JIWAN RAM Vs. TOBGYAL WANGCHUK

JUDGEMENT

(1.) JUDGMENT:- This first Appeal by the tenant against the decree of eviction passed against him by the learned District Judge in a suit for eviction filed in his Court by the landlords-respondents involves two questions only, the first being whether the suit was bad for want of a notice as required under the terms of the tenancy and the second being whether the tenant was a defaulter in payment of rents warranting his eviction under the Gangtok Rent Control and Eviction Act, 1956.

(2.) The seven-Judge Bench decision of the Supreme Court in V. Dhanapal Chettiar v. Yesodai Ammal, AIR 1979 SC 1745 must be taken to have settled the question as to the requirement of a notice to determine the tenancy as a condition precedent to a suit for eviction of tenant of premises governed by the Rent Control and Eviction Acts operating in different States and it has been ruled by the unanimous seven-Judge Bench (at 1754, 1755) that no notice under S.111 read with S.106 of the Transfer of Property Act or any other law is necessary as a condition precedent to a suit for eviction, unless the relevant Rent Control Act mandates, or the agreement governing the tenancy requires, such a notice. This position has not been, as it obviously cannot be, disputed by Mr. S. R. Sarkar, the learned Advocate appearing for the tenant-appellant, who has, however, contended that the terms of the tenancy in suit not only required such a notice, but that, as would appear from Ext. D-21, they required such a notice to be for one month and to expire with the "end of the each whole year". As would appear from paras 7 and 8 of the plaint and also from Ext. P-1, being the copy of the notice served by the landlords-respondents on the tenant-appellant, the notice was issued to and served on the tenant in June, 1977 asking him to quit and vacate the tenanted premises immediately with the expiry of 31st July, 1977 and this not being the case of any of the parties that the tenancy commenced from the month of Aug. of one year to end with the month of July of the next year, there can be no doubt that this notice was not in accordance with the terms of the tenancy as contained in Ext. D-21. Ext. D-21 is the copy of a document issued in the form of a letter signed by the Manager of the landlords and also signed by the tenant containing the conditions of the tenancy and Condition No. 2 appears to be as hereunder : - "You have to vacate the rooms if we request you at the end of each whole year after one month's notice."

(3.) In fact Mr. N. K. Maitra, the learned Advocate for the landlords-Respondents, has frankly conceded that the notice, Ext. P-1, was not in accordance with the terms as contained in Ext. D-21; but Mr. Maitra has argued that, as would appear from Ext. D-21 also, the terms contained in that document were settled between the parties initially when three rooms were let out to the tenant at a monthly rental of Rs. 350/-, and as thereafter the tenant on the request of the landlords vacated two out of the three tenanted rooms, and the rent was also reduced to Rs. 200/-, the terms and conditions embodied in Ext. D-21 could not any longer govern the tenancy. But P. W. 1, who is the Manager of the landords and has represented them in the suit and who also executed the document Ext. D-21, has clearly stated in his deposition that "after the defendant gave up possession of two rooms, the rent was reduced to Rs. 200/- per month", but "the other terms and conditions of the tenancy remained the same" and, therefore, the submission made by Mr. Maitra that the original terms and conditions of the tenancy, as contained in Ext. D-21, ceased to govern the tenancy with the vacation by the tenant of two out of the three tenanted rooms, cannot be accepted. It should, be noted that in para 13 of his written statement, the tenant asserted that the notice dt. 10-6-1977 was "illegal and invalid" and that "the defendant cannot be asked, in view of the Agreement, to vacate the suit premises with the expiry of a month in the middle of the year except at the end of each whole year" and that "the tenancy in question commenced on and from the month of Mar. 1971". It should also be noted that these allegations have not been denied by the plaintiff either by filing any replication or through the statements of P. W. 1, who represents the plaintiff in the suit as their Manager and that, as already noted, P. W. 1 has, on the contrary, stated that in spite of vacation of a portion of the tenancy, the other terms and conditions remained the same as before.