Om Parkash and Others vs Hari Ram and Another

Jaswant Singh, J.—Shri Om Parkash alias Vidya Prakash, Sat Prakash and Shakti Prakash sons of Ganga Ram, Mahajan, residents of

Udhampur, brought a suit in the Court of the Subordinate Judge, Udhampur, against Shri Hari Ram and Shiv Ram sons of Narsingh Dayal,

Mahajan, residents of Udhampur for ejectment of the latter from the shop premises described in paragraph 1 of the plaint on the ground that the

premises were required by them i.e. the Plaintiffs for their personal occupation.

The suit was resisted by the Defendants-Respondents, inter alia, on the ground that the notice as required u/s 106 of the Transfer of Property

Act had not been duly served on them, that the shops were not reasonably required by the Plaintiffs for their own use and occupation and that the

suit had bean brought with the ulterior object of enhancing the rent of the premises.

On the pleadings of the parties, the following issues were framed by the learned trial Court:

1/- Whether the shops in dispute are required by the Plaintiffs for their personal use?

2/- In case issue No. 1 is proved in the affirmative and a decree for ejectment passed what would be the comparative advantages and die-

advantages to the parties? O.P.P.

3/- Whether the notice is according to law? O.P.P.

4/- Relief.

After examining the witnesses produced by the Plaintiffs and hearing the arguments advanced on their behalf, the learned trial Court decreed the

suit holding that the suit shops were reasonably required by the Plaintiffs for their own personal use and occupation that the Plaintiffs would be

comparatively in a more disadvantageous position than the Defendants If they failed to get the shops, that to mitigate the hardship likely be caused

to the Defendants because of the ejectment they could if they so liked be given some time to make alter native arrangement, that 15 days notice as

required by the mandatory provisions of Section 106 of the Transfer of Property Act had been duly given, that section 106 was subject to a

contract to the contrary, and that in any event the words used in the rent note amounted to a contract to the contrary, and the suit shops under the

terms of the rent note were to be vacated forthwith whenever needed by the Plaintiffs' and therefore 15 days notice ending with the month of the

tenancy was not required.

On appeal the learned District Judge Udhampur held that the Plaintiffs had not been able to prove the ingredients of Section 11(1)(h) of the

Houses and Shops Rent Control Act read with the Explanation thereto and thus had not been able to show that they reasonably required the shops

for their own use and occupation, that the requirement of the Plaintiffs in the present case could not be called a reasonable requirement in terms of

the aforesaid provisions of the Houses and Shops Rent Control Act, that the shops were at best only required by Om Parkash Plaintiff who had

only 1/3rd share in the shops, that the disadvantages to which the Defendants would be put by their ejectment outweigh the advantages that would

accrue to the landlords by getting possession of the suit shops, and that 15 days clear notice to vacate the shops had not been given. With these

findings the learned District Judge set aside the judgment and decree of the trial Court and dismissed the suit. It is against this judgment and decree

of the learned lower appellate Court that Om Parkash one of the Plaintiffs has come up in second appeal to this Court.

The only point urged by Chowdhry Inder Das, appearing in support of the appeal is that the lower appellate Court has erred in holding that 15

days notice was required to be given. He has contended that the rent note dated 5-8-2008, (Samvat) does not fix any time limit, that notice u/s

106 of the Transfer of Property Act is required only in the absence of a contract to the contrary, that the words [Original in Urdu translated as ft

o[r ekydku dks t:jr gksxk nqdkukr QkSju [kkyh djds gokyk ekydku dj fntk;xh used in the rent note amounted to a contract to the contrary within

the meaning of Section 106 of the Transfer of Property Act and created a tenancy at will for which no notice was required, that only a demand for

surrender of possession of the premises was required and that the Defendants were bound to vacate the shops as soon as the Plaintiffs demanded

the same. He has in support of his contention referred me to the rulings reported in Raman Lal Vs. Bhagwan Das, , Chauthmal Vs. Sardarmal and

Others, and AIR 1959 J and K 87. He has, however, admitted that the notice dated 28-4-1966 given to the Defendants for vacating the suit

shops which was delivered on 30-4-1966 requiring them to vacate these shops by the midnight of 31-1-2023 corresponding to 13th May 1966

was not 15 days notice.

The learned Counsel for the contesting Respondents has on the other hand urged that the tenancy though not for a fixed term was from month to

month, the aforesaid words of the rent note did not amount to a contract to the contrary as conceived by Section 106 of the Transfer of Property

Act and that 15 days notice expiring with the data and month of the tenancy was imperative under the mandatory provisions of Section 106 of the

Transfer of Property Act. The learned Counsel has in support of his submissions relied on a ruling of Saurashtra High Court reported in AIR 1953

Sau 119.

The only point that I am called upon to decide in the present case is whether the words: [Original is Urdu omitted.] have the effect of creating a

tenancy-at-will and amount to a contract to the contrary within the meaning of Section 106 of the Transfer of Property Act or not.

For creation of a tenancy-at-will it is necessary that the language used in the lease deed must be unequivocal and the lease deed should not only

authorise the landlord to determine the tenancy but the tenant should also agree unconditionally to vacate the premises at any time when called

upon to do so by the landlord. The words quoted above did not, however, in my opinion give the landlords an option to terminate the tenancy

which was for uncertain term whenever they desired. The word QkSju* on which great stress has been laid by the learned Counsel for the

Appellant has to be interpreted with reference to the context in which it occurs. The mere use of this word regardless of its context cannot be held

to create a tenancy at will and to constitute a contract to the contrary within the meaning of Section 106 of the Transfer of Property Act. The word

QkSju* as used in the above context has no independent existence but is qualified by the further condition that the shops should be required by the

Plaintiffs i.e. the surrender of vacant possession of the shops has been made contingent upon the necessity for their occupation by the landlords.

The decisions relied upon by the learned Counsel for the Appellants are clearly distinguishable and do not support his contention. The case

reported in Raman Lal Vs. Bhagwan Das, , was a case of lease for 11 months with a provision giving the landlord the option of terminating the

tenancy at his will by giving the tenant one month's notice to quit. The lease deed also gave a reciprocal option to the tenant to vacate the premises

after giving one month's notice to the landlord. Further in this case tenant died after expiry of the period fixed in the lease deed with the result that

the lease terminated with his death.

In Chauthmal Vs. Sardarmal and Others, , though the Qabuliat. was executed for five years, the term or the lease was limited conditionally on

the happening of some event and the case, therefore, fell under Clause (d) of Section 111 of the Transfer of Property Act. In this case distinction

was drawn between cases in which the term of the lease is limited conditionally on the happening of some event and cases in which the term is

defeated on account of default on the part of the lessee.

In the case reported In AIR 1959 J and K 87 (S.B.) the rent deed executed by the tenant expressly provided that he would be liable to vacate

the house when an intimation of two weeks was given to him by the landlord and a similar right to put an end to the tenancy giving two weeks

intimation in advance to the landlord was reserved in favour of the tenant as well and these express stipulations were held to amount to a contract

to the contrary and to have the effect of overriding the mandatory provisions of Section 106 of the Transfer of Property Act, regarding notice.

In Keshava Lal Vir Chand v. Bai Ajawali Vachdharaj AIR 1953 Sau 119, even the condition in the rent note that the tenant would deliver

vacant possession to the landlord without delay whenever the landlord made a demand for vacating the lease premises was held not to amount to a

contract to contrary and it was observed that the tenancy could only be terminated by 15 days notice expiring with the end of the month of the

tenancy.

In the instant case the terms of the rent note required the landlords to establish that the shops were required by them i.e. reasonably required

by them for their personal use and the tenants also have not unconditionally agreed to quit the premises. As the tenancy in the present case is not a

tenancy-at-will and the words quoted above and used in the rent note do not constitute a contract to the contrary, a formal notice to quit u/s 106

of the Transfer of Property Act was essential.

For the foregoing reasons, I find myself in agreement with the finding of the learned lower appellate Court that notice under the mandatory

provisions of Section 106 of the Transfer of Property Act was imperative and the same not having been served the tenancy had not been lawfully

terminated.

Chowdhry Inder Das has in conclusion submitted that in case I did not agree with his contention regarding the validity of the notice he should

be allowed to withdraw the suit with liberty to file a fresh one after giving a valid notice as required by Section 106 of the Transfer of Property Act.

To this course Sri Ishwar Singh, the learned Counsel appearing on behalf of the contesting Respondents has no objection. As the suit is to fail

because of the invalidity of the notice, I think, I should accede to the submissions of the learned Counsel for the Appellant. Keeping in view,

however, the facts and circumstances of the case, the withdrawal of the suit with liberty to institute a fresh one, should, in my opinion, be permitted

only on payment of Rs. 100/- (one hundred) as costs to the other side. I, therefore allow the Plaintiffs to withdraw their suit with liberty to bring a

fresh one in respect of the subject-matter thereof on payment of Rs. 100/- as costs to the Defendants i.e. the contesting Respondents. The appeal

is disposed of accordingly.