JUDGMENT Poonam Srivastava, J.
1. Heard Sri M. A. Qadeer learned Counsel for the revisionist and Sri Hari Ashok Kumar learned Counsel appearing for the caveator/opposite party No. 1.
2. This is a revision under Section 25 of Provincial Small Causes Court Act against the judgment and decree dated 7.12.2005, passed by the 1st Additional District Judge, Court No. 3/Judge Small Causes Court, Allahabad in S.C.C. Suit No. 32 of 2004, Vishnu Sahai Verma and Anr. v. R.S. Negi.
3. A suit was instituted by the landlord for decree of eviction and decree of Rs. 4,877 (Rupees four thousand eight hundred seventy seven) towards water tax pendente lite future damages at the rate of Rs. 200 per day. The plaintiff/opposite parties were landlord of house No. 338, Mumfordganj, Allahabad, which was let out to the revisionist on monthly rent of Rs. 2,300 (Rupees two thousand three hundred) excluding water tax and electricity. The suit was instituted after giving a notice dated 2.8.2004. According to the plaintiffs, they terminated the tenancy by means of the aforesaid notice and the revisionist was required to vacate the house in question on expiry of notice and on failure to do so, the suit was filed before the Judge Small Causes Court. The provision of U.P. Act No. 13 of 1972 was not applicable since the rent was more than Rs. 2,000 (Rupees two thousand). The revisionist contested the suit by filing his written statement. The revisionist disputed that the water tax was not included in the rate of rent however, Rs. 2,300 (Rupees two thousand three hundred) towards rent including water tax was admitted by the tenant/ revisionist in paragraph No. 4 of the written statement. The revisionist raised objection regarding notice that it was illegal. The court below framed three issues. Issue No. 1 was regarding non-payment of water tax. Issue No. 2 was whether the defendant's tenancy has been terminated and the plaintiffs are entitled for possession of the disputed accommodation? Issue No. 1 was decided against the plaintiffs/ landlord. The court below came to a conclusion that the tenant was not liable to pay water tax separately, therefore, the revisionist was not entitled to pay water tax whatsoever. Issue No. 2 was decided in favour of the plaintiffs. The Court came to a conclusion that the tenancy has been terminated by means of a valid notice and, therefore, the tenant was liable to handover vacant possession to the landlord / opposite parties. Accordingly, the suit was decreed by means of the impugned judgment.
4. Sri M. A. Qadeer, advocate, has submitted that the tenancy was not determined by means of the notice and in absence of express assertion in the notice, the tenancy was not determined. It cannot be said that the landlord determined the tenancy and the suit was wrongly decreed in favour of the landlord. Sri Qadeer has annexed copy of the notice as Annexure-1 to the affidavit filed in support of the stay application. Notice consists of six paragraph and in the concluding part of the notice states 'that this legal notice is being given with a view that you will handover vacant possession to my client within thirty days and on failure to do so, you will be liable to pay Rs. 200 per day as damages.' Notice further states that in the event vacant possession is not handed over within the prescribed period, he will institute a suit and the tenant will be liable to pay cost of the suit. Learned Counsel has emphatically argued that there is no positive assertion stating therein that the tenancy of the revisionist has been determined. Section 111 Transfer of Property Act provides various modes of determination of lease. Section 111(h) of the Act is quoted below:
Section 111(h).-On the expiration of a notice to determine the lease, or to quit, or of intention to quit, the property leased, duly given by one party to the other.
5. Thus, where the lease is determined by means of a notice by the lessor, it has to expressly denote his intention that he does not want the lessee to remain in possession after the period mentioned in the notice expires. A notice terminating the tenancy and requiring the lessee to vacate the premises on expiry of thirty days from the date of service of notice on the lessee leaves no scope for the lessee but to vacate the premises. Sri Qadeer has placed reliance on a decision of Division Bench of this Court in Abdul Jalil v. Hazi Abdul Jalil . In the said decision, this Court has given certain illustration to elucidate terms to be incorporated in a notice where the lessor intends to determine the tenancy of the lessee. For ready perusal, illustration given in paragraph No. 10 of the said decision is quoted below:
10. Bearing in mind these general principles let us examine some of the usual types of notices that come before the Court and in that connection also consider the notice which is involved in the present second appeal. These cases are obviously illustrative and not exhaustive.
A. You are hereby informed or you are given this notice that your tenancy shall stand determined on the expiry of thirty days from the date of service of this notice.
B. You are informed that your tenancy will determine on the expiry of thirty days from the date of service of this notice and you are called upon to vacate the premises on the expiry of the said period of notice failing which a suit for ejectment shall be filed against you.
C. I do not want to keep you as my tenant. You are therefore given this notice and required to vacate the premises on the expiry of thirty days from the date of service of this notice on you.
D. Your tenancy is terminated with effect from today and you are required to vacate the premises on the expiry of thirty days from the date of service of this notice on you.
E. Your tenancy is terminated and you are required to vacate the premises on the expiry of thirty days from the date of service of this notice failing which a suit for ejectment shall be filed against you.
F. You are given this notice to quit or vacate the premises on the expiry of thirty days from the date of service of this notice failing which a suit for ejectment shall be filed against you.
G. You are required to vacate the premises on the expiry of thirty days from the date of receipt of this notice.
6. In the instant case, perusal of the notice clearly shows that the landlord/opposite parties had only demanded possession of the premises but the tenancy was neither expressly nor impliedly determined. The court below while, recording finding in favour of the plaintiffs appears to have completely ignored that there was no express determination of the tenancy, only tenant was required to handover vacant possession. No doubt, there was an averment to the effect that the agreement for tenancy had come to an end on 31.7.2002 and thereafter from 1.8.2002, occupation is unauthorised but admittedly there was no express determination of tenancy and in absence of clear and explicit intimation to the tenant, his tenancy stands determined. It was to be necessarily ascertained that subsequent to expiry of period of notice, if he remains in occupation of the premises, "he will become a trespasser. Admittedly, this has not been done in the instant case. There is substance in submission of Sri Qadeer and, therefore, I hold that it was not a valid notice to quit. In the case of Abdul Jalil (supra), Division Bench of this Court followed a Full Bench decision of this Court in Bradely v. Atkinson (1885) ILR 7 All 899 (FB). Full Bench had ruled that in a notice to quit, it is required by law, there must be a clear explicit intimation to the tenant about the date after which if he continues in occupation of the premises, his status will become of a trespasser. Counsel for the caveator/opposite party No. 1 has not been able to show from record of the trial court that there was any notice clearly and explicitly determining the tenancy of the tenant and, therefore, I come to a conclusion that Judge Small Causes Court failed to record its finding on issue No. 2 in the right perspective.
7. Conclusion arrived at by the court below regarding validity of the notice cannot be sustained in view of decision of this Court as well as on the basis of settled principle of law, judgment and decree of the court below is set aside for want of valid notice determining the tenancy of the tenant and clear intimation that he would become trespasser or unauthorised occupant on the date of expiry of the period of notice.
8. In view of what has been discussed above, this revision stands allowed. The judgment and decree of the court below is quashed. Cost on parties.