Narayana Pai vs John

Sadasivan, J.—The C. R. P. arises from a proceeding under the Kerala Buildings (Lease and Rent Control) Act 2 of 1965 (shortly stated the Act). The revision petitioner-landlord, applied for eviction undefi Section 11 of the Act on ground of arrears of rent, reconstruction, and bona fide requirement for own occupation. The Controller found against the landlord on all these points and dismissed the petition. On appeal however, the order of the Rent Controller was set aside, and eviction was ordered u/s 11 (3) namely, bona fide requirement for own occupation. The judgment of the Appellate Authority having been upheld in revision by the learned District Judge, the tenant has come up in further revision. The building sought to be recovered in these proceedings is building No. 8571 in Ward No. XTV of the Ernakulam Municipality (now within the Cochin Corporation). In resisting the claim u/s 11 (3) the tenant pointed out that building No. 8570 just close to No. 8571 belongs to the landlord and is available for his occupation and therefore, the first proviso to Section 11 (3) is attracted and unless special reasons are made out by the landlord no eviction could be ordered. But on behalf of the landlord it was stated that building No. 8570 by itself is inadequate to accommodate his family consisting of 8 members including school-going and college-going children, unless he gets building No. 8571 also. This question was considered in all its aspects by both the appellate authority, and the District Judge in revision, and they have concurrently found that the landlord''s requirement is bona fide and has to be upheld. In the wake of this concurrent finding of fact by the courts below, we do not see the justification for going into the question over again.

The more important question on which the learned Counsel focussed his attention and which has been referred for our decision by the learned Single Judge, is whether the petition for eviction could be maintained in the absence of a notice terminating the tenancy. The case of the revision petitioner is that the tenancy should be treated as one from month to month and being thus a subsisting contractual tenancy, no eviction could be sought without first determining the tenancy by a notice as contemplated in Section 106 of the Transfer of Property Act. Such a notice according to the learned coun-tel is lacking in the present case. But according to the landlord, the requisite notice was given before he initiated proceedings for eviction and that notice is Ext. D-5 in the case. Receipt of Ext. D-5 is not disputed. The case of the tenant however, is that Ext. D-5 does not satisfy the requirements of Section 106 of the Transfer of Property Act, in that it does not intimate the tenant in so many words of the determination of the tenancy and also that the 15 days do not expire with the end of a month of the tenancy. It is only a notice demanding surrender of the building. According to the learned counsel, a notice strictly in accordance with Section 106 is essential for bringing to an end the relationship of landlord and tenant and unless the relationship is validly terminated the landlord docs not get the right to obtain possession of the premises by evicting the tenant.

It is now well settled that in a contractual tenancy the lease must be determined before the landlord can maintain an action for the tenant''s eviction, u/s 11 of the Act. The Madras High Court held in Krishnamurthy v. Parthasarathy AIR 1949 Mad 780 that the Transfer of Property Act has no place in the scheme of procedure laid down in the Buildings (Lease & Rent Control) Act and that an application for eviction can be made to the Controller before the tenancy has been determined by a notice to quit. The Supreme Court overruling this decision has held in Manujendra Dutt Vs. Purendu Prosad Roy Chowdhury and Others, that before a tenant could be evicted by a landlord, he must comply with both the provisions of Section 106 of the T. P. Act and those of the relevant sections of the Tenancy Act (Calcutta Thika Tenancy Act 2 of 1949). The Court observed:--

"The Thika Act like other Rent Acts enacted in various States impose certain further restrictions on the right of the landlord to evict his tenant and lays down that the status of irremovability of a tenant cannot be got rid of except on specific grounds set out in Section 3 of the Thika Act. The effect of the non obstante clause was that even where a landlord has duly terminated Contractual tenancy or is otherwise entitled to evict his tenant he would still be entitled to a decree for eviction provided that his claim for possession falls under one or more of the grounds in Section 3."

The same view was taken by the Supreme Court in an earlier decision Mangilal Vs. Suganchand Rathi, . There the Court held:--

"The requirement of Section 106 of the T. P. Act is that a lease from month to month can be terminated only after giving 15 days'' notice expiring with the end of the month of the tenancy either by the landlord to the tenant or by the tenant to the landlord. Such a notice is essential for bringing to an end the relationship of landlord and tenant. Unless the relationship is validly terminated the landlord does not get the right to obtain possession of the premises by evicting the tenant."

It is thus clear that in a contrac-| tual tenancy, determination of the tenancy by notice is a condition precedent to sustain an action by landlord for eviction. Position might be different in a statutory tenancy, where the tenant holds over or remains in possession after the expiry or determination of the contractual tenancy. So also, in cases where the lease terminates by one or other of the methods for its determination as provided in Section 111 of the T. P. Act. When a lease is determined by such method, the lessor gets back the right to possession of the property. We are not concerned with any such termination of the lease in the instant case. Here the tenancy being contractual, has to be terminated by notice before action is launched for eviction.

But in the present case as stated already a notice to quit was in fact, issued before eviction proceedings were initiated and that fact was mentioned in para 6 of the petition. The notice was accepted and Ext. P-2 was sent by the tenant by way of reply. The argument therefore that the entire proceeding is vitiated by utter lack of juriduc tion is not available to the tenant. In his counter no point was made by the tenant against the averment in para 6 of the petition. Except raising the omnibus plea that the petitioner has no cause of action, nothing else was said by him in the counter, to meet the above averment. Before the appellate authority also he kept mum over the point. The awareness came only when he reached the revisional Court, and the learned District Judge was disinclined -- and we think rightly -- to countenance the plea, as it was raised for the first time in that Court. Learned counsel in reiterating the plea before this Court, would point out that the contention is purely legal and as it goes to the root of the matter the Court below went wrong in brushing it aside on the ground that it was not taken in the pleadings. Counsel also stated that being a mailer pertaining to jurisdiction, failure to plead it specifically is of no consequence and even without a pleading, the Court was obliged to go into it and pass appropriate orders to mete out justice to the tenant. We are unable to agree. The contention centres virtually round the sufficiency of the notice, and not want of notice. The point is, that the notice is lacking in the necessary particulars which alone would clothe it with the garb of a notice u/s 106; the essential ingredient viz., the determination of the lease, is lacking in it. A case where there is no averment at all in the petition that notice to quit was issued, has to be distinguished from one where notice is admitted to have been issued but with insufficient or inadequate particulars. The former might amount to a question of law going to the root of the matter, allowable to be raised for the first time in the appellate or revisional court, hut the laiter has to be treated as a mixed question of fact and law, not permis-sible to be raised like that for the first time in the appellate or revisional Court.

In Yeruva Chinnapa Reddi Vs. Rai Bahadur P.V. Srinivasa Rao Garu, Official Receiver, a distinction was drawn between an inherent want of jurisdiction in which case a decree would be absolutely void and want of jurisdiction on grounds to be determined by the Court itself, in which case the decree could be set aside by collateral proceedings. In K.S. Nageswara Aiyar Vs. S. Ganesa Aiyar, it Was said that "if the question which is al-leaed to create the want of jurisdiction is one which the Court is bound to decide, the matter is not one relating to jurisdiction."

Tn the case before us the want of jurisdiction is a matter which the Court had to decide on the materials pleaded before it or made available, and when there is no pleading it is possible to argue that objection To exercise of jurisdiction was even waived. On the other hand if the defendant had derperred to the validity of the notice at the proper time, the plaintiff could have availed himself of the opportunity and pleaded to the sulliciency of the notice saying that his intention in issuing the notice was to terminate the tenancy. The Judicial Committee of the Privy Council observed in ATR 1918 PC 102 that notice to quit though not strictly accurate or consistent in the statements em-b''vlicd 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 torching the holding to which they purport to refer, hut what they would mean to tenants presimably 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 vateat quam pereat'' (it is better for a thing to have effect than to be made void)." Thus the sufficiency or otherwise of the notice is more a question of fact than of law and failure to plead it must be said to be fatal to the tenant''s cause. The correctness ot otherwise of the plea against sulliciency of the notice is a different matter. When it is a matter to be decided by the Court that has to be pleaded and not to fight shy of it or leave it as it is in the hope that the Court Would unearth it and do justice.

The matter was considered recently by the Supreme Court in Gouri Shankar v. Hindustan Trust 1972 1 SCWR 916 at p. 923). The following observations appearing therein, are pertinent in this connection:--

"Ultimately when the suit for eviction was filed in 1959 it dragged on for several years. Tn the written statement which wai originally filed no plea was taken that a valid notice to terminate the contractual tenancy had not been served and therefore the petition for eviction was not maintainable. The respondent waited for 8 years before seeking an amendment to include a plea on the absence of such a notice. The trial Court did allow the amendment but in out opinion no such amendment should have been allowed on account of the gross delay and laches on the part of the respondent in raising such a plea. In such matters it must be remembered that if a technical plea of the nature sought to be raised had been raised at an earlier stage the appellant could have withdrawn the petition for eviction with liberty to file another petition after serving the requisite notice. By not raising that plea for nearly 8 years a great deal of prejudice was causd to the appellant. It has been pointed out by Mr. Chagla on behalf of the respondent that an appeal was competent against the order allowing amendment u/s 38(1) of the Rent Act and since no such appeal was filed the order allowing amendment became final. Without expressing any opinion whether such an order could be appealed against and on the assumption that an appeal was competent the question still remains whether the learned Judge of the High Court while allowing a point to be raised after it had been abandoned before the Rent Control Tribunal should or ought to have taken this fact into consideration and in combination with other facts should have disallowed any argument on the question of the invalidity of the notice. In ou" judgment the course the litigation between the parties had taken and the manner in which the plea was sought to be raised by an amendment after eight years of the institution of the eviction petition and further the abandonment of any contention based on that plea before the Rent Control Tribunal were more than sufficient to persuade the Court that any argument based on the absence of valid notice should not have been allowed."

So also in the present case as already indicated, the plea of want of notice was never raised by the tenant at the trial or before the appellate authority, even though the issuance of notice was definitely averred in the petition for eviction. The argument that being a question going to the very root of the matter, the party could raise it at any stage of the proceedings is not available for reasons already stated. Before the revisional Court of course the plea was raised. The learned District Judge, after considering the plea on its merits, stated finally that the plea is not entertain able for the first lime before her. The learned Judsie observed:--

"In such a case the plea that Ext. D5 does not satisfy the requirements of Section 106 of the T. P. Act cannot be entertained for the first time by this revisional Court." We think in the circumstances of the case, that the discretion vested in the learned Judge, has properly been exercised. In such a situation this Court will not normnlly interfere in revision even if the discretion has wrongly or improperly been exercised.

"An improper or wrong exercise of discretion is not a ground for interference u/s 115 C. P. C. But when the discretion is exercised perversely or on wrong principles so as to cause serious prejudice to a party, the High Court will be justified in interfering with it. AIR 1956 Bom 60S and AIR 1956 Ori 65

We see no reason to think that the discretion was perversely exercised, so as to interfere with the order of the learned Judge. The result therefore, is that the revision fails and has to be dismissed. The C. R. P. is therefore, dismissed; but in the circumstances without costs. As agreed to by the respondent, the petitioner is given three months" time from this date, to vacate the building.