Kadavandi Krishna Chari Alias ... vs the Diocese of Guntur Society, ... on 18 February, 2003

Andhra High CourtKadavandi Krishna Chari Alias ... vs The Diocese Of Guntur Society, ... on 18 February, 2003Equivalent citations: AIR 2003 AP 340, 2003 (4) ALT 743Author: P NarayanaBench: P NarayanaJUDGMENT P.S. Narayana, J.

1. These Second Appeals are filed by the unsuccessful tenants/defendants in the respective suitsreferred to infra aggrieved by the reversing judgments and decrees made in the respective Appealsby the learned Principal Sub-ordinate Judge, Narsaraopet and the learned Senior Civil Judge,Gurazala. The respondent, plaintiff in all the suits, is hereinafter referred to as landlord for thepurpose of convenience.

2. The suits O.S. Nos. 218/89, 221/89, 220/89 and 216/89, on the file of I Additional DistrictMunsif, Guruzala, were filed by the landlord against the respective tenants for eviction and deliveryof possession of the respective suit schedule properties. The respective pleadings of the parties in allthese suits are virtually the same, except the difference in certain details relating to the dates, andseveral of the facts also are not in dispute. The appellants in all these Appeals were inducted astenants in the respective premises specified in the plaint schedules belonging to the respondent/plaintiff in all the suits. Originally, rent control proceedings were initiated, but however since theA.P. Buildings (Lease, Rent & Eviction) Control Act, 1960 is not applicable to Piduguralla town, thesaid proceedings were withdrawn and the suits referred to supra were instituted and as can be seenfrom the record, the suits were not numbered for want of issuance of notice under Section 106 of theTransfer of Property Act, 1882 and subsequent thereto the plaintiff/landlord had issued respectivenotices under Section 106 of the Transfer of Property Act, 1882 and after the expiry of the requisitetime, represented the plaints with a specific averment relating to the issuance of notice, andsubsequent thereto the suits were numbered and after service of notice, the defendants in all thesesuits -- tenants, had entered appearance, filed written statements and had contested the matters.The Court of first instance after recording the oral evidence and also marking the documents hadarrived at the conclusion that the suits are bound to fail for want of valid notices to quit underSection 106 of the Transfer of Property Act, 1882. It may not be out of context if it is stated hereitself that the stand taken by the landlord that no notice under Section 106 of the Transfer ofProperty Act, 1882 is necessary inasmuch as the tenancy need not be terminated by efflux of timehad been negatived. Aggrieved by the same, the landlord preferred A.S. Nos. 149/91 and 151/91 onthe file of Sub-ordinate Judge, Narasaraopet and A.S. Nos. 246/95 and 245/95 on the file of SeniorCivil Judge, Gurazala and the appellate Courts had reversed the judgments and decree made by thetrial Court on the ground that there was no specific denial relating to the validity of the notice in thewritten statements and no issue was settled in this regard, and at any rate, in the facts andcircumstances of the case, it can be taken that the said defence had been waived by the respectivedefendants/tenants in the suits and ultimately decreed the suits granting the relief of eviction andaggrieved by the same, the respective tenants in the Appeals aggrieved by the reversing judgmentsand decrees had preferred S.A. Nos. 668/ 94, 768/94, 180/98 and 183/98 on the file of this Court,respectively. Since there is no controversy between the parties on factual aspects and inasmuch asthe plaintiff-landlord is common in all the matters and the question of law raised by all the tenants/

Kadavandi Krishna Chari Alias ... vs The Diocese Of Guntur Society, ... on 18 February, 2003

Indian Kanoon - http://indiankanoon.org/doc/1778145/ 1

defendants in the respective suits -- appellants in all these Second Appeals being common, all theseSecond Appeals are being disposed of by this Common Judgment.

Submissions made by Sri Krishna Murthy, counsel representing the appellants- defendants-tenants:

3. The learned counsel representing the appellants had submitted that in view of the fact that noticeunder Section 106 of the Transfer of Property Act, 1882 is mandatory, without terminating thetenancy in accordance with the provisions of Section 106 of the aforesaid Act, suits for eviction filedby the landlord-plaintiff-respondent in the Appeals are not maintainable. The learned counsel alsofurther submitted that since it is a pure question of law, whether plea was taken or not, whetherthere is specific denial or not and whether an Issue was settled in this regard by the trial Court, ornot, it is the bounden duty of the Court to decide the said question and in view of the facts andcircumstances, the Court of first instance which had decided these matters had arrived at the correctconclusion and had negatived the relief prayed for, but however, the respective appellate Courtsreversed the said judgments and decrees on unsustainable grounds. The learned counsel also hadpointed out that the substantial questions of law involved in these Appeals are (1) Whether a legalplea can be taken at the time of arguments in the absence of pleadings? (2) Whether question of lawcan be raised at a later stage? The learned counsel also submitted that though an attempt was madeto contend that no notice under Section 106 of the Transfer of Property Act, 1882 is necessary sincethe tenancy is for a fixed period and had expired by efflux of time, in view of the fact that the saidstand was negatived and it being a question of fact, the said finding need not be disturbed and hencein the light of the fact that there is non-compliance of the mandatory provisions of Section 106 of theTransfer of Property Act, 1882, the landlord in these Suits is bound to fail and hence the reversingjudgments and decrees of the appellate Courts cannot be sustained. The learned counsel also hadcited certain decisions to support his contentions.

Submissions made by Sri Lakshmi Narayana, counsel representing the respondent- plaintiff-landlord :

4. Sri Lakshmi Narayana, the learned counsel representing the common plaintiff-respondent in theAppeals -- landlord who had instituted the suits with all vehemence had contended that it is notdoubt true that this question was raised and argued before the Court of first instance and also theappellate Court, but the fact remains that after the plaints were returned and after due compliancewith the issuance of notice, the plaints were represented with a specific plea that notice underSection 106 of the Transfer of Property Act had been given and though the respective tenants --defendants entered appearance, there is no denial, much less specific denial relating to eitherissuance of notice or the validity of the notice, but however, at the time of advancing arguments, thesaid question was canvassed. The learned counsel contended that this is definitely impermissible inlaw for the reason that there is no specific denial of the plea taken by the landlord -- plaintiff in allthe suit. No issue had been settled in this regard and in the said circumstances it should be takenthat the benefit available under Section 106 of the Transfer of Property Act to the respective tenantsshould be deemed to have been waived by the respective tenants and in view of the same suchparties cannot be permitted to raise such a ground. The learned counsel also had drawn my



attention to the object of the issuance of notice under Section 106 of the Transfer of Property Actand had contended that it being a beneficial provision, the tenant is definitely at liberty to waive thesame by conduct even and the conduct of the tenants in the respective suits definitely and clearlygoes to show that they had waived this benefit. The learned counsel with all fairness had submittedthat if the respective notices are looked into with care and caution, it is no doubt true that it cannotbe said that technically Section 106 of the Transfer of Property Act had been complied with, buthowever, in the light of the peculiar facts and circumstances, the appellants cannot take advantageof the situation and cannot contend that these suits for eviction are not maintainable for want ofnotice under Section 106 of the Transfer of Property Act, hereinafter in short referred to as "Act" forthe purpose of convenience. The counsel also had placed reliance on certain decisions tosubstantiate his contentions.

5. Heard both the counsel and also perused the respective pleadings of the parties, issues settled, thefindings recorded by the Court of first instance and also the findings recorded by the appellateCourt.

6. The factual matrix need not be repeated for the reason that several of the facts are not in disputeand the only question of law which had been raised and seriously canvassed by the respective partiesis in relation to the validity of the quit notice issued under Section 106 of the Transfer of PropertyAct, 1882. In the light of the respective submissions, the substantial question of law involved inthese Appeals is as follows :

7. Whether the plea of want, of a valid notice to quit under Section 106 of the Transfer of PropertyAct, 1882 can be taken without a pleading or without an issue at the stage of arguments?

8. It is not in dispute that the landlord had Initially initiated the rent control proceedings and hadwithdrawn the same and subsequent thereto had presented these suits claiming the relief ofeviction. There is no dispute between the parties relating to the relationship of landlord and tenants.No doubt, there is some controversy relating to the initial period of tenancy and whether the tenancyhad lapsed or expired by efflux of time or not. Since factual findings had been recorded, the saidaspect need not be gone into in these Second Appeals. It is also not in dispute that the landlord,when plaints were returned, had issued notices under Section 106 of the Transfer of Property Act,1882 to the respective parties -- the tenants/defendants, and had represented the plaints with aspecific averment relating to the issuance and service of notices. It is also not in dispute that despitethe same, there is no denial, much less specific denial, relating to the validity or otherwise of the quitnotices. No doubt, the Court of first instance had permitted this question to be raised at the time ofarguments on the ground that it is a legal plea and had negatived the relief to the landlord-plaintiff,and in the respective Appeals, the Appeals were allowed and the suits were decreed. The validity orotherwise of a quit notice under Section 106 of the Act always cannot be said to be a pure question oflaw and it may be question of law and a question of fact as well and at the best it may be a mixedquestion of fact and law depending upon the facts and circumstances of each case. Here is a peculiarcase where the plaints were presented without issuance of respective notices under the Act and anobjection had been taken and the plaints were represented after complying with the objections withan averment relating to the issuance of notices under the Act. Though the said fact was pleaded



there is no denial, much less specific denial, in this regard. It is needless to say that Order 8, Rule 3of the Code of Civil Procedure specifies that the denial must be specific. It is not in dispute that thereis no denial, much less specific denial relating to this aspect and in view of the same, no issue wassettled in this regard and no attempt was made on the part of any of the defendants-appellants tosee that such an issue had been framed at some point of time. But however, at the time of argumentsthis question was raised. Section 106 of the Transfer of Property Act reads as follows :--

"In the absence of a contract or local law or usage to the contrary, a lease of immovable property foragricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable,on the part of either lessor or by lessee, by six months' notice expiring with the end of a year of thetenancy; and a lease of immovable property for any other purpose shall be deemed to be a lease frommonth to month, terminable, on the part of either lessor or lessee, by fifteen days' notice expiringwith the end of a month of the tenancy.

Every notice under this section must be in writing signed by or on behalf of the person giving it, andeither be sent by post to the party who is intended to be bound by it or be tendered or deliveredpersonally to such party, or to one of his family or servants at his residence, or (if such tender ordelivery is not practicable) affixed to a conspicuous part of the property."

In Ram Pratap v. Birla Cotton Spinning & Weaving Mills Limited, , where the plea of want of noticeunder Section 106 of the Act was raised four years after the parties had proceeded to trial and ledevidence on the basis that no such notice was required, it was held that notice must be deemed tohave been waived. In Yelamarti Veera Venkata Jagannadha Gupta v. Vejju Venkateswara Rao(2002) 4 Andh LT 448, at page 451 : (2002 AIHC 3498 at p. 3500 a Division Bench of this Court hadobserved :--

"With regard to the third contention that the notice issued by the plaintiffs is hit by Section 106 ofthe Transfer of Property Act, the appellants either at the time of receipt of notice or in the writtenstatement, never raised such plea. In fact there was no issue on this fact in the trial Court. Hence wecannot allow the appellants to raise this issue at this stage. We are in perfect agreement with thefinding of the learned single Judge that even if the notice is not in accordance with Section 106 ofthe Transfer of Property Act, the very fact that the appellants-tenants observed silence amounts towaiver of the notice to be given by the plaintiffs as required under Section 106 of the Transfer ofProperty Act".

In Y. Veera Venkata Jagannadha Gupta v. Vejju Venkateswara Rao (2002) 3 Andh LD 67 : (AIR2002 Andh Pra 369) where notice of termination of tenancy was Issued and neither in reply noticenor in the written statement the defendant raised any objection as to form and contents of the saidnotice, the defendant is deemed to have waived the objection regarding the non-compliance ofSection 106 of the Act. In Bhagabandas Agarwalla v. Bhagwandas Kanu, while dealing with theaspect of validity of notice to quit, the Apex Court at 1122 had observed :--

"Now, it is settled law that a notice to quit must be construed not with a desire to find faults in it,which would render it defective, but it must be construed ut res magis valeat quam pereat. "The



validity of a notice to quit" as pointed out by Lord Justice Lindley, L.J, in Sidebotham v. Holland(1895) 1 QB 378 "ought not to turn on the splitting of a straw". It must not be read in a hyper-criticalmanner, nor must its interpretation be affected by pedagogic pendantism or over refined subtlety,but it must be construed in a common sense way. See Harihar Banerji v. Ramsashi Roy, 45 Ind App222 : AIR 1918 PC 102. The notice to quit in the present case must be judged for its validity in thelight of this well recognized principle of interpretation".

In Martin and Harris Ltd. v. VIth Addl. District Judge, while dealing with the provision for sixmonths notice before initiation of proceedings under the U.P. Urban Buildings (Regulation ofLetting, Rent and Eviction) Act, 1972, though it is mandatory and confers protection, at any rate, itwas held that it can be waived. In Raoula Rama Krishna v. Shaik Mahboob Basha (1996) 4 Andh LT33 : (1997 AIHC 1098) it was held that when once tenant comes up with the plea that lease was for aspecific period it is for him to establish such contention and it is not for the plaintiff to disprove suchcontention especially in view of Section 106 of the Act and the question whether a lease is for aspecific period is a question of fact and such fact need not be interfered in a Second Appeal. Strongreliance was also placed on Farahat Ali (died) per L.Rs. v. Sajid Ali (1998) 1 Andh LT 521 and alsoSatish Chand v. Govardan Das, , Golkonda Real Estate and Financial Corporation v. Cr. S.R.Somayajulu (1993) 3 Andh LT 140, Shanti Devi v. Amal Kumar, AIR 1981 SC 1550 and M. SubbaRao v. P. V. K. Krishna Rao, . These decisions need not be discussed in detail for the reason that theground relating to efflux of time and the necessity of issuance of notice under Section 106 of the Acthad been specifically discussed and a finding had been recorded that since there is no clear evidencein this regard it should be taken that a notice under Section 106 of the Act is necessary in the factsand circumstances of each of these cases. Reliance also was placed on Oasis Bar and Restaurant v. P.Umabala (2002) 4 Andh LD 508 : (AIR 2002 Andh Pra 465) wherein it was held that when the leaseis not registered the rule of construction embodied in Section 106 of the Act does not get attractedand since rent is agreed to be paid per month, termination notice issued giving 15 days time wasvalid. In Samir Mukherjee v. Devender K. Bajaj the same view was expressed by the Apex Court.

9. In view of the foregoing discussion the tenants who are conscious of the plea taken by the plaintiffin the respective suits relating to the issuance and service of notice under Section 106 of the Acthaving kept quiet and having not denied the same by raising any specific plea in the writtenstatement and not even making an attempt to see that an issue is raised, having slept over thematter till the matters had reached the stage of arguments for the first time had raised the technicalobjection of the validity of the respective notices and in the light of the conduct of these parties, itcan be culled out from the series of events commencing from the presentation of the respectiveplaints, return of the plaints and representation of the plaints after compliance with the issuance ofthe respective notices under Section 106 of the Act that the appellants/tenants had waived thebenefit available to them under Section 106 of the Act and hence these parties cannot be permittedto raise such a contention and in this view of the matter the respective appellate Courts are welljustified in reversing the judgments and decrees by decreeing the suits filed by the landlord-plaintiff.

10. Except these contentions which had been recorded above, no other contentions had beenadvanced by both the counsel. In view of the same, I am of the considered opinion that all theseSecond Appeals are devoid of merits and accordingly the Second Appeals are bound to fail and



accordingly they are dismissed. However, in the facts and circumstances of the case, this Courtmakes no order as to costs. The appellants/tenants are granted six months time to vacate therespective premises. It is needless to say that the appellants/tenants are bound to pay the rent forthe said period also.



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Kadavandi Krishna Chari Alias ... vs the Diocese of Guntur Society, ... on 18 February, 2003