1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7699 OF 2008 M/s.Bata India Ltd. ..Petitioner. V/s. Mrs.K.Soudamani Raman & Ors. ..Respondents. Mr.P.S.Dani i/b. Ms.Shruti Baig for Petitioner. Mr.G.S.Godbole i/b.M/s.Nankani & Associates for Respondent Nos.1 to 9. CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J DATE : FEBRUARY 2, 2009. DATE : FEBRUARY 2, 2009. DATE : FEBRUARY 2, 2009. P.C. : P.C. : P.C. : 1. Heard Counsel for the parties. 2. Essentially two points are raised by the Petitioners before this Court. The first argument is that the suit notice dated 6th July, 2001 Exh.12 is simplicitor calling upon the Petitioners(defendants) to vacate and hand over quite, peaceful and vacant possession of the suit premises to the Plaintiffs. There is no mention about the fact that the tenancy stands terminated. In the earlier part of the notice in paragraphs 1 to 3, the landlords have plainly referred to the two earlier termination notices issued on 3rd August, 1992 by the predecessor of the 2 Plaintiffs and later on on 19th December, 1998 by the Plaintiffs themselves. The suit notice however, does not terminate the tenancy, as was required under the provisions of section 106 of the Transfer of Property Act. It is argued that the first two notices will be of no avail as the Petitioners had protection of provision of Bombay Rent Act at the relevant time. It is only the third suit notice dated 6th July, 2001 would be of significance and relevant to proceed with the present action. Whereas the third notice as aforesaid does not mention that the tenancy is terminated. This is hyper technical argument clearly overlooks the tenor of clause (4) in the suit notice dated 6th July, 2001, which reads thus: "4. We are therefore instructed by our clients, to call upon you, which we hereby do to quit vacate and hand over quiet, peaceful and vacant possession of the suit premises to our clients within 30(thirty) days from receipt hereof." The two Courts below have held this notice as legal and valid termination notice. The two Courts below have accepted the argument of the Petitioners/defendants that the earlier two notices stood waived by the landlords and further proceeded 3 to hold that the third legal notice, on the basis of which the suit has been instituted dated 6th July, 2001 was legal and valid. 3. The Trial Court has considered the argument in the context of the stand taken by the Petitioners about waiver of not only earlier two notices by the landlords, but even the third suit notice and has rejected the same in paragraph-9 of the Judgment under appeal. The Appellate Court has specifically dealt with this submission in paragraph-11 of the impugned Judgment and has found that by the suit notice the tenancy of the defendants is validly terminated. Indeed, the Appellate Court and the trial Court have not addressed the matter in the context of what the Petitioners have agitated before this Court. The question whether the Clause (4) of the suit notice dated 6th July, 2001 can be viewed as termination notice can be answered on the basis of exposition of the Apex Court in the case of Bhagabandas Agarwalla v/s. Bhagwandas Kanu & Ors. Bhagabandas Agarwalla v/s. Bhagwandas Kanu & Ors. Bhagabandas Agarwalla v/s. Bhagwandas Kanu & Ors. reported in (1977) 2 SCC 646. reported in (1977) 2 SCC 646. reported in (1977) 2 SCC 646. In paragraph-3 of the said decision, the Court observed thus: 4 "3. Now, it is settled law that a notice to quit must be construed not with a desire to find faults in it, which would render it defective, but it must be construed ul res magis valeat quam pereat. "The validity of a notice to quit", as pointed out by Lord Justice Lindley, L.J. in Sidebotham v. Holland, "ought not to turn on the splitting of a straw". It must not be read in a hyper-critical manner, nor must its interpretation be affected by pedagogic pendatism or over refined subtlety, but it must be construed in a common sense way. See Harihar Banerji v. Ramsashi Ray. The notice to quit in the present case must be judged for its validity in the light of this well recognised principle of interpretation." 4. The Counsel for the Petitioner however, submitted that the exposition of the Apex Court is inapplicable to the fact situation of the present case, as in that case the question of requirement of termination notice was not put in issue. Whereas in the above said decision, the controversy was whether legal notice was valid as the tenancy was a monthly tenancy and the notice to quit could not be said to be valid under section 106 of the Transfer of Property Act, unless it expires with the end of month of the tenancy. 5. The argument clearly overlooks the dictum of Apex Court that the legal notice to quit should be liberally construed. The clause 4 of the suit notice, which is reproduced above is clearly quit 5 notice issued by the landlords to the tenants and therefore, the Courts below have rightly found the same to be termination notice. In the circumstances, there is no substance in this stand taken by the Petitioners before this Court. 6. The next argument of the Petitioners is that in paragraph-9 of the plaint, the Plaintiffs are claiming mesne profit from 1st October, 1998 till the defendant was to hand over vacant and peaceful possession of the suit premises to the Plaintiffs. According to the petitioners, this claim is unstatable, as the Petitioners have had protection of the Rent Act till 1999. In that situation, question of paying mesne profit would not arise at all. In any case, once it is found that the suit notice is the notice of terminating tenancy of the tenant and the earlier termination notices having been waived by the landlord, the question of granting mesne profits from anterior point of time thereof does not arise. All these aspects will have to be considered before the appropriate court, when the issue of fixation of mesne profit would arise for consideration. I am not expressing any opinion on the correctness of this submission either way. 6 7. It was also contended that in the evidence, P.W. 1 in Cross-examination has admitted the fact that the Plaintiff Nos. 7 and 8 were not in town when the Power of Attorney was allegedly executed. If it is so, the Plaintiff P.W.1 could not have espoused the cause of the said Plaintiff. Counsel for the Respondents however, invited my attention to the relevant statement made by the P.W.1 that he was not sure when his other sister was in Kerala at that time. The fact remains that the Court below has rightly disposed of this argument on the finding that there is no dispute that P.W.1 was one of the co-owner and was competent to institute suit for possession on his own. Once it is found that even the P.W.1 himself could have instituted the suit, no infirmity can be found in the suit, as filed. In any case, the Power of Attorney executed in favour of the P.W.1 has not been discarded by the two Courts below. Taking any view of the matter there is no substance in this submission as well. 8. Accordingly, this Petition should fail. The same is dismissed. 9. At this stage, Counsel for the 7 Petitioners/tenants prays that the operation of this order be kept in abeyance for six weeks so as to enable the tenant to go in appeal, if so advised. Although this request is opposed by the Counsel for the Respondents/landlord, however, the same being reasonable one, is accepted. In other words, execution of decree shall remain in abeyance for a period of six weeks from today, on tenant filing usual undertaking in this Court within two weeks from today. In addition, the tenant shall pay all the outstanding dues as of today within two weeks from today. Failure to comply with any of these conditions, interim protection granted to the tenant shall stand vacated forthwith without further reference to the Court and in which case the landlord shall be free to proceed with the execution of the decree. Ordered accordingly. (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J)