Bhagwandas Dalchand vs Parma Kalua

A.R. Navkar, J.—This is a second appeal filed against the judgment and decree dated 15-3-77 passed by first Additional District Judge, Gwalior in Civil Appeal No. 11 of 1977 which was filed against the judgment and decree passed by Civil Judge, Class II, Gwalior in Civil Suit No. 27-A of 1973 passed on 18-4-1975.

The plaintiff/appellant filed a suit for eviction against defendant-respondent on the ground that the defendant is a tenant of plaintiff and the defendant has failed to pay the rent in spite of a notice given to him demanding the rent. The suit is filed u/s 12(1)(a) of the M. P. Accommodation Control Act.

The house in dispute was sold by defendant to plaintiff on 25-8-69 and he executed a rent-note on the same day for Rs. 100 per month. He paid the amount of rent to the extent of Rs. 1100 for eleven months and then he stopped paying the rent. A notice was given demanding the rent which notice is received by the defendant and the suit for recovery of the rent and eviction was filed on 13-3-73. At the time of filing of the suit, the arrears of rent amounted to Rs. 3200.

In the suit, the defence is that the plaintiff is not a landlord and the sale deed is a sham document. It was denied that any notice was given by the plaintiff and as such, the suit should be dismissed. The trial Court after taking evidence came to the conclusion that the plaintiff is the landlord, the house is sold by the defendant to the plaintiff which is evidenced by the sale-deed (Ex. P-1), that the defendant has executed a rent-note as alleged by the plaintiff in the plaint and the defendant has not paid the amount within the statutory period allowed by M. P. Accommodation Control Act for him to pay the rent. The trial Court also held that the notice is received by the defendant and therefore as the plaintiff has proved the ground u/s 12(1)(a) of the M. P. Accommodation Control Act, the suit was decreed. Against that, the defendant preferred an appeal. The appellate Court allowed the appeal partly and maintained the decree as far as arrears of rent and mesne profits are concerned, but dismissed the decree for eviction saying that the notice is not valid. Against that judgment and decree, the present appeal is filed.

The only submission made before me is that the appellate Court fell in error in holding that the notice was not given to the defendant as required under the law. The defect in the notice pointed out before me that the notice is not signed by the counsel of the plaintiff nor by the plaintiff himself. But it is surprising that the original notice is produced in the Court by the defendant himself. Therefore, the only question I have to decide is whether a notice which is not signed by the plaintiff or his counsel is valid or not and whether such a notice is sufficient to give plaintiff a ground u/s 12(1)(a) of the M. P. Accommodation Control Act.

The notice which is produced in the file by the defendant is not signed by S. D. Gupta Advocate or plaintiff. But it clearly mentions the name and address of the defendant. The notice also contains the name of the plaintiff, the rate of rent and the arrears also. It also shows that out of Rs. 3200 which is the arrears of rent the defendant has paid Rs. 1100. The only defect is that it does not show the signature of the party or the counsel. A similar question came for decision before this Court and it is held in Union of India v. Komal Chand 1966 M P L J 150 as under:

Where by mistake the counsel while sending notice u/s 77 of the Railways Act sent the unsigned office copy to the General Manager and retained the signed notice in his own record, it was not a case of ''defective notice'' but a case of inadvertent mistake and such an inadvertent mistake did not affect the validity of the notice if all other particulars including the address were correct and the sender''s address also was fully mentioned.

Therefore, relying on this ruling I hold that the notice which is sent by the plaintiff and which is produced by the defendant marked as Ex. D-1 is a valid notice u/s 12(1)(a) of the M. P. Accommodation Control Act.

The idea behind giving notice is considered by the Supreme Court in Beohar Rajendra Sinha and Others Vs. State of Madhya Pradesh and Others, . It lays down as under:

Section 80 is no doubt imperative; failure to serve notice complying with the requirements of the statute will entail dismissal of the suit. But the notice must be reasonably construed. Any unimportant error or defect cannot be permitted to be treated as an excuse for defeating a just claim. In considering whether the provisions of the statute are complied with, the Court must take into account the following matters in each case (1) whether the name, description and residence of the plaintiff are given so as to enable the authorities to identify the person serving the notice; (2) whether the cause of action and the relief which the plaintiff claims are set out with sufficient particularity; (3) whether a notice in writing has been delivered to or left at the office of the appropriate authority mentioned in the section; and (4) whether the suit is instituted after the expiration of two months next after notice has been served, and the plaint contains a statement that such a notice has been so delivered or left. In construing the notice the Court cannot ignore the object of the Legislature, viz. to give to the Government or the public servant concerned an opportunity to reconsider its or his legal position. If on a reasonable reading of the notice the plaintiff is shown to have given the information which the statute requires him to give, any incidental defects or irregularities should be ignored.

Therefore, as I have stated above, I hold that the notice is sufficient compliance u/s 12(1)(a) of the M. P. Accommodation Control Act and the finding of the appellate Court that notice was bad in law cannot be sustained and I reverse the same.

In this case, the substantial points which are framed as under:

(i) Whether incase where the original lease granted to the tenant has been determined by efflux of time and the tenant continues to remain in possession because of the protection granted by the Accommodation Control Act, is it necessary that the tenancy should be re-determined by notice u/s 106, CPC ?

(ii) Whether in the circumstances of the case, the tenant can be said to be a tenant holding over u/s 116, Transfer of Property Act ?

As these two substantial points are framed in this case I will have to consider the case with respect to these two points also. These points came before the Supreme Court in Firm Sardarilal Vishwanath and Others Vs. Pritam Singh, . It was held in that case that where on the expiry of the period reserved by the lease, the tenant continued in possession and except for the acceptance of rent after the lease was determined by efflux of time, nothing was pointed out to show that the lessor bad otherwise assented to the lessee continuing in possession so as to infer the renewal of lease, the lessee is indisputably a statutory tenant and cannot seek any assistance from the provisions contained in section 116. An action for ejectment against such tenant u/s 13 of the U. P. Urban Rent Restriction Act cannot fail for want of notice u/s 106, Transfer of Property Act. It may be added here that in this case the rent-note there is a contract to the contrary. So also, after the period given in the rent-note is over nothing has been shown by the defendant that the landlord assented his continuance as a lessee. Therefore, there is nothing to come to the conclusion that section 116 of the Transfer of Property Act is applicable to the present case. In the rent note, it is mentioned that no notice u/s 106 of the Transfer of Property Act is necessary. I hold that the plaintiff was not required to give any notice u/s 106 of the Transfer of Property Act terminating the tenancy of the defendant.

The result therefore, is that the appeal is allowed, the judgment of the appellate Court is set aside, and that of the trial Court is restored.

One more point I will have to consider and that is that the tenant has denied that the plaintiff is landlord. In the file there is no order by the trial Court u/s 13 of the M. P. Accommodation Control Act. Therefore, in the natural course, I would have given a direction to deposit the arrears of rent within a particular period to the tenant so that he may get protection u/s 13 of the M. P. Accommodation Control Act, if he so chooses. But the learned counsel appearing on behalf of respondent submitted that his client has already vacated the house, and therefore there is no need of passing such an order. Looking to the circumstances of the case, as the plaintiff has already got possession of the house I do not feel that the defendant should be saddled with costs. Parties shall bear their own costs.