1. This is a defendants' revision application under Section 115 of the Civil Procedure Code against the judgment and order dated 7-2-1975 passed by the 3rd Additional District Judge, Muzaffarnagar.
2. Briefly stated the facts are that the plaintiff-opposite party had filed a suit for ejectment of the defendants applicants from the accommodation in suit and for the recovery of arrears of rent etc. It was alleged that Balbir Singh defendant No. 1 had taken one room and one Kothri on a monthly rent of Rs. 25 for a period of two months. He took wrongful possession over one more Kothri (N) which was formerly let out at Rs. 14 per month. In spite of his transfer he did not vacate the premises and allowed his son defendant No. 2 to remain in possession of the same along with other members of his family. He committed default in payment of rent and started creating nuisance. The requisite notice to quit was given but in vain. Hence the suit.
3. Both the defendants contested the suit. According to them defendant No. 2 alone was a tenant of the entire premises on a rent of Rs. 14 per month and no ground for his eviction was made out. They denied having received any notice to quit,
4. The suit was tried by the Judge Small Cause Court, Muzaffarnagar. He arrived at the conclusion that the defendant No. 1 and not defendant No. 2 was the tenant of the premises in suit; that defendant No. 1 had not entered into wrongful possession of the Kothri 'N' but it was in his tenancy from before; that the rent of the entire accommodation was Rs. 14 per month; that the notice to quit was valid and that the defendant No. 1 was liable to ejectment because he committed default in the payment of rent. He further held that the said defendant having failed to deposit rent on the first date of hearing was not entitled to the benefit of Section 39 of U. P. Act 13 of 1972 and that defendant No. 1 did not create any nuisance. Accordingly the suit for possession over both the rooms and kitchen and for the recovery of Rs. 350 as arrears of rent from 1-9-1968 to 11-10-1970 and for the recovery of Rs. 131 as damages for use and occupation from 12-10-1970 to 22-7-1971 at Rs. 14 per month was decreed against defendant No. 1 pendente lite ,and future mesne profits were also awarded at the same rate subject to payment of court-fees in the Execution Department.
5. Both the defendants filed a revision under Section 25 of the Small Causes Courts Act but remained unsuccessful. They have now come up in revision under Section 115 of the Civil Procedure Code mainly on four grounds.
6. In the first place it is urged that the Small Cause Court Judge had no jurisdiction to try the suit. It is based on two grounds, firstly, because the plaintiff had regarded defendant No. 1 as a trespasser of Kothari 'N' and suit for posses-sion thereon should have been filed on regular side and could not be tried by the Small Cause Court. There is no force in this contention because on a reading of the entire plaint it is evident that the plaintiff demanded possession from de-Eendant No. 1 of the entire accommoda-tion including the Kothri 'N' even if he claimed to be its tenant. As will be just discussed the notice to quit was also given on the allegation that if defendant No. 1 regarded himself as a tenant he should deem his tenancy to be terminat-ed on the expiry of 30 days from the date of receipt of the notice. The plaintiff claimed rent of the entire accommodation, Therefore, after the Civil Laws Amendment Act came into force, the suit was cognizable by the Small Cause Court only.
7. The jurisdiction of the Small Cause Court to try the suit is further assailed on the ground that the case was transferred to his court not from the court in which it was instituted but from a transferee court, and in view of K. K. Saxena v, S. N, Misra (1975 All LR 360), Section 9 of the Civil Laws Amendment Act is not applicable to suits in transferee courts. This contention also does not carry force because the suit was originally instituted in the court of Munsif, Mu-zaffarnagar. On 17-8-1971 it was transferred to the court of the 1st Additional Munsif but on 11-1-1972 it was again transferred to the parent court. It was from the court of Munsif, Muzaffarnagar that it was transferred to the court of Small Causes. Therefore the transfer was perfectly valid and the Small Cause Court was competent to try it.
8. In the second place it is urged that in deciding the question whether the relationship of landlord and tenant existed between the plaintiff and the defendant No. 1, the trial court relied on an affidavit Ex. 5 filed by Naresh Kumar (son of defendant No. 1) in another suit admitting that his father was a tenant of the premises in suit. It is urged that Naresh Kumar being alive the affidavit filed by him was inadmissible in evidence. It is true that the affidavit was not admissible in evidence but even if it is ruled out of consideration, there remains sufficient material on the record to hold that defendant No. 1 was a tenant of the suit property. The trial court has discussed that piece of evidence also and has made correct appraisement of the same.
9. The third contention that there was no default in the payment of rent inasmuch as the defendant No. 2 had deposited the entire rent in court under Section 39 of the New Act has no force because defendant No. 2 had deposited that amount on his own behalf and not on behalf of his father who was the tenant. It could not enure to the benefit of defendant No. 1 Therefore this contention is without force.
10. Lastly, it is urged that the notice to quit was invalid inasmuch as the plaintiff did not treat defendant No. 1 as a tenant of the kothri and could not have any intention to terminate his tenancy in respect of the same. Before going into the merit of this contention it is important to state that in his written statement the defendant No. 1 had challenged simply the receipt of notice and not its validity. The validity of notice was not challenged even in the grounds of revision under Section 25 of the Small Cause Courts Act nor this point was pressed before that court. Even in this revision the ground on which validity is attacked has not been specifically set out. In Kishanlal Singol v. Hari Kisson Lohia, (AIR 1956 Assam 113) it is observed :--
"The question about notice to quit is not purely a question of law, but is a mixed question of law and fact. Hence if under the terms of the contract the tenants are entitled to a notice of one month instead of 15 days, they may be taken to have waived the same and to have been satisfied with the sufficiency and validity of the notice especially when they raise the point about the factum of service of notice only."
11. Again in Batoo Mal v. Rame-shwar Nath, (AIR 1971 Delhi 98) the observation is :--
"The failure of the tenant to raise the objection regarding the non-compliance with
Section 106 of the T. P. Act at an early stage of the litigation would amount to a waiver of the plea by him."
I am in respectful agreement with the aforesaid observations. Defendant No. 1 challenged only the service of notice and not its validity. He will therefore, be deemed to have waived the plea of invalidity of notice. So far as the service of notice is concerned there is ample material on the record to prove that it was duly served on the said defendant.
12. Even on merit the contention carries no force because there is no ambiguity in the notice and the plaintiff clearly communicated to defendant No. 1 her intention that the tenancy will stand terminated on the expiry of 30 days if he treated himself to be the tenant of the kothari 'N'. Learned counsel for the revisionists relies on the case of Pattan Din v. Sardar Karan Singh (1967 All LJ 395) to show that if there was no tenancy at the time of giving the notice in the contemplation of the person giving the notice then it would not be a notice terminating the tenancy. There can be no controversy about this principle because that was a case in which the plaintiff was not at all inclined to treat the defendant as a tenant. He had given a notice treating him as a licencee. In the plaint also the defendant was treated as a licencee and damages for use and occupation were claimed from him. As against it in the notice Ex. 2 where at one place the plaintiff gave out that defendant No. 1 had entered into wrongful possession of the Kothari 'N' she also made it clear that in case he regarded himself as a tenant of the same he should treat his tenancy to be terminated on the expiry of 30 days from the date of receipt of the notice. In this connection reference may be made to certain cases laying down that such a notice will be valid. In Harihar Banerji v. Ramshashi Roy (AIR 1918 PC 102) the observation is :--
"The principles governing the construction of a notice to quit laid down by English cases are equally applicable to cases arising in India and they establish that notices to quit, though not strictly accurate or consistent in the statements embodied in them, may still be good and effective in law; the test of their sufficiency is not what they would mean to a stranger ignorant of all the facts and circumstances touching the holding to which they purport to refer, but what they would mean to tenants presumably conversant with all those facts and circumstances; and further, they are to be construed not with a desire to find fault in them which would render them defective but to be construed ut res magis valeat quam pereat doe."
13. In Mushtaq Husain v. Moham-mad Saddiq (1967 All LJ 764) a Division Bench of this Court observed :--
"The requirement that & notice terminating a tenancy must not be vague but must be clear and unambiguous is for the benefit of the understanding of the receiver of the notice and not the giver of the notice."
There can be no manner of doubt that in the instant case defendant No. 1 knew the correct position. According to him the Kothari 'N' was in his tenancy and forcible possesion was not taken thereon. Therefore, he had no reason to construe the notice in any other manner except for terminating his tenancy.
14. A similar position arose in the case of Secy, of State v. Madhu Sudan, (AIR 1933 Cal 260) in which notice proceeded on the footing that the defendants were trespassers and not lessees or licensees. A Division Bench of that Court relying on the case of Harihar Banerje v. Ram Shasi Roy (AIR 1918 PC 102) (supra) held that the giver of a notice is not bound to admit the person to whom it is given as a tenant; a notice is good notwithstanding that the addressee is described therein as a trespasser if the latter knows his position.
15. Again in Nagendranath v. Jo-tish Chandra (AIR 1952 Cal 221) this question came up for consideration and it was observed that the essential requisite is whether the person intended to be bound by the notice was asked to vacate the premises in question on the expiry of 30 days. Unquestionably in the instant case defendant No. 1 was informed that if he treated himself as a tenant of the Kothrl 'N' he should regard his tenancy as terminated on the expiry of 30 days, which allegation was ultimately found to be true.
16. In Mangilal v. Sugan Chand (AIR 1965 SC 101) a notice was given simply saying 'Pay arrears of rent within one month, failing which suit for ejectment will be filed'. It was held to be a valid notice under Section 106 of the T. P. Act.
17. In Calcutta Credit Corporation Ltd, v. Happy Homes (P) Ltd. (AIR 1968 SC 471) it was held :
"Once a notice is served determining the tenancy or showing an intention to quit on the expiry of the period of the notice, the tenancy is at an end, unless with the consent of the other party to whom the notice is given the tenancy is agreed to be treated as subsisting. Whether the notice is given by the landlord or the tenant the party to whom it is given is entitled to insist upon it and it cannot be withdrawn without the consent of both."
It proceeded on the principle that if the person to whom notice is given accepts the position that he is a tenant then he cannot resile from it. In view of this discussion, I am in judgment that the notice to quit served on defendant No. 1 was valid.
18. The revision application is dismissed with costs to the oppoiste party. The revisionists are allowed three months' time to vacate the premises.