Subhas Saxena vs 12th Addl.District Judge, Lucknow and Others

N.K. Mehrotra, J.—This is a writ petition for issuing a writ of certiorari to quash the judgment and decree dated 30.8.2002 passed by the XIIth Additional District Judge, Lucknow, as contained in Annexure No.7.

Opposite party No.3 Smt. S.K. Hasteer filed a suit for arrears of rent and ejectment against the petitioner before the Judge Small Causes, Lucknow in the year 1988. The case of the opposite party No.3 plaintiff in the suit was that the provision of U.P. Urban Buildings Act, 1972 (hereinafter referred to as the ''Act'') do not apply because the disputed premises was constructed in the year 197980 and it''s first assessment was made in the year 1986. Plaintiff/ opposite party also demanded the rent for the period 8.8.1985 to 7.3.1987 by alleging that Rs. 4,200/ has been realized with great difficulty and remaining amount of Rs.8,000/ was still due up to 7.3.1987. Suit was tiled after determining the tenancy of the petitioner by a notice under Section 106 of the Transfer of Property Act,

The that Court after framing issues recorded the findings that the provisions of the Act do not apply to the premises in suit and notice under Section 106 of the Transfer of the Property Act was invalid. The learned Judge Small Causes aid not record any finding on the arrears or default in payment of rent because of the reason that it was not required in view of the finding that the provision of the Act do not apply to the premises in suit.

During the pendency of the suit the defence of the petitioner was struck of under Order 15 Rule 5 CPC. The order of striking out the defence was chaitenged up to the High Court in Writ Petition N0.11(R/C) of 1995 and that has already become final. The learned Judge Small Causes Court dismissed the suit on the ground of invalid notice.

The plaintiff/opposite party No.3 filed a Revision to challenge the finding on issue No.3 by which the notice under Section 106 of the Transfer of Property Act was held invalid. The learned Revisional Court allowed the revision by the Impugned judgment Annexure No.7. After relying on the various decisions of the High Court and the decision referred to in the judgment of Judge Small Causes Court, it was held that notice under Section 106 of the Transfer of the Property Act is legal and valid notice. After recording this finding the revisional coun decreed the SUIT to recovery of rent and ejectment. It is against this order passed in Revision, the defendant/tenant has filed this writ petition.

The learned counsel for the petitioner has argued that the defence of the opposite party No.3 can not be considered because the counter affidavit has been filed by a person holding power of attorney. This contention has no force. The opposite party No. 3 is represented through a counsel and the counter affidavit has been filed on behalf of opposite party No.3,

The second contention of the learned counsel for the petitioner is with regard to the validity of the notice. The copy of the notice is Annexure No.3 Para 5 of the notice is as follows:

"That you are a heavy defaulter and my client does not wish to keep you her tenant any more.

By this notice you are required to pay Rs.8,000/ balance amount of rent for the period 8.8.85 to 7.3.87 and vacate and hand over vacant possession of the basement in your possession, on the expiry of 30 days of receipt of this notice, failing which my client would be compelled to file a suit against you for your ejectment and recovery of the same and in that event you shall be responsible for all costs and damages suffered by my client."

The learned Judge Small Causes Court relying on Abdul Jalil v. Haji Abdul Jalil, AIR 1974 Allahabad 402 held that notice is invalid but it appears that the learned Judge Small Causes Court has not properly read the entire judgment referred to in his judgment. The Division Bench in Abdul Jalil''s case has given certain instances in which the notice under Section 1 06 of the Transfer of Property Act has been declared valid. One of the example quoted in the Division Bench:

"I do not want to keep you as my tenant. You are therefore given this notice and required to vacate the premises on the expiry of thirty days from the date of service of this notice on you."

This type of notice has been declared to be valid notice by the Division Bench, therefore, I hold that the judgment of the Judge Small Causes Court on this point is not in accordance with law.

In Bhagabandas Agarwal.la v. BhagwandasKaruj and. others. AIR 1997 Supreme Court 1120, the relevant portion of the judgment of the Supreme Court with regard to the validity of the notice is as follows:

A notice to quit must be construed not with a desire to find faults in it, which would render it defective, but it must be construed ut res rnagis vaieat quam pereat,

Now, it is settled law that a notice to quit must be construed not with a desire to find faults in it, which would render it defective, but it must be construed ut res magis vaieat quam pereat. "The validity of a notice to quit", as pointed out by Lord Justice Lindley, L.J. in (1895) I QB 378" outh not to turn on the splitting of a straw". It must not be read in a hypercritical manner, nor must its interpretation be affected by pedagogic pendantism or over refined subtlety, but it must be construed in a common sense way. See Harihar Banerji v. Ramsaashi Roy. 45 Ind App 222, (AIR 1918 PC 102). The notice to quit in the present case must be judged for its validity in the light of this well recognized principle of interpretation."

In Gorakh Lal v. Maha Prasad Narayan Singh AIR 1964 Allahabad 260, a Full Bench of this Court found the notice valid if it is required in the notice to vacate the premises within 30 days of the service of the notice.

I am of the view that the object of the notice under Section 106 of the Transfer of the Property Act is to give a caution to the tenant and he should be given 30 days time to vacate the premises and the intention should be to get the premises vacated after expiry of 30 days. If it is found from the contents of the notice that the land lord intended to get the vacation of the premises after expiry of 30 days the notice is valid. The aforesaid contents of the notice in the case in hand, I do not find the notice invalid. Therefore, I find that there is no illegality in the finding of the revisional court by holding that the notice under Section 106 of the Transfer of the Property Act is valid.

The next contention of the learned counsel for the petitioner is that the learned Revisional Court without recording the finding on the issue of default and the arrear of rent has decreed the suit and the trial court has also not recorded the finding on this issue. I find no force in the contention of the learned counsel for the petitioner for the simple reason that the amount of rent of the premises in suit was never in dispute. The liability of the payment of rent was already adjudged at the time of deciding the contention under Order 15 Rule 5 CPC up to the stage of High Court. The defence of the petitioner before the two courts below was that he had deposited the rent towards the liability of the opposite party No.3 for Municipal taxes. It is not the case of the petitioner that he had remitted the rent to the opposite party No.3. Therefore, in view of these circumstances no separate finding was required before decreeing the suit by the revisional court.

The next contention of the learned counsel for the petitioner is that the provisions of the Act apply to the premises in suit. In view of the concurrent finding of the two courts below, it has been decided that the provision of the Act do not apply to the premises in suit. The construction was made in the year 197980. The first assessment was made in the year 1986. The suit was filed in the year 1988 I do not find any illegality in the findings recorded by the two courts below on this issue.

The learned counsel for the petitioner has next contended that the period of 10 years has expired during the pendency of the suit and the suit property has come under the preview of the Act in view of Section 39 of the Act. Section 39 of the Act is as follows:

"39. Pending suits for eviction relating to buildings brought under regulation for the first time In any suit for eviction of a tenant from any building to which the old act did not apply, pending on the date of commencement of this Act, where the tenant within one month from such date of commencement or from the date of his knowledge of the pendency of the suit, whichever be later, deposits in the Court before which the suit is pending, the entire amount of rent and damages for use and occupation (such damages for use and occupation being calculated at the same rate as rent) together with interest thereon at the rate of nine per cent per annum, and the landlord''s full cost of the suit, no decree for eviction shall be passed except on any of the grounds mentioned in the proviso to subsection (1) or in clauses (b) to (g) of subsection (2) of Section 20, and the parties shall be entitled to make necessary amendment in their pleadings and to adduce additional evidence where necessary:

Provided that a tenant the rent payable by whom does not exceed twenty five ruppes per month need not deposit any interest as aforesaid."

Admittedly the petitioner has not taken any steps as required for the benefit of aforesaid Section 39 of the Act, therefore, this contention has also no force and the petitioner can not be given any advantage of the aforesaid provision.

In the instant case I also find that the petitioner did not make any submission before the revisional court at the time of hearing of the revision and there is no explanation for not placing any argument by his counsel before the revisional court.

After hearing the learned counsel for the parties I find that there is no illegality in the judgment dated 3.8.2002 (Annexure No.7) and therefore, the writ petition is dismissed.

(Petition dismissed)