Hardev Ratra Vs Diwakar Dutt Modgill

The appellant, by filing this appeal under section 100 of the Code of Civil Procedure (for short, CPC), has assailed the judgment and decree dated 07.07.2021, passed by the learned Additional District Judge-cum-Special Judge, CBI, Shimla, District Shimla, HP in Civil Appeal No.3-S/13 of 2020, affirming the judgment and decree dated 27.02.2020, passed by the learned Civil Judge, Court No.6, District Shimla, HP in Civil Suit No.136-1 of 2014.

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2. For the sake of convenience, hereinafter in this judgment, the parties shall be referred in the same manner in which they were referred before learned trial Court. The facts material and relevant for the disposal of the present appeal are that as per the case of plaintiff, he is the owner of the building

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known as Modgil Bhawan, situated on the land comprised in

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Khasra No. 274/215, at VPO Shoghi, Tehsil and District Shimla,

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Whether reporters of Local Papers may be allowed to see the judgment? YES

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H.P. In the year 1996, the plaintiff inducted the defendant as a tenant in one shop in the said building for a monthly rent of Rs. 5,000/-. The plaintiff, vide notice dated 15.05.2014, terminated the tenancy and required the defendant to hand over possession within 15 days. Upon the defendant's failure to vacate, the plaintiff claimed use and occupation charges at the rate of Rs. 400/- per day, leading to the filing of the eviction suit.

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3. The defendant contested the suit, raising preliminary objections regarding maintainability, the plaintiff not approaching the court with clean hands, estoppel, non-joinder of necessary parties, and improper notice. On merits, the defendant pleaded that the plaintiff was not the absolute owner, that the tenancy commenced in 1993 at a rent of Rs. 500/later enhanced to Rs. 5,000/-, that the notice was invalid, and that the plaintiff had no right to terminate. The defendant further contended that the plaintiff continued to accept rent even after the notice, thereby negating the termination, and that the suit was filed for harassment, as the plaintiff had sufficient alternate accommodation.

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4. The plaintiff, in replication, reasserted the plaint's contents. Based on the pleadings, the learned trial court framed the following issues:-

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1. Whether the plaintiff is entitled for the possession of the premises-Modgil Bhawan, at Shoghi by termination of tenancy after serving

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the legal notice dated 15.05.20214, as alleged?...OPP 2. Whether the present suit is not maintainable in the present form, as alleged?...OPD

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3. Whether the plaintiff has not approached the court with clean hands, as alleged?...OPD 4. Whether the plaintiff is estopped from filing the present suit on account of his own acts, conduct, deed, omission, commission, acquiescence, etc, as alleged?...OPD 5. Whether the suit is bad for non-issuance of the proper notice as per the law, as alleged?...OPD 6. Relief?.

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5. To prove his case, the plaintiff examined himself and one witness, exhibiting the termination notice, its receipt, and related documents. The defendant examined himself and a bank official, exhibiting bank statements and pay-in-slips. The learned trial court decreed the suit, deciding issue no.1 in favour of the plaintiff and issues no. 2 to 5 against the defendant.

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6. Aggrieved by the same, the defendant preferred the first appeal, inter alia, on grounds that the judgment was based on conjecture; that the trial court ignored evidence, particularly regarding the plaintiff not being the absolute owner and the non-joinder of co-owners; that no legal notice was issued or received; that tenancy was not terminated as rent was accepted subsequently; that the trial court wrongly disbelieved the proof of cheques and wrongly relied on an SFSL report for proving notice receipt; and that the suit's intention was merely to increase rent.

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7. The appellant's counsel before the first appellate court argued that the suit building had multiple owners not joined in the suit, rendering it non-maintainable. He contended the tenancy was for an unlimited period and not terminable by a 15-day notice, that the notice was never received, and the findings on the acknowledgment were erroneous. He further submitted that the plaintiff's continued acceptance of rent after the alleged notice amounted to a waiver of termination. The respondent's counsel argued that the month-to-month tenancy was validly terminated by a notice under Section 106 of the Transfer of Property Act, sent to the correct address and acknowledged by the defendant. He contended that a co-owner can maintain an eviction suit alone and that mere acceptance of rent does not waive a valid termination, supporting his arguments with cited case law.

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8. The First Appellate Court, after hearing the parties and examining the record, found no merit in the appeal. It held that the tenancy was duly terminated by a valid notice, the suit was maintainable, and the defendant's defences were without substance. Accordingly, the first appellate court dismissed the appeal, affirming the trial court's decree. It is against this dismissal that the present second appeal has been filed.

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9. Heard Counsel for the parties, perused the impugned judgements.

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10. The first contention raised by the appellants in the present second appeal was with respect to a defect in the termination notice. It was argued that the notice, dated 15.05.2014, was invalid as it purportedly mentioned the date of termination as the very date of the notice itself, i.e., 15th May 2014, thereby failing to provide the statutory period of fifteen days as required under Section 106 of the Transfer of Property Act, 1882.

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11. As the issue revolves around the respondent's notice dated 15 February 2006 terminating the tenancy as addressed to the applicant and as to whether the said notice would be valid under the provisions of section 106 of the Transfer of Property Act, 1882 as amended by Act of 2003 w.e.f. 31 December 2002, it would be desirable to note the said provision which reads thus:

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“106: Duration of certain leases in absence of written contract or local usage:

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(1) In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease for year to year terminable on the part of either lessor or lessee by six months’ notice and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month terminable on the

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part of either lessor or lessee by fifteen days' notice,

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(2) Notwithstanding anything contained in any other law for the time being in force the period mentioned in sub section (1) shall commence from the date of receipt of notice.

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(3) A notice under subsection (1) shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under that subsection

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where a suit or proceeding is filed after the expiry of the period mentioned in that subsection.

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(4) Every notice under subsection (1) must be in writing, signed by or on behalf of the person giving it and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party or to one of his family or servants at his residence or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property.”

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12. In its 181^st report, the Law Commission observed that section 106 of the Transfer of Property Act,1882 as it stood on the statute book ever since 1882, had given rise to large litigation. The Law Commission observed that it was desirable that the issue of computation of period of notice and to relax some of the rigid principles as laid down in some judgments which have led to serious injustice and multiplicity of litigation thereby often causing hardship to litigants needed a

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consideration. The Law Commission recommended amendment to the said provision by virtue of which the notice issued by the plaintiff would not be invalidated even if the time falls short of the prescribed period provided the suit is filed by the plaintiff after expiry of the period prescribed in section 106(1).

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13. Considering the said recommendations of the Law Commission, the Legislature by Act No.3 of 2003 amended section 106 of the Transfer of Property Act. To note the intention of the legislature, it would be desirable to refer to the “Statement of Object and Reasons” of the amendment Act 3 of 2003 which reads thus:

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“ Statement of objects and reasons:

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Section 106 of the transfer of property act, 1882 inter alia provides that the leased of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year which may be terminated either by the lessor or the lessee by six months notice expiring with the end of the year of the tenancy and a lease of the immovable property for any other purpose shall be deemed to be a lease from month to month which may be terminated either by the lessor or lessee by fifteen days notice expiring by the end of the month of the tenancy. the legal position which has also been reiterated by the supreme court in the mangilal vs sugan chand air 1965 sc 101, is that while computing the period notice the day on which the notice is served is required to be excluded. The law commission of india in its 181streport on amendment to section 106 of the transfer

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of property act,1882 has examined the working of this section and found that a number of suits have been filed in ignorance of this legal position and these suits have been dismissed on this lone technicality. Such a position leads to serving of a fresh notice and filing of a fresh suit which amounts not only to serious injustice but also to multiplicity of litigations despite the fact that the defendant had more time available to him then the prescribed period of notice by the date when the suit is filed to evict him or even by the date of judgment dismissing the suit. 2. Hence, it is proposed that the period of notice shall commence from the date of its receipt and the amendment shall apply to the pending suit or proceedings and notices issued before the commencement of the proposed amendment. 3. The bill seeks to achieve the aforesaid object. New Delhi, the 15th November 2002.”

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14. The objection of the applicant to the validity of the respondent's notice dated 15 May 2014 is on the basis of the words as used in the notice namely “thus terminates the tenancy from today i.e. 15^th May 2014,” to contend that the reference to the said date of termination could not have been the issuance of the date of notice itself and therefore the notice

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is invalid. In my opinion, this argument overlooks some basic facets. Firstly, the intention of the

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respondent to terminate the tenancy was clearly reflected in the last paragraph of the said notice by which the respondent not only terminated the tenancy but, has called upon the applicant

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to quit and vacate and hand over peaceful possession of the premises. Thus, a mere reference to the words that “thus terminates the tenancy from today i.e. 15^th May 2014”, in my opinion, cannot be read in isolation and dehors the surrounding facts and as clearly conveyed by the respondent as reflected in last paragraph of the said notice dated 15^th May 2014. The second and the crucial aspect being that, it is not a case that the respondents instituted the ejectment suit against the applicant before expiry of 15 days from receipt of the said notice dated 15^th May 2014.

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15. Thus, in the above circumstances and more particularly taking into consideration subsection (3) of section 106 of the Transfer of Property Act, 1882 the respondent cannot be penalized for an inadvertent mistake in the said notice dated 15^th May 2014 issued by the respondent's advocate, in stating that the tenancy has expired on 15^th May 2014, when the intention of the respondents was otherwise clear, that is to terminate the tenancy. The applicant was called upon to hand over vacant and peaceful possession of the suit premises by the notice dated 15^th May, 2014.

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16. When the language used in the notice is clearly to convey the intention of the lessor namely that the tenant should quit and vacate the suit premises, surely, an honest and inadvertent error would not invalidate the notice.

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17. In the written statement, an objection qua non-joinder of necessary party has been raised by the present appellant/defendant, however, no issue in this respect was framed. The specific objection raised is that being a co-owner of the suit premises, the present respondent/plaintiff of his own, could not have filed the suit. Interestingly payment of rent by the present appellant/defendant to the present respondent/plaintiff is admitted. The issue of non-maintainability of the suit for eviction without impleading the other co-owners now stands concluded by a decision of the Apex Court in India

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Umbrella Manufacturing Co. and Ors. v. Bhagabandei Agarwalla (Dead) by Lrs. Savitri Agarwalla (Smt.) and

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Ors. ( 2004 ) 3 SCC 178, relevant paragraph of which is being reproduced hereinunder:

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“Having heard the learned Counsel for the parties we are satisfied that the appeals are liable to be dismissed. It is well settled that one of the coowners can file a suit for eviction of a tenant in the property generally owned by the co-owners. (See Sri Ram Pasricha v. Jagannath [1977]1SCR395 and Dhannalal v. Kalawatibai [2002]SUPP1SCR19 ). This principle is based on the doctrine of agency. One co-owner filing a suit for eviction against the tenant does so on his own behalf in his own right and as an agent of the other co-owners. The consent of other co- owners is assumed as taken unless it is

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shown that the other co-owners were not agreeable to eject the tenant and the suit was filed in spite of their disagreement. In the present case, the suit was filed by both the co-owners. One of the coowners cannot withdraw his consent midway the suit so as to prejudice the other co-owner. The suit once filed, the rights of the parties stand crystallised on the date of the suit and the entitlement of the coowners to seek ejectment must be adjudged by reference to the date of institution of the suit; the only exception being when by virtue of a subsequent event the entitlement of the body of co-owners to eject the tenant comes to an end by act of parties or by operation of law.”

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18. In view of the aforesaid, the findings of the Courts below are upheld and the present appeal deserves to be dismissed.

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19. In the aforesaid facts and attending circumstances, there arises no question of law, much-less a substantial question of law for consideration of the Court, therefore, the appeal is dismissed being devoid of any merit. Pending miscellaneous applications, if any, also stand disposed of.

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(Bipin Chander Negi) Judge

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05^th December, 2025 (Gaurav Rawat/TB)

Hardev Ratra v. Diwakar Dutt Modgill

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Hardev Ratra v. Diwakar Dutt Modgill

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