Arun Manikrao Shindekar vs Rameshwarsingh Sarnamsingh ...
2001 Latest Caselaw 423 Bom

JUDGMENT

S.D. Gundewar, J.

1. Heard finally at the stage of admission by the consent of the parties.

2. This second appeal has been directed against the judgment and decree dated 15-2-2000 passed by the learned 2nd Additional District Judge, Achalpur in Regular Civil Appeal No. 562/1991 affirming the judgment and decree dated 27-7-1990 passed by the learned 2nd Joint Civil Judge. Junior Division, Achalpur in Regular Civil Suit No. 155/88, whereby the learned Trial Judge decreed the respondent/plaintiff s suit for eviction and arrears of rent and damages.

3. In short, the respondent/plaintiffs case is that the appellant/ defendant was the tenant of Gram Panchayat House No. 1492 situate in Ward No. 6 at village Pathrot, Tq. Achalpur, District Amravati (hereinafter referred to as "the suit premises") belonging to him at monthly rent of Rs. 151/- which was increased to Rs. 200/- per month from January, 1983. The tenancy month of the defendant commenced from the 1st day of every English calendar month and ended on the last day of the same month. The tenancy of the defendant was for 11 months i.e. from 1-1-1980 to 30.11.1980, for which the defendant had executed a rent note (Exh. 30) on 22-12-1979 in favour of the plaintiff and took possession of the suit premises for running a grocery shop. However, the defendant was irregular in making payment of the rent and hence, the plaintiff vide notice (Exh. 32) dated 15-4-1998 (sic : 1988) terminated the defendant's tenancy since after the midnight of 31-5-1988. The said notice was served upon the defendant on the same day, i.e. on 15-4-1988 vide acknowledgment (Exh.31) but in spite of its service the defendant had neither handed over the possession of the suit premises to the plaintiff nor paid the arrears of rent and damages and hence, the plaintiff was constrained to file the suit for eviction and recovery of arrears of rent and damages.

4. The appellant/defendant resisted the plaintiff's suit vide his written statement (Exh. 11) and inter alia contended that even after the expiry of the lease period the plaintiff allowed him to remain in possession of the suit premises as a tenant thereof and, therefore, the plaintiff was estopped from

terminating his tenancy. It is also contended by the defendant that his tenancy did not commence from the 1st day of every English calendar month and, therefore, the notice to quit issued by the plaintiff terminating his tenancy since midnight of 31-5-1988 is invalid.

5. The learned Trial Judge on hearing the learned Counsel for the parties and considering the entire evidence on record rejected the defendant's plea that his tenancy did not commence from the first day of every English calendar month and notice to quit issued by the plaintiff is invalid. In the result, the plaintiff's suit for eviction and recovery of arrears of rent and damages came to be decreed. The defendant carried the matter further in appeal and in appeal the learned 2nd Additional District Judge while affirming the decision of the learned Trial Judge held that the tenancy of the defendant was validly terminated. He further held that the provisions of section 110 of Transfer of Property Act (hereinafter referred to as "the T. P. Act") apply to a lease limited by time and not to monthly tenancy and in the instant case defendant's tenancy being monthly tenancy the provisions of section 106 and not of section 110 of T.P. Act are attracted and, therefore, notice to quit (Exh. 32) which is clearly a 15 day's notice expiring with the end of month of tenancy is perfectly legal and valid. He, therefore, dismissed the appeal which is under challenge in this second appeal.

6. Heard Shri N. R. Saboo, the learned Counsel for the appellant/ defendant and Shri L. K. Khamborkar, the learned Counsel for the respondent/plaintiff.

7. While assailing the judgments of the Courts below, the only question that has been prominently argued by Shri Saboo, the learned Counsel for the appellant, relates to the invalidity of quit notice. According to Shri Saboo, the lease in question as per the rent note (Exh. 30) was for 11 months, i.e. from 1.1.1980 to 30.11.1980 and since after the expiry of the said period of lease the appellant became the tenant holding over and, therefore, the quit notice must be as per the requirements of section 110 of T.P. Act and not according to section 106 of the said Act. According to Shri Saboo, the Courts below erred in holding otherwise. For this he placed reliance on the decisions in Benoy Krishna Das v. Salsiccioni, and Dattopant Gopalrao Devakate v. Vithalrao Marutirao.

8. On the other hand, Shri L. K. Khamborkar, the learned Counsel for the respondent, submitted that the provisions of section 110 of T.P. Act are not applicable to monthly tenancies. According to him, neither the Privy Council nor the Apex Court in the aforesaid decisions cited on behalf of the appellant laid down that the provisions of section 110 of T.P. Act are applicable to monthly tenancies. For this, he placed reliance on the decisions in M/s. Potluri Subbareddi P. Seshagirirao and Co. and others v. Kalabai Rathi, and Shambhunath Pal and others v. Indian Iron and Steel Co. Ltd.

9. In order to appreciate the aforesaid contentions raised by the learned counsel for the parties, it will be appropriate to take into consideration the provisions of section 110 of T.P. Act which runs as follows:--

"S. 110. Where the time limited by a lease of immovable property is expressed as commencing from a particular day, in computing that time such day shall be excluded. Where no day of commencement is named, the time so limited begins from the making of the lease.

Where the time so limited is a year or a number of years, in the absence of an express agreement to the contrary, the lease shall last during the whole anniversary of the day from which such time commences.

Where the time so limited is expressed to be terminable before its expiration, and the lease omits to mention at whose option it is so terminable, the lessee and not the lessor, shall have such option."

10. Shri Saboo, the learned counsel for the appellant, contended that as per the above language of section 110 of T.P. Act, the first day should be excluded and the tenancy month should be computed or counted as commencing on second day and ending on the third day of next calendar month and, therefore, according to him, it is clear that the quit notice (Exh. 32) issued by the plaintiff putting an end to the defendant's tenancy since from midnight of 31-5-1988 would be invalid. In support of this submission, he has strongly relied upon the aforesaid two decisions, i.e. in Benoy Krishna Das v. Salsicciont, (supra) and Dattopant v. Vithalrao,(supra) I have carefully gone through both the aforesaid decisions.

11. The case of Binoy Krishnadas (supra) was one of holding over the tenancy. In that case the tenancy was for a fixed term of 4 years which was to commence from 1-6-1921. In that case there was no clear intention of the party as to the starting point and the end of the period of lease and it was held that the first day should be the last day of the period of lease in the matter of computation. I am afraid, the principle enunciated there is not applicable to the facts of the present case. Here, the rent note (Exh. 30) clearly indicates that both the parties agreed that the lease was for 11 months and the tenancy month of the defendant would commence from first day of every English calendar month and end on the last day of the same month. This rent note also makes it clear that the tenancy of the defendant was a monthly tenancy. Therefore, in my view, there is no necessity to add another day after the expiry of 31st May, 1988 and, therefore, in my opinion, the aforesaid decision is of no avail to the appellant.

12. The next case referred on behalf of the appellant is the case of Dattopant Gopalrao Devakate v. Vithalrao Marutirao, (supra). In that case, the suit premises were taken on rent for a period of one year and the tenancy commenced from 9-4-1945. There the quit notice was held invalid on the ground that it purported to terminate the tenancy a day before the last day of the tenancy month.

13. However, in none of the aforesaid decisions, namely, , it has been held that the provisions of section 110 of T.P. Act would apply to monthly tenancies by holding over. In case, instant the defendant's tenancy is a monthly tenancy and, therefore, in my opinion, both the aforesaid decisions are of no avail to him to support his plea that the provisions of section 110 of T.P. Act are applicable to the facts of the present case. I am fortified in this view by a decision in M/s. Potluri

Subbareddi P. Sheshagirirao and Company and others v. Kalabai Rathi (supra), wherein Single Bench of the Andhra Pradesh High Court after considering both the aforesaid decisions came to the conclusion that the provisions of section 110 of T.P. Act would not apply to monthly tenancy by holding over. Similar view has also been taken by the Division Bench of Calcutta High Court in Shambhunath Pal and others v. Indian Iron and Steel Company Limited, (supra), and by Single Bench of A. P. High Court in B. Chitra Ramachandrandasam etc. v. National Remote Sensing Agency and another, as well as by a Single Bench of Punjab High Court in Durga Prasad v. Smt. Bhagwan Devi.

14. During the course of argument, two other cases were referred to by Shri Saboo, the learned counsel for the appellant, i.e. Murlidhar Garodia v. Purushottamlal Jail, and Sudarshan Kumar v. Rattan Lal Dhinyra, in support of his contention that when the tenancy is holding over the provisions of section 110 of T.P. Act are attracted.

15. The first case was the decision by Division Bench of Calcutta High Court in . There the term oflease was limited to a period of two years commencing from 1-7-1955 and there was provision in the lease that the monthly rent should be paid month by month by the 1st day of every succeeding English calendar month and, therefore, it was held that the lease terminated on the expiry of 1-7-1957 and not with the end of June, 1957. It is further held in the said case that the provision in the lease as to payment of monthly rent related merely to the mode of payment of rent which indicated that though the rent was to be paid monthly it was an yearly tenancy and, therefore, it was held thai the provisions of section 110 of T.P. Act are applicable. Here, it is not so. In the case in hand, the tenancy is a monthly tenancy and, therefore, this decision also, in my opinion, does not help the defendant in any way in establishing the fact that the provisions of section 110 of T.P. Act are applicable to the facts of the present case.

16. Another case was a decision of Single Bench in . There the lease was executed on 12th August for 11 months commencing from that day. By virtue of section 110 of T.P. Act, the 11 months came to an end on 12-7-1964 and tenant continued as monthly tenant from 13th July onwards. The landlord sent the notice terminating the tenancy on 11th day of December and, therefore, it was held that on landlord's own pleading the notice of termination was illegal. Here it is not so. In the present case, as per the terms of rent note (Exh. 30), the tenancy of the defendant commenced on the first day of every English calendar month and ended on the last day of the same month. In view of this, it cannot be said that the provisions of section 110 of T.P. Act are applicable to the facts of the present case. This decision also, in my opinion, does not assist the appellant in any way.

17. In the instant case, as I have already noted above that the period of tenancy was for 11 months and the tenancy was monthly tenancy as per the rent note (Exh. 30) and the tenancy month by agreement was to

commence from the first day of every English calendar month and end on the last day of the same month and, therefore, it is obvious that after the expiry of the said period of tenancy, the defendant remained in possession as a tenant holding over on the same terms of tenancy. In view of this, in my opinion, the provisions of section 110 of T.P. Act are not applicable to the facts of the present case and the tenancy of the defendant being monthly tenancy according to the English calendar month, the notice to quit (Exh. 32) terminating his tenancy since from midnight of 31-5-1988, i.e. ending with the last date of the month of tenancy was quite valid and legal. The learned Trial Judge as well as the first Appellate Court also held accordingly. In view of this, I find no substance in the aforesaid submission made by Shri Saboo, the learned Counsel for the appellant. In this view of the matter, I find no substance in the appeal.

18. Now it is well-settled that as per the provisions of section 100 of Code of Civil Procedure, if no substantial question of law is actually involved in appeal, then there is no scope for entertaining second appeal. Similar view has been taken by Apex Court in M/s K.C. Mathew and Sons and another v. A Sulaikha Beevi and others. In the case in hand, it is not shown by the learned counsel for the appellant that the aforesaid concurrent findings of the Courts below are either perverse or based on no evidence and as such, in my opinion, no substantial question of law is involved in this appeal and, therefore, the present second appeal is not sustainable in law. It is accordingly dismissed with costs.