IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 529 of 2006 Reserved on : 13th May, 2010 Date of Decision: 18th June, 2010 Dev Raj Appellant Versus Lajwanti and others Respondents Coram The Hon’ble Mr. Justice Sanjay Karol, J. Whether approved for reporting1? Yes For the appellant: Mr.Bhupender Gupta, Sr. Advocate, with Mr.Neeraj Gupta, Advocate. For the respondent: Mr.G.D.Verma, Senior Advocate, with Mr.B.C.Verma, Advocate. Sanjay Karol, J. In this appeal filed under Section 100 of the Code of Civil Procedure, 1908, the defendant has assailed the concurrent findings of fact recorded by the Courts below. 2. Plaintiffs Civil Suit No. 114 of 1996 stands decreed in terms of judgment and decree dated 28.2.2004 passed by Civil Judge (Senior Division), Una, District Una, H.P. The operative portion of the judgment reads as under:- “In view of my aforesaid findings and discussion, the suit of the plaintiffs succeeds and is hereby decreed for possession by ejectment of the defendant from the suit premises denoted by letters ABCD as shown by blue colour in the site plan Ext.P1 Whether the reporters of Local Papers are allowed to see the Judgment? 2 and as fully detailed in the head note of the plaint with no costs. Decree sheet be drawn and the file be consigned to records after its due completion.” 3. The findings and the judgment stands affirmed in defendant’s appeal being Civil Appeal No.20 of 2004 by the Additional District Judge, Una, in terms of its judgment and decree dated 31.8.2006. 4. The present appeal was admitted on the following substantial questions of law:- “1. Whether both the Courts below have recorded erroneous, arbitrary and perverse findings in holding that Ex.P-2 the notice permitting the tenancy was valid, by wrongly relying upon the fact that the area where the property in question is situated earlier formed the part of erstwhile State of Punjab? Have not both the Courts below committed grave error of law and jurisdiction to the facts of the present case as when the notice was issued by the plaintiffs, provisions of Transfer of Property Act were extended to the entire State of Himachal Pradesh including the areas which formed the part of State of Himachal Pradesh on account of reorganization of States? 2. Whether both the Courts below have misconstrued and misapplied provisions of Section 106 and 113 of the Transfer of Property Act by relying upon such propositions which were wholly inapplicable to the facts of the case, especially when it was admitted and proved that the predecessor-in-interest of the plaintiffs- respondents after issuance o notice Ext.P-2, received rent from the appellant thereby waiving the notice? 3 5. In the suit, the following issues were framed:- “1. Whether the plaintiff is entitled to the possession of the demised premises as alleged? OPP. 2. Whether the suit is not maintainable? OPD 3. Whether the plaintiff has no locus standi to file the suit? OPD. 4. Whether the plaintiff has no cause of action to file the suit? OPD. 5. Whether the plaintiff is estopped to file this suit by his act and conduct? OPD.” 6. There is no dispute with regard to the suit premises. There is also no dispute that subsequent to the issuance of notice, plaintiffs received rent for the period prior to determination of the tenancy. The receipt of the notice (Ext.P-2) determining the tenancy is also not in dispute. The contents of Ext.P-2 are reproduced as under:- “Registered A/D Dated 15.2.1996 To Sh.Dev Raj S/o Karam Singh, Caste Rajpur, R/o Vill. Bout, Tehsil Bangana, Distt. Una (HP). At present Shop Keeper Fruits & Vegetables, Main Bazar, Bangana, Distt. Una (HP). LEGAL NOTICE. Sir, Under the instructions from Sh.Salig Ram, Sh.Paras Ram sons of Late Sh.Ghasitu, Caste Brahmin, R/o Village Bout, Tehsil Bangana, District Una (HP) I hereby serve you with the notice to the following effects:- 1. That my clients are owners of two shops situated in the Main Bazar of Bangana, Village Bout, P.O. Dohgi, Tehsil Bangana, District Una (HP). 4 2. That my clients vide Rent Note dt. 7.9.94 leased out to you the said two shops @ 1600/- P.M. i.e. Rs.800/- per month for each shop. 3. That vide a separate agreement dt. 7.9.1994 it was agreed that you will vacate the shop situated towards East after the Expiry of 11 months and further you will vacate the other shop within a period of one month from the receipt of notice in case my client has to effect repairs/renovation of the shop. 4. That according to the agreement you vacated possession of the Eastern Shop and remained in possession of the Western Shop as detailed hereunder @ Rs.800/- per month:- North : Una Mandi Road South: Open plot of my client. East: Shop of my clients. West: Shop of my clients Situated at Village Bout, PO. Dohgi, Tehsil Bangana, Distt. Una (HP). You have further not paid rent for the premises from 7.9.95 to 7.2.96. Hence you are in arrears of rent of the shop to the tune of Rs.4000/-. 5. That my clients have purchased a plot to the South of the shop in your possession and wants to re-model it. 6. That my clients no longer want to retain you as tenant your tenancy is hereby terminated. Through this notice you are required to pay arrears of rent and to vacate possession of the shop premises by 31st day of March, 1996 and handover its vacant possession to my clients failing which my clients shall be constrained to institute civil suit against you for the arrears of rent and for possession of the shop and you shall stand liable for the costs incurrect (sic) in the cause. A carbon copy of this notice is being retained in my office for further action and records. 5 Sd/- (R.C.SETH) Advocate.” 7. The said notice was duly acknowledged and relied by the defendants and the contents thereof are also reproduced in toto:- “2.3.1996 To 1. Sh.Salig Ram 2. Paras Ram Both sons of Ghaseetu, Village Bot, Tehsil Bangana, District Una, H.P. -174307 Sub: Reply to your legal notice dated 15.2.1996 served upon Sh. Dev Raj S/o Karam Singh, Caste Rajpur, R/o Bot, Tehsil Bangana, District Una, at present Shop-keeper, fruits and vegetables, Bangana, Distt. Una. D/sir, Under the instructions on behalf of Sh.Dev Raj S/o Karam Singh, Caste Rajpur, R/o Bot, Tehsil Bangana, District Una, H.P., who has engaged me as his counsel to serve you with the reply to your legal notice dated 15.2.1996, I hereby serve you with the following parawise reply:- 1. Para 1 of the notice needs no reply. 2. In reply to para No.2 of the notice, it is submitted that the shops in question were rented out by you to my client vide rent note dated 2.9.94 on the monthly rent of Rs.800/- P.M. each shop which was further renewed vide agreement/ rent note dated 7.9.1994. 3. Para No.3 of the notice is wrong and incorrect. My client vacated the shop situated towards the Eastern side whereas you in the month of November, 1995 forcibly tried to oust my client from the Western side shop. You both even tried to dismantle the shop by making a hole in the wall which necessitated my client to file a civil suit for permanent injunction against you both. That civil suit was numbered C.S. 6 No.450/95 in which you both were restrained from causing any damage to the disputed shop (Western side shop) and also forcibly busting my client from its possession. That suit was decreed by the court of ld. Sub Judge, Court No.II, Una on 5.2.1995 whereby you both have been permanently restrained from causing any damage or ousting my client from the possession of the disputed shop. 4. In reply to para No.4 of the notice, the averments with regard to the vacation of the Eastern side shop and the possession of the other shops need no reply and the due rent i.e. Rs.4800/- is being sent to you vide Bank pay Order No.40410 dated 28.2.1996 drawn on the Kangra Central Cooperative Bank Limited Branch Bangana, which is attached herewith. 5. In reply to para No.5 of the notice, it is submitted that the same is wrong and incorrect. 6. Para No.6 of the notice is also wrong and incorrect. The tenancy rights of my client are not subject to the termination at your will as he is a permanent statutory tenants. So in view of the above stated submissions, you are hereby called to behave yourself properly and like a good landlord and in the event of any litigation, you both will be responsible for the cost of litigation as well as any cost to be incurred by my client in that event.” 8. The Courts below have concurrently held the tenancy of the defendant to have been validly determined. Importantly neither in the reply to the notice nor in the pleadings did the defendant take any objection with regard to the validity of the notice determining the tenancy. In fact no endeavour was made to get an issue with regard to its validity framed before the trial Court. 15 days clear notice stands issued to the defendant to hand over the premises. Therefore, it cannot be said that the notice is bad in law. The notice is clear, unambiguous and the intention was to get the premises 7 vacated. In fact there had previous litigation inter se between the parties in relation to the very same premises. The tenant cannot be permitted to continue to occupy the premises on a mere technicality. 9. The Apex Court in Bhagabandas Agarwalla vs. Bhagwandas Kanu and others, AIR 1977 SC 1120, has held as under:- “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 ut res magis valeat quam pereat.” 10. The Apex Court in Vasantkumar Radhakisan Vora (dead by his Lords. Vs. Board of Trustees of the Port of Bombay and another, (1991) 1 SCC 761, has held as under:- “By issuance of notice to quit the right created thereunder, namely, cessation of the lease, does not become effective automatically till the period prescribed in the notice or in the statute i.e., Section 106 expires. On expiry thereof the lease become inoperative and the lessor acquires right to have the tenant ejected. When he fails to deliver vacant possession, the lessor would be entitled to have the tenant ejected and to take possession in due process of law.” 11. The Apex Court in Parwati Bai vs. Radhika, (2003) 12 SCC 551, has held:- “6. The singular question to be examined in the present case is whether the tenancy was terminated in accordance with the provisions of Section 106 of the Transfer of Property Act. The receipt of notice by the defendant is admitted in the written statement. The defendant has not raised any specific objection as to the validity of the notice. An objection as to invalidity or infirmity of notice under Section 106 T.P. Act should be raised 8 specifically and at the earliest; else it will be deemed to have been waived even if there exists one…” 12. In Sarup Singh Gupta vs. S.Jagdish Singh and others, (2006) 4 SCC 205, the Apex Court has held as follows:- “A mere perusal of Section 113, TPA, 1882 leaves no room for doubt that in a given case, a notice given under Section 111 clause (h), may be treated as having been waived, but the necessary condition is that there must be some act on the part of the person giving the notice evincing an intention to treat the lease as subsisting. Of course, the express or implied consent of the person to whom such notice is given must also be established. The question as to whether the person giving the notice has by his act shown an intention to treat the lease as subsisting is essentially a question of fact. In reaching a conclusion on this aspect of the matter, the court must consider all relevant facts and circumstances, and the mere fact that rent has been tendered and accepted, cannot be determinative”. “…In any event, even if rent was neither tendered nor accepted, the landlord in the event of success would be entitled to the payment of the arrears of rent. To avoid any controversy, in the event of termination of lease the practice followed by the courts is to permit the landlord to receive each month by way of compensation for the use and occupation of the premises, an amount equal to the monthly rent payable by the tenant. It cannot, therefore, be said that mere acceptance of rent amounts to waiver of notice to quit unless there be any other evidence to prove or establish that the landlord so intended. In the instant case, we find no other fact or circumstance to support the plea of waiver. On the contrary, the filing of and prosecution of the eviction proceeding by the landlord suggests otherwise. 9 13. The Apex Court in Dharam Pal vs. Harbans Singh, (2006) 9 SCC 216, has held as under:- “7. Learned counsel for the appellant submits that none of the two recitals contained in the notice can fulfill the requirement of Section 106 of the Transfer of Property Act. One recital in the notice terminates the tenancy from the date of issue of notice. The other one requires the tenant to vacate the premises within 15 days from the date of the receipt of the notice. Both are bad in the light of the requirements spelled out by Section 106 of the Transfer of Property Act. The learned counsel seems to be right in urging the pleas. However, still we feel that the appellant cannot be allowed relief. Law is well settled that an objection as to the invalidity or insufficiency of notice under Section 106 of the Transfer of Property Act should be specifically raised in the written statement failing which it will be deemed to have been waived. In the present case, the only objection taken in the written statement j is that the notice issued by the plaintiff was "illegal, null and void and ineffective upon the right of the defendant". The thrust of the plea raised by the defendant-appellant in his written statement was that the notice was issued by the person who did not have the authority from the landlord to give the notice. The plea so taken has been found devoid of merit by the High Court and the courts below. The plea that the notice was insufficient in the sense that it did not give 15 clear days to the tenant to vacate or that the notice did not terminate the tenancy with the expiry of the month of the tenancy, has not been taken in the written statement. 8. Obviously for want of specific plea in the written statement, the trial court has not framed any issue reflecting an objection to the validity or sufficiency of notice, the plea in the manner in which it is sought to be urged before us. The plea as to 10 insufficiency of notice should be deemed to have been waived by the appellant and cannot be allowed to be urged at this stage. No fault can be found with the judgment and decree of the High Court as also of the two courts below upholding the termination of tenancy and the plaintiff-respondent's entitlement to evict the tenant.” 14. The notice at best can be said to be not happily worded. However, the intention is very clear and that is why more than 15 days clear time ending with the end of the tenancy month was given. 15. It also cannot be said that acceptance of rent subsequent to the issuance of notice determining the tenancy would amount to novation of contract rendering the suit to be infructuous. Ext.DW-1/A clearly states that the rent is accepted without prejudice to the proceedings pending between the parties. 16. The following case law cited by learned Senior counsel, is not being adverted to in view of the latest law laid down by the Apex Court as noticed hereinabove:- Mangilal vs. Sugan Chand Rathi (deceased) and after him his heirs and legal representatives and another, AIR 1965 SC 101, Yerrabhothula Krishna Murthy and others vs. Addepalli Subba Rao, AIR 1988 A.P. 193. Jagannath Karanani and another vs. Sayed Abdul Wahed and others, AIR 1962 Assam 148, B.Chitra Ramacharandas etc. vs. National Remote Sensing Agency and another, AIR 2001 A.P. 20, Dipak Kumar Ghosh vs. Mrs. Mira Sen, AIR 1987 SC 759, Raj Mal vs. Bhim Sen, 1998 (1) Shim.L.C. 503, and Parwati Bai vs. Radhika, AIR 2003 SC 3995. 11 17. Hence, in my view, no question of law much less a substantial question of law arises for consideration as the question is no longer res integra. As such, the present appeal is dismissed. No costs. June 18 , 2010 (Sanjay Karol) (C) Judge.