SAHIB DAYAL Vs. JOTI PERSHAD

JUDGEMENT

(1.) This case has been referred to the Division Bench in pursuance of the order of Grover, J. It arises out of a suit for ejectment from the shop in dispute situated in Najafgarh and for recovery of Rs. 456.00 brought by Joti Pershad plaintiff.respondent against Sahib Dayal defendant. The trial Court dismissed the suit but on appeal the learned Additional District Judge, Delhi, passed a decree for ejectment from the shop in dispute and /or recovery of Rs. 245.00 in favour of the plaintiff against the defendant In second appeal when the matter came up before Grover, J, he found that the provisions of the Transfer of Property Act did not apply to the area wherein the shop in dispute is situate. Question then arose for determination as to whether it was necessary for the plaintiff to have served a notice for terminating the tenancy in accordance with the rule embodied in Section 106 of the Transfer of Property Act. The plaintiff was found to have issued notice Exhibit P-4 to the defendant on 18th November, 1957 requiring the latter to vacate the premises by 5th January 1958 treating the tenancy month to be from 6th to 5th of the succeeding month. The position taken on behalf of the defendant was that the tenancy month was from the 8th to 7th day of the succeeding month. The lower Appellate Court found that the tenancy month commenced from 8th and ended on the 7th of the next month. This finding was assailed by the learned counsel for the plaintiff-landlord before the learned Single Judge and has also been assailed before us. The learned Single Judge on the assumption that that finding is not open to challenge dealt with the matter as to whether a notice for ejectment in order to be valid should expire on the last day of the period of tenancy. He found that there was a conflict on the point and consequently referred the matter to Division Bench,

(2.) Relevant part of section 106 of the Transfer of Property Act reads as under :-

(3.) . In Rure Khan v. Ghulam Muhammad, the defendant, according to the terms of the lease, was to be a tenant of the plaintiff for eleven months. The plaintiff was empowered at any time to give the tenant a week's notice to vacate the house. The tenancy commenced on the 8th August 1920 and on the 3rd June 1921 the plaintiff sent a notice to the defendant telling him to leave the house within a week or to pay double rent. Contention was advanced that the plaintiff could only give such notice of ejectment as would terminate on the last day of the month. This contention was repelled by Campbell, J. in Ram Nath v. Baari Nath. the defendant took on lease a house with effect from 8th October, 1923. According to the lease deed the rent was to be paid monthly and if the landlord wished to have the house vacated, he should give two months' previous notice. On 21st July 1924 the landlord served a notice on the tenant asking the latter to vacate the house within two months from the date of the receipt of the notice at the risk of being charged double rent. It was held by Coldstream, J. That the notice given by the landlord was not invalid though it did not expire with the end of a month of the tenancy. Letters patent Appeal against the decision in this case was dismissed in limine. In Rattan Sen Sachar v. Shrimati Krishan Kaur the landlord served two notices upon the tenant. The first notice was given on 18th June 1931 and required the tenant to vacate the house by the end of the month. The notice was received by the tenant on 23rd June, 1931. The second notice was issued on 20th July 1931 and required the tenant to vacate the premises within 15 days. The tenancy was a monthly one. Bhide.J. held the notices to be not legal because those notices did not give fifteen days to the tenant terminating with the date of the tenancy. In Mst Sunder Bai v. Chaudhrani Muntaz Jan, one of the arguments advanced in revision was that the tenancy terminated on 7th August and the notice to quit on 8th August was bad. This contention was repelled by Wetton C. J. and it was further observed that the Transfer of Property Act did not apply to the locality and the technical defects in the notice to quit did not have the force they might have under that Act.