have discussed the evidence in detail and have negatived the claim of the defendant that he came is possession of the whole house on the basis of such sale in the execution proceeding. Once it is held that the defendant was inducted as a tenant in the house, then it is difficult to accept the contention of the learned counsel that the suit for eviction filed on behalf of the plaintiff was not maintainable.
9. In my opinion, there is no merit in this appeal, and it is, accordingly, dismissed. In the circumstances of the case, however, there will be no order as to costs.
P.S. Sahay, J.
10. I agree.