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Kanta Manocha v. Hindustan Paper Corpn.

Delhi High Court
Jul 13, 1998
Judgment
Subsequent
References
CaseIQ
Case Information
CITATION CODES
citation codes
CASE NO.

IAs No. 2435/96, 6970/97 & S. No. 414 of 1991

Attorney(S)

Dalip Mehra

Debashish Mishra

JUDGES

J.B Goel, J.

ACTS

Order 12, Rule 6 read with Section 151 of the Code of Civil Procedure (for short the Code)

Transfer of Property Act (for short the Act)

Order 12, Rule 6 of the Code

TRANSFER OF PROPERTY ACT

DELHI RENT CONTROL ACT

Order 12, Rule 6, CPC.

Order 20, Rule 10.3.

Order 12, Rule 6

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Factual and Procedural Background

The plaintiff sued for possession and mesne profits in respect of property No. E-525, Greater Kailash-II, New Delhi. The plaintiff alleged ownership and that she had let the premises to the defendant by a registered lease dated 18.1.1982 for three years, renewable for two years with a 10% increase in rent; the agreed renewals took the lease to 17.1.1987. The plaintiff contends that the lease expired by efflux of time on 17.1.1987, the defendant did not vacate, and that after an amendment to the Delhi Rent Control Act in 1988 the premises fell outside that Act's protection because the rent exceeded Rs. 3,500 per month. The plaintiff served a notice dated 20.2.1990 terminating the tenancy (although she contends that such notice was not necessary). The plaintiff claimed possession and mesne profits (claiming Rs. 35,000 and damages from 17.1.1987 till the date of filing).

The defendant contested maintainability, challenged the plaintiff's locus of her attorney, and pleaded that after expiry of the lease the parties agreed the defendant would continue on the same terms — i.e., the defendant relied on the doctrine of holding over (acceptance of rent and continued possession). The defendant also contended the 1988 amendment to the Delhi Rent Control Act was prospective and/or invalid, and alleged the 20.2.1990 notice was invalid.

After pleadings, the plaintiff filed an application (I.A. 2435/96) under Order 12, Rule 6 read with Section 151 CPC seeking a decree of possession on admission; the defendant filed I.A. No. 6970/96 under Section 151 asserting novation/renewal by acceptance of rent and seeking dismissal. The suit was instituted on 9.11.1990. The court heard counsel and reserved judgment.

Legal Issues Presented

  1. Whether a decree for possession on admission under Order 12, Rule 6 CPC could be passed in respect of the lease dated 18.1.1982 which expired on 17.1.1987.
  2. Whether, after the expiry of the registered fixed-term lease, the tenant's continued possession coupled with the landlord's acceptance of rent gave rise to a holding-over tenancy under Section 116 of the Transfer of Property Act (and thereby created a month-to-month or year-to-year tenancy governed by Section 106), or whether no new tenancy arose.
  3. Whether the notice dated 20.2.1990 complied with Section 106 of the Transfer of Property Act (i.e., gave 15 days' notice expiring with the end of the tenancy month), and if not, whether the tenancy was nevertheless terminated.
  4. What is the effect of the 1988 amendment to the Delhi Rent Control Act excluding premises with rent above Rs. 3,500 per month (w.e.f. 1.12.1988) on the landlord's right to seek eviction under ordinary law.

Arguments of the Parties

Plaintiff's Arguments

  • The lease dated 18.1.1982 expired by efflux of time on 17.1.1987 under Section 111(a) of the Transfer of Property Act and the defendant's possession after expiry was not contractual but holding over; no notice under Section 106 was required where lease expired by efflux of time (relying on authorities such as Smt Shanti Devi v. Amal Kumar Banerjee).
  • In any event, the plaintiff served a notice dated 20.2.1990 terminating the tenancy, so contractual tenancy (if any) was terminated.
  • After the 1988 amendment to the Delhi Rent Control Act, the premises fell outside that Act and the plaintiff could proceed under the ordinary law for possession.
  • The plaintiff relied on multiple precedents to support a decree under Order 12, Rule 6 CPC for possession on admission.

Defendant's Arguments

  • The attorney who filed the suit lacked locus standi (challenge to maintainability).
  • After expiry of the lease the parties agreed the defendant would continue occupying the premises on the same terms and the defendant continued paying rent which the plaintiff accepted — creating a renewed tenancy/novation (holding over). A valid notice under Section 106 would therefore be required to terminate such tenancy and the notice dated 20.2.1990 is invalid under Section 106.
  • The defendant relied upon case law (not all specified in the opinion's summary) to support the position that acceptance of rent and holding over created a fresh tenancy requiring statutory notice to terminate.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Smt Shanti Devi v. Amal Kumar Banerjee, (1981) 2 SCC 199 : AIR 1981 SC 1550 Where lease is for a fixed period, it expires by efflux of time under Section 111(a) and service of a notice under Section 106 is not necessary. The court observed this authority was not helpful in the present case because the present case involved holding over (Section 116); the tenant relied on holding over, so the rule that no Section 106 notice is needed for fixed-term expiry did not apply.
Savita Dey v. N. Majumdar, (1995) 6 SCC 274 : AIR 1996 SC 272 Lease expired by efflux of time; mere increase in rent (e.g., due to taxes) did not amount to renewal; not a case of holding over under Section 116. Court held this authority not relevant to the present case because the present case was one of holding over (Section 116).
V. Dhanpal Chettiar v. Yesodai Ammal, (1979) 4 SCC 214 : AIR 1979 SC 1745 Overruled decisions taking the contrary view; held that notice under Section 106 is not necessary for seeking eviction under State Rent Act cases. Court held this case not relevant because the plaintiff was not seeking ejectment under the Rent Control Act but under the general law (Transfer of Property Act).
Bhagbandas Agarawalla v. Bhagwandas Kanu, (1977) 2 SCC 646 : AIR 1977 SC 1120 Case was cited by plaintiff (specific principle as applied in this opinion is not elaborated in the text). The opinion lists this case among those relied upon by the plaintiff; the court did not elaborate a distinct application of this authority in its reasoning.
Harihar Banerjee v. Ramshashi Roy, AIR 1918 PC 102 Notices to quit may be liberally construed; sufficiency judged by what tenants conversant with facts would understand; construed to uphold notice descriptions when recipient familiar with facts. The court noted this authority was not helpful because it dealt with description defects and did not address the mandatory Section 106 requirement that the 15-day notice must expire with the tenancy month.
Daggar v. Shepherd, 1946 (1) All E.R 133 Held a notice that offered termination on or before a future tenancy date could be valid as terminating with the end of the tenancy month. The court observed the facts and construction in Daggar were not analogous and therefore the authority was of no help in the present case.
D.C. Bhatia v. Union of India, JT 1993 (7) SC 114 Upheld the legality/validity and applicability (including to pre-existing tenancies) of the Delhi Rent Control Act amendment excluding premises above Rs. 3,500 per month from the Act w.e.f. 1.12.1988. The court relied on this decision to conclude that from 1.12.1988 the premises ceased to be governed by the Delhi Rent Control Act and the landlord could seek eviction under ordinary law.
Gooderham & Worts Ltd. v. Canadian Broadcasting Corporation, AIR 1949 PC 90 Where on termination of lease rent is paid and accepted and tenant continues in possession, the tenancy is renewed and must be terminated by service of notice as contemplated by Section 106. The court applied this principle to hold that acceptance of rent after termination gave rise to a tenancy renewable month-to-month and that Section 106 notice would be necessary to effect termination.
Kai Khushroo Bezonjee Capadia v. Bai Jerbai Hirjibhoy Warden, AIR 1949 FC 124 Where a contractual tenancy to which Rent Control legislation applies has expired and the tenant continues in possession, acceptance of rent thereafter will not necessarily afford ground for holding the landlord has assented to a new contractual tenancy (as restricted by Rent Control statutes). The court noted this principle but distinguished it on facts: after 1.12.1988 the Rent Control restriction ceased to apply and Section 116 principles operate; therefore, post-amendment acceptance of rent gave rise to a new periodic tenancy unless agreement to the contrary existed.
Ganga Dutt Murarka v. Kartik Chandra Das, AIR 1961 SC 1067 Same line of authority as Kai Khushroo regarding acceptance of rent not necessarily creating a new contractual tenancy where Rent Control legislation applies. Used to support the general principle; court distinguished on the present facts because the Rent Control restriction had been removed for the premises by amendment.
Bhawanji Lakhamshi v. Himmatlal Jamnadas Dani, AIR 1972 ??? 819 Considered the scope of Section 116; observed that acceptance of rent is an unequivocal act referable only to the landlord's assent to tenant continuing in possession. The court cited this authority to reinforce that acceptance of rent leads to assent and hence a periodic tenancy under Section 116.
Mangilal v. Sugan Chand Rathi, AIR 1965 SC 101 Before a tenant can be evicted by a landlord, the landlord must comply with Section 106: a lease from month-to-month can be terminated only by giving 15 days' notice expiring with the end of the tenancy month. The court relied on this principle to hold the 20.2.1990 notice did not satisfy Section 106 and so did not validly terminate the tenancy.
Francis Jerone Fernandis v. Anthony Pedad Cardoza, AIR 1984 Karnataka 226 Held that merely giving 15 days' time by itself does not meet Section 106; the notice must also indicate that the 15 days expire with the tenancy month. The court applied this authority to underscore that the 20.2.1990 notice failed to show the 15 days expired with the tenancy month, rendering it invalid for Section 106 purposes.

Court's Reasoning and Analysis

The court's analysis proceeded in discernible steps strictly informed by the pleaded facts and statutory framework:

  1. Existence and expiry of the registered lease: The lease dated 18.1.1982 (registered), for three years with a two-year renewal clause executed, was held to have expired by efflux of time on 17.1.1987 as contemplated by Section 111(a) of the Transfer of Property Act.
  2. Effect of the Delhi Rent Control Act amendment: Until 30.11.1988 the premises were governed by the Delhi Rent Control Act which limited eviction remedies. The 1988 amendment excluded premises with rent above Rs. 3,500 p.m. w.e.f. 1.12.1988. The court relied on D.C. Bhatia (JT 1993 (7) SC 114) which upheld the amendment's legality and application to tenancies commenced earlier, concluding that from 1.12.1988 the premises ceased to be governed by the Rent Control Act and the landlord could invoke ordinary law remedies.
  3. Nature of possession after lease expiry and effect of acceptance of rent: The court accepted that after expiry the defendant continued in possession and that the plaintiff accepted rent. That factology constitutes holding over and falls within Section 116 of the Transfer of Property Act: acceptance of rent in absence of agreement to the contrary gives rise to renewal of tenancy from month to month (or year to year as per Section 106). The court cited illustrative authorities (Gooderham & Worts; Bhawanji Lakhamshi) and explained that acceptance without reservation meant the tenancy became month-to-month.
  4. Applicability of earlier authorities limiting renewal where Rent Control applies: The court recognized precedents (Kai Khushroo, Ganga Dutt Murarka) which hold that, where Rent Control legislation applies, acceptance of rent after expiry will not necessarily create a new contractual tenancy. The court distinguished those authorities on the facts because the Rent Control protection had been removed as to this premises by the 1988 amendment.
  5. Requirement of Section 106 notice to terminate a periodic tenancy: Given that a month-to-month tenancy arose under Section 116, the court held that Section 106's two strict requirements for a landlord's notice must be met: (1) the notice must give 15 days' notice; and (2) the 15-day period must expire with the end of the tenancy month. The court emphasized strict compliance with these requirements and relied on Mangilal v. Sugan Chand Rathi and Francis Jerone Fernandis for the proposition that a mere 15-day period without indication that it expires with the tenancy month is insufficient.
  6. Validity of the notice dated 20.2.1990: The court examined the notice, postal receipt and acknowledgement. The tenancy month was held to run from the 18th of a month to the 17th of the following month (reflecting the original lease's commencement). The notice dated 20.2.1990 (sent 24.2.1990) purported to terminate the tenancy "from the date of the issue of this letter" and gave 15 days to vacate. The court found that (a) the notice purported to terminate from its date of issue (not at the end of a tenancy month), and (b) the 15-day period did not expressly expire with the end of a tenancy month. Consequently, the notice did not satisfy the two conditions of Section 106 and was invalid.
  7. Waiver by acceptance of rent after purported termination: Even assuming arguendo the 20.2.1990 notice had validly terminated the tenancy, the court noted the plaintiff admittedly accepted rent thereafter (till the suit and even thereafter). That conduct, the court held, amounted to waiver of the notice under Section 113 of the Transfer of Property Act.
  8. Consequence for the plaintiff's application under Order 12, Rule 6 CPC: Given that the tenancy had not been validly terminated before institution of the suit (either because the Section 106 notice was defective or because it was waived by subsequent acceptance of rent), the court concluded the plaintiff could not obtain possession on the basis asserted and the suit — and the Order 12, Rule 6 application — were not maintainable.

Holding and Implications

Holding:

Both the suit for possession and mesne profits and the plaintiff's interlocutory application (I.A. No. 2435/96 under Order 12, Rule 6) are dismissed. I.A. No. 6970/97 (filed by defendant) is disposed of accordingly. The parties are left to bear their own costs.

Implications:

  • Direct effect: The plaintiff is not granted possession; the suit and the referenced interlocutory applications are dismissed, and both parties bear their own costs.
  • On broader law: The court's decision is grounded on application of Section 116 (holding over) and Section 106 (requirement of 15 days' notice expiring with the tenancy month) of the Transfer of Property Act, and on the effect of the 1988 amendment to the Delhi Rent Control Act as applied by the Supreme Court in D.C. Bhatia. The opinion does not purport to set out any novel legal principle beyond applying those statutory provisions and existing authorities to the facts of this case.

Order: Suit dismissed.

Show all summary ...

J.B Goel, J.— In the suit for possession and mesne profits, the plaintiff has filed the application (I.A 2435/96) under Order 12, Rule 6 read with section 151 of the code of Civil Procedure (for short “the Code) for passing a decree of possession on admission.

2. The plaintiff's case is that she is the owner of property No. E-525, Greater Kailash-II, New Delhi; had let out the same to the defendant under a lease deed dated 18.1.1982 at a monthly rent of Rs. 6,500/-. The lease was duly registered and was for a period of three years and renewable for a period of two years with enhanced rent of 10%, which was so renewed for two years and the rent was raised Rs. 7,150/-; that lease being for a fixed period, expired by efflux of time after five years; the defendant did not vacate the premises; after the amendment in the Delhi Rent Control Act in 1988, the premises are out of the purview of that Act as the rent is more than Rs. 3,500/- per month. The plaintiff also gave notice dated 20.2.1990 terminating the tenancy though it was not necessary. The defendant has not vacated the premises, the plaintiff also claims mesne profits @ Rs. 35,000/-, hence this suit for possession and damages from 17.1.1987 till the date of filing of the suit and further mesne profits under Order 20, Rule 10.

3. Defendant has filed a written statement contesting the suit. It is alleged that the suit is not maintainable as the attorney has no locus standi to file the suit. It is admitted that a lease was executed in the year 1982 for a period of three years which was renewed for two years on enhanced rent of 10%. It is alleged that after the expiry of the lease period, the plaintiff had agreed that the defendant will continue to occupy the premises on the same terms as per the lease deed; and on the basis of that agreement, they are occupying the premises as a lawful tenant. The plea thus is of holding over. It is also alleged that amendment made in the Delhi Rent Control Act is prospective in operation and the benefit of the Delhi Rent Control Act is available to them. Validity of the amendment of the Delhi Rent Control Act is also challenged. It is also alleged that no valid notice of termination of the tenancy has been served, the notice dated 20.2.1990 is invalid; suit is not maintainable, and the plaintiff is not entitled to decree of possession or for mesne profits.

4. After the pleadings were completed, the plaintiff has filed the aforesaid application under Order 12, Rule 6 of the Code for decree on admission, alleging that the lease deed dated 18.1.1972 stands admitted; lease has expired on 17.1.1987 and even service of notice of termination dated 20.2.1990 stands admitted and as such a decree for possession be passed. This application is also contested by the defendant denying that the plaintiff is entitled to possession. It is pleaded that the defendant has been making payment of the rent by means of cheques which have been accepted after the expiry of the lease period.

5. Defendant has filed another application being I.A No. 6970/96 under section 151 of the code alleging that the defendant has been paying and the plaintiff has been accepting rent sent by cheques for every month without any demur or objection and against receipts, thereby fresh tenancy has been created and there is novation of contract of lease and the suit is liable to be dismissed. Thus the defendant has taken the plea of holding over. In reply receipt of rent from the defendant is not denied, however it is pleaded that no new right has accrued to the defendant. However, it is admitted that they are holding over the premises within the meaning of Transfer of Property Act (for short “the Act”) after the expiry of the lease.

6. The suit for possession and mesne profit was filed on 9.11.1990 In the plaint, it was not alleged that the defendant was in arrears of rent till the date the suit was instituted though mesne profits are claimed but without specifying the amount claimed or due.

7. I have heard learned Counsel for the parties.

8. Learned Counsel for the plaintiff has contended that the lease has expired by efflux of time on 17.1.1987 under Section 111(a) of the Act and thereafter possession of the defendant was not as a contractual tenant but by holding over for which no notice of termination is required, but still a legal notice of termination of tenancy dated 20.2.1990 was served on the defendant by registered post as such the contractual tenancy, if any, also has been terminated. Thus the relationship of landlord and tenant, expiry of lease by the efflux of time or by termination through notice dated 20.2.1990 is proved or is not disputed. The plaintiff is entitled to decree under Order 12, Rule 6, CPC. He has inter alia placed reliance on Smt Shanti Devi v. Amal Kumar Banerjee , (1981) 2 SCC 199 : AIR 1981 SC 1550, Savita Dey v. N. Majumdar, (1995) 6 SCC 274 : AIR 1996 SC 272, V. Dhanpal Chettiar v. Yesodai Ammal, (1979) 4 SCC 214 : AIR 1979 SC 1745, Bhagbandas Agarawalla v. Bhagwandas Kanu, (1977) 2 SCC 646 : AIR 1977 SC 1120, Harihar Banerjee v. Ramshashi Roy, AIR 1918 PC 102 and Daggar v. Shepherd, 1946 (1) All E.R 133. Whereas, learned Counsel for the defendant has contended that it is admitted that new tenancy has been created or renewed by holding over, for which a valid notice of termination is required and the notice dated 20.2.1990 is not a valid notice under Section 106 of the Act. He has also placed reliance on some case law which will be referred to wherever relevant and necessary.

9. The execution of the lease deed dated 18.1.1982 is not disputed by the defendant. This lease deed is a registered one, the lease was for three years commencing from 18.1.1982 at a rent of Rs. 6,500/- p.m with the option to renew it for a period of two years on the existing terms but with increased rent by 10%. This renewal for two years is also not disputed. This lease, thus came to an end by efflux of time after expiry of five years on 17.1.1987 as provided under Section 111(a) of the Act. At that time, Delhi Rent Control Act was applicable and because of the restriction under that Act the plaintiff could not seek eviction of the defendant except on specified grounds. The defendant thus enjoyed protection as a statutory tenant. However, the Delhi Rent Control Act was amended and the premises whose rent was more than Rs. 3,500/- per month was excluded from the purview of that Act w.e.f 1.12.1988 The legality and validity of this amendment as well as the fact that this amendment is also applicable in respect of tenancies which had commenced before this amendment has been upheld by the Supreme Court in the case of D.C Bhatia v. Union of India, JT 1993 (7) SC 114. As such, the premises ceased to be governed by the Delhi Rent Control Act w.e.f 1.12.1988 The landlord could seek eviction under the ordinary law.

10. As noticed above, the defendant has been paying and the plaintiff has been accepting the amount of rent thereafter. It is also admitted by the plaintiff and not disputed during argument that this is a case of holding over. Case of holding over falls under Section 116 of the Act. That section and its illustrations read as under:

“116. Effect of holding over—If a lessee or under-lessee of property remains in possession thereof after the determination of the lease granted to the lessee, and the lessor or his legal representative accepts rent from the lessee or under-lessee, or otherwise assents to his continuing in possession the lease is, in the absence of an agreement to the contrary, renewed from year to year, or from month to month, according to the purpose for which the property is leased, as specified in Section 106.

Illustrations

(a) A lets a house to B for five years. B underlets the house to C at a monthly rent of Rs. 100/-. The five years expire, but C continues in possession of the house and pays the rent to A. C's lease is renewed from month to month.

(b) A lets a farm to B for the life of C. C dies, but B continues in possession with A's assent. B's lease is renewed from year to year.

11. The plaintiff has been accepting the rent from the defendant lessee and allowed them to continue in possession. It is not the case of the plaintiff that there was any agreement to the contrary for accepting the rent nor it is her case that rent was accepted under any reservation. The lease was thus renewed from month to month after 1.12.1988 It has also been so held in Gooderham & Worts Ltd. v. Canadian Broadcasting Corporation, AIR 1949 PC 90, that where on the termination of the lease, the rent is paid and accepted and the tenant continues with the possession, the tenancy is renewed and would be terminated by serving a notice as contemplated under Section 106 of the Act.

12. Till 30.11.1988, the premises were governed by the Delhi Rent Control Act and the plaintiff could not have sought ejectment except on fulfilment of certain specified conditions.

13. It is well settled that where a contractual tenancy to which the Rent Control Legislation applies has expired by efflux of time or by determination of notice to quit and the tenant continues in possession of the premises, 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. (Kai Khushroo Bezonjee Capadia v. Bai Jerbai Hirjibhoy Warden, AIR 1949 FC 124 and Ganga Dutt Murarka v. Kartik Chandra Das, AIR 1961 SC 1067 [1069]).

14. What is the position after the restriction ceased to exist on 1.12.1988 in the resent case. In that case, as held in Kai Khushroo (supra), if after the termination f lease, the lessee continues in possession and the landlord accepts rent from such person or otherwise expresses assent to the continuation of its possession a new tenancy comes into existence as is contemplated by Section 116 of the Act, and unless there is an agreement to the contrary, such tenancy would be regarded as one from year to year or from month to month in accordance with the provisions of Section 106 of the Act.

15. In Bhawanji Lakhamshi v. Himmatlal Jamnadas Dani, AIR 1972 ??? 819, the scope of Section 116 of the Act has been considered and after referring the aforesaid two cases and other cases, it has been observed that the basis of Section 116 is that, in case of normal tenancy, a landlord is entitled, where he does not accept the rent after the notice to quit, to file a suit for ejectment and obtain a decree for possession. But if he accepts the rent, his acceptance of rent is an unequivocal act referable only to his desire to assent to the tenant continuing in possession.

16. The tenant having paid the rent and the landlord having accepted it as rent, a month to month tenancy came into existence; And before the defendant could be evicted, the provisions of Section 106 of the Act have to be complied, that is, a notice termination of tenancy must be served giving 15 days notice expiring with the end of the tenancy month. This condition is essential and must be complied with. The case of V. Dhannapal Chettiar v. Yesodai Ammal, (1979) 4 SCC 214 : AIR 1979 SC 1745, is not relevant on this point as in that case overruling the decisions taking the contrary view, it was held that notice under Section 106 of the Act is not necessary for seeking eviction under State Rent Act cases. The plaintiff is not seeking ejectment under the visions of the Delhi Rent Control Act but under the general law as contained in Transfer of Property Act.

17. In Savita Dey v. Nageswar Majumdar, (1995) 6 SCC 274 : AIR 1996 SC 272, the suit filed after the expiry of the lease period of 21 years. In this case, it was held that lease expired by efflux of time and there was no renewal of the contract by mere easing the rent because of increase in taxes. It was not the case of holding over as contemplated under Section 116 of the Act. This authority also is not relevant.

18. In Smt Shanti Devi v. Amal Kumar Banerjee , (1981) 2 SCC 199 : AIR 1981 SC 1550, it was held where a lease is for a fixed period, it expires by efflux of time under Section 111(a) and service of a notice under Section 106 of the Act is not necessary in such a case. It was not the case of the tenant that he was a tenant holding over within the meaning of Section 116 of the Act. The suit was filed on the expiry of lease after agreed renewals. As such, no notice of termination was necessary. This authority is also of no help.

19. The present case is a case of holding over. A notice of termination of tenancy as provided under Section 106 of the Act is necessary and without such a notice, suit for possession would not be maintainable.

20. However, the plaintiff has also pleaded that a notice dated 20.2.1990 terminating the tenancy was served on the defendant. Learned Counsel for the defendant has contended that this is not a valid notice under Section 106 of the Act.

21. Copy of notice dated 20.2.1990, its Postal Receipt No. 1269 dated 24.2.1990 and acknowledgement card of its delivery have been annexed with the plaint as Annexure “C”. Receipt of this notice is not denied. The tenancy by holding over became a monthly tenancy which commenced on 18.1.1982 The month of tenancy thus became from 18th of the English month to the 17th of the following month. The notice dated 20.2.1990 was sent by registered post on 24.2.1990; the acknowledgement card does not indicate the date of its delivery and it could be presumed that this was delivered within 2-3 days after it was sent by post. In para 6, the plaintiff notified as under:

“6. I hereby give you notice that the lease deed dated January 18, 1982 entered between you and my clients stands terminated from the date of the issue of this letter and you are called upon to deliver vacant and peaceful possession of the premises……to my clients within 15 days of the receipt of this notice.

22. The two requirements of notice under Section 106 of the Act are, (1) should give 15 days notice; (2) expiring with the end of the month of tenancy. This notice terminates the tenancy from the date of the issue of the notice which is not valid. It gave 15 days period to vacate, this period of 15 days also does not expire with the end of the month of tenancy. Both the conditions of Section 106 are not fulfilled. Notice under Section 106 of the Act is essential and must be strict complied with. In Mangilal v. Sugan Chand Rathi, AIR 1965 SC 101 it was held that before a tenant can be evicted by a landlord, he must comply with the provision of Section 106 of the Act. The requirement of Section 106 is that a lease from month to month could be terminated only after giving 15 days notice expiring with the end of the tenancy month either by the landlord to the tenant or by the tenant to the landlord and such a notice is essential for bringing an end to the relationship landlord and the tenant. Unless the relationship of landlord and tenant is valid terminated, the landlord has no right to obtain possession of the premises evicting the tenant. On that basis, this notice relied by the plaintiff does not fulfill the requirement of Section 106 of the Act and has not validly terminated the tenancy.

23. Learned Counsel for the plaintiff has contended that a notice to quit should be liberally construed and has relied on the decision in Harihar Banerji v. Ramshashi Roy, AIR 1918 PC 102. In this case, the Judicial Committee the Privy Council had observed (at page 107) as under:

“…..that notices to quit, though not strictly accurate or consistent in statements embodied in them, may still be good and effective in law; that test of their sufficiency is not what they would mean to a stranger ignorant 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, that they are to be construed not with a desire to find faults in them which would render them defective but to be considered ut res magis valeat quam pereat.

24. In that case, the defect which was said to invalidate the notice pertained to the description of the demised premises and the Privy Council held that the recipient of the notice would be quite conversant with the actual description and could know what the description stood for. In that case, the question whether the notice complied with the requirement of 15 days notice expiring with the end of the month of tenancy was not under consideration. This authority also thus is of no help.

25. In Dagger v. Shepherd, 1946 (1) All E.R 133 (CA), the tenancy started on March 25, 1939 and was terminable by three months' notice. The notice to quit dated 20.12.1944 purported to terminate the tenancy “on or before March 25 next, which would be March 25, 1945. On construction, it was held that it gave an offer to the tenant to accept the determination of the tenancy on any earlier date than that named to give up possession. The notice was held to be a valid notice as it had the effect of terminating the tenancy with the end of the tenancy month. This is not the case in the present case. This authority also is of no help.

26. In Francis Jerone Fernandis v. Anthony Pedad Cardoza, AIR 1984 Kamataka 226, it was held that a notice giving mere 15 days' time by itself will not answer the requirement of Section 106 but it must also indicate that 15 days period expires with the end of the tenancy month.

27. Assuming this notice dated 20.2.1990 validly terminated the tenancy, but even thereafter the plaintiff has been admittedly receiving rent from the defendant till the suit was instituted on 9.11.1990 and even thereafter. Thereby, this notice also stood waived under Section 113 of the Act.

28. In view of these circumstances, it cannot be said that the tenancy of the defendant has been validly terminated before instituting the suit.

29. The suit and consequently the application under Order 12, Rule 6 are thus not maintainable.

30. Both the suit and I.A No. 2435/96 are accordingly dismissed. In the circumstances, the parties are left to bear their own costs.

31. The suit and the I.As No. 2435/96 and 6970/97 are disposed of accordingly.

Suit dismissed.

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