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Ram Swarup And Others v. Brij Nandan Prasad And Another
Factual and Procedural Background
This is a tenants' second appeal against concurrent decisions of the courts below which decreed the landlord's suit for ejectment and for recovery of Rs. 52 as arrears of rent. The plaintiff-respondent, Brij Nandan Prasad, was the landlord of accommodation occupied by the defendant-appellants Ram Swarup and others at a rent of Rs. 11 per month. The tenants defaulted and arrears accumulated to Rs. 50. The landlord served a notice of demand under Section 3 of the U.P. Control of Rent and Eviction Act and a conditional notice terminating the tenancy under Section 106 of the Transfer of Property Act, requiring payment of arrears within one month or vacation of the premises. The tenants resisted the suit and raised several pleas, most of which were rejected by the courts below and were not pressed in this appeal except one: the validity of the Section 106 termination notice (in particular the effect of the phrase "andar ek mah" / "within one month").
Legal Issues Presented
- Whether the combined notice (a demand under Section 3 of the U.P. Control of Rent and Eviction Act together with a conditional termination notice under Section 106 of the Transfer of Property Act) was effective to terminate the tenancy.
- Whether a notice requiring the tenant to vacate "within one month" (Hindi: "andar ek mah") is invalid because it purportedly requires vacation before the expiry of a full thirty days (i.e., whether "within one month" is materially different from giving "one month's notice").
Arguments of the Parties
Appellants' Arguments (as presented)
- Mr. K.C. Agarwal, counsel for the appellants, argued that the termination notice under Section 106 of the Transfer of Property Act was ineffective and therefore the suit for ejectment should have been dismissed.
- Counsel contended that the phrase "andar ek mah" ("within one month") required the tenant to vacate before the expiry of a full month and thus did not comply with the requirement of giving thirty days' clear notice under Section 106.
- He relied on a Division Bench decision (Special Appeal No. 434 of 1959 (All), Kashi Prasad Gupta v. Roop Narain) which had held a similar phrase invalid, and on two other decisions requiring that a Section 106 notice express a clear and unequivocal intention to terminate the tenancy (Sunder Lal v. Ram Krishan and Balloo Ram Bookseller v. Chhedi Lal).
- Counsel conceded that the portion of the notice demanding rent under Section 3 of the U.P. Control of Rent and Eviction Act was not invalid.
Respondent / Landlord (as reflected in the opinion)
- It was not disputed that the landlord could combine a notice of demand for arrears of rent under Section 3 of the U.P. Control of Rent and Eviction Act with a conditional notice terminating the tenancy under Section 106 of the Transfer of Property Act.
- The record shows the landlord served such a combined notice; the demand for rent was accepted as valid by the appellants' counsel.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Special Appeal No. 434 of 1959 (All), Kashi Prasad Gupta v. Roop Narain (Division Bench, unreported) | Held (in that case) that a notice requiring the tenant to vacate "within one month" was invalid; the decision translated "andar ek mah" as "within one month". | The Court noted that the Division Bench's order was very short (one page plus three lines), that it did not discuss the meaning of "within one month", and that its observations appeared confined to the facts of that case. The Court distinguished that decision and treated it as not laying down a general principle. |
| Sunder Lal v. Ram Krishan, 1960 All LJ 152 : (AIR 1960 All 544) | Authority for the proposition that a notice under Section 106 of the Transfer of Property Act should express a clear and unequivocal intention to terminate the tenancy. | Counsel relied on this principle. The Court accepted the general proposition but held that the impugned notice did, when read as a whole, disclose a clear intention to terminate the tenancy even though it did not use the formal word "termination". |
| Balloo Ram Bookseller v. Chhedi Lal, 1960 All LJ 213 : (AIR 1960 All 477) | Same proposition as above: requirement of clear and unequivocal intention in a Section 106 notice. | Used by counsel in support of the submission. The Court applied the rule but concluded the notice in the present case satisfied the requirement by communicating that failure to pay within a month would render the tenant liable to ejectment and that the notice should be treated as a "legal notice". |
Court's Reasoning and Analysis
The Court proceeded in stages and grounded its analysis on textual reading of the notice and a semantic examination of the phrase "within one month" ("andar ek mah"):
- The Court began from the uncontested premise that the landlord could combine a demand under Section 3 of the U.P. Control of Rent and Eviction Act with a conditional termination notice under Section 106 of the Transfer of Property Act; the rent demand portion was conceded to be valid.
- The Court considered whether the notice under Section 106 was ineffective because it did not use the word "termination" or any formal solicitor-like language. It held that the intention to terminate must be gathered from the document as a whole rather than from particular words or the absence of formal terminology. The warning that failure to clear arrears within a month would make the tenant liable to ejectment and that the notice should be treated as a "legal notice" was sufficient to show termination was intended.
- The pivotal question was how to interpret the phrase "within one month." The Court examined the Division Bench decision relied upon by counsel and observed that that decision consisted of very brief reasoning which appeared to assume that "within one month" meant giving less than a month; the Court found no discussion of the phrase's import in that judgment and treated it as fact-specific.
- The Court then analyzed the measurement of time: it explained that a notice commencing at midnight on day 1 and requiring vacation "within thirty days" would expire on the midnight of the 30th day, and the tenant has the entire period up to expiry to vacate. The Court concluded there is virtually no practical difference between the formulations "vacate within a month" and "you are given a month's notice to vacate."
- To support that proposition the Court cited dictionary meaning (Oxford Dictionary entry for "within") and even discussed the philosophical/scientific conception of time (with a quotation attributed to Einstein) to demonstrate there is no measurable gap between "the last moment of the previous day" and "the first moment of the next". The Court used this analysis to show that "within one month" will ordinarily be understood as providing the tenant the full month.
- On those bases the Court held that the impugned notice did not suffer any vital defect: it gave the tenant one month to vacate and the phrase "within one month" did not reduce that period.
- Although the Court distinguished the Division Bench decision as confined to its facts and not laying down a general rule, it also granted leave to appeal so that a larger Bench might consider the import of the earlier observations in Special Appeal No. 434 of 1959.
Holding and Implications
Holding: APPEAL DISMISSED — the Court dismissed the tenants' second appeal with costs and upheld the concurrent decrees of the courts below (which had decreed ejectment and recovery of arrears).
Implications:
- The direct effect is that the decrees for ejectment and recovery of Rs. 52 in favour of the landlord stand affirmed.
- The Court held that a combined notice (demand under Section 3 U.P. Control of Rent and Eviction Act together with a conditional termination notice under Section 106 Transfer of Property Act) was effective in the form employed in this case; a notice telling a tenant to vacate "within one month" was interpreted as giving a full month's time to vacate.
- The Court treated the earlier Division Bench decision (Special Appeal No. 434 of 1959) as fact-specific and not necessarily laying down a general principle; nonetheless, the Court granted leave to appeal to a larger Bench for a fuller consideration of that decision's import. The opinion does not attempt to formulate a broad new legal rule beyond its application to the facts before it.
This summary is based exclusively on the language and content of the provided opinion. If a section of the opinion lacked information, that limitation is reflected in the presentation above.
1. This is a tenants' second appeal against the concurrent decisions of the courts below decreeing the landlord's suit for their ejectment and recovery of Rs. 52/- as arrears of rent. It is common ground that the plaintiff-respondent Brij Nandan Prasad is the landlord of the accommodation which was occupied by the defendant appellants Ram Swarup and others on a rent of Rs. II-per month. The tenants defaulted in payment of rent and the arrears accumulated to Rs. 50/-. Thereupon the landlord served all the tenants with a notice of demand under Section 3 of the U.P Control of Rent and Eviction Act and a conditional notice terminating the tenancy if the rent was not paid within one month of the receipt of the notice of demand. The tenants resisted the suit and raised a number of pleas which need not be considered in this case as all of them were rejected by both the Courts below and were not pressed before me in this appeal, except one.
2. Mr. K.C Agarwal, learned counsel for the appellants attacked the legality of the notice served by the landlord under Section 106 of the Transfer of Property Act he contended that there was no valid termination of the tenancy, and the suit for ejectment should have been dismissed on this ground alone. The notice sent by the landlord was a combined notice under Section 3 of the U.P Control of Rent and Eviction Act and Section 106 of the Transfer of Property Act, and it is not disputed that the landlord could combine a notice of demand for arrears of rent with a conditional note terminating the tenancy, if the rent was not paid within a month.
3. Counsel also conceded after some discussion that the portion of the notice which purports to be a demand for rent under Section 3 of the U.P Control of Rent and Eviction Act is not invalid, but he argued that the notice under Section 106 of the Transfer of Property Act was ineffective. The relevant words of the notice are:
“Ap ko notice diya jata hai ke ap raqam mazkoor andar ek mah ada kar dejiyega varna ap qanoonan musta-vjib bedakhli honge aur aisi soorat men notice haza ko notice qanooni mutsawwar keejiyega aur ehatajat khana kash posh mazkoor ko tameel notice se andar ek mah khali kar deejiyega, varna nalish be-dhakhli vo karaya mazkoor vo harja istimal ayenda apke khilaf dayer ki iavegi.”
(“You are hereby served with a notice that you should pay the aforesaid sum within one month otherwise you will be liable to be ejected, and in that situation this notice may be treated as a legal notice and you should vacate the compound and the thached construction within one month of the receipt of this notice, failing which a suit for ejectment and damages for use and occupation will be filed against you.”)
4. Mr. Agarwal argued that this notice is illegal as it asked the tenant to vacate the accommodation within one month of the receipt of the notice whereas under S. 106 the landlord is required to give thirty days clear notice. According to counsel, the words “andar ek mah” meant that the tenant was required to vacate the premises before the expiry of a month.
5. Learned counsel relied on an unreported decision of a Division Bench of this Court (Sriwastava and Jagdish Sahai, JJ.) in which a notice requiring the tenant to vacate a house within one month (“andar ek mah makan Ko khali kar ke qabza de de”) was held invalid. Special Appeal No. 434 of 1959 (All), Kashi Prasad Gupta v. Roop Naraln. Learned counsel also cited two of my own decisions in which I held that a notice under Section 106 of the Transfer of Property Act should express a ciear and unequivocal intention to terminate the tenancy. Sunder Lal v. Ram Krishan, 1960 All LJ 152 : (AIR 1960 All 544), Balloo Ram Bookseller…Defendant- v. Chhedi Lal…Plaintiff-., 1960 All LJ 213 : (AIR 1960 All 477). Counsel contended that the impugned notice in this case does noi express any clear intention to terminate the tenancy as the word “termination” had not been used by the landlord at all in the notice and thus there was no valid termination. I cannot agree. It is true that the landlord did not say in so many words that the tenants' tenancy would stand terminated in the event of his not paying the arrears of rent within a month but this was the clear intention. The nature and purpose of the notice must be gathered by reading the document as a whole and not from any words read out of context or from any omission to use the formal language of a solicitor. Where the landlord warns the tenant that if he fails to clear the arrears of rent within a month of the receipt of the notice he will be liable to ejectment and in that event he must treat the notice as a “legal notice” and vacate the accommodation within a month, it is clear that the demand that the tenant should vacate the accommodation signifies the termination of the tenancy and the words “legal notice” could only refer to a notice under Section 106 of the Transfer of Property Act. I think the notice in this case was effective under Section 106 of the Transfer of Property Act.
6. The next question is whether termination of the tenancy was ineffective because the landlord used the words “with;n one month” (andar ek mah khali kar deejiyega). In the decision cited by Mr. Agarwal the learned Judges merely observed that “the notice requiring the defendant to vacate the house within that period was invalid”. In another sentence the Bench observed “……inasmuch as the notice itself directs the defendant-respondent to leave the house within one month and not after the expiry of the notice, the notice would be invalid”. There is no discussion of the import of the words “within one month”. It appears to have been assumed that a notice requiring the tenant to vacate the accommodation “within one month” means that the tenant is given less than one month. The entire judgment consists of a single page plus three lines.
7. A notice commencing on the midnight of the 1st requiring the tenant to vacate the accommodation within thirty days expires on the midnight of the 30th day. The tenant has all the time upto the expiry of the notice With in which to vacate the accommodation. Therefore a notice requiring the tenant to vacate the accommodation within a month means that he should not take more than a month to do so, and not that he must vacate within less than a month. In my opinion there is virtually no difference between “you are required to vacate within a month” and “you are given a month's notice to vacate”, as both mean that the tenant is given a month within which to vacate the premises. A tenant who receives a communication from the landlord “I give you thirty days' notice ta vacate the accommodation”, is in no better position than one who is asked to vacate “within thirty days”, as neither of them can occupy it beyond the midnight of the thirtieth-day. Mr. Agarwala had to concede that one month's notice expires on the midnight of the last day of the month.
8. Counsel however contended that there is an interval of time between the expiry of one day and the beginning, of the next, and this made a vital difference between a notice saying ‘vacate within one month’ and one saying ‘I give you one month's notice to vacate’. I do not think that there is any material gap of time between the last moment of one day and the first moment of the following day. Time is measured by the movement of matter through space. What we call passage of time corresponds to the successive positions of a point or the earth's surface during, its spinning motion on its axis. One complete revolution of this point denotes a day. On another planet the length of the day may not be the same as on our earth. On Mercury the day is equal in length to a year as the planet takes the same time to rotate on its axis as to revolve round the sun, and on Jupiter a year would be equal to about 12 terrestrial years. In a Universe which is completely still there would be no time. This however is an impossible supposition for matter is always in motion from the largest stars to the smallest electrons. Time and space are forms of existence of matter and cannot exist apart from it.
9. The conception of time was explained by Einstein in 1906 in these two simple sentences: “All our judgments in which time plays a role are judgments about simultaneous events. If I say, for example, the train arrives here at 7 it means that the coincidence of the small hand of my watch with the number 7 and the arrival of the train are simultaneous events” — Albert Einstein in Annalen Dei Physik, Berlin 1905, quoted in Albert Einstein by Leopold Infield, flew York, 1950.
10. Applying this test to the question before me, the statement that the 30th day expires on midnight means that the coincidence of the small hand of the watch with the figure 24 and the arrival of a particular spot on the Earth's Surface (Greenwich) at a particular position during the Earth's spinning motion are simultaneous events, and both are conveniently labelled midnight of 30th September or ‘expiry of 30 September’. If time is measured by the movement of matter in space, if follows that the interval between the last moment of the previous day and the first moment of the next is immeasurable because the distance covered by a moving particle (on earth) in the process of moving away from a point cannot be measured. Motion has been called a “contradiction” because a moving body is at any moment at a given point and also not there. If time is to be measured by the spinning motion of the earth on its axis, it would be impossible to measure the gap or interval of-time between the expiry of one day and the beginning of another as both events take place when a particular point on the Earth's surface (in Greenwich) is in the process of being on a place and moving away from it. In the language of time it is called midnight or the simultaneous expire of one day and the commencement of another. Thus there is no measurable gap between the-expiry of one month and beginning of another and no difference between a notice asking the tenant to vacate “within one month” and another giving him “one month's notice to vacate”. I had to consider some of these points in an earlier case but I prefer to summarise my opinion once again.
11. I do not think that the notice served by the land-ford suffers from any vital defect it gave the tenant one month to vacate the accommodation and the phrase “within one month” did not have the effect of reducing this period.
12. No other point was urged in favour of the appeal which is dismissed with costs.
13. The notice under review was in Hindi, and used the words ‘ander ek mah’. These were precisely the words used in the notice in Special Appeal No. 434 of 1959 (All), which the learned Judges deciding that case translated as “within one month”.
14. The attention of the learned Judges does not appear to have been drawn to the different meanings of the word “within” as detailed in the great Oxford Dictionary. Para 6 explains the meaning of this word when denoting 3 period of time and runs thus:
“6. In the limits of (a period of time); most usually, before the end of, after not more than; also, since the beginning of, not more than…… ago; or generally between the beginning and end of, in the course of, during.”
15. Thus one of the meanings of the phrase “within a month” would be “after not more than a month”. Therefore a notice requiring the tenant to vacate the accommodation within a month, means that he should not take more than a month to do so. In my opinion, phrases like “vacate within a month” and “you are given a month's notice to vacate” are virtually Interchangeable and mean that the tenant is given a month within which to vacate the premises. 1 think the observations of the Division Bench in Special Appeal No. 434 of 1959 (All), were confined to the facts of that case, and were not intended to lay down a general principle of law, but I grant leave to appeal so that a large Bench may consider their import.
???/R.G.D
16. Appeal dismissed.
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