TMI Blog1983 (11) TMI 337X X X X Extracts X X X X X X X X Extracts X X X X ..... ears under Ext. P. 1 having run out, respondent issued notice Ext. P. 2 dated 7-10-1977 telling, appellant that she did not desire to renew the lease and that the tenancy stood terminated and called upon the appellant to quit and deliver vacant possession on the expiry of 31-10-1977. This notice stood unreplied. Some eight months thereafter on 1-6-1978, the present suit for ejectment was instituted. In para 4 of plaint it was stated that the lease came to an end on 31-7-1977 by efflux of time and that thereafter the tenancy in respect of the said premises became a month to month tenancy . 3. Appellant denied that after the expiry of the lease there was any month to month tenancy by holding over. It was contended that the parties had really agreed upon a ten year lease from 1972 and that though Ext. P. 1 mentioned only three years, it was just a partial effectuation of the agreement between the parties, being merely the manner in which the agreement for a ten year lease was to be implemented from time to time. The appellant, accordingly, contended that its continuance in possession was referable to, and in part performance of, the alleged agreement for a ten year lease, which ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here ought to be a proper notice under Section 106, T.P Act, terminating the tenancy by a 15 days' notice expiring with the end of the tenancy month. Sri Hakeem says that, having regard to the provisions of Section 110, T.P Act, the lease under Ext. P. 1 which commenced on 1-7-1974 lasts during the whole of the anniversary of the day from which it commenced and that accordingly the lease under Ext. P. 1 ended on the expiry of 1-8-1977 and not 31-7-1977 as averred in the quit notice. Accordingly, the month to month tenancy, says counsel, commence on the 2nd day of the month and ended on the first day of the following, month and so on; and that the quit notice Ext. P. 2, is invalid because it does not expire with the end of the tenancy month. Sri Hakeem says that, though this particular ground of the invalidity of the notice had not been urged in the Court below, appellant should be permitted to raise and urge this contention in appeal. 11. Sri Sundar Swamy contended that on the evidence on record no reasonable person can come to the conclusion that there was an agreement for a ten year lease and that there is conflict between pleading and evidence on the essentials of appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a ten year lease and Ext. P. 1 is only an effectuation in part of that agreement and that the nature of appellant's possession, after the expiry of the period of Ext. P. 1 is not that of a month to month liable to determination by 15 days' notice but is in part performance of the agreement. Trial Court found no substance in this contention. 17. Let us examine if there is any substance in appellant's case. In para 3 of the written statement appellant's specifie case in this behalf is set out: 3. The suit premises was originally leased to the defendant in or about July 1969 for a period of three years on a monthly rental of ₹ 1,800/- On the expiry of the original lease period the plaintiff agreed to grant extension of the lease for a period, of ten years on enhanced rent of ₹ 2,300/-. However, the next, lease deed was executed only in December 1974 for a period of three years purported from 1-8-1974. Even then it was agreed and understood between the parties that the period of three years mentioned in the document is only for the sake of formality and that the defendants were entitled to continue the lease on the expiry of the said period for a fur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hether after the expiry of the lease under Ext. P. 1 there is a tenancy by holding-over. If there was one, it would be month to month one requiring for its determination 15 days' notice expiring with the end of the tenancy month, it is no doubt true that there are some statements in the plaint itself that there was such a month to month tenancy after the expiry of Ext. P. 1. Is that, by itself, conclusive? 23. If, after the expiry of the period of lease or after its determination, a tenant merely holds over without the landlords' consent there is no tenancy of any kind at all. If in such case, the tenant continues in possession without landlord's consent he becomes what in English law is called a tenant by sufferance . This is really no, tenancy at all in the strict sense and requires no notice to determine it, the expression being merely a fiction to avoid the continuance of possession operating as a trespass. It is different from the concept of a tenancy at will which arises by implication of law in certain cases of permissive possession. No notice is necessary to terminate a tenancy at sufferance. 24. But the case of tenancy by holding over is different and is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... But here, the assertion of the respondent that there was a month to month tenancy is not an admission of a fact. It is an expression of what, according to respondent, was the nature and character of a legal relationship. That is a mixed question of fact and law. No tenancy by holding over can come into existence by a unilateral assertion of either the erstwhile landlord or tenant. Appellant's stand has, throughout, been one which is inconsistent with and would clearly exclude a case of tenancy by holding over. In such a case the statement by the respondent would not by itself bring about that legal relationship and the averments in the plaint are not decisive. 29. In Smt Shanti Devi v. Amal Kumar Banerjee , ((1981) 2 SCC 199 : AIR 1981 SC 1550) Supreme Court held that before going into the question of the validity of a notice under Section 106, T.P Act, it was necessary for the Court to decide first whether Section 106 was at all attracted; and that parties could not by their pleadings alter the intrinsic character of the lease or bring about a change of the rights and obligations flowing therefrom. Tn that case, plaintiff sued for ejectment on the ground that the lease had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion that there is a month to month tenancy after the expiry of the period of Ext. P. 1. 34. The contention of Sri S.A Hakeem is that having regard to the provisions of Section 110, T.P Act, the period of lease under Ext. P. 1 should last during the whole of the anniversary of the day from which it commences and accordingly would expire only on the expiry of 1-8-1977. The month to month tenancy would, accordingly, commence on the second day of August, 1977 and end on the first day of the following month and so on. The notice, Ext. P. 2, according to Sri Hakeem, which seeks to terminate the tenancy on the expiry of 31-10-1977 could not be held to be valid. 35. It is true that if a month to month tenancy by holding over has come into existence after the expiry of the period of lease under Ext. P. 1, these consequences, as to the date of commencement of month to month tenancy may be correct (See: Benoy Krishnadas v. Salsiccioni (AIR 1932 PC 279) and Dattonpant Gopalvarao Devakate v. Vithalrao Mamtirao ((1975) 2 SCC 246 : AIR 1975 SC 1111). The consequence of this view may be that the notice to quit. Ext. P. 2, may suffer from some infirmity. 36. But this contention as to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion was not maintainable. The respondent waited or 8 years before seeking an amendment to include a plea on the absence of such a notice. The trial Court did allow the amendment but in our opinion no such amendment should have been allowed on account of the gross delay and laches on the part of the respondent in raising such a plea. In such matters it must be remembered that if a technical plea of the nature sought to be raised had been raised at an earlier stage the appellant could have withdrawn the petition for eviction with liberty to file another petition after serving the requisite notice. By not raising that plea for nearly 8 years a great deal of prejudice was caused to the appellant . In our judgment the course of the litigation between the parties had taken and the manner in which the plea was sought to be raised by an amendment after eight years of the institution of the eviction petition and further the abandonment of any contention based on that plea before the Rent Control Tribunal were more than sufficient to persuade the court that any argument based on the absence of a valid notice should not have been allowed. (Underlining supplied.) 39. The same con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kerala High Court in V. Kamalaksha Pai v. Keshava Bhatta ., (AIR 1972 Ker 110 at p. 111) thus: There are two difficulties in his way. Could such a relief be granted according to the procedural law of the land? Secondly, could the plaintiff sustain an incomplete cause of action since the notice terminating the tenancy proceeded on the basis of Ext. A-1 being the lease and so it could not have been a termination of the specific tenancy put forward by the defendant. 45. Answering the proposition in the affirmative Krishna Iyer, J., (as his Lordship then was) said: It is certainly not open to a defendant, on whose plea a court seeks to grant relief to the plaintiff to contend that such a course should not be resorted to and that the facts set out by him should not be accepted. It may happen that a Court chooses to take a defendant at his word and grant a relief to the plaintiff. On that footing the former should not then turn round and say that the Court, should not believe him. Every party must pay the penalty for his being treated as honest in Court 5. O. 7, R. 7, Civil P.C while enjoining upon every plaintiff to state specifically the relief which he clai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ession made by the trial Court in favour of the respondent-plaintiff in April, 1983 can, in our opinion, be supported and sustained on this basis also. 50. We hold and answer point (d) in favour of the respondent. 51. No other contentions are urged. 52. In the result, for the foregoing reasons, we find no merit in this appeal. The appeal is accordingly dismissed. In the particular circumstances of the case, we leave the parties to bear and pay their own costs. 53. At the conclusion of the judgment, Shri S.A Hakeem, learned Counsel, for the appellant made an oral application under Art. 134A of the Constitution, for grant of a certificate of fitness to appeal to the Supreme Court under Art. 133 of the Constitution from the judgment just now pronounced. 54. We are of the opinion, that this appeal does not involve any substantial question or questions of law of general, importance needing to be decided by the Supreme Court. 55. We accordingly refuse the certificate prayed for and dismiss the oral application. 56. Sri S.A Hakeem, however, submitted that the appellant desires to move the Supreme Court for special leave and that till a certified copy of our judgment i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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