Parshotam Lal vs Kalayan Singh and another

Anant Singh, J.—This second appeal is directed against the judgment and the decree of the learned District Judge, Jammu, dated 24th

October, 1969, decreeing the plaintiffs suit for ejectment from a shop after reversing the judgment of the trial court, being the Munsiff, Judicial

Magistrate, Jammu, dated 22nd May, 1969, whereby he had dismissed the plaintiffs suit.

The suit was filed on 2-5-66, for ejectment of the defendant, Parshotam Lal, from a shop situate at Parade ground, in the City of Jammu, on the

ground of personal necessity within the meaning of Section 11 of the Jammu and Kashmir Houses and Shops Rent Control Act, 1966, Act No.

XXXIV of 1966 referred to hereafter as the Act.

The plaintiff has a number of sons in service, and some sons reading in school at Jammu. He has his residence at Jammu, but he has been

carrying on business of grocery (Kerana) at Qazikund, near Srinagar, for the preceding ten years. It was alleged that as he was not keeping

physically fit at Qazikund, he wanted to shift his business to Jammu, and, therefore, he required this shop for his personal business. Several issues

were raised before the trial court. One of them was issue No. 5, whether the defendant was served with any valid notice for vacating the shop.

Other issue was issue No, 4, to the effect, whether the plaintiff reasonably required the shop, and if his requirement was more than that of the

defendant.

It was urged on the defendant's behalf that he had no other source of income, except the business, which he has been carrying on in this shop,

and in the event of his ejectment, his family, consisting of 4 children, and his wife would be thrown on the street.

The learned Munsiff decided both these issues Nos. 4 and 5 in favour of the defendant, against the plaintiff.

The learned Munsiff, on issue No. 5 has found that a notice was necessary, but no notice was proved to have been served on the defendant.

Referring to a postcard, which was on the record, bearing an endorsement, presumably of post office 'refused' the learned Munsiff has held that the

plaintiff took no steps to prove it, nor did he in his own evidence make any claim of having given any notice to the defendant.

As regards issue No. 4, the learned Munsiff, after referring to the evidence adduced on behalf of the parties, regarding the requirement of the

shop and comparing the urgency of the comparative necessity of the two, he had held ""the defendant's requirement of the shop in dispute is more

than that of the plaintiff, ""and, therefore, he decided it in favour of the defendant.

On appeal the learned District Judge in his judgment, while dealing with issue No. 4, has observed:

In case the landlord reasonably requires the house or shop for his own use he will be entitled to a decree for ejectment irrespective of any amount

of inconvenience to the tenant. When the court comes to a conclusion that the suit premises are reasonably required by the landlord for his

existence and not for expansionist designs, the decree for ejectment cannot be refused to him on the consideration that it would cause hardship to

the tenant.

In support of his observations, he has referred to certain decisions of different High Courts including AIR 1967 J and K 141 which is a decision of

a single Judge of this court. After making the above observations, the learned District Judge has concluded that:-

When the plaintiff appellant is earnest to shift his business to Jammu, he reasonably requires the suit shop for his need. In such a case the

inconvenience of the defendant respondent cannot stand in his way to get a decree for ejectment. Finding of the lower Court with regard to issue

No. 5 (which is a mistake for issue No. 4) is, therefore, reversed and it is held that the suit shop is required by the plaintiff for his own use even

when looked from the comparative advantages and disadvantages of the parties.

It is, however, relevant to mention that the conclusions arrived at by the learned District Judge, as to a reasonable requirement of the shop by

the plaintiff, and the comparative disadvantages of the defendant do not appear to be based on any discussion of the evidence particularly that of

the defendant. As a final court of fact all the evidence should have been weighed by him. A decision on fact without due consideration of evidence

is no decision in the eye of law.

As to the view of law, he has rather put it too wide that the landlord is entitled to a decree, if he only requires the shop for his own use

irrespective of the amount of inconvenience to the tenant"". He should not have set aside the findings of the learned trial court without referring to

the evidence adduced on behalf of the parties.

Explanation to Section 11 of the Act, is quite a speaking one. The material portion is:-

The court......and in determining reasonableness of requirement for occupation shall have regard to the comparative advantage and disadvantage of

the landlord or the person for whose benefit the house or shop is held and of the tenant.

The cases referred to by the learned District Judge have not recorded any discordant note to this proviso. It has rather been endorsed also in

some other cases of this court as well. Cases of the other High Courts, having no similar provision as in the above explanation, have no application

to this State.

In AIR 1968 J&K 59, in para 24 at page 64, a Division Bench of this court, Bhat and Mukerjee, JJ. had laid emphasis on the above proviso

by saying that it ""enjoins upon the courts to bear in mind the respective advantages and disadvantages accruing from the proposed order to the

respective persons competing for the occupation of the premises namely the landlord and the tenant.

The proviso has been interpreted also in 1963 KLJ 38, wherein it has been emphasised that the courts have to go into comparative advantages

and disadvantages of the landlord and that of the tenant. I would put it in other words, as comparative convenience and inconvenience to the

landlord, and the tenant in the matter of requirement of the house or the shop as the case may be. Even AIR 1967 J&K 141, on which the learned

District Judge has relied, has not taken a contrary view. It has only explained that the requirement of a landlord should be in an objective sense,

and not the whimsical, and capricious desires of landlord.

The question of requirement will always differ from case to case, depending on the facts of its own. The advantages and disadvantages of the

parties have to be balanced. The landlord may be reasonably requiring the shop for his use, but with a view to judge a comparative disadvantage

to the tenant, it may have to be ascertained, if the requirement of the landlord is reasonably imperative, and a pressing one, if he cannot manage

otherwise, and if he cannot defer it till any reasonable time during which |the tenant can arrange to shift, etc. The learned District Judge in his

judgment, as I have already indicated, has not discussed the evidence, keeping in view the comparative advantages and disadvantages of the

parties. His judgment is, therefore, bad in law in this regard, and must be set aside.

Now, coming to issue No. 5, the learned District Judge appears to be of the view that a notice u/s 106 of the T.P. Act was, of course,

necessary, but he has found on the record a postcard with an endorsement on its back as 'refused' as also an acknowledgment form bearing some

postal seals. He has considered this to be sufficient notice to the defendant on the authority of several decisions he has quoted, and the provisions

of Section 27, of the General Clauses Act, read with Section 114 of the Evidence Act. The learned District Judge seems to have misdirected

himself in relying on this postcard with an acknowledgment form as sufficient notice. They were neither proved nor exhibited. The postcard was

addressed to ""Shri Bhim Sain s/o. Sunder Dass Khatri, shop No. 21 near Parade Ground Jammu"". It is dated 3-2-66. Below the address column,

there is an endorsement in English ""absconded/refused 15-2"". The acknowledgment form lying by the side of the post-card bears the same address

as the post-card.

It would appear from the plaint that there were two defendants, the present appellant Parshotam Lal, defendant No. 1 and his brother, Bhim

Sain, defendant No. 2. The averment in the plaint is that it was Parshotam Lal, defendant No. 1 the present appellant, who had taken the shop on

rent through his brother Bhim Sain, defendant No. 2, with effect from 3-9-59, on executing a rent deed for a period of 11 months. The tenant of

the shop, according to the plaint itself, was Parshotam Lal, defendant No. 1, and it does not make any claim that Bhim Sain, defendant No. 2 was

also a tenant along with defendant No. 1. But the postcard, referred to above, was addressed to Bhim Sain alone. Thus, there was absolutely no

notice to Parshotam Lal, defendant No. 1, even if it were to be supposed that the post-card, in due course of the business of the post office, had

reached the addressee being defendant No. 2, who refused to acknowledge it. Any notice to defendant No. 2, was no notice to the tenant,

defendant No. 1.

Besides, the mere presence of the post-card, and the acknowledgment form with certain postal seals and an endorsement thereon will not lead

to any presumption that this post-card was addressed by or on behalf of the plaintiff to the addressee, and its acknowledgment was refused by the

latter. It is not a public document. It was required to be duly proved by calling the writer of the post-card or one who was conversant with his

writing or at least the person who had posted it, and also by calling the postman, who may have made the endorsement of refusal, when the

acknowledgment of the postcard is denied by the defendant. It was so held in AIR 1918 Nag 202. The principle of proving a notice by calling1

competent person or persons is well settled. Any presumption of any correspondence sent through post, having reached the addressee can arise

only, when proper posting is proved and, similarly refusal by an addressee can be presumed when an endorsement to that effect by the postal peon

is proved by calling him, or some one to prove his hand writing.

For all these reasons it must be held that there was no notice served on the appellant to quit the shop.

The learned counsel appearing for the respondent has, however, raised a point that no notice was necessary to be served on the defendant, to

quit the shop, within the meaning of Section 106 of the T.P. Act. It was urged that the provision of Sec. 106 of the T.P. Act has no application,

since after the introduction of the Act, giving certain protections to the tenant in respect of their premises, the defendant became a statutory tenant

after the period of his tenancy expired in September, 60.

In support of his contention he has relied upon a decision of the Supreme Court in Ganga Dutt Murarka Vs. Kartik Chandra Das and Others, .

In that case the contractual tenancy was determined by efflux of time on 15-6-47 and ever since the tenant had continued in possession of the

premises without any fresh contract of the tenancy. The tenant continued in possession by virtue of the protection afforded in certain Rent Control

Legislations. Interpreting Sec. 116 of the Transfer of Property Act it was held that:-

Where a contractual tenancy to which the rent control legislation applies has expired by efflux of time or by determination by notice to quit and the

tenant continues in possession of the premises by virtue of statutory protection, acceptance of rent from the tenant by the landlord after the

expiration or determination of the contractual tenancy will not afford ground for holding that the landlord has assented to a new contractual

tenancy.

It was also held in that case that:-

Apart from an express contract, conduct of the parties may undoubtedly justify an inference that after determination of the contractual tenancy, the

landlord had entered into a fresh contract with the tenant, but whether the conduct Justifies such an inference must always depend upon the facts of

each case.

In short, the ratio decidendi of the case was that because the tenant failed to prove that he was holding over his tenancy within the meaning of

Section 116 of the T.P. Act, no notice u/s 106 of that Act was necessary.

Reliance has been placed on behalf of the plaintiff-landlord also on a Division Bench of this Court in AIR 1968 J&K 59, to say that no notice

is necessary, but in that case, no rent was accepted by the landlord after the tenancy expired by efflux of time.

The crux of the question, however, is whether in the circumstances of the present case, the tenant defendant can be deemed to have been

holding over the tenancy within the meaning of Section 116 of the Transfer of Property Act after the tenancy was determined on the expiry of the

covenanted period of 11 months from the commencement of the tenancy from 3rd September, 1959. It is not disputed that the tenant continued in

possession of the shop on the same terms till the date of the suit, and the plaintiff landlord went on accepting the same rent from him. The plaintiff

unlike the case of Ganga Dutt Murarka, never tried to obtain possession of the shop. In Ganga Dutt Murarka's case the landlord had made at least

two attempts by service of notice to quit, but the tenant could not be ejected because of the protection afforded under the Rent Control

Legislation. In the present case, it cannot be said that the tenancy was being continued only by the protection of the Rent Legislation, though, has

had the protection of the Rent Control Legislation as well.

The lease deed of the tenant defendant provides for one month's notice to vacate, and if the defendant is found to have been holding over his

tenancy he is entitled to notice under the terms of his lease as well.

On behalf of the defendant reliance has been placed upon the following cases: Bhaiya Punjalal Bhagwanddin Vs. Dave Bhagwatprasad

Prabhuprasad, , Mangilal Vs. Suganchand Rathi, , Manujendra Dutt Vs. Purendu Prosad Roy Chowdhury and Others, , Niranjan Pal and Another

Vs. Chaitanyalal Ghosh and Another, .

Referring to the provisions of Section 12 of the Rent Control Legislation in case of Bhaiya Punjalal Bhagwanddin Vs. Dave Bhagwatprasad

Prabhuprasad, it has been pointed out that the provision of the Rent Control Act ""will operate against the landlord after the determination of the

tenancy by any of the modes referred to in Sec. 111 of the Transfer of Property Act...... Where a tenant is in possession under a lease from the

landlord, he is not to be evicted for a cause which would give rise to a suit for recovery of possession u/s 12, if his tenancy has not been

determined already. It follows that. whenever a tenant acts in a way which would remove the bar on the landlord's right to evict him, it is necessary

for the landlord to serve him with a notice determining his tenancy and also serve him with a notice under sub-section (2) of Section 12 of the Act.

In this State, however, the Rent Control Legislation in question has made no provision for service of any notice for the determination of the

tenancy other than the conditions which have been laid down for eviction of the tenant u/s 11, but as will appear from the decision in the above

case of Bhaiya Punjalal Bhagwanddin Vs. Dave Bhagwatprasad Prabhuprasad, a notice u/s 106 of the T.P. Act is necessary, if the contractual

tenancy has continued as it must be held to have continued in the present case.

In the case of Mangilal Vs. Suganchand Rathi, the landlord had filed the suit for eviction of the tenant on the ground of personal necessity

amongst others as provided in Section 4 of the M. P. Accommodation Control Act, and it was held by the Supreme Court:

The provisions of Section 4 of the Accommodation Act are in addition to those of the Transfer of Property Act and that before a tenant can be

evicted by a landlord, he must comply both with the provisions of Section 106 of the Transfer of Property Act and those of Section 4 of die

Accommodation Act.

It was further held referring to notice u/s 106 of the T.P. Act, that:-

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 has further been explained in para 8 of the judgment:-

The character of the tenancy as one from month to month remains but to it is added a condition that the unfettered right to terminate the tenancy

conferred by Section 106 will be exercisable only if one of the grounds set out in Section 4 of the Accommodation Act is shown to exist.

The view taken in the case of Mangilal was repeated in the case of Mamijendra Dutt with an observation that the provisions of Rent Control

Legislation ""were in addition to those of the T.P. Act, and therefore before a tenant could be evicted by a landlord he must comply with both the

provisions of Section 106 of the Transfer of Property Act and those of Section 4."" In that case it was also made clear ""It is well settled that

statutory tenancy normally arises when a tenant under a lease holds over, that is, he remains in possession after the expiry or determination of the

contractual tenancy. A statutory tenancy therefore comes into existence where a contractual tenant retains possession after the contract has been

determined.

The majority view of the Full Bench in Patna case was similar that a landlord cannot maintain an action for eviction of a tenant u/s 11 of the

Bihar Buildings Control Act unless the lease was determined in accordance with the methods provided by Section 111 of the T.P. Act.

Rent Control legislations, referred to in cases mentioned above, were similar to the provision of Section 11 of our Act. It would appear that the

provision of Sec. 11 of the Act is in no way inconsistent or repugnant to the relevant provisions of the T.P. Act, providing for the determination of

a monthly tenancy, but for the Rent Control Legislation a landlord could terminate a tenancy by giving a requisite notice to the tenant. Now under

the Rent Control Legislation, a further protection is given to the tenant providing conditions for determining a tenancy. The conditions in the two

Acts are not mutually derogatory. They are rather complementary and supplementary of each other. The conditions of both have to be satisfied.

The statutory tenancy does not wipe off the privileges accruing to a tenant under his contractual tenancy, but it gives an added protection to the

tenant. Both the requirements, therefore, have to be fulfilled by a landlord before he can eject a tenant.

I have shown above that there was no notice served on the defendant as required u/s 106 of the T.P. Act. Hence the suit is incompetent, and

must be dismissed.

In the result, the appeal is allowed with costs. The Judgment and decree of the learned court of appeal below are set aside, and those of the

learned trial court dismissing the suit are restored. In other words, the suit is dismissed.