Chhaganlal vs Chhaganlal

S.B. Sen J.

This is a landlord''s appeal against a tenant for ejectment The suit was brought the ground that the appellant was in bona fide need of the permises and also on the ground that the tenant had fallen into arrears and did not pay the rent within one month of the service of the notice.

The trial Court found that the land lord-appellant could not take advantage of clause 4 (g) of the Accommodation Control Act as he had some accommodation in the same locality. It also held that there was no default on the side of the tenant:to make payment. He further held that the notice of ejectment was valid. In appeal the learned District judge agreed with the trial Court regarding the need of the landlord to occupy the permises. He however held against the tenant about the tender of the arrears of rent.But the suit was dismissed broadly on the ground that the notice terminating tenancy was not valid. The landlord has now come up in second appeal.

The appellant first submitted that the genuine need of the landlord has not been appreciated by the court below. In view of the evidence given by the Engineer and also of the notice issued by the Municipality he contended that the courts below should have held that his need of premises was genuine.I do not think that this point can be agitated in the High Court. The finding about the genuine need of the premises is based on the evidence on record. The courts below did not find that the house was in such a condition as would require immediate repairs. In fact when a notice from the Municipality was received, the appellant had challenged the same before the court. There is therefore no substance in this ground.

As regards the validity of the notice, the facts are that Ex-P/4 notice was issued on 6th August by which the appellant land lord sought to terminate the tenancy of the respondent. The notice stated that the respondent should vacate on the 31st of August. It is not in dispute that the tenancy was from month to month according to Gregorian calendar and would terminate by the end of the months Normally therefore the notice was bad because it asked the tenant to vacate the premises within that month, The tenant has a right to remain on the premises immediately before the mid-night. It is only after the mid-night of 31st that the fresh tenancy begins. The notice therefore should have indicated that the tenant should vacate by the end of the tenancy month.

The learned counsel relied on a decision reported in AIR 1954, Nag. 292 (Rochaldas Vs. Ratanchand)in which the Division Bench of the Nagpur High Court has stated that a notice should be interpreted liberally and the court should give such construction as would not work a hardship on the tenant and Would not strain the language too much against the landlord. In that case their lordships were discussing a notice in which the exact date of termination of tenancy was not specified, but it was clear that the tenancy was to expire at the end of the month according to the English calendar. Their Lordships held that the notice was good. It will be clear from this ruling that their Lordships have no where stated that the termination of a tenancy on a specific date on which the tenant is entitled to remain as a tenant will be valid, if the period is very short viz. a day or a few hours. It is no doubt true that it does not mean very much when a tenant remains in the house for a day or two more or that the notice instead of 16 days is less than that, but the law has prescribed these limits with a view to apprise the tenant of the real position and if the legislature means otherwise it would not have expressed the words "by fifteen days" notice expiring with the end of a month of the tenancy". It may sound awkward to say that notice which says the tenant to vacate on 31st to be Invalid where if the notice stated that he should vacate by the end of 31st will be valid. The liberal interpretation should be to bring the notice in confirmity with the wordings of Section 106 T. P. Act, but if the notice is clear then there is no scope for giving a different meaning to come to a liberal decision.

The case reported in AIR 1953 Nag. 219 (Ilahibax Vs. Munirkhan) is to the point on which the appellate court has relied on.

In the decision of the Single Bench of this court reported in 1961 JLJ 401 (Pannalal Vs. Kalyanmal) there are observations to say that the tenant is entitled to two things, first he should have notice for a period equal to half the length of the term of the tenancy, secondly he should also be entitled, without prejudice to this right to say on till the end of a full month or a full year of the tenancy as the case may be This does not do away the necessity of the notice being observed strictly according to Section 106 Transfer of Property Act In that case his Lordship was discussing whether there was 15 days notice before the termination of the tenancy. But the dispute in the instant case is whether the notice which says the tenant to vacate on the last day of the month is valid or otherwise. I therefore, hold that the notice was not valid.

The learned counsel for the appellant however argued that there was an agreement by which the tenant could have been asked to vacate the premises even by an oral demand at any time and that Section 106 of the T. P. Act was applicable in the absence of any contact to the contrary, and it is not necessary for him to give notice strictly u/s 106 of the T. P. Act.

I do not think the appellant can urge this point in second appeal. This was never his case in courts below and new ground on fact can never be taken in second appeal. It will be necessary if the contention is to be allowed to find out what were the terms of the contract and under what circumstances it were applicable and the defendant could have stated if there were any conditions to the observance of that agreement or whether that agreement was broken.

In view of the fact that I am agreeing with the appellate court that the notice was not valid I need not give any dicision on the further points raised by the respondent that a relief against foreiture u/s 114 can be given.

The result is that the appeal is dismissed with costs. Counsel fee according to scale, if certified. Leave to file Letters Patent Appeal is refused.