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Durga Prasad v. Rama Kant
Factual and Procedural Background
The plaintiff (respondent) is the landlord and the defendant (appellant) was his tenant. The plaintiff sued for arrears of rent and for ejectment. The trial court awarded the arrears of rent but dismissed the ejectment claim on the ground that the notice under Section 106 of the Transfer of Property Act was invalid. The lower appellate court disagreed with the trial court on the validity of the notice and decreed the ejectment as well. The defendant appealed to this Court.
Legal Issues Presented
- Whether the ejectment suit should be dismissed because the plaintiff, having obtained permission from the District Magistrate under Section 3 of the U.P. (Temporary) Control of Rent and Eviction Act, 1947 to institute the ejectment suit on the ground that he had no accommodation for himself, subsequently obtained other accommodation so that the original ground for permission no longer existed.
- Whether the notice given by the plaintiff to the defendant complied with Section 106 of the Transfer of Property Act (i.e., whether a notice requiring the tenant to vacate on the day immediately following the expiry of a monthly tenancy constitutes a notice "expiring with the end of a month of the tenancy").
Arguments of the Parties
Appellant's Arguments (Defendant)
- The plaintiff had obtained permission from the District Magistrate under Section 3 of the U.P. (Temporary) Control of Rent and Eviction Act, 1947 to institute an ejectment suit on the ground that he had no accommodation for himself.
- After the trial court decision, the plaintiff was able to obtain possession of another house and therefore no longer required the house in suit for his residence; consequently, the ejectment suit should be dismissed because the ground on which permission had been granted no longer existed.
- The notice to quit served on the defendant was invalid under Section 106 of the Transfer of Property Act because it required vacation on 1 July 1948; counsel contended that a valid notice would have required vacation on or by 30 June 1948 to comply with the provision requiring a notice "expiring with the end of a month of the tenancy."
Respondent's / Plaintiff's Position (as represented in the opinion)
- The District Magistrate had granted permission under Section 3; that grant removed the statutory bar on instituting the suit and subsequent events (such as acquiring other accommodation) could not re-impose that bar.
- It remained a disputed fact whether the plaintiff in truth had obtained other accommodation; the plaintiff (respondent) also asserted that he had a large family and still needed the house in suit.
- The notice, though requiring vacation on 1 July 1948, should be construed as a notice expiring with the end of the tenancy month (i.e., treating the tenancy as ending on 30 June 1948), and therefore valid under Section 106.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhuri, A.I.R. 1941 F.C. 5 | Courts may take subsequent events into account where a fresh law is enacted after a lower-court decision. | The Court distinguished the present facts from these cases; it noted that in the cited cases the subsequent event was the enactment of new law and therefore not analogous to the present factual change. |
| Niranjan Lal Bhargava v. Mt. Ram Kali Devi | Consideration of subsequent events (as in cases where the law changed after decision). | Treated together with the previous authority as inapplicable on facts: the present case did not involve a change in law analogous to these decisions. |
| Mandli Prasad Ramcharanlal v. Ramcharanlal, A.I.R. 1948 Nag. 1 | Doctrine that courts may, in exceptional cases, take notice of events after institution of suit where original relief becomes inappropriate (example: death of a party). | The Court treated this as distinguishable: it is an exceptional doctrine and the present facts did not warrant its application; the grant of permission by the District Magistrate could not be undone by subsequent events. |
| Bradley v. Atkinson (Full Bench) | Interpretation of Section 106 language: "fifteen days' notice expiring with the end of a month of the tenancy" means a notice that requires the tenant to quit upon the first of a month where tenancy began on the first. | Relied upon by the Court as supportive: the case supports treating a notice that requires vacation on the day immediately following the last day of the tenancy month as valid. |
| Seoti Bibi v. Jagannath Prasad | Held a notice invalid where it did not fix a period expiring with the end of the tenancy month (facts involved Hindu calendar month dates leading to an interval between tenancy end and vacate date). | Distinguished on facts: the cited case involved an interval of days between the tenancy's month-end and the vacate date, unlike the present case where vacation was the immediate day after the month-end. |
| Queen's Club Gardens Estates Ltd v. Bignell, 1924 K.B. 117 | For a periodic tenancy, the notice must expire at the end of a periodic week/month from the commencement of the tenancy. | Distinguished: in that case the notice caused the tenant to remain for days after the weekly tenancy's end; whereas in the present case the tenant was not treated as tenant even for one day after expiry. |
| Precious v. Reedie | Held that a monthly tenancy requires a month's notice expiring at the end of a periodic month from the tenancy commencement; notice given must match that periodicity. | Distinguished on facts because the invalid notice in that case required vacation several days into the month rather than on the immediate next day after month-end. |
| Harihar Banerji v. Ramshashi Roy, 16 A.L.J. 969 | Notices to quit should be construed with reference to tenants' understanding and not with a view to find technical defects; interpret notices so as to uphold them where reasonable. | Quoted for the construction principle that notices are to be construed sensibly (res magis valeat quam pereat) and applied to support validating the notice in present case. |
| A.S. Gangananrakasam Pillai v. F.S. Vaz, A.I.R. 1931 Mad. 352 | Authorities bearing on sufficiency/validity of notices to quit under comparable facts. | Noted as relied upon by the lower court; the present Court observed that such cases lent support to the lower court's conclusion and aligned with the Court's reasoning. |
| Utility Articles Manufacturing Co. v. Raja Bahadur Motilal Bombay Mills | Authorities used in lower court relating to notice validity. | Also noted as lending support to the lower court's conclusion and consistent with the present Court's view validating the notice. |
Court's Reasoning and Analysis
The Court considered the two principal contentions in turn.
First point (District Magistrate's permission and subsequent events):
- The Court set out the statutory background: under the Transfer of Property Act landlords generally have the right to evict; wartime measures and subsequent ordinances led to the U.P. (Temporary) Control of Rent and Eviction Act, 1947, which restricts that right and requires District Magistrate permission for ejectment suits in certain grounds not enumerated in Section 3.
- The Court noted that where the grounds for ejectment are those mentioned in Section 3 the District Magistrate's permission is not necessary, but if the ground is otherwise, permission is required and DM has discretion to grant or refuse, with the Act not specifying the precise grounds for refusal or grant.
- In the present case the District Magistrate had granted permission to the plaintiff. The Court reasoned that the grant of permission removed the statutory bar to instituting the suit for that plaintiff; once removed, subsequent events (even if true) could not reimpose the statutory bar that was removed by the grant.
- The Court considered the appellant's reliance on authorities where subsequent events were taken into account, but distinguished them: the relied authorities involved the enactment of new law after lower-court decision or the death of a party — exceptional circumstances recognized by prior case law — which did not exist here.
- The Court also observed that it remained a disputed factual matter whether the plaintiff had in fact secured other accommodation; the respondent asserted need for the house owing to a large family. On the legal question, however, the Court held that the bar once removed by DM permission could not be reimposed by subsequent events.
Second point (Validity of the Section 106 notice):
- Facts: the tenancy was monthly, commencing on the first of each calendar month. On 17 May 1948 the plaintiff's lawyer sent a notice asking the defendant to vacate "on first of July 1948," with the Court interpreting that the plaintiff treated the defendant as tenant only up to 30 June 1948 (i.e., the tenancy ended with the month of June).
- The appellant argued the notice was bad because it required vacation on 1 July 1948, contending that a valid notice under Section 106 would require vacation by 30 June 1948.
- The Court analysed Section 106's provision that a month-to-month tenancy is terminable by fifteen days' notice "expiring with the end of a month of the tenancy." The core question was whether a notice requiring vacation on the first day after the month's end can be treated as one expiring with the end of that month.
- Relying on Bradley v. Atkinson, the Court accepted that where a tenancy begins on the first of a month, a good notice can require the tenant to quit upon the first of a month; thus a notice in the present form meets the statutory language. The Court contrasted the present facts with several authorities in which the vacate date left an interval after the tenancy's periodic term ended — those were distinguished as involving factual gaps that made notices invalid.
- The Court invoked the constructional principle from Harihar Banerji v. Ramshashi Roy that notices should be construed as tenants conversant with the holding would understand them, and with a preference for upholding rather than defeating notices by technicality (res magis valeat quam pereat).
- Applying these principles and the cited authorities, the Court concluded that a notice which requires the tenant to vacate on the date immediately following the expiry of a monthly tenancy complies with Section 106.
Holding and Implications
Holding: The appeal is dismissed with costs.
Implications:
- Direct effect on the parties: The appellate decree for ejectment stands — the plaintiff's permission from the District Magistrate to institute the ejectment suit remains effective and cannot be nullified by subsequent events; the notice under Section 106 was held to be valid where it required vacation on the day immediately following the expiry of the monthly tenancy.
- Broader legal implications: The opinion applied established principles of statutory construction and precedent to validate a notice that requires vacation on the immediate day following the tenancy month. The opinion distinguished prior authorities where a gap existed between the tenancy term end and the vacate date. The Court did not purport to create a novel doctrine beyond these applications; no broader precedent-creating statement beyond the case's reasoning is explicitly set out in the opinion.
Additional procedural notes in the opinion: Justice Sankar Saran agreed with the judgment. The Court ordered dismissal of the appeal with costs.
Bind Basni Prasad, J.:— This defendant is admittedly the tenant of the plaintiff-respondent. The latter brought a suit for the arrears of rent and ejectment of the defendant from the house. The trial court decreed the suit in part as regards the arrears of rent, but dismissed it for the ejectment on the ground that the notice under Section 106 of the Transfer of Property Act was invalid. The lower appellate court disagreed with this finding and decreed the claim for ejectment also. The defendant comes in appeal to this Court.
2. Two points have been argued in this Court:
3. The first point is that the plaintiff obtained the permission of the District Magistrate under Section-3 of the U.P (Temporary) Control of Rent and Eviction Act of 1947 (Act III of 1947), for the institution of the suit of ejectment on the ground that he had no accommodation for himself. It is contended that after the suit had been decided by the trial court, the plaintiff was able to obtain the possession of other house for his residence. The plaintiff, therefore, does not any longer require the house in suit for his residence. Hence despite the fact that the District Magistrate has granted the permission, the suit should foe dismissed as the object of the U.P (Temporary) Control of Rent and Eviction Act is to afford relief to the tenants of houses and this object will be defeated if the suit is decreed on a ground which no longer exists. The legal position is this: According to the Transfer of Property Act every landlord has an unfettered right to evict tenants at will. During the war when there was difficulty about accommodation, Orders were issued under the Defence of India Rules to avoid the harassment of tenants and afford protection to them. With the expiry of the Defence of India Act, the Orders issued under it also came to an end. Ordinances were then made to continue the same protection to the tenants. Subsequently these ordinances were replaced by the U.P (Temporary) Control of Rent and Eviction Act of 1947 (Act III of 1947). According to it the right of the landlords to eject the tenants has been restricted. Section 3 read with Section 10 of the Amending Act of 1948 would show that if a tenant is sought to be ejected for any of the grounds mentioned in Section 3, then the permission of the District Magistrate is not necessary for the institution of such a suit. If, however, it is intended to institute a suit for the ejectment of a tenant on any ground other than those mentioned in Section 3, then the landlord has to obtain the permission of the District Magistrate. The District Magistrate has been given a discretion to refuse or grant the permission. The grounds upon which he may refuse or grant the permission are not specified in the Act. It appears that in the present case the District Magistrate granted the permission to the plaintiff because the latter was in need of accommodation for himself. The allegation that the plaintiff has been able to secure another house for himself has not been proved. Learned counsel contends that he was not given an opportunity to establish this and requests that he should be given such an opportunity. Assuming that the plaintiff has been able to secure another house for his residence, the question is how does it affect the merits of this case. With the grant of permission by the District Magistrate, the bar of the institution of the suit imposed by Section 3 was removed for the plaintiff. Subsequent events cannot reimpose that bar. The grant of the permission under Section 3 created a position so far as plaintiff was concerned so as to make available to him the rights which he has as a landlord under the Transfer of Property Act. Learned counsel contends that subsequent events should be taken into consideration by the Courts in appeal for the disposal of the cases. Reliance is placed on Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhuri A.I.R 1941 F.C 5. and Niranjan Lal Bhargava v. Mt. Ram Kali Devi.2 In both these cases the subsequent events which happened after the decision of the case by the lower court was the enactment of a fresh law and it was held that the courts should take them into consideration. Another case which has been relied upon is Mandli Prasad Ramcharanlal v. Ramcharanlal A.I.R 1948 Nag. 1.. In this case one of the parties died and the question was whether the maintainability of the suit is affected by reason of the death of the minor plaintiff after the institution of the suit. Learned Judges held:
A suit must be tried in all its stages on the cause of action as it existed at the date of its commencement. The Court, however, may in suitable cases take notice of events which have happened since the institution of the suit and afford relief to the parties on the basis of the, altered conditions. This doctrine is of an exceptional character and is applied in cases where it is shown that the original relief claimed has, by reason of subsequent change of circumstances, be come inappropriate, or, that it is necessary to base the decision of the Court on the altered circumstances in order to shorten litigation or to do complete justice between the parties.
4. The present case is distinguishable from the three cases just referred to. There has been no alteration in the law nor has there been any event of the nature which happened in the Nagpur case just referred to. It is still a disputed fact whether or not the plaintiff needs the house in suit for his residence. Learned counsel for the respondent contends that the plaintiff has a large family and he is still in need of the house in suit. In these circumstances, the subsequent event, even if it has actually happened, cannot be taken into consideration in the decision of this appeal. In fact, I am inclined to the view that this subsequent even cannot re-impose a bar against the plaintiff which was removed by the grant of permission to him by the District Magistrate. The bar once removed cannot be reimposed.
5. The second ground taken is that the notice under Section 106 of the Transfer of Property Act was invalid. The relevant facts are these: it was a monthly tenancy and it commenced from the first of every calendar month. On May 17, 1948 the plaintiff sent a notice to the defendant through his lawyer, the last paragraph of which ran as follows:—
I therefore on behalf of my client ask you to vacate the portion, of House No. 82 Laskar Line, Cemetry Road under your occupation on first of July 1948 and to hand over its possession to my client and pay off all the rents etc. due to my client by that time otherwise my client will be compelled to sue you in a court of law for ejectment and recovery of arrears of rent at Rs. 10 P.M and you shall be responsible for his costs as well.
6. Learned counsel for the appellant contends that inasmuch as the defendant was required to vacate the house on the 1st July, the notice was bad. His contention is that if by the notice the defendant had been required to vacate the house by June 30, 1948, it would have been in compliance with Section 106 of the Transfer of Property Act and no valid objection could be taken to it. The relevant part of Section 106 is as follows:
a lease of immoveable property for any other purpose shall be deemed to be a lease from month to month terminable, on the part of either lessor or lessee, by fifteen days' notice expiring with the end of a month of the tenancy.
7. The whole question is whether the notice which the plaintiff sent to the defendant in the present case can be treated as one expiring with the end of the month of the tenancy, I am of opinion that it must be held to be so. It is clear from the notice, which has been quoted above, that the plaintiff treated the defendant as a tenant up to June 30, 1948 only. That was the last date of the tenancy. The fact that he asked the defendant to vacate the premises on July 1, 1948 proves that the plaintiff was not willing to treat him as his tenant on July 1, 1948.
8. Learned counsel for the appellant has relied upon several authorities and I propose to Seal with them now. The first is the Full Bench case of Bradley v. Atkinson.4 Far from helping the appellant this case goes against him. At page 903 Straight, J. observed as follows:—
It appears to me that the words in Section 106 of the Transfer of Property Act—“fifteen days' notice expiring with the end of a month of the tenancy”—mean what they purport to mean. In the present case, the tenancy began on the 1st July, 1882, and a good notice to quit would have to be so dated as to require the tenant to quit upon the first of a month.
9. This is exactly what has happened in the present case.
10. The next case is Seoti Bibi…Plaintiff v. Jagannath Prasad…Defendant . Prasad.5 The facts of that case are distinguishable from those of the present one. In that case a house was let on a monthly tenancy terminating on the 26th of each month according to the Hindu Calendar. Notice to quit was issued on December 28, 1915, and served on or before December 31, 1915. The notice required the tenant to vacate on or before January 31, 1916. The 26th of the Hindu month falling next after the date of the notice was January 15, 1916 and the next succeeding was February 14, 1916. It was held that the notice was invalid as it did not fix a period which expired with the end of a month of the tenancy. It will be seen that there was an interval of 16 days between the expiry of the month of tenancy and the date on which the tenant was required to vacate it. In the present case, the tenant was asked to vacate the house on the date immediately following the date of the expiry of the monthly tenancy, that is to say, not for a single day after the expiry of the month of the tenancy the defendant was treated as a tenant of the premises. Queen's Club Gardens Estates Limited v. Bignell 1924 i K.B 117. is the next case which has been relied upon. It was held in that case—
In order that a montnly tenancy may be determined by a notice to quit, the notice must be one which expires at the end of a periodic week from the commencement of the tenancy.
A weekly tenancy ran from Saturday in each week to the same day in the next week. The landlords on a Friday served upon the tenant a notice to quit, which was expressed to be “the requisite week's notice for the termination of your tenancy one week from Monday next”.
11. It was held that the notice to quit was invalid, inasmuch as it was not a notice expiring at the end of the weekly term. This again is distinguishable. The tenancy expired on the midnight of Friday, whereas by the notice the tenant was asked to vacate on the midnight of Sunday. Thus for one day at least after the weekly tenancy sought to be terminated, the defendant was treated by the plaintiff as tenant.
12. The next case relied upon is Precious v. Reedie.7 It was held in that case that—
In order that a monthly tenancy may be determined by notice to quit, the notice, in the absence of special agreement, must be a month's notice expiring at the end of a periodic month from the commencement of the tenancy.
A monthly tenancy began on the first day of the month and so continued from month to month. On September 5, 1923 the tenant received by post from the landlord a notice dated September 1, 1923 and purporting to give him “one month's notice to quit”.
13. It was held that the notice to quit was invalid inasmuch as it did not expire at the end of the monthly term. This is also distinguishable, because the monthly tenancy came to an end on the midnight of the last date of the month but notice required the tenant to vacate it on September 5.
14. In Harihar Banerji v. Ramshashi Roy 16 A.L.J 969 their Lordships of the Judicial Committee held that—
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 us res magis valeat quam Pereat Doe.
15. The lower court has also relied upon A.S Gangananrakasam Pillai v. F.S Vaz A.I.R 1931 Mad. 352. and Utility Articles Manufacturing Co. v. Raja Bahadur Motilal Bombay Mills.10 These cases do lend support to the conclusion at which it has reached.
16. I am of opinion that where a landlord in his notice requires a tenant to vacate the premises on a date immediately following the date of the expiry of the monthly tenancy, the notice complies with the provisions of Section 106 of the Transfer of Property Act. I would, therefore, dismiss this appeal with costs.
17. Sankar Saran, J.:— I agree.
18. By the Court—The appeal is dismissed with costs.
19. Appeal dismissed.
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