Case: Rattan Lal Vs. Vardesh Chander and Others

Factual matrixThe appellant is the tenant of a building in Delhi having been inducted into possession by the respondent- landlord under a letting of May 19, 1954, evidenced by a deed which fixed the term merely as less than a year (a circumstance out of which a minor ripple of legal argument has arisen ). At the time of the leasethe Transfer of Property Act, 1882 (for short, the TP Act), had not been extended to Delhi although, later, on December 1, 1962, the said Act was made applicable to this area. The landlord had been receiving rent from the tenant until the time he filed a petition for eviction (1967), the statute which regulated the right to eviction beingthe Delhi Rent Control Act, 1958 (59 of 1958) (for short, the Rent Act). The eviction petition set out two grounds out of the many specified in s. 14 of the Rent Act, viz., unauthorized sub-letting of a portion of the premises and possession, by the tenant, of alternative accommodation. Both these grounds having been made out, the evictibility under the Rent Act became inevitable. But, in the High Court, the appellant-tenant fell back on certain defences grounded on ss.106 and 111 of the TP Act on the score that no notice to quit had been given, nor notice of forfeiture, as prescribed by those sections. There is no dispute that neither notice to quit nor notice of forfeiture determining the tenancy had been given by the landlord. The core of the controversy thus turns on the need to comply with the requirements of ss. 106 and/or 11 1 of the TP Act and the fatal effect of failure in this behalf. The landlord seeks to break through these defences by urging that the lease has expired by efflux of time limited thereby under s. 111(a) and no notice terminating the tenancy under s. 106 is needed and further that the forfeiture of the tenancy caused by sub-letting contrary to the terms of the deed of demise can be availed of by the landlord even in the absence of a notice as contemplated by s. 111 (g) because the TP Act, as amended by the Amending Act of 1929, did not, in terms, apply to the present lease and the principles of justice, equity and good conscience, which alone applied, did not desiderate the technical requirement of a notice in writing of an intention to determine the lease.The Rent Controller, at the floor level, ordered eviction and the Appellate Tribunal affirmed it, upholding the vice of sub-letting without consent of the landlord in the manner specified in s. 14(1)( b) as also the disability spelt out in s. 14(1) (h) on acquiring vacant possession of alternative residence. The resistence founded on the TP Act was also over-ruled by the appellate Tribunal. But, when the case reached the High Court in second appeal, under s. 39 of the Rent Act, the learned Single Judge felt that certain points of law spun out of the TP Act deserved consideration by a Division Bench and referred the appeal for determination accordingly to a larger Bench. The Division Bench which heard the appeal dismissed it but granted a certificate of fitness for appeal to the Supreme Court under Art. 133 of the Constitution, restricting it, however, to but one ground urged before it.

Reasoning: We cannot agree to this feebly asserted argument. A lease merely stating that it is for a period less than one year is ex facie for an indefinite period and, as such, cannot expire by efflux of time. Nor are we convinced that, notwithstanding the acceptance of rent for the period of 11 years the landlord had not assented to the holding over of the tenancy and that what emerged was a statutory tenancy which did not require notice in law for valid determination. Possibly so; not necessarily. However, we nee d not explore this aspect further in the view that we take of the other submission of the landlord that the lease has been determined by forfeiture, not in terms of s. 111 (g) of the TP Act, but on the application of the principles of justice, equity and good conscience. We will examine this latter contention in some detail, as it is decisive of the fate of the case.The Rent Act contemplates no elaborate pleadings but filling out of particulars in a pro forma which takes the place of a plaint. No specific averment of forfeiture and consequent determination of the lease is found in the petition. Having regard to the comparative informality of these proceedings and thenature of the whole process , such an omission cannot be exaggerated into a lethal infirmity. What is perhaps more pertinent is that the petitioner was innocent of the plea of forfeiture throughout the stages of the trial before the Rent Controller. When the case reached the appellate stage, it was specifically urged that the tenancy stood terminated by forfeiture under s. 111 (g) of the TP Act. The Tribunal studied the terms of the rent deed, Exhibit AW 3/1 and held that there was an express condition againstand a provision that on breach thereof the lessor had the right to move for evictionsomething equivalent to a right toThe tenant remonstrated against this new plea being permitted in appeal but the Court construed the statement in thethat no notice is necessary, to mean that there was a determination by forfeiture even without the issuance of a notice. More over, the Court noticed the fact that the question was only one of law and should be permitted in the interests of justice. After some consideration of the issue the Tribunal reached the result that the tenancy stood determined by forfeiture and therefore no notice was required. We need not tarry further on the tenability of this conclusion since the matter has been more fully examined at the High Courtthe present case, we are relieved of that obligation for the weighty reason that the appellant has all along staked his case on the application of the rules of justice, equity and good conscience and not on the textual rigour of s. 111(g) applied proprio vigore.If the appellants case was that the TP Act applied of its own force, he would have urged so in the High Court, especially because the appellate tribunal had dealt an eviction blow on him by applying the rules of justice, equity and good conscience. Moreover, the categorical statement in the judgment of the High Court confirms the view that the appellant stuck to his stance of justice, equity and good conscience. Nay more. Even in the grounds of appeal to this Court" he has only harped on justice, equity and good conscience and invoked s. 1 11(g) as embodying equity and good conscience. For the first time he has, by a volta face, switched to the TP Act as against the rules of justice, equity and good conscience. It is too late in the day to set up a new case like that. There are many reasons why. Even though we have power to permit a new plea, we should not exercise it here. We decline our discretion to allow the appellant to travel into the new statutory territory of s. 111(g). He has to stand or fall by his sub mission that justice, equity and good conscience is the alter ego of s. 111 (g) of the TP Act in its dual requirements of (a) the breach of a condition providing forand (b) notice in writing to the lessee of an intention to determine the lease.Once we assume the inapplicability of the TP Act to the lease inassertion of the respondent which we do not feel compelled to consider in thisare confronted by the concept of justice, equity and good conscience which, admittedly, comes into play in the absence of any specific legislative provision. In India and in other colonies during the Imperial era a tacit assumption had persuaded the courts to embrace English law (the civilizing mission of the masters) as justice, equity and goodHigh Court held, and we think rightly, that this provision in subsection (g) of section 111 in regard to notice was not based upon any principle of justice, equity and good conscience. In the first instance it may be observed that it is erroneous to suppose that every provision in the Transfer of Property Act and every amendment effected is necessarily based on principles of justice, equity and good conscience. It has to be seen in every case whether the particular provisions of the Act relied upon restates a known rule of equity or whether it is merely a new rule laid down by the legislature without reference to any rule of equity and what is the true nature and character of the rule. Now, so far as section 111 (g) of the Act is concerned, the insistence therein that the notice should be given in writing is intrinsic evidence of the fact that t he formality is merely statutory and it cannot trace its origin to any rule of equity. Equity does not concern itself with mere forms or modes of procedure. If the purpose of the rule as to notice is to indicate the intention of the lessor to determine the lease and to avail himself of the tenants breach of covenant it could, as effectively, be achieved by an oral intimation as by a written one without in any way disturbing the mind of the chancery judge. The requirement as to written notice provided in the section therefore cannot be said to be based on any general rule of equity. That it is not so is apparent from the circumstance that the requirement of a notice in writing to complete a forfeiture has been dispensed with by the legislature in respect to leases executed before 1st April, 1930. Those leases are still governed by the unamendedsubsection (g) of section111. All that was required by thatwas that the lessor was to show his intention to determine the lease by some act indicating that intention. The principles of justice, equity and good conscience are not such a variable commodity, that they change and stand altered on a particular date on the mandate of the legislature and that to leases made between 1882 and 1930 the principle of equity applicable is the one contained in sub section (g) as it stood before 1929, and to leases executed after 1st April 1930, the principle of equity is the one stated in theas it now stands. Question may also be posed, whether according to English law a notice is a necessary requisite to complete a forfeiture." Of course, in that case, Mahajan, J. has dwelt at length on the English law of landlord and tenant and the discussion is partially suggestive of the English law of real property being a good guide to the Indian Judges good conscience. But the ratio is clear that processual technicalities and even substantive formalities cannot masquerade as justice and equity. The touchstone is simply whetherthe formal requirement of the law is part of what is necessarily just and reasonable.In this perspective, the conclusion is clear that a notice in writing formally determining the tenancy is not a rule of justice or canon of commonsense . Realism, married to equity, being the true test, we are persuaded that theAct provision of s. 111 (g) is in consonance with justice. If so, the mere institution of the legal proceeding for eviction fulfils the requirement of law for determination of the lease. The conscience of the Court needs nothing more and nothing else. The rule in Namdeo (supra) settles the law correctly20. Reference was made at the bar to the ruling in Mohd. Amir(1) To understand that decision we have to make a distinction between the principles embodied in s. 111(g) and the provisions thereof. Not all the stipulations and prescriptions in the section can be called the principles behind it. In this light there is no contradiction between the two cases of thisearlier one of Namdeo (supra) and the later Mohd. Amir(1). We are satisfied that the situation in the present case is squarely covered by the earlier ruling. The High Court is right in its view.21. It is a fitting finale to this part of the argument that in the High Court arguments proceeded on the footing that the Supreme Court has ruled in Namdeo (supra) that there being no requirement in English law of a written notice to the lessee of the intention of the lessor to determine the lease on forfeiture, the provision of a notice would not be considered as being consistent with the rules of equity, justice and good conscience. We have already made our comments on the anglophonic approach and do not wish to reiterate them here. However, there are certain pregnant observations in the judgment under appeal pertinent to the present discussion. Observed the High Court:"In the case of Namdeo Lokman Lodhi the Supreme Court was directly concerned with the question of the requirement of written notice engrafted into the clause (g) by the amendment of 1929 was of a technical nature or could be said to be consistent with the English rule regarding forfeiture and therefore, in consonance with the principles of justice, equity and good conscience and the question was clearly answered in the negative."22. The irrelevance of the English law as such to notions of good conscience i n India notwithstanding, we agree that a written notice is no part of equity. The essential principles, not the technical rules, of the TP Act form part of justice, equity and good conscience. The conclusion emerges that the landlords termination of the tenancy in this case is good even without a written notice.23. Many other niceties of law were presented to us by Shri A. K. Sen to extricate the tenant from eviction. They are too unsubstantial and intricate for us to be deflected from the sure and concurrent findings, read in the background of an alternative accommodation being available to the tenant.