MAHARANA SHRI BHAGWATSINGHJI OF UDAIPUR Vs. KESHULAL

JUDGEMENT

(1.) THIS is a plaintiffs landlords' second appeal in a suit for ejectment, which was decreed by the trial Court but on appeal dismissed by the learned Additional Civil judge Udaipur by his judgment dated the 30th April, 1957, on the ground of the notice to quit having been waived.

(2.) THE only question for determination therefore in this appeal is whether the finding of the Court of first appeal that the notice to quit had been waived by a subsequent notice is well-founded. In order to be able to properly decide this question, it is necessary to mention a few facts. It is admitted that the tenancy commenced in this case on the 23rd March, 1948, by a rent-note (Ex. 1) bearing that dale and that the tenancy was for a fixed term of one year from Maha Vadi 1, Smt. 2004 to Posh Sudi 15 Smt. 2005. The defendant tenant had expressly agreed in this rent-note that he would vacate the premises let out to him at the cud of the period of the tenancy without any objection, whatsoever. It is also not in dispute that the tenant had agreed to pay a total annual rent of Rs. 51/- which was agreed to be paid in two six-monthly instalments. The plaintiffs' case was that in one of the two shops let out to the defendant, he had started tethering his cattle and thereby he had caused considerable damage to the shop and therefore they were entitled to evict the defendant. Certain other grounds for eviction were also raised, such as personal necessity; but it is unnecessary to mention them in any detail inasmuch as it has been held by both Courts below that the defendant's use of the shop for the purpose of tethering his cows therein was unauthorised and injurious to the shop and this ground has not been challenged before this Court by learned counsel for the defendant. On the 2nd August, 1955, the plaintiffs gave a notice to the defendant terminating his tenancy and asked him to vacate the premises in suit on the mid-night of Bhadwa Sudi 15 Section 2012 or on such date he thought his tenancy did terminate. The latter refused to quit and consequently the present suit was instituted in the Court of the City Munsiff, Udaipur, on the 27th september, 1955. (2) The defendant resisted the suit on a number of grounds but it is unnecessary to refer to any of them except the one relating to notice. It is remarkable that even so far as this aspect of the ease goes, ail that the defendant staled was that white the plaintiffs had given him notices to terminate his tenancy on the 30th june, 1953, 13th January, 1954 and the 2nd August, 1955, a further notice had been given to him on the 14th September, 1955 (Ex. A-2), by which he was called upon to execute a fresh rent-note, and it was further stated in this connection that that would show how the plaintiffs wanted to harass him. This ground was somehow interpreted by the learned Additional Civil Judge as having raised a case of waiver though it is pertinent to point out that no issue was raised on it in the trial Court. Naturally, therefore, that Court was not called upon to decide whether there was any waiver by the plaintiffs of their notice to quit dated the 2nd August, 1955, and as it further came to the conclusion on almost all the remaining issues in favour of the plaintiffs (except as to the issue relating to payment of the expenses of the notice) it decreed the plaintiffs' suit. The learned Additional Civil judge on appeal upheld the finding of the trial Court on issue No. 1 which related to the damage caused by the defendant to one of the shops by tethering his cattle therein and held that on that ground they were entitled to evict the defendant; but that Court further came to the conclusion that the plaintiffs had waived their notice dated the 2nd August, 1955, and the earlier notices by their subsequent notice dated the 14th September, 1955, by which they had called upon the defendant to execute a fresh rent-note in the name of the trustees of the temple to which the shops belonged, and in that view of the matter dismissed the plaintiffs' suit. The plaintiffs have now come up in second appeal to this Court.

(3.) IT is in these circumstances that the question arises whether the view of the learned Additional Civil Judge, that the plaintiffs' notice to quit had been waived, is well-founded. Having heard learned counsel for the parties at some length and having perused the relevant record, I have come to the conclusion that this appeal must be allowed, because there has been and can be no waiver of the notice to quit in a case like the present. As I have already pointed out above, the question of waiver as such had not been raised by the defendant in his written statement nor was a specific issue invited or framed on that point in the trial Court. This question was one of fact or perhaps mixed law and fact, and a perusal of the grounds of appeal submitted on behalf of the defendant in the Court below further reveals that it was not raised therein at all. Having regard to ail these considerations, I am surprised that the learned Additional Civil Judge should have dismissed the plaintiffs' suit, on that ground and allowed the appeal before him.