NARAYANA PAI Vs. JOHN

JUDGEMENT

(1.) The C. R. P, arises from a proceeding under the Kerala Buildings (Lease and Rent Control) Act 2 of 1965 (shortly stated the Act). The revision petitioner landlord, applied for eviction under S.11 of the Act on ground of arrears of rent, reconstruction, and bona fide requirement for own occupation. The Controller found against the landlord on all these points and dismissed the petition. On appeal however, the order of the Rent Controller was set aside, and eviction was ordered under S.11(3) namely, bona fide requirement for own occupation. The judgment of the appellate authority having been upheld in revision by the learned District Judge, the tenant has come up in further revision. The building sought to be recovered in these proceedings is building No. 8571 in Ward No XIV of the Ernakulam Municipality (now within the Cochin Corporation). In resisting the claim under S.11(3) the tenant pointed out that building No. 8570 just close to No. 8571 belongs to the landlord and is available for his occupation and therefore, the first proviso to S.11(3) is attracted and unless special reasons are made out by the landlord no eviction could not be ordered. But on behalf of the landlord it was stated that building No. 8570 by itself is inadequate to accommodate his family consisting of 8 members including school going and college going children, unless he gets building No 8571 also. This question was considered in all its aspects by both (be appellate authority, and the District Judge in revision, and they have concurrently found that the landlord's requirement is bona fide and has to be upheld. In the wake of this concurrent finding of fact by the courts below, we do not see the justification for going into the question over again.

(2.) The more important question on which the learned counsel focussed his attention and which has been referred for our decision by the learned Single Judge, is whether the petition for eviction could be maintained in the absence of a notice terminating the tenancy. The case of the revision petitioner is that the tenancy should be treated as one from month to month and being thus a subsisting contractual tenancy, no eviction could be sought without first determining the tenancy by a notice as contemplated in S.106 of the Transfer of Property Act. Such a notice according to the learned counsel is lacking in the present case. But according to the landlord, the requisite notice was given before he initiated proceedings for eviction and that notice is Ext. D5 in the case. Receipt of Ext. D5 is not disputed. The case of the tenant however, is that Ext. D5 does not satisfy the requirements of S.106 of the Transfer of Property Act. in that it does not intimate the tenant in so many words of the determination of the tenancy and also that the 15 days do not expire with the end of a month of the tenancy. It is only a notice demanding surrender of the building. According to the learned counsel, a notice strictly in accordance with S.106 is essential for bringing to an end the relationship of landlord and tenant and unless the relationship is validly terminated the landlord does not get the right to obtain possession of the premises by evicting the tenant.

(3.) It is now well settled that in a contractual tenancy the lease must be determined before the landlord can maintain an action for the tenant's eviction under S.11 of the Act. The Madras High Court held in Krishnamurthy v. Parthasarathy ( AIR 1949 Mad. 780 ) that the Transfer of Property Act has no place in the scheme of procedure laid down in the Buildings (Lease & Rent Control) Act and that an application for eviction can be made to the Controller before the tenancy has been determined by a notice to quit. The Supreme Court overruling this decision has held in Manujendra v. Purnendu ( AIR 1967 SC 1419 ) that before a tenant could be evicted by a landlord, he must comply with both the provisions of S.106 of the T.P. Act and those of the relevant sections of the Tenancy Act (Calcutta Thika Tenancy Act 2 of 1949). The Court