Madho Ram Budh Singh vs National Rifle Association
2000 Latest Caselaw 122 Del

ORDER

S.K. Agarwal, J.

1. This Appeal is directed against Judgment and decree dated 31st January, 1997 passed by the Court of Additional District Judge, Delhi dismissing the Suit for ejectment filed by the appellant against the respondent holding that the notice does not disclose any justifiable cause and sufficient ground for determination of the lease.

2. Facts giving rise to this appeal briefly are that on 21st December 1989 the appellant (plaintiff) filed a Suit against the respondent (defendant) for possession of Commercial Flat Nos. 46 and 49, 1st floor, Raghushree Shopping Complex, Ajmeri Gate, Delhi, alleging therein that the premises were with the respondent at a monthly rent of Rs. 3516.70 p; requisite permission from the Slum Authority was obtained to institute the eviction proceedings in respect of suit premises; the tenancy of the respondent was from month to month basis, which was terminated vide notice dated 9th September, 1989 and the respondent failed to handover the vacant possession of the premises by the end of 31st October, 1989.

3. The respondent while opposing the suit in written statement took up several the pleas, that the lease was for an indefinite period and there was no question of termination of the tenancy; the premises in question were taken on rent with the permission of the Commissioner of Police, Union of India and other Authorities, therefore, they were the necessary parties and thus Suit was bad for non-joinder of the necessary parties; that the notice of termination of the tenancy was not proper and legal as the respondent had not committed breach of any term of the tenancy; jurisdiction of the Court and valuation of the suit, were also challenged.

4. On the basis of the pleadings trial Court framed the following issues:-

1. Whether the tenancy of the defendant was lawfully terminated by valid notice? If so the effect ? OPP.

2. Whether the plaintiff is a registered firm under the Indian Partnership Act and the suit has been filed by a competent person? OPP.

3. Whether the suit is not maintainable on the grounds stated in the preliminary objections of the W.S.? OPP.

4. Whether the suit is bad for non-joinder of necessary parties? OPD.

5. Whether the tenancy was for an indefinite period and could not be legally terminated? OPD.

6. Whether this court has no jurisdiction to try the Suit? OPD.

7. Whether the suit has not been properly valued and the court fee paid is not sufficient? OPD.

8. Relief.

5. The appellant/plaintiff examined PW-1 R.C. Shukla its Manager-cum-Attorney, who stated that the plaintiff was a registered partnership firm and proved certified copy of Form-A Ex. P-1, notice of termination of tenancy Ex. P-3 and the Certificate of Posting of the notice Ex P-4; reply to the said notice received from the defendant Ex. P-5; copy of the permission obtained under Section 19(10)(a) of the Slum Areas (Improvement & Clearance) Act, 1956 Ex.P-7 and the site plan of the suit premises Ex. P-6. Respondent/defendant examined DW-1 Shri Baljit Singh who stated that they were selling arms and ammunition from the suit premises for the last 20 years after obtaining licence from DCP (Licensing): premises were taken on rent for indefinite period and that the Appellant had agreed to the same at the time of creation of the tenancy. A strong room for keeping arms and ammunition was also constructed in the said premises. They were paying rent regularly and had not committed any breach and that on the request of the appellant/plaintiff they had increased the rent in May 1989 from Rs. 3197/- to Rs.3516.70 p per month.

6. On the basis of the above evidence trial court dismissed the suit holding that notice did not disclose sufficient cause and the same was waived and decided issue No.1 against the appellant/plaintiff. All other issues were decided in favour of the appellant.

7. We heard Shri S.K. Kaul learned Senior Advocate on behalf of the Appellant and Shri J.C. Mehindroo, Advocate on behalf of the Respondent and have gone through the trial court.

8. Learned counsel for the Appellant argued that on issuance of a notice of termination under Section 106 of the Transfer of Property Act, 1882 (for short 'The Act') the act of land owner cannot be termed that the tenancy was terminated for forfeiture. The termination of tenancy on ground of forfeiture is entirely different, vis-a-vis simplicitor termination of tenancy by a notice to quit under the Act. Learned Counsel for the Respondent argued to the contrary.

9. In order to appreciate the rival contentions as to whether it was a case of termination simplicitor and the demand of arrears of rent was incidental or it was a case of forfeiture of the lease, contests of the notice dated 9th September 1989 served on the respondent, are reproduced hereinbelow:-

"The National Rifle Association of India Room No. 46 (First Floor) Raghu Shree Complex,

8/32 Ajmeri Gate, Delhi-110 006

Dear Sirs,

Under instructions from and on behalf of my client M/s. Madho Ram Budh Singh, 20 Netaji Subhash Marg, Delhi I have to inform you as under :-

That you are a tenant in respect of Nos. 46 and 49, First Floor of Raghushree Complex, Ajmeri Gate, Delhi under my aforesaid client at a monthly rent of 3516.70.

That your tenancy starts from first of every English Calendar Month and ends with the last day of each such month.

That you are in arrears of rent since 1st July, 1989.

That my client has several times called upon you to please pay the entire arrears of rent but you have failed to clear the arrears of rent.

That my client no longer wants to keep you as a tenant and your tenancy is hereby terminated by the end of 31st day of October, 1989.

"I therefore by this notice call upon you to please hand over the vacant and peaceful possession of the premises under your tenancy bearing Nos. 46 and 49, First Floor, Raghushree Shopping Complex, Ajmeri Gate, New Delhi to my client by the end of 31st day of October, 1989 and also pay the entire arrears of rent, failing which I have instructions to file suit for recovery of possession and arrears of rent against you and in that event, you will be held liable for all costs and consequences. Please further notice that if you do not vacate the premises by the end of October 1989 then you will be held liable to pay damages to my client equivalent to prevalent market rate of rent for the period you contumaciously withhold the premises."

sd/-

Respondent/defendant in reply to the said notice sent a letter dated 18th September, 1989 stating as under :-

"Shri Jagdish Lal Jain Advocate 27, Lawyers Chamber, Tis Hazari Courts, Delhi- 110 054.

Dear Sir,

This has reference to your registered A/D Notice under instruction from and on behalf of your client M/s. Madho Ram Budh Singh in respect of 46, 49, 1st Floor, Raghushree Complex, Ajmeri Gate, Delhi.

It seems that your client have misled you as we have already paid the rent for the month of July 1989 vide receipt No. 69/89 for Rs. 3516.70p. It is evident that the rent for August 1989 is due and which is being sent today itself. You are not within your rights to terminate our tenancy, which is legal and valid."

"In case you still file a suit, you shall be doing so at your own costs, risk and further you will be liable to pay our own expenses on that account."

sd/-

10. From the bare reading of the notice and the reply it is manifest that (i) the appellant alleged in the notice that the tenancy in respect of the suit premises start from 1st of each English calander month and ends with the last day of each month, which fact was not denied by the respondents; (ii) it was alleged in the notice that the respondents were in arrears of rent from 1st July, 1989 and had not paid the arrears despite demand. This fact was disputed by respondent by saying that the rent for the month of July was already sent and the rent for the month of August was sent immediately on the receipt of the notice; (iii) it was stated in the notice that the appellant no longer wanted to keep the respondents under his tenancy and the tenancy was terminated by the end of 31st October, 1989. Respondent in reply challenged the right of the appellant to terminated the tenancy and claimed the tenancy to be valid and legal.

11. Learned trial court on the basis of the evidence held that there was no registered lease deed, so the tenancy has to be held to be on month to month basis and that for termination of the tenancy a notice valid for a period of 15 days was sufficient in law and further that the notice of termination of tenancy was in accordance with law. However, trial court found that the notice of termination of the tenancy was neither for justifiable nor for the sufficient cause as there was no arrears of rent and that in any case the notice was waived. For reaching the said conclusion the trial court referred to the provisions of Sections 111, 112 and 114 of the Transfer of Property Act, 1882 (for short the Act).

12. In our view the trial court's conclusion are as a result of misconstruing the provisions of forfeiture of the lease provided under Section 111(g) of the Act and of termination of the lease by notice to quite under Section 111(h) of the Act which are reproduced hereinbelow:-

"Sec. 111 Determination of lease

(a) ***

(b) ***

(c) ***

(d) ***

(e) ***

(f) ***

(g) by forfeiture, that is to say, (1) in case the lessee breaks as express condition which provides that on breach thereof the lessor may re-enter; or (2) in case the lessee renounces his characters as such by setting up a title in a third person on by claiming title in himself; or (3) the lessee is adjudicated an insolvent and the lease provides that the lessor may re-enter on the happening of such event; and in any of these cases the lessor or his transferee gives notice in writing to the lessee of his intention to determine the lease:

(h) on the expiration of a notice to determine the lease, or to quite, or of intention to quit, the property leased, duly given by one party to the other."

13. Forfeiture of a lease can be on the ground when a tenant breaks an express condition of the lease which provides that on breach thereof the lessor may re-enter. Admittedly in the present case there was no such dispute. Even the averments made in the plaint and the notice issued prior to the filing of the suit do not refer to any right being exercised under Section 111(g) of the Act. However, under Section 111(h) of the Act, periodic tenancy of immoveable property can be determined by notice to quit under Section 106 of the Act. No cause or reason is required to be stated in the notice to quit. The only requirement of Section 106 is that the notice to quit must indicate in substance and with reasonable certainly and clearances the intention on the part of the person giving it to determine the existing tenancy at a certain time.

14. As noticed above, it was not a case of forfeiture of lease but was a case of determination of a lease by a simplicitor notice of termination of tenancy under Section 106 of the Act. As such Section 114 of the Act providing a release against forfeiture for non-payment of rent could not be of any help to the respondent and for the reason alone Section 112 of the Act would also not be applicable. Law in this regard is well settled. We make reference to a few decisions in that regard, with which we fully agree, namely Geetabai Namjeo Daf Vs. B.D. Manjrekar, , Sivaperumal Vs. N.L.S. Seethalakshmi Ammal & Ors., 1987 (100) Law Weekly 86 and Bhupendra Singh Vs. Additional District Judge & Ors., 1995 All. L.J. 24.

15. Now comes the question of waiver of notice to quit. In this case notice to quit the tenanted premises was under Section 106 of Transfer of Property Act. The tenancy was determined under Section 111(h) of the Act and the respondent was asked to vacate the premises at the expiry of the notice period in October 1989. It may be recalled that the tenancy has been rightly held to be on month to month basis and no fault in notice of termination of the tenancy was found. Admittedly the rent upto 31st October, 1989 was accepted prior to the filing of the suit. No rent was accepted thereafter. No plea of waiver of notice was even raised in the written statement. The waiver of notice to quit under Section 113 of the Act can be inferred only when there is clear evidence showing the intention of the lessor and the lessee to treat the lease subsisting. Attending circumstances must positively show the intention of the parties to keep the lease subsisting. Mere acceptance of rent is not enough. In this case there is no evidence that after 31st October, 1989 any rent was ever accepted on the contrary there is material on record to the effect that the appellants had filed a suit claiming damages with effect from 1st November, 1989 which is still pending trial. As such the conclusion of the trial court that the notice stood waived is bad in law. The other, conclusion that the notice Ex. P-3 does not disclose any justifiable cause and sufficient grounds for determination of the lease is also totally erroneous and not sustainable in eyes of law. The findings to that extent are hereby set aside.

16. For the foregoing discussions the appeal succeeds, impugned judgment and decree dismissing the suit is set aside. Appellant is entitled to decree of possession in respect of the suit premises as per the prayer clause in the plaint with costs throughout. Decree will be drawn in terms thereof. It is ordered accordingly. However, taking into consideration that the respondent is a National Rifle Association and will have to make arrangement for alternate accommodation, three months time is granted to enable it to vacate the premises.