SHAKIR HUSSAIN Vs. SIRAJ BEG

JUDGEMENT

(1.) THIS second appeal has been filed by a tenant against whom a decree for ejectment has been passed by the lower appellate Court though the same was refused by the trial Court. The brief facts of the case so far as relevant for the decision of this second appeal were that the appellant was occupying a house as tenant of the plaintiff-respon dent at a rent of Rs. 18.00 per month. The house was governed by the provisions of the U. P. (Temporary) Control of Rent and Eviction Act, 1947 (to be hereinafter called as the Act). The plaintiff gave a notice dated 24-8-1964 to the defendant which was served on him on 9-9- 1964. It was a composite notice under Sec. 3 (1) (a) of the Act making a demand for ar rears of rent and under Section 106 of the Transfer of Property Act terminating his tenancy on the expiry of the requisite period. The defendant-appellant did not comply with that notice. The plaintiff therefore filed a suit for ejectment and recovery of arrears of rent against him in the year 1965. That suit was decreed by the trial Court on 13-8-1965. An appeal filed against that decree by the defen dant was dismissed on 8-12- 1965- There after the defendant filed a second appeal in this Court. The main ground taken by the defendant in that appeal was that more than three months' rent was not due by him when the notice dated 24-8-1964 was served on him and so he did not commit a default within the meaning of Section 3 (1) (a) of the Act. As such he was not liable to ejectment so long as that Act continued in force. This plea of the defendant was accepted by this Court and his appeal was allowed on 6-3-1970. The plaintiffs suit was dismissed in so far as it related to ejectment. In the meantime, the plaintiff was success ful in obtaining possession over the pre mises in execution of the decree on 15-12-1965. After his appeal was allowed the defendant applied for restoration of possession to him under Section 144 of the Code of Civil Procedure. While his application was pending the plaintiff filed a fresh suit against the defendant on 1-5-1970, seeking ejectment of the defendant and also praying for an injunction res training the defendant from getting resti tution of the possession which the plain tiff thought the defendant would get under Section 144 of the Code of Civil Procedure as a result of the decision of this Court in second appeal. In this suit the bar of the Act was sought to be got over on the ground that the State Gov ernment in a revision filed under Sec tion 7-F of the Act had granted permission to the landlord under its order dated 16-8-1965 to file a suit for ejectment against the tenant. But no fresh notice under Section 106 of the Transfer of Property Act was given to the defendant terminating his tenancy which was sought to have been terminated under the previous notice dated 24-8-H964. This suit was contested by the defendant on the ground that he was not liable to ejectment and that he was legally entitled to restitution of his pos session under Section 144 of the Code of Civil Procedure after his second appeal had been allowed by this Court on 6-3-1970 and that the plaintiff could not restrain him from seeking his legal re medy by praying for an Injunction in that suit.

(2.) THAT suit was dismissed by the trial Court on 28-1-1971 mainly on the ground that the plaintiff himself was In possession up to that time and so the re lief for ejectment was redundant and could not be allowed. The plaintiff filed an appeal against that decision on 19-7-1971'. While the appeal was pending the defendant was successful in getting back the possession over the house on 23-7-1971 in proceedings under Section 144. of the Code of Civil Procedure. After that the plaintiff with the permission of the Court amended his plaint so as to claim simply relief of ejectment on the ground that the tenancy had been terminated under Section 106 of the Transfer of Property Act by means of the notice dated 24-8- 1964 and the bar of the Act had been removed by the permission granted by the State Government under Section 7-F on 16-8-1965. The lower appellate Court allowed the appeal and decreed the plaintiffs suit for possession after the ejectment of the defendant. Feeling aggrieved by that decree the de fendant filed this second appeal

(3.) THE previous suit for effacements was filed by the plaintiff on the ground that the defendant was in arrears of rent for more than three months which he failed to pay In spite of notice served on Mm under Section 3 (I) (a) of the Act and that his tenancy had been terminated by a valid notice sent to him under Sec tion 1'06 of the Transfer of Property Act on 24-8-1964. That suit being ultimately dismissed by this Court, no fresh suit could be filed on the basis of the same cause of action. Of course, a fresh suit could be filed for ejectment on a fresh cause of action. In this case, for re moving the bar created by Section 3 of the Act the landlord was no doubt armed with the permission of the State Govern ment granted under Section 7-F in con nection with a revision filed, by him against the order of toe District Magis trate refusing that permission. But the tenancy was not freshly terminated under Section 106 of the Transfer of Property Act so as to give him a new cause of action to file the second suit Obviously the previous notice would not and could not give him a fresh cause of action for the second suit after the previous suit filed on the basis of that notice had been dismissed. It is not possible to accept the contention of the learned counsel for the plaintiff-respondent that since the relationship of landlord and tenant had been put an end to by means of a notice, dated 24-8-1964 the same cannot be restored even after the previous suit was dismissed by this Court on 6-3-1970. After the dismissal of that suit the de fendant was very much a tenant of this house in spite of the unsuccessful at tempt made by the plaintiff to put an end to this relationship of landlord and tenant by means of his notice dated 24-8-1964. A fresh notice under Section 106 of the Transfer of Property Act was clearly re quired before the second suit for eject ment could succeed. That was not ad mittedly served on the defendant. Hence the present suit was also liable to fail.