This second appeal is focussed by the original defendant, animadverting upon the judgement and decree dated 14.10.2008 passed by the learned Additional District Judge, Fast Track Court No.I, Chengalpattu in A.S.No.81 of 2007, confirming the judgement and decree dated 29.06.2007 passed by the learned Additional Subordinate Judge at Chengalpattu in O.S.No.398 of 2002. For convenience sake, the parties are referred to here under according to their litigative status and ranking before the trial Court.
2. A summation and summarisation of the relevant facts which are absolutely necessary and germane for the disposal of this Second Appeal would run thus:
The original defendant/appellant filed the suit O.S.No.398 of 2002 as against the defendant seeking the following reliefs:
"(a) directing the defendant to quit and delivery vacant possession of the suit premises at Plot No.1070, Door No.386, I Cross Street, Nehru Nagar, Kottivakkam, Chennai 600 041, to the plaintiff;
(b) directing the defendant to pay the sum of Rs.1,01,200/- to the plaintiff towards lease rent arrears from 15.12.2000 to 15.02.2002;
(c) directing the defendant to pay future rent from the date of presentation of the plaint till the date of eviction;
(d) directing the defendant to pay costs of this suit to the plaintiff; and
(e) for such other reliefs as this Hon'ble Court may deem fit and proper in the circumstances of the case and render justice."
The defendant entered appearance and filed the written statement resisting the suit.
3. The trial Court framed the relevant issues. During trial, the plaintiff examined himself as P.W.1 and Exs.A1 to A4 were marked. The defendant examined himself as D.W.1 and Exs.B1 to B3 were marked.
4. Ultimately the trial Court decreed the suit in favour of the plaintiff, as against which First Appeal was filed, for nothing but to be dismissed by the appellate Court, confirming the judgment and decree of the trial Court.
5. Being disconcerted and aggrieved by the judgment and decree of both the Courts below, this Second Appeal is focussed on various grounds and also setting out some substantial questions of law.
6. After hearing for some time the arguments on both sides, this Court felt that on the consent of both sides, this matter could be disposed of finally by framing the following substantial question of law:
"Whether both the Courts below erred in upholding that there is valid termination of tenancy of the defendant by the plaintiff's notice?"
7. A plain poring over and perusal of the relevant records including the certified copies of the judgment and decrees of both the Courts below would display and demonstrate that the plaintiff filed the suit for evicting the defendant and for recovery of arrears of rent after issuing the termination notice. Whereas, the defendant filed the written statement and resisted the suit by setting out various pleas, including the one that there was no valid termination of tenancy.
8. Both sides advanced arguments touching upon the substantial questions of law.
9. Ex.A2 dated 08.06.2000 is the notice sent by the plaintiff to the defendant by way of reply to Ex.A1, the defendant's notice and also terminating the tenancy of the defendant by the end of 30th June 2000 and calling upon him to hand over possession of the suit property by 1st of July 2000.
10. Indubitably and incontrovertibly, unassailably and admittedly, subsequent to such notice also there were payments of rent by the defendant and acceptance by the plaintiff. As such, it has to be taken that Ex.A2, the termination notice had lost its significance. However, subsequently there were correspondences between the parties, and the plaintiff as per Ex.A3, the notice dated 03.01.2002 stated thus in paragraph 7 and 8 and it is extracted here under for ready reference.
"7. We therefore call upon you to pay the sum of Rs.72,400/-due from you towards the rental arrears, immediately. Also note that you are liable to pay monthly rent from January, 2002 onwards if you continue in occupation of the premises.
8. Failure to pay the rent arrears our client will be constrained to initiate appropriate legal action to evict you from the premises and also for recovery of rent arrears and you will also be made liable to face the costs and consequences."
(emphasis supplied)
11. The learned Senior Counsel for the plaintiff would advance his argument that the words as found in paragraph 8 of Ex.A3, more specifically, the words "to initiate appropriate legal action to evict you from the premises" are sufficient for being taken as termination notice, as it is the second notice in the process of evicting the defendant.
12. Whereas, the learned Senior Counsel for the defendant would submit that there is not even any time limit prescribed in Ex.A3 and atleast if there is some time limit found specified in Ex.A3 and it is found out to be inadequate, then
Section 106 of the Transfer of Property Act, 1882 as amended by the Transfer of Property (Amendment) Act, 2002 (3 of 2003) would come to the rescue of the plaintiff, but here that is not the case. The learned Senior Counsel for the defendant also would submit that here the lease was for manufacturing purpose and hence six months notice was contemplated.
13. At this juncture, I would like to point out that Ex.A3, notice is dated 03.01.2002, whereas, the present suit was filed on 15.02.2002, so to say, long after the issuance of the said notice, Ex.A3, at any rate, much more than 15 days and there is no dispute over that. However, the question arises as to whether six months notice is contemplated or only 15 days notice would be sufficient.
14. The learned Senior Counsel for the plaintiff, correctly and appropriately would cite the following decisions of the Hon'ble Apex Court as well as this Court:
(1) 1995(5)SCC 314 [Shri Janki Devi Bhagat Trust, Agra vs. Ram Swarup Jain (Dead) by Lrs.] An excerpt from it would run thus:
"4. Under Section 107 of the Transfer of Property Act a lease of immovable property from year to year or for any term exceeding one year can be made only by a registered instrument. Any lease of this kind would be void unless it is created by a registered instrument. All other leases of immovable property may be made either by a registered instrument or by an oral agreement accompanied by delivery of possession. All the courts below have held that there was a valid lease. The High Court has also recorded that it was not the contention of the respondent that his lease was from year to year. The contention was that the lease was for a term exceeding one year and was, therefore, compulsorily registerable under the first part of Section 107 of the Transfer of Property Act. This contention has been negatived by the High Court as also by both the courts below. The High Court has held that the lease was not for a term exceeding one year, and so was not compulsorily registerable under the first part of Section 107. It, however, held that since the lease was for a manufacturing purpose, six months notice to quit was required under
Section 106. In its absence, termination was not valid.
5. This reasoning is fallacious. It is true that Ex. 12 which is not registered, cannot be looked at because it is not registered. But the factum of lease is not in dispute. All the courts have held that it was a lease from month to month and was not for a term exceeding one year. In view of this finding, the deeming provisions of the first part of
Section 106 of the Transfer of Property Act cannot be attracted in the present case.
6.
Section 106 provides, inter alia, that in the absence of a contract between the parties, a lease of immovable property for manufacturing purposes shall be deemed to be a lease from year to year terminable by six months notice. In the present case there is a clear finding to the effect that the lease in question was not from year to year or for a period exceeding one year. Therefore, even though the lease may be for a manufacturing purpose, since the lease was not from year to year, six months notice was not required. A manufacturing lease which is not from year to year does not require six months notice of termination. It will fall in the second half of
Section 106, requiring fifteen days notice of termination. A lease from month to month or a lease other than a lease from year to year is terminable by fifteen days notice. Hence the notice in the present case is a valid notice to quit. The High Court, having come to the conclusion that the lease was not for a period exceeding one year, and was not a lease from year to year erred in holding that six months notice to quit was required. Such a notice is required, provided there is no contract to the contrary, only when a manufacturing lease is, or is deemed to be, from year to year. This not being the case, the lease is terminable by fifteen days notice even if the lease is a manufacturing lease.
(2) (2006) 4 SCC 205 [Sarup Singh Gupta vs. S.Jagdish Singh and others] An excerpt from it would run thus:
8. In the instant case, as we have noticed earlier, two notices to quit were given on 10-2-1979 and 17-3-1979. The suit was filed on 2-6-1979. The tenant offered and the landlord accepted the rent for the months of April, May and thereafter. The question is whether this by itself constitutes an act on the part of the landlord showing an intention to treat the lease as subsisting. In our view, mere acceptance of rent did not by itself constitute an act of the nature envisaged by
Section 113, Transfer of Property Act showing an intention to treat the lease as subsisting. The fact remains that even after accepting the rent tendered, the landlord did file a suit for eviction, and even while prosecuting the suit accepted the rent which was being paid to him by the tenant. It cannot, therefore, be said that by accepting rent, he intended to waive the notice to quit and to treat the lease as subsisting. We cannot ignore the fact that in any event, even if rent was neither tendered nor accepted, the landlord in the event of success would be entitled to the payment of the arrears of rent. To avoid any controversy, in the event of termination of lease the practice followed by the courts is to permit the landlord to receive each month by way of compensation for the use and occupation of the premises, an amount equal to the monthly rent payable by the tenant. It cannot, therefore, be said that mere acceptance of rent amounts to waiver of notice to quit unless there be any other evidence to prove or establish that the landlord so intended. In the instant case, we find no other fact or circumstance to support the plea of waiver. On the contrary, the filing of and prosecution of the eviction proceeding by the landlord suggests otherwise.
(3) (2001) 3 MLJ 22 (S.C.) [Samir Mukherjee vs. Davindar K.Bajaj and others] An excerpt from it would run thus:
6. Section 107 prescribes the procedure for execution of a lease between the parties. Under the first para of this section a lease of immovable property from year to year or for any term exceeding one year or reserving a yearly rent can be made only by a registered instrument and remaining classes of leases are governed by the second para, that is to say all other leases of immovable property can be made either by a registered instrument or by an oral agreement accompanied by delivery of possession.
7. In the case in hand we are concerned with an oral lease which is hit by the first para of Section 107 of the Transfer of Property Act. Under Section 107 parties have an option to enter into a lease in respect of an immovable property either for a term less than a year or from year to year, for any term exceeding one year or reserving a yearly rent. If they decide upon having a lease in respect of any immovable property from year to year or for any term exceeding one year, or reserving a yearly rent, such a lease has to be only by a registered instrument. In the absence of a registered instrument no valid lease from year to year or for a term exceeding one year or reserving a yearly rent can be created. If the lease is not a valid lease within the meaning of the opening words of
Section 106 the rule of construction embodied therein would not be attracted. The above is the legal position on a harmonious reading of both the sections.
8. In Ram Kumar Das, (1952) 3 S.C.R. 269 : AI.R. 1952 S.C. 23,
Section 106 was considered by a Bench of four Judges of this Court. This Court held that this
Section 106 lays down the rule of construction which is to be applied when there is no period agreed upon between the parties and in such cases duration has to be determined by reference to the object for the purpose for which tenancy is created. It was also held that the rule of construction embodied in this section applies not only to express leases of uncertain duration but also to leases implied by law which may be inferred from possession and acceptance of rent and other circumstances. It was further held that it is not disputed that a contract to the contrary as contemplated by
Section 106 of the Transfer of Property Act need not be an express contract; it may be implied, but it certainly should be a valid contract. On the facts of the case, the Court held that the difficulty in applying this rule to the present case arises from the fact that a tenancy from year to year or reserving an yearly rent can be made only by registered instrument, as laid down in Section 107 of the Transfer of Property Act. (Italics supplied)
9. In a recent decision of this Court in Janki Devi Bhagat Trust, Agra, (1995) 5 S.C.C. 314, this Court held that under Section 107 of the Transfer of Property Act a lease of immovable property from year to year or for a term exceeding one year can be made only by a registered instrument and any lease of this kind would be void unless it is so created.
10. In the present case though the appellant has claimed that it was a lease for manufacturing purpose, admittedly there was no registered written lease. Therefore, the rule of construction as envisaged in
Section 106 would not be applicable as the statutory requirement of Section 107 of the Act has not been satisfied. The plea of the appellant that 15 days notice terminating the present tenancy is bad in law would not be sustainable."
(4) 2005(4) L.W.257 [K.Kuppusamy vs. Sri Vembuli Amman Temple situated at Long Bazaar Vellore, rep. by its Executive Officer] An excerpt from it would run thus:
"20. When the lease is from month to month, the deeming provision of Sec.106 T.P. Act cannot be invoked. In JT 1995 (7) SC 105, [Shri Janki Devi Bhagat Trust, Agra Vs. Ram Swarup Jain (dead by Lrs.], the Supreme Court has held::
"In the present case there is a clear finding to the effect that the lease in question was not from year to year or for a period exceeding one year. therefore, even though he lease may be for a manufacturing purpose, since the lease was not from year to year, six months' notice was not required. A manufacturing lease which is not from year to year does not require six months' notice of termination. It will fall in the second half of Sec.106, requiring fifteen days' notice of termination. A lease from month to month or a lease other than a lease from year to year is terminable by fifteen days' notice. Hence the notice in the present case is valid notice to quit. The High Court, having come to the conclusion that the lease was not for a period exceeding one year, and was not a lease from year to year erred in holding that six months' notice to quit was required. Such a notice is required, provided there is no contract to the contrary, only when a manufacturing lease is, or is deemed to be, from year to year. This not being the case, the lease is terminable by fifteen days' notice even if the lease is a manufacturing lease."
Considering the factual aspects involved in this case, from the above view point of the judgments cited supra, it is palpably and pellucidly clear that the lease agreement for five years turned out to be invalid as it was not a registered one. In such a case, as per the decisions cited supra, the plaintiff cannot rely upon the deeming provisions of
Section 106 of T.P. Act and insist for six months notice.
15. The learned Senior Counsel for the defendant would submit that as per Ex.A3, no 15 days notice could be presumed and that too in the absence of any specification about the number of days at all in Ex.A3; and that the curative provision of the amended
Section 106 of T.P. Act cannot be pressed into service by the plaintiff.
16. The learned Senior counsel for the defendant cited the following decisions:
(1) AIR 1998 M.P. 78 [Smt. Meenkash Jain v. State of Madhya Pradesh and others] An excerpt from it would run thus:
"11. ...... Moreover, it is settled that even where the leasehold provides for forfeiture, in case of assignment by the lessee, there can be no forfeiture and automatic resumption by the lessor without notice to the lessee determining lease. The breach of condition of the lease only makes the lease voidable. Therefore, forfeiture is not complete unless and until the lessor gives a notice to the lessee that he wish to exercise his option to determine the lease. The various High Courts as also the Apex Court have long accepted the principle of law in this regard.
(2) AIR 2002 Calcutta 144 [Union Bank of India vs. Vithalbhai Pvt. Ltd.] An excerpt from it would run thus:
"55. Being faced with this difficulty, the learned Counsel for the respondent urged that the cause of his client arises out of forfeiture under Clause (g)(2) of
Section 111 of the Transfer of Property Act. But the facts here are otherwise. The plaint case is based on Clause (a) of
Section 111 of the Transfer of Property Act which lays down that a lease of immovable property determines by efflux of the time limited thereby. So far as Clause (g) of the same section is concerned, it is provided therein that a lease of immovable property determines by forfeiture, that is to say, in a case where the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself. This position is not present in the facts and circumstances of the instant case because the plaintiff did not ever make out a case of forfeiture. Apart from that there is a notice in writing by the lessor to the lessee of his intention to determine the lease. This is clear (in) Clause (g) of
Section 111 of the Transfer of Property Act itself. In the instant case, there is neither any notice, nor any intention to forfeit the lease nor does there exist any other fact so that Clause (g) may be attracted. This argument is, therefore, without any merit and is rejected."
Those decisions are cited to insist upon the importance of termination notice.
17. In view of the decisions of the Hon'ble Supreme Court and this Court, those two decisions cited are not germane for deciding the lis.
18. At this juncture, I would like to refer to the objects and reasons and the raison d'etre of the Transfer of Property (Amendment) Act, 2002 and it is quite obvious and axiomatic that before such amendment of
Section 106 of T.P. Act, a huge number of cases were dismissed on the sole ground that proper termination notice was not given as they were short of a few days in terminating the tenancy as contemplated in the then existed
Section 106 of T.P.Act and in order to cure such ills, the Amendment Act came into vogue.
19. Applying the principle of 'Bonam Partem' as well as the 'golden rule' of interpretation, if the matter is viewed, it is glaringly clear that once again this Court throwing to winds the very purpose of the amendment Act should not decide otherwise simply because there is no indication about the number of days within which the tenant should vacate the premises.
20. A bare perusal of Ex.A3 and more specifically paragraphs 7 and 8 therein as extracted supra would indicate and exemplify that the plaintiff for the second time after earlier terminating the tenancy as per Ex.A2 granted time for paying the arrears immediately and in the absence of the same, the plaintiff expressed his desire to take steps to evict the defendant. Admittedly in this case, subsequent to such notice and before the filing of the suit, the arrears were not paid and in such a case, the intention of the plaintiff was writ large and there is no ambiguity compelling the plaintiff to disambiguate the same by issuing any fresh notice. If the contention of the defendant is accepted, it would amount to nullifying the very salient features of the amended
Section 106 of T.P.Act.
21. At this juncture, I would like to refer to the famous treatise 'Maxwell on the interpretation of Statutes 12th Edition'.
An excerpt from it would run thus:
"The mischief rule:
In Heydon's Case, in 1584, it was resolved by the Barons of the Exchequer (at p.7b) "that for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law) four things are to be discerned and considered: (1st). What was the common law before the making of the Act. (2nd). What was the mischief and defect for which the common law did not provide. (3rd). What remedy the Parliament hath resolved and appointed to cure the disease of the commonwelath. And, (4th). The true reason of the remedy; and then the office of all the Judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro privato commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono public." In 1898, Lindley M.R.said: "In order properly to interpret any statute it is as necessary now as it was when Lord Coke reported Heydon's Case to consider how the law stood when the statute to be construed was passed, what the mischief was for which the old law did not provide, and the remedy provided by the statute to cure that mischief." Although judges are unlikely to propound formally in their judgements the four questions in Heydon's Case, consideration of the "mischief" or object of the enactment is common, and will often provide the solution to a problem of interpretation.
In the well-known case of Smith v. Hughes, for example, it was held that prostitutes who attracted the attention of passers-by from balconies or windows were soliciting "in a street" within section 1(1) of the Street Offences Act 1959. "For my part," said Lord Parker C.J. (at p.832), "I approach the matter by considering what is the mischief aimed at by this Act. Everybody knows that this was an Act intended to clean up the streets, to enable people to walk along the streets without being molested or solicited by common prostitutes." Viewed in that way, the precise place from which a prostitute addressed her solicitations to somebody walking in the street became irrelevant."
"The golden rule:
The so-called "golden rule" is really a modification of the literal rule. It was stated in this way by Parke B.: "It is a very useful rule, in the construction of a statute, to adhere to the ordinary meaning of the words used, and to the grammatical construction, unless that is at variance with the intention of the legislature, to be collected from the statute itself, or leads to any manifest absurdity or repugnance, in which case the language may be varied or modified, so as to avoid such inconvenience, but no further." "If," said Brett L.J., "the inconvenience is not only great, but what I may call an absurd inconvenience, by reading an enactment in its ordinary sense, whereas if you read it in a manner in which it is capable, though note its ordinary sense, there would not be any inconvenience at all, there would be reason why you should not read it according to its ordinary grammatical meaning." The application of this rule, and its limits, will be seen in the parts of this work devoted to construction with reference to the consequences, and construction to avoid inconvenience and injustice, and to prevent evasion. Here, a few recent examples of the application of the golden rule will be given.
Construction of words "in Bonam Partem":
Words are prima facie to be taken in their lawful and rightful sense. Where an Act, for instance, gave a certain efficacy to a fine levied on land, it referred only to a fine lawfully levied. The landlord's claim to recover arrears of rent out of goods seized in execution by the bailiff of a county court under section 160 of the County Courts Act 1888 depended upon whether the seizure was lawful: if the goods did not belong to the debtor, and the seizure was consequently unlawful, the claim under the section could not arise. A similar principle was applied to the construction of a covenant by a tenant to pay all parliamentary taxes: it included only such as he might lawfully pay, and not the landlord's property tax which it would have been illegal for him to agree to pay."
22. Hence in such a case, if on technical grounds Ex.A3 is struck down, it would be against the well known principles extracted supra relating to interpretation of statutes. To the risk of repetition without being tautologous, I would like to point out that this Court is fully aware of the fact that the learned Senior Counsel for the defendant insists upon to take note of the absence of specification of number of days in the notice.
23. My discussion supra would indicate that in paragraph 7 of Ex.A3, the defendant clearly spelt that if arrears is not paid immediately, then it amounts to termination of tenancy. It is therefore pellucidly and palpably, unequivocally and indubitably clear that the plaintiff wanted the defendant to vacate and hand over possession of the premises on his failure to pay the rent immediately. As has been already highlighted supra, the suit was filed long after 15 days, assessing the time limit from any standard and as such, I could see no reason to disregard Ex.A3 as a valid notice of termination of tenancy. Accordingly, the substantial question of law is decided to the effect that Ex.A3 is the valid termination notice.
24. The learned Senior Counsel for the plaintiff would point out that no sympathy could be shown towards the defendant, as even though stay was obtained by him in this case subject to to the condition to deposit Rs.10,00,000/- (Rupees ten lakhs only) of arrears of rent in the lower Court, no such amount was deposited and furthermore, as on date, huge arrears running to several lakhs are there. Be that as it may, the Second Appeal is disposed of purely on merits by deciding the substantial question of law framed by this Court. As such, I could see no merit in the Second Appeal and it is dismissed. No costs. Consequently connected miscellaneous petition is closed.
gms To
1.Additional District Judge, Fast Track Court No.I, Chengalpattu.
2.Additional Subordinate Judge at Chengalpattu