1. The tenant is the petitioner in the revision petition. The respondent-landlord is the owner of premises No. 9 Ritherdon Road, Vepery. He had leased the first floor to one tenant and the ground floor to the petitioner. The respondent had planned to remodel the entire house at huge cost and also obtained the requisite sanction from the corporation for remodelling, reconstruction, repairs etc. The respondent required both the tenants to vacate and hand over possession for carrying out his work. The tenant in the first floor complied with his request and the landlord carried out in the first floor the work of remodelling involving demolition, reconstruction, repairs etc. After this was over, the landlord against pressed and requested the petitioner to vacate and hand over the ground floor so that the work may be completed. Correspondence passed between the parties and as the tenant declined to vacate, the landlord filed a petition under Section 14(1)(b) of the Madras Buildings (Lease and Rent control) Act of 1969 hereinafter referred to as the Act for obtaining possession of the premises on the ground that the landlord required the same for demolition and reconstruction.
2. The Rent Controller dismissed the application on the ground that this was not a case of demolition and reconstruction, but was only a case of repairs coming under Section 14(1)(a) of the Act.
3. The landlord took up the matter to the appellate authority who reversed the decision of the Rent Controller and held that the nature of the work planned by the landlord was substantially demolition and reconstruction and that he was entitled to possession under Section 14(1)(b). Hence the tenant has preferred this revision petition.
4. The learned counsel for the petitioner (tenant) raised two points:
1. That the landlord can seek possession under Section 14(1)(b) only if total demolition of the building is proposed by the landlord, and that in the instant case, the proposed changes did not involve any structural alterations and that the case would be governed by Section 14(1)(a) only.
2. That the landlord has not given the requisite notice terminating the lease, as required by Section 106 of the Transfer of Property Act, and the petition for eviction, therefore, was not maintainable.
Mr. A. Dorairaj, learned counsel for the petitioner, contended that there is an essential distinction between S. 14(1)(a) and Section 14(1)(b), that S. 14(1)(b) would apply only if the entire building is demolished and a new building is put up on the site, and that whatever may be the fresh work which the landlord may propose to carry out, even if it involved substantial alterations, would not attract Section 14(1)(b) unless there is a demolition of the existing building and a new building reconstructed on the site. Learned counsel laid considerable stress on the use of the words "demolition", 'erecting a new building' and on the site of the building' and on the site of the building' in sub-clause (b) as emphasising that mere extensive nature of the work done is not decisive of the question. He also urged that Section 14(2)(b). which fixes a time limit within which the work of demolition should be commenced, also tends to the same inference; according to the learned counsel Section 14(2)(b) refers to the demolition of a material portion of the building within a period of one month, thereby suggesting that Section 14(1)(b) means demolition of the entire building leaving only the site for putting up the new building; while Section 14(2)(b) fixes a time limit for the commencement of the demolition of a material portion of the building--a process towards the demolition of the entire building indicated in Section 14(1)(b).
5. Mr. V. Thyagarajan, learned counsel for the respondent, contended that it is not necessary that the entire building should be demolished so as to demolish even the walls, that it is sufficient if the fresh work proposed by the landlord is of such a nature as to materially and substantially alter the existing building and completely change the identity of the building and that the 'building' in Section 14(1)(b) would include a portion of the building and that under Section 14(1)(b) what is material is the extensive nature and character of the fresh work proposed to be carried out by the landlord. Learned counsel urged that the words "demolition of the existing building" and "the erecting of a new building" go together and in the context would also include making of such substantial material alterations and
reconstructions--practically rebuilding the house and involving significant changes in the identity. His further contention was that demolition need not be of the entire building, it may be of a portion of the building even, and the test is would the proposed building be a new building ?
He urged that the items of work proposed to be done should not be considered in isolation but that the totality of the work proposed to be done should be considered, as a matter of fact and common sense, at the same time, bearing in mind that sub-sections (a) and (b) cover different fields and it is not right to interpret both the sub-clause in such a manner as to leave out a majority of cases unprovided, thereby defeating the very object of the Legislature in introducing this important provision i.e., to enable the landlord to get possession of the premises to effect repairs, improvements and also carry on reconstruction and remodelling work. For example, Mr. Thyagarajan contended that a landlord will be entitled to apply under Section 14(1)(b), though he may retain all the main four walls and alter the existing rooms by putting up fresh walls in the interior and thus completely change the identity of the building. Learned counsel further contended that the landlord is equally entitled to apply under Section 14(1)(b) where, in the proposed work, the landlord may retain the two main walls and demolish the other two walls and put up new rooms, staircase, verandah etc.
6. Learned counsel on both sides invited my attention to the relevant decisions. Indian and English. On a consideration of all the aspects of the matter, I am of the view that the contentions of Mr. Thiagarajan are well-founded.
7. I shall first refer to the main features of the fresh work to be undertaken by the landlord and the findings of the Rent Controller and the appellate authority. The landlord has filed the plan sanctioned by the Corporation which has been marked as Ex. P. 1 (which contains all the details of the work) and has given evidence concerning the details of the new work. He also examined his Engineer, who had prepared the plan, as P. W. 2. The Appellate Authority has set out the details of the fresh work to be done in paragraphs 8 and 9 of its order.
8. There is no dispute that when possession of the premises was delivered to the landlord he would be carrying out this fresh work. There is no proof whatever that the application has been filed with an ulterior motive. The intention of the landlord is genuine and not colourable. The proposal is to demolish the staircase. In the open verandah two rooms H and I are to be constructed. A new wall is to be constructed between the two rooms. There are 3 rooms marked J. K. L now existing. The dividing walls between these three rooms are to be demolished and converted into two big rooms. The present oven is to be demolished and the new oven is to extend right upto the top of the ceiling. Before the dividing walls are removed, the roof has to be supported by girders. While demolishing the staircase marked N on the northern side, a wall as shown in the plan coloured yellow has to be constructed. The flooring of the hall and the study room and the two bed rooms have to be completely ripped open and masaic flooring is to be done. The Engineer has also given details of the demolitions and reconstructions.
9. The Rent Controller took the view that if the first floor is to be kept intact, he cannot conceive of a construction in the ground floor involving the process of demolition, even though he has adverted to the fact that some girders would be used as support between the ground floor and the first floor. The appellate authority did not agree with this view. On a consideration of all the aspects of the matter, it found as a fact that the proposed fresh work and re-construction would completely alter the identity of the existing building and would amount demolition and new construction under Section 14(1)(b).
10. The extreme contention of the petitioner cannot be accepted. The language employed in the section does not warrant the extreme contention of the petitioner; such a construction would completely defeat the object underlying this provision and in a vast majority of cases, the landlord would be helpless. Further, the argument of the learned counsel for the petitioner overlooks the important fact that 'building' in the context would undoubtedly mean not the entire building, but would include a portion of the building. The Act itself contemplates leasing out portions of the building or flats therein as separate holdings; the provisions of the Act apply either to the building or part of a building; (Vide definition in S. 2(2). "Building" is defined as meaning "any building or part of a building."
It is familiar knowledge that the building may consist of separate portions or separate flats being let out separately and in those cases Section 14(1)(b) in the context would apply only to that portion of the building or that particular flat which is required by the landlord for demolishing and reconstruction. In a vast majority of such cases there will not be any question of demolition of the entire building leaving the site alone to be built upon. That the situation which Natesan, J. had to deal with in the case reported in Sundaram v. A. D. Peter, 1966-1 Mad LJ 342(sic). In that case the ground floor was let out to a tenant and on the terrace there was a thatched shed in the occupation of another tenant. The landlord applied for possession of the terrace and the thatched shed on the ground that he wanted to demolish the shed and put up a pucca structure. The argument was that for Sec. 14(1)(b) to apply, the landlord must demolish the entire building and reconstruct on the site, and reliance was placed upon the use of the word "site" in the section. The learned Judge held, the 'site' can have an extended and restricted meaning and that in the context, the 'site' meant the place or the position occupied by the thatched shed, and that in the section the 'site' does not necessarily mean only the ground but also, in certain circumstances, the base on which the new building is to be erected.
The learned Judge summarised the position in these terms-
"To accept the arguments on behalf of the respondent and to affirm the view of the courts below would, in my view, practically nullify the beneficial provisions of the section. One can envisage a case where a landlord having a plan to build three storeys has to stop construction after finishing the ground floor by reason of shortage of building materials. For the time being he might have let one tenant in the ground floor and put up a temporary shed on the terrace above and lodged another tenant there. If he wants to restart construction and complete the construction according to plan when building materials became available, then, according to the view of the lower courts, he will have to evict the tenant in the ground floor also and pull down the entire construction. Otherwise, on this interpretation he cannot secure possession for demolition and reconstruction, however bona fide he may be in his requirement. But all that is actually needed by him in that case is to get possession of the shed and put up two or three flats. In my view, it would be in keeping with the policy of the Legislature as may be read in Ss. 14(1)(b) and 30 of the Act, to interpret Section 14(1)(b) as entitling the landlord in such a case to secure possession of the terraced portion for purposes of demolition and reconstruction. He will be demolishing the superstructure or shed that might have been put up on the terrace and he would be constructing thereon. No doubt the building 'site' would be not on the ground. As observed in the extract made above, the word 'site' can have an extended as well as a restricted meaning, 'Site' here would be the place where the shed stands. Such an interpretation takes a sensible view of the provision. Of course, on principle it will make little difference if instead of the shed there is a brick and mortar structure."
11. With respect, this decision lays down the correct principle and governs the instant case. In arriving at the true interpretation of Section 14, it must be borne in mind that there was no such provision in the Act of 1949 and it is only in the present Act that this new provision has been introduced for the obvious purpose of enabling and facilitating the landlord to carry out repairs work and also to carry out the work of demolition and reconstruction. In interpreting the provision, every effort should be made by the court to effectuate that object.
12. The other important aspect to be borne in mind is that the word "repairs" has been defined in Section 2 sub-section (7):--
"(7) 'repairs' means the restoration of a building to a sound or good state after decay or injury but does not include additions, improvements or alterations except in so far as they are necessary to carry out such restoration."
13. In view of this definition of the word 'repairs', it is clear that Section 14(1)(a) would not apply where it is plain case of additions, improvements or alterations.
14. The question then is, what are the cases which would properly come within the scope of Sec. 14(1)(b) ? The observations and principles contained in the English decisions as to what work would amount demolition and reconstruction, as distinguished from 'repairs' will have to be understood in the light of the language employed in the English statutes. Section 30 of the Landlord and Tenant Act. 1954 deals with the circumstances under which on the termination of an old tenancy the landlord can resist the claim of the tenant for the grant of a new tenancy. Section 30(1) sub-C1, (f) says:--
"That on the termination of the current tenancy the landlord intends to demolish or reconstruct the premises comprised in the holding or a substantial part of those premises or to carry out substantial work of construction on the holding or part thereof, and that he could not reasonably do so without obtaining possession of the holding."
The English decisions had to deal (in varying contexts) with the problem of interpreting the words "demolish" "reconstruct", "reconstruct the premises comprised in the holding" and "a substantial part of those premises." The substance of the case law in England is discussed in 23 Halsbury's Laws of England, Lord Simond's Edn. pages 892 and 893 paragraphs 1716 and 1717 (Vide also Woodfall's Law of Landlord and Tenant, 27th (1968) Edn. pages 1362 and 1364 paragraphs 2517 and 2518). The words in the English statute and the Madras Act of 1960 are not the same. Even so, the discussion in the English decisions are helpful in finding out the true meaning of the words "reconstruction" "erecting a new building" and "on the site of the building."
In Percy E. Cadle and Co. Ltd. v. Jacmarch Properties Ltd., 1957-1 All ER 148 it was pointed out that "reconstruction" meant "re-building" and that a mere change of identity without a physical re-construction is not sufficient. In that case the tenants were in occupation of the ground floor and the basement for the purpose of carrying on business as tobacconists and hair dressers. To get to the basement the tenants had to go outside the front door of the shop and down some steps into the basement. The landlords had proposed to make the three floors into one self-contained unit and to put inner staircase from the ground floor shop down to the basement and from the ground floor shop upto the first floor. They had also intended to put lavatories on the first floor and to make the basement a much better place by putting in a proper floor and doing away with the damp. The question was whether the work, which the landlords intended to do, amounted to a "reconstruction of the premises comprised in the holding." The landlords' application was rejected.
Denning, L. J. put the matter thus:
"Counsel for the landlords invites us to say that when premises like these shop premises are thrown into a larger whole, so that they lose their identity in the larger whole, that is a 'construction.' He referred to us to the cases with which we are familiar under the Rent Acts regarding change of identity. He conceded that there would have to be some work done, but argued that the amount did not matter very much, so long as there was a change of identity. In my judgment, the word 'construct' in this sub-section is not satisfied by a change of identity; there must be substantial work of construction. The word 'reconstruct' here is best expressed, I think, by the synonym 'rebuild.' There must be in effect a rebuilding of the premises or (of course) of a 'substantial part' of those premises. Whether there is work of that character and so such a degree is primarily a matter for the county court judge. In the present case the county court Judge looked on the work to the basement floor as a work of repair, and the putting in of the new internal staircases as work of improvement. He thought that there was not a 'reconstruction' I think that he was right, I would dismiss the appeal."
15. Hodson, L. J. agreed with this view and observed that the word "reconstruct" follows the word "demolish" in the sub-section and "demolition" clearly involves the physical act of destruction and not a mere change of identity of the building. From this decision it is clear that the word 'reconstruct' means a substantial interference with the structure of the premises and then a rebuilding in a different from, of such part of the premises as has been demolished.
16. The next decision to be referred to is that of Joel v. Swaddle, 1957-1 WLR 1094. In that case the landlord had prepared a scheme of development involving the removal of all the internal walls and the back wall, the whole ground floor area, including the yard, being turned into one large room with a new front. The floor was to be lowered by eight inches. The upper floor was not affected by the scheme. Steel girders and pillars were to be substituted for the interior supporting walls. The side wall were not to be affected. The County Court Judge dismissed the application of the landlord, but on appeal the decision was reversed. Lord Evershed delivered the judgment. He took note of the fact that the internal walls were to be demolished so as to be merged into a single room and also the fact that in some portion the partition walls had to be removed to be substituted by fresh walls. The County Judge in that case, (as the Rent Controller in the instant case), took the view than when the floor above is substantially undisturbed, there cannot be a demolition and reconstruction of the ground floor within the meaning of the statute.
With this narrow view of the County Judge the court of appeal, did not agree. Lord Evershed M. R. observed thus at p. 1099-
'I think that in cases of this kind it is apt to be dangerous to take each individual item entirely in isolation, and then to say that each item so taken cannot itself be a work of reconstruction or a substantial work of reconstruction. One must look at the whole work which is proposed, and then say in regard to it: Does it amount to a substantial work of reconstruction ? I think that what is here proposed--and there is no question as to the facts--does, when you view it in that way, amount, within the meaning of the paragraph, to a work of reconstruction of a substantial part of the premises. I lay considerable emphasis on that part of the work which consists of the substitution of the transverse walls by the proposed girders resting on pillars; I also think, with respect to the county court judge, that he also gave somewhat too little emphasis to the floor; because what is proposed is not merely the making of a new floor, but the sinking of the floor, not a great deal, but by a distance of some eight inches, which produces an appreciable increase in the total space of what was, and is at present, the tenant's holding."
After referring to the Percey's case, 1957-1 All ER 148, it was pointed out that any interference with the structure of the whole or substantial part of the premises involves the process of rebuilding in the ordinary sense of the word. Ormerod. L. J. observed that if the work involved considerable amount of alteration consisting of demolition of partition walls and putting in their place other forms of support, it would amount to reconstruction. It is not necessary to refer to the wealth of case law in England, as each case would depend upon its own facts and the details of the particular fresh work planned by the landlord, further, there is also difference in the language of the English Act and our Act. Even so, I may refer to the latest decision in Houslevs Ltd. v. Bloomer Holt, 1966-2 All ER 966, which tends to the same view. In that case the landlords intended to demolish the garage and the wall and to concrete the site so as to erect a shed and improve their own premises by using it for turning space. The County Judge dismissed the application of the landlords; but in appeal it was reversed. While dismissing the landlord's application the County Judge observed that
"the landlords proposed no reconstruction at all. Laying concrete is not in the contemplation of the Act. There is no demolition of a substantial part of the premises. The landlords had not intended to build on the site."
The court of appeal took the view that the proposal of the landlord was to demolish a substantial portion of the premises comprised in the holding and the demolition and reconstruction work sufficiently satisfied the conditions of the statute. From this decision it is clear that it is enough if a substantial portion of the premises within the holding is demolished, and, that there is no distinction between "the premises comprised in the holding" and "the holding" itself. In the Madras Act as observed already, in Section 14, the demolition need not be of the entire building and it may be only of a part, in which case a new building need not necessarily be on the entire site. As observed by Natesan, J. the 'building site need not necessarily be on the ground.'
17. In Ramachandran v. Kazim Khaleeli, 1965-1 Mad LJ 78, Kailasam, J. distinguishing the decision of Percey's case in 1957-1 All ER 148 has held that demolition under Section 14(1)(b) need not be the demolition of the entire building and that the proposal of the landlord to demolish the roof of the premises for putting a staircase, retaining the old walls would amount to demolition within the meaning of Section 14(1)(b). In Kannappa Pillai v. Venkataratnam. 1965-2 Mad LJ 144, Venkatadri, J. had to deal with the question as to when the building can be said to be a new building taking the place of the old building. In the discussion he has referred to the relevant English and Indian decisions from which he has enunciated the principle that in order to hold that the fresh work undertaken amounts to the construction of a new building, the structural alterations in the premises should be such that the original building has completely lost its identity. The facts in the instant case are much stronger than the facts in the decisions of the Bombay High Court referred to in the decision of Venkatadri, J. In those cases it is not a case of the total demolition of the old building but they are all cases in which walls were demolished and fresh walls were reconstructed and there were extensive structural alterations resulting in the vital change of the identity of the premises. In the instant case, there is substantial work of demolition and what is proposed to be reconstructed would amount to a new building. When once it is recognised that demolition need not be a total demolition erasing the entire building to the ground and that demolition can be partial, the important condition to be satisfied, is whether what is proposed to be done would amount to erecting a new building or a part thereof.
18. There is the recent decision of Ganesan, J. in Doraipandi Konar v. Sundara Pathar, observations at pages 68 and 69,
wherein the learned Judge has dealt with the interpretation of the true meaning of "repairs" "improvements" etc. As the Act contains the definition of the word 'repairs' it is necessary to consider how this word appearing in other statutes has been interpreted.
19. In a recent decision of the Supreme Court in Manmohandas Sah v. Bishundas, the Supreme Court made the following
observations while holding that structural alterations in that case were such as to give a new face to the form and structure of the premises:
"Lowering the level of the ground floor by about 11/2 ft. by excavating the earth therefrom and putting up a new floor, the consequent lowering of the front door and putting up instead a larger door lowering correspondingly the height of the chabutra so as to bring it on the level of the new door-step, the lowering of the base of the staircase entailing the addition of new steps thereto and cutting the plinthband on which the door originally rested so as to bring the entrance to the level of the new floor are clearly structural alterations but are not only material alterations but are such as to give a new face to the form and structure of the premises."
20. In my view, all that Sec. 14(1)(b) requires is a demolition followed by structural alterations by way of reconstruction so as to give a new face to the form and structure of the premises.
21. The Appellate Authority, which is the final tribunal of fact, has held that the proposed scheme of the landlord amounts to demolition and erecting a new building' there is no ground for warranting interference with that finding in the revision petition.
22. The decision of the Rent Controller that when the first floor is left undisturbed, it is impossible to conceive of a work of demolition and reconstruction in the ground floor, is obviously wrong and cannot be sustained. (Vide 1957-1 WLR 1094). The very fact that the Legislature has given a restricted meaning to the word 'repairs' in the definition clause, is a pointer for drawing the inference that fresh work of a major nature involving structural alterations changing the identity of the building and involving improvements after demolishing existing portions would come under Section 14(1)(b). I do not find any justification for holding that the legislature left a big gap uncovered (tertium quid) a vast majority of cases in between Section 14(1)(a) and 14(1)(b), the landlord being helpless in such cases on the ground that the work involved is not 'repairs' within the meaning of Section 14(1)(a) of the Act, nor does it amount to demolishing and erecting a new building within the meaning of Section 14(1)(b). Those cases must obviously be governed by Section 14(1)(b). At any rate, the words therein are not such as to compel to court to give such a restricted meaning as to defeat the object of the provision.
23. To sum up, (1) the demolition may be a part of the building, i.e., the entire ground floor, the entire first floor or the entire second floor. (2) There can be demolition work in the ground floor even when the first floor is left undisturbed. (3) The demolition can be in a portion of the ground floor or in a portion of the first floor. It need not be of the entire ground floor or of the entire first floor. (4) In such a case, the building after the fresh work is finished, would comprise partly the old building and partly the new building. (5) The fresh work may be outside in the exterior or inside in the interior. If the fresh work undertaken, though in a portion of the building and in the interior, is such that the completed work involved demolition and also substantial structural alterations so as to change the identity and give a new look altogether, Section 14(1)(b) would clearly apply to such a case. (6) The words "rebuilding" "reconstruction" and "erecting a new building" have the same meaning. (7) Erection of a new building may be by the use of brick and mortar or by steel or even by wood work or may be by the use of all the materials. The crucial test is: Is it not erecting a new building or reconstructing or remodelling ? I may here quote the following test in the language of Romer, L. J. in 1957-1 WLR 1094 (already referred to) at p. 1101-
"It seems to me that the proper way of ascertaining whether what is proposed to be done will be work of 'reconstruction' of premises is to look at the position as a whole and compare the results on the premises of carrying out the proposed work with the condition and state of the premises before the work was done; in other words, you want to regard the whole position as one total or entire picture."
24. Judged by any test, it is clear that the respondent has satisfied the conditions of Section 14(1)(b).
25. I shall not take up the second question whether the petition for eviction is liable to be rejected for absence of proper notice to quit under Section 106 of the Transfer of Property Act. After the recent decision of the Supreme Court in Manujendra Dutt v. Purnendu Prosad Roy Chowdry. , the question is no longer open for
argument. The Bench decision of this court in Krishnamurthi v. Parthasarathi, AIR 1949 Mad 780 holding that no such notice is necessary, is no longer law. Vide also Kalyanasundaram v. Natarajan. 1969-2 Mad LJ 585 in which the Bench has pointed out that the decision in Krishnamurthi's case aforesaid as well as the Full Bench decision of this court in Raval and Co. v. Ramachandran, (FB) are not good law after the aforesaid decision of the Supreme Court.
26. Even so, the further question is whether it is for the landlord to specifically allege in the petition that such a notice to quit was given and establish the same or whether it is for the tenant to raise the objection in defence, and whether this objection can be raised at any stage, even before the court of revision for the first time. The latest decision of Kailasam. J. in Ramakrishnan v. Kevalchand, deals with the relevant case law bearing upon the
rival points of view, Ramaprasada Rao, J. in Soundarapandia v. Meenakshi Achi C. R. P. No. 866 of 1967 (Mad), has taken the extreme view that the question of notice is a vital aspect going to the root of the matter pertaining to the very jurisdiction of the tribunal and that in the absence of proof of such a notice, the tribunals have no jurisdiction at all to adjudicate and in this view it does not matter that the question of the validity or irregularity of the notice was not raised in the earlier stages. To put in other words, the learned Judge has taken the view that tribunals will not have the requisite jurisdiction to entertain and adjudicate upon the petition for eviction unless the tenancy had been determined by a proper and valid notice to quit. Kailasam, J. has reviewed the case law and he has taken the contrary view that the objection does not go to the root of the matter or the jurisdiction of the tribunal and that it is for the tenant to raise such a plea in his objection statement and if he omits to raise such a plea, he cannot, as a matter of right, claim to raise that objection at a later stage.
26-A. The question has to be considered broadly under the following aspects:--
(1) Can it be said that the proceedings before the Rent Controller were totally lacking in inherent jurisdiction in the sense that it could not have seizin of the proceeding unless it was preceded by a notice to quit. Does the absence of such a notice render his proceedings a nullity in the sense that the validity of the order could be questioned in execution proceedings or in collateral proceedings or at any stage in the same proceeding ? In other words, does the objection amount to a plea of total want of inherent jurisdiction, so as to hold that the adjudication of the Rent Controller is a nullity or is it merely an invalid or improper or erroneous decision ?
"(2) Is the issue of a notice to quit an indispensable and necessary part of the cause of action for the landlord to specifically allege in his petition as in the case of a plaintiff in his plaint under Order 7, Rule 1 (e), Civil P. C. ? In other words, is it not necessary for the plaintiff to disclose in the plaint facts constituting the cause of action and the duty of the court to reject the plaint under Order 7, Rule 11(a) on the ground that facts averred in the plaint had not even disclosed a cause of action, regardless of the question whether or not the defendant has raised his objection under 0. 8, Rr. 2 and 4, Civil P. C. Alternatively, is the issue of a notice prior to the suit a mere condition precedent which can be implied under Order 6, Rule 6, Civil P. C. in which case it will be obligatory upon the defendant to raise the specific plea as to the absence and legality of the notice 0. 8, Rr. 2 and 4, Civil P. C.
(3) Even assuming that the issue of a notice and the facts connected therewith should be disclosed in the plaint as constituting an integral part of the cause of action, can this objection be raised by the defendant at any stage of the proceeding and is the court bound to entertain the objection at any stage having not discretion in the matter ?
(4) Can it be assumed in all cases that a tenancy is governed by Sec. 106 of the Transfer of Property Act in the sense that a proceeding in ejectment should be preceded by a notice I.e., is it obligatory upon the plaintiff or the landlord in the plaint or in a proceeding for eviction, as the case may be, to allege a contract to the contrary that no notice was necessary and that the tenant was bound to hand over possession the moment there was a demand by the landlord ? It is easy to visualise cases in which the tenant would have agreed to hand over possession on demand without any notice fixing a period and in such cases is it obligatory upon the plaintiff to allege such a contract to the contrary in the plaint on peril of the plaint being rejected as not disclosing the necessary facts constituting the case of action. To put it differently, I s it not for the defendant to specifically allege that there is no contract to the contrary that a notice to quit is necessary and the suit for ejectment is bad for that reason.
(5) On the facts in the instant case, in the light of the correspondence and the allegations in the petition, is it not for the tenant to raise the objection ? Does not the correspondence between the parties show that notice under Section 106 of the Transfer of Property Act is not necessary, and in any event, does not this question involve investigation of facts on evidence (as distinguished from pure question of law) so as to preclude the defendant from raising the objection at a belated stage?
27. On the question of that absence of a notice would not render the proceeding a nullity, as though the tribunal lacked inherent jurisdiction, the authorities are clear and in my view, the question is concluded by the latest decision of the Supreme Court in Maganlal Chhotabhai Desai v. Chandrakanth Motilal, ,
observations at p. 39.
28. I shall first refer to the Bench decision in AIR 1949 Mad 780 reversing the judgment of Subba Rao, J. (as he then was) in Parthasarathi v. Krishnamurthi, AIR 1949 Mad 387. That case arose out of a suit for declaration that the order of the Rent Controller passed in favour of the defendant (the landlord) against the plaintiff (the tenant) was without jurisdiction and unenforceable on the ground that the tenancy had not been terminated in accordance with law. The argument on behalf of the landlord was that the tenant, in the rent control proceeding, did not raise this objection that the tenancy had not been duly terminated and that such an objection cannot be raised in the suit. Subba Rao, J. (as he then was), who tried the suit, held that the Rent Controller had no jurisdiction to order eviction unless the tenancy had been terminated in accordance with law and that his order was without jurisdiction and liable to be questioned in a Civil Court.
On appeal, the Bench did not accept this view. It took the view that there was no question of jurisdiction involved and that if the landlord initiated a proceeding, it was for the landlord to prove the existence of a relationship of lessor and lessee between the parties and the determination of the lease and if he failed to prove, the suit had to be dismissed as revealing no cause of action, and it cannot be said that the court had no jurisdiction to entertain the proceeding when it was for the court to determine that very issue. The Bench was also of the view that the proceeding before the Rent Controller cannot be said to be corum non judice and void and it is merely a case of the tribunal exercising the jurisdiction wrongly in disregard of law and at the most merely a defect or error or irregularity in procedure. The Bench also observed, that it was essentially for the Rent Controller and within his jurisdiction to decide whether the contractual tenancy of the tenant had been validly terminated so as to entitle the landlord to invoke the provisions of the Rent Control Act. The ratio underlying this Bench decision is that when the objection of want of notice can be and will have to be considered by the Rent Controller, it would not be right to regard this objection as amounting to inherent lack of jurisdiction.
It may be relevant to extract the following observations at p. 784:--
"We are unable to accept this contention; for it seems to us that if the Rent Controller has jurisdiction to decide, on allegations made whether a tenancy has been determined or not, he would have the same jurisdiction over this matter as a court would in a suit by a landlord in ejectment upon the termination of the tenancy. Mr. Srinivasa Ayyangar concedes that if a landlord filed a suit in ejectment and failed to say that the tenancy had been determined, the court would dismiss the suit and not return the plaint. In the same way, the Rent Controller would have to dismiss the application if it were not alleged in the affidavit that notice had been given or if it found, upon hearing the parties and considering the evidence, that notice had not been given. It would follow from this, therefore, that if notice to quit was necessary it would be merely one of the issues to be decided by the Rent Controller and would not in any way affect his jurisdiction to entertain the application. That being so, if the Rent Controller did not decide the question properly, the matter would have to be raised in appeal to the Court of Small Causes and would give this court no jurisdiction to entertain a suit by the defeated party; for such a suit would be barred by S. 12 (4) of the Act."
29. As pointed out by Kailasam, J., the fact that on the other portion of the case, i.e., necessity for a notice under Section 106 of the Transfer of Property Act, the Supreme Court has not approved the view taken by this Bench, does not affect the biding nature of the Bench decision on this aspect of inherent lack of jurisdiction. I may also refer to the decision of Satyanarayana Rao, J. in D. P. Merchant v. Bank of Mysore Ltd., AIR 1949 Mad 784 in the same volume at p. 784. In that case in the proceeding before the Rent Controller the tenant did not raise the plea that the tenancy was not determined by a notice to quit under the provisions of the Transfer of Property Act, but when the landlord sought to execute the decree for eviction, the tenant raised the objection that the order of the Rent Controller was without jurisdiction and therefore the order of eviction cannot be executed. The tenant's objections were negatived. It was held, there was no question of want of jurisdiction in the Rent Controller and that it was merely a question of the tenant raising this objection in the course of the proceeding and it was for the Rent Controller to decide that objection. The learned Judge held that the decree was not, on the face to it, without jurisdiction and that it was not open to the tenant to canvass the correctness of the order passed by the Rent Controller on grounds not raised before him.
30. In the landlord, after certain infructuous
proceedings based upon an award, filed a regular suit against the tenant claiming possession of the premises on the ground of non-payment of rent and unauthorised sub-letting. The tenant filed a written statement claiming fixation of fair rent and following it by a suit claiming refund of rent already realised by the landlord in execution of the decree obtained in the arbitration proceedings (which, however, were later on declared to be void and illegal). The trial court decreed the landlord's suit for possession and also directed him to pay some amount on account of arrears of rent at the rate of Rs. 500 per month. The trial court also held that the tenant had unauthorisedly sublet the premises. On appeal by the tenant, the decision of the trial court was set aside on all the main questions. On a revision petition filed by the landlord to the High Court, the revision was allowed and the decision of the trial court was restored. Eviction was also decreed on the ground that the tenant was not entitled to protection under the Bombay Rent Control Act 57 of 1947.
In the revision petition before the High Court, the tenant for the first time sought to raise the objection that there was no valid notice to quit under Section 12(2) of the Bombay Act. But the High Court declined to permit the tenant to raise that objection. The defendant took up the matter to the Supreme Court. On behalf of the tenant it was contended that under Section 12(2) of the Bombay Act, there was no valid notice to quit and therefore that cannot be an order of eviction against the tenant and that the High Court should have allowed the tenant to raise that objection. The Supreme Court rejected this argument holding that as the objection of absence of valid notice to quit was not argued before the trial court, nor even raised before the lower appellate court, the High Court properly refused to allow the point to be taken for the first time in revision. From this decision it is clear that the Supreme Court considered this plea of absence of valid notice to quit as one of the pleas that will have to be raised by the defendant at the appropriate stage and not as an objection against inherent lack of jurisdiction of the court. In other words, it will be a contradiction in terms to say that it is for the very tribunal to decide the plea, if raised, and that if not raised, the decision on the merits on the other points would be a nullity for lack of inherent jurisdiction in the Tribunal.
31. In Nageswara Ayyar v. Ganesa Ayyar, AIR 1942 Mad 675(2), a debtor who was residing in Tanjore Dt. made a false allegation in the affidavit that he was residing within the territorial limits of the High Court's Original Civil Jurisdiction and got himself adjudicated an insolvent. The question was whether this adjudication is a nullity on the ground that the High Court lacked inherent jurisdiction to pass the order of adjudication. The Bench held that the order of adjudication is not a nullity and it is not a question of lack of inherent jurisdiction.
Krishnaswami Ayyangar, J. delivering the judgment on behalf of the Bench observed as follows:--
"If the question which is alleged to create the want of jurisdiction is one which the court itself is bound to decide, surely, the matter is not one relating to jurisdiction. It is a fact like any other fact which the court has to decide and if there is an error in the decision, it can only be remedied by an appeal or any other procedure known to law."
The distinction between a tribunal lacking inherent jurisdiction and it exercising its jurisdiction though irregularly or in an erroneous manner, is well-recognised. In the first case the whole proceeding is corum non judice and a nullity. In the latter case the order passed cannot be questioned in collateral proceedings, though it be erroneous upon its face or even though it relates to a fact which in the former stage of the proceeding was essential to confer jurisdiction on the tribunal. With respect, I agree with the view taken by Kailasam, J. in as enunciating the correct principle.
32. I shall next consider the aspects (2) to (4) set out above. It is settled law that it is only in the case of a contractual tenancy that notice to quit is necessary and if it is a statutory tenancy governed by the Rent Control legislation, no notice to quit is necessary. (Vide Ganga Dutt Murarka v. Kartik Chandra Das, ; Woodfall's Landlord and Tenant 27th Edn. Volume I, page 934, para 1998; and 1945-1 KB 577 Morrison v. Jacobs).
33. I will first refer to the cases dealing with the necessity for the issue of notice to quit and the particulars to be stated in the plaint or the petition for eviction. Earliest case of this court is Abdulla Ravuthan v. Subbarayyar. (1878-80) ILR 2 Mad 346, before the Transfer of Property Act. The trustees of a temple brought a suit for recovery of possession from various tenants who raised the plea of permanent occupancy upon payment of rent, and on this question, both the courts held against the tenants, the defendants. In the course of the hearing of the second appeal, in the High Court the objection was raised on behalf of the tenants that as there was no notice to quit, there could not be a decree for possession, the argument being that findings against the tenants on the question of permanent tenancy, are premature and unnecessary and that, that question could not properly be the subject of an enquiry unless the prima facie title of the plaintiff to maintain an ejectment had been made out. The High Court allowed this point to be raised in the view that it is necessary for the plaintiff to prove that necessary notice to quit had been given as necessary proof of the plaintiff's title to recover possession, and the matter was remanded to the trial court for investigation of this question.
The same thing happened in Subba v. Nagappa, (1889) ILR 12 Mad 353 and the point was allowed to be raised in the later stage for the first time in second appeal. In the subsequent Bench decisions of this court a different view was taken that it was not obligatory upon the court to permit the tenant to raise such an objection at a belated stage. In (1912) 15 Ind Cas 584 (Mad). In re, Arumugham Pillai, the tenant was not permitted to raise the plea of want of notice in the High Court, Sundara Ayyar J. observing as follows:--
"With reference to the question of notice, no plea was raised in the written statement, probably because the defendant considered it untenable inasmuch as he had, according to the allegation in the plaint, not traversed in the written statement, denied the plaintiff's title prior to the institution of the suit."
In Muthu Reddy v. Muthu Venkatapathireddi, 31 Mad LJ 354 = (AIR 1918 Mad 980) the Bench declined to permit the tenant to raise the objection for the first time in the course of the hearing of he appeal on the ground that in the courts below there was no issue regarding this question of notice and the defendant throughout did not put forward this objection. Again, in Venkatappier v. Ramaswami Iyer, 10 Mad LW 137 = (AIR 1919 Mad 130) the same view was taken. On behalf of the tenant reliance was placed on the two earlier decisions in (1878-80) ILR 2 Mad 346 and (1889) ILR 12 Mad 353, but the Bench held that those decisions are not authority for the position, that the High Court in second appeal is bound to entertain that point not taken in the courts below. It has further observed that under O. 41. R. 2, Civil P. C. it is for the appellate court in its discretion to grant leave to the appellant to raise points not set forth in the Memorandum of appeal and it is not open to the defendants to insist that such a point can be raised in the course of the hearing of the appeal.
The same view was reiterated in Kunho Kuttan Nair v. Govindan Nambudiri, (1921) 13 Mad LW 397. It was argued on behalf of the tenant that the lower appellate court should have determined the nature of the tenancy and ought not to have decreed eviction without finding whether the tenancy has been duly determined on the date of the suit, and the matter should be remanded for investigation of that question. This court held that as the tenant did not raise the point in the lower appellate court, he cannot be permitted to raise the point in second appeal. The same question again came up in the case in N. P. K. Raman Menon v. Collector of Malabar. AIR 1924 Mad 904. All the earlier cases were referred to and it was observed that the point cannot, as of right, be allowed to be raised in the appellate court, though it will be open to the High Court to allow that point to be raised in the second appeal. It was also pointed out that ordinarily such a point should not be allowed to be raised as the plaintiff will be seriously prejudiced by the delay. Krishnan, J. first referred to the earlier decisions of this court in which this point was allowed to be raised for the first time in the second appeal and also to the later decisions in which a different view was taken.
34. I shall next refer to some of the decisions of the Bombay High Court dealing with this aspect. In Vithu v. Dhondi, (1891) ILR 15 Bom 407, the tenants, who were defendants in the suit, set up permanent rights which were not proved. In the High Court for the first time, the objection was raised that notice to quit was not according to law and there was no legal determination of the tenancy. It was held that it was open to the defendants for the first time in second appeal to raise the objection of want of proper notice. It was held, following the earlier decisions of this court in (1878-80) ILR 2 Mad 346 and (1889) ILR 12 Mad 353, that it is open to the defendants to raise the objection--vide observations at p. 410.
35. I may next refer to the Bench decision in Dhodu v. Madhava Rao Narayan Gadre, (1894) ILR 18 Bom 110 in which again it was held that the objection as to the necessity of notice to quit was such which might be taken in second appeal. While taking the same view in Gano v. Sri Dev Sidheshwar. (1902) ILR 26 Bom 360, the court observed that it was obligatory for the plaintiff under Section 50 of the Code of 1882 (corresponding to O. 7, Rr. 1, 2, 4, 5 and 6 of the Code of 1908) to disclose in the plaint the cause of action, where and when it arose, and in particular, the precise nature of the notice to quit on which the plaintiff relied and the date on which it was given. It was also pointed out that when the plaintiff filed the suit, it was incumbent upon him to allege the cause of action in the manner prescribed in the Code and also prove the necessary allegations in so far as they were not admitted by the defendant. This view does not appear to have been uniformly taken in Bombay.
In a later Bench decision in Hanmantram Surajmal Marwadi v. Sankarlal Abaji Marwadi (1926) 28 Bom LR 513, the defendant (the tenant) in a suit for ejectment, resisted the suit on merits which went against him. On appeal, the defendant sought to raise the plea for the first time that the suit was bad for want of proper notice to quit. The appellate court did not permit him to raise this plea and on a second appeal by the defendant to the High Court, it was held that the lower appellate court was right in not permitting the defendant to raise the plea. Macleod. C. J. delivering the judgment on behalf of the Bench, pointed out that the earlier decisions of the Bombay High Court (though not referred to in the judgment) might have to be reconsidered in the light of Or. 8, R. 2 of the Code of 1908. The learned Chief Justice, dismissing the second appeal, observed as follows-
"It is undesirable that a party, when he has omitted to raise a question depending upon evidence for its determination on the pleadings and has failed on the points which he has raised, should be allowed in first appeal to entirely alter his case according to the circumstances and rely upon a fresh ground for the purpose of defeating the plaintiff's claim."
In Narayana Nair v. Kunhan Mannadiar, AIR 1949 Mad 127, a Bench of this court consisting of Gentle, C. J. and Rajamannar, J. (as he then was), took the view that the absence of notice to quit and termination of the tenancy by the landlord goes to the root of the landlord's right to possession, and if the plaint does not disclose the cause of action, as not pleading a termination of such tenancy, the plea of want of notice to quit can be raised for the first time in the Letters Patent Appeal, though not raised in the courts below or even in the second appeal. In taking this view the Bench relied upon the earliest decision of this court in (1878-80) ILR 2 Mad 346 already referred to. If it is agricultural land, the principles of Sections 105 to 116 Transfer of Property Act alone would apply and not the sections themselves as such, and it may be a point to consider whether a formal notice in writing and in strict accordance with the terms of Section 106 would be necessary. O. 41, R. 2, Civil. P. C. indicates that it is not a matter of unqualified right of a litigant but it is a matter for discretion for the court to allow the new point to be raised. The attention of the Bench does not appear to have been drawn to the uniform trend of the subsequent decisions, in which this court had emphasised that it will be a proper exercise of discretion to decline to entertain the objection for the first time in the High Court. To what extent the principle underlying this Bench decision can be followed has to be considered in the light of the decision of the Supreme Court in , already referred to. That apart, it is difficult to hold that the court is bound to entertain a new point and the litigant has an unqualified right to raise the new point for the first time regardless of any question of prejudice to the other side.
36. I shall next refer to the decisions of the Patna High Court in which this question has been considered. The first decision to be referred is the Bench decision in Krishna Prasad Singh v. Adyanath Ghatak, AIR 1944 Pat 77 = ILR 22 Pat 313. The Bench held that the tenant cannot be permitted for the first time in appeal to raise the objection of sufficiency of a notice to quit, after having failed in the first court on the other issues. It was also observed that O. 6, R. 6, Civil P. C. should be read along with Order 8, Rule 2 and that a landlord is not expected in the first instance to anticipate any contest on the point of want of notice, that it is not for the landlord to plead the condition precedent in the first instance and it is for the defendant to raise the point if he wishes to contest it. The Bench followed the decision of the English Court in Gates v. W. A. and R. J. Jacobs Ltd., 1920-1 Ch D 567 and held that notice to quit was merely a condition precedent, and an averment of the performance of such a condition precedent is implied in every pleading and need not be alleged and that it is for the defendant to raise the objection (Vide observations at pp. 85 and 86). It was also pointed out that Order 6, Rule 11, Civil P. C. is not a rule laying down that notice must always be pleaded and that it merely prescribes a form which pleading should take in such cases as it is material to allege notice, and that Order 6, Rule 11 would govern a statement in the pleading of anything which is a part to the cause of action, and that notice is merely a condition precedent and does not form part of the cause of action, and need not be pleaded under Order 6, Rule 11.
37. It will be relevant at this stage to refer to the view taken by the English Court on this question of want of notice. The English Courts have taken the view that the issue of a notice to quit under Section 14 of the Property Act of 1881 (corresponding to Section 146 of the English Law of Property Act, 1925) is a condition precedent--vide observations of Kennedy, L. J. in Jolly v. Brown, 1914-2 KB 109 at p. 129, where this notice is referred to as a condition precedent to the enforceability of a right of re-entry for forfeiture under any proviso or stipulation in a lease. In Fletching v. Nokes, 1897-1 Ch D 271, at p. 274, North, J. refers to a notice to quit as a condition precedent to the bringing of the action. In this connection reference may also be made to the observations of Lord Buckmaster in Fox v. Jolly, 1916-1 AC 1 at p. 8 to the effect that a notice to quit is a "condition precedent" which the lessor must comply with before taking proceedings. It is sufficient to refer to the following headnote in 1920-1 Ch D 567:--
"The service on a lessee of the notice required by Section 14 of the Conveyancing Act, 1881 and his non-compliance therewith being a condition precedent to the lessor's right of action to recover possession of the demised premises the due performance by the lessor of the statutory condition is of necessity implied and need not be specially pleaded in his statement of claim in such an action."
38. After referring to 1916-1 AC 1, Lawrence, J. observed as follows:--
"In my judgment the concluding words of R. 14 of O. 19 mean that an averment that the notice was given, although not specifically pleaded, must be implied. In other words, the statement of claim must be raised as if it contained an allegation that the plaintiffs had given the necessary notice under Section 14 of the Act before the commencement of the action. It is said that the absence of the plea is embarrassing, but I fail to see how that can be so because the defendants can obtain particulars of the notice by discovery in the action. I cannot therefore say that the plaintiff's pleading discloses n reasonable cause of action or that it is frivolous or vexatious or even embarrassing."
39. The following statement of the law in Woodfall's Law of Landlord and Tenant. Vol. I, page 1013, para 2155 may be extracted:--
"2155. Pleadings and particulars:--The statement of claim should contain such particulars as will avoid the necessity of the defendant's making any special application for particulars.
In an action by a lessor to recover possession for breach of covenant, it is not necessary specifically to allege in the statement of claim that a notice of breach has been served on the lease in accordance with Section 146 of the Law of Property Act 1925, since the notice and non-compliance therewith are a condition precedent to the lessor's right of action and are consequently implied under Order 18, Rule 7(4).
Under O. 18, R. 8(2), it is no longer sufficient for a defendant to plead that he is in possession, either by himself or his tenant, and he must plead specifically every ground of defence on which he relies. The general traverse in a defence merely puts the plaintiff to proof of his title and is not a disclaimer of title which would produce a forfeiture."
40. In the Commentary on the scope of O. 19, R. 14 of the English Rules of the Supreme Court, the law is stated in these terms in the While Book. 'The Annual Practice 1963' Vol. 1, at page 474:
"Condition precedent:--Cases constantly occur in which, although everything has happened which would at common law prima facie entitle a man to a certain right of action, there is yet something more which must happen, in the particular case, before he is entitled to sue, either by reason of the provisions of some statute, or because the parties have expressly so agreed; this something more is called a condition precedent. It is not of the essence of such a cause of action, but it has been made essential. It is an additional formality superimposed on the common law............. The giving of the notice required by Section 14 of the Conveyancing Act, 1881 (now J. A. 1925, Section 46), and non-compliance by the lessee is a condition precedent to the enforceability of the landlord's right to re-enter (per Vaughan Williams & Kennedy, L. JJ. in 1914-2 KB 109 at pp. 120, 129); but due performance by the lessor of the statutory condition is implied and need not be specifically pleaded (1920-1 Ch 567). And the defendant may rely on a defence that reasonable time has not elapsed though he has not pleaded that fact (Hopley v. Tarvin Parish Council, (1910) 74 JP 209). In an action of breach of contract an allegation that the plaintiff was ready and willing to perform the contract may be implied (Jafferson v. Paskell, 1916-1 KB 57 at p. 74)."
41. My attention has not been drawn to any case in which a view different from the one taken in 1920-1 Ch D 567 was taken.
42. The next decision to be referred to is the Full Bench decision in Niranjan Pal v. Chaitanyalal Ghose, (FB), which arose under the Bihar Buildings (Lease, Rent and Eviction) Control Act. The majority took the view that before the landlord could proceed to recover possession, it was obligatory on his part to terminate the lease in accordance with the provisions of the Transfer of Property Act. The dissenting (third) Judge did not agree with this view. It is unnecessary to dilate upon this aspect in view of the decision of the Supreme Court holding that such a notice is necessary. The majority, while holding that such a notice was necessary, took the view that it was for the plaintiff to state the facts in his plaint under Order 7, Rule 1, Civil P. C. disclosing how the cause of action arose and if the plaintiff had not done that, the defendant can take the point for the first time in second appeal, and that if the plaintiff did not terminate the tenancy by giving a notice under Section 106, his action under the Rent Control Act would be premature. From the judgment, it does not appear that the attention of the court was drawn to the earlier Bench decision in AIR 1944 Pat 77 already referred to.
Sahai, J., on behalf of the majority observed as follows-
"Appearing on behalf of the plaintiff-respondent, the learned Advocate General has argued that this point was not raised in the courts below and that the appellant should not be allowed to raise it for the first time in this court. If I am right in the view which I have expressed above that the lease must be determined before the landlord can maintain an action for eviction of the tenant under Section 11 of the Control Act, it is for the plaintiff to mention in his plaint the fact of determination of the lease as one of the facts constituting the cause of action which he is required to give under Rule 1 of O. 7, Civil P. C. He has also to prove the fact. If the plaintiff has not done that, it seems manifest that the defendant can take the point for the first time in second appeal. I may refer in this connection to (1889) ILR 12 Mad 353' (1891) ILR 15 Bom 407; AIR 1949 Mad 127 and Siddarama v. Kalappa, AIR 1950 Mys 63, in which it was held that a point of this kind could be taken for the first time in second appeal."
The Full Bench did not consider the aspect stressed by the earlier Bench decision, AIR 1944 Pat 77 following the English case 1920-1 Ch D 567, that the giving of the notice is merely a condition precedent under O. 6, R. 6, Civil P. C. which is implied and that it is incumbent upon the defendant to raise the objection.
43. This aspect of the question again came up for consideration before the Bench of the Patna High Court in Abdul Rahim v. Md. Azimuddin, . In that case, the tenant denied the title of the
landlord and set up title in himself, which was found against him by the trial court. In the appeal by the tenant, the adverse finding on the question of title against the tenant was not canvassed and the only point raised was that as the lease had not been determined in accordance with law by giving a notice under Section 111(g) of the Transfer of Property Act, there was no cause of action for the suit for eviction. The Bench held that the case was governed by O. 6, R. 6, Civil P. C. that the giving of the notice under Section 111 was only a condition precedent which can be implied from the pleading of the plaintiff, that it was incumbent upon the defendant to contest that aspect specifically in his written statement, and that if he failed to do so in the course of the trial, he cannot be allowed to raise such a plea in the second appeal, as that would seriously prejudice the other party.
The scope of the decision in AIR 1944 Pat 77 and the Full Bench decision in (FB) is discussed in paras 9 to 13 of the judgment. The Bench appears to have taken the view that if it is a simple case of notice to quit under Section 106, terminating the lease, the plaintiff is bound to mention the facts disclosing the cause of action under Order 7, Rule 1; but if it is a forfeiture under Section 111 for any of the reasons, set out therein notice to quit under Section 111 would only be a condition precedent, in which case the same would be implied in favour of the plaintiff under Order 6, Rule 6, making it incumbent upon the defendant to raise the specific objection. The Bench apparently reconciled the earlier decisions in Krishna Prasad's case, AIR 1944 Pat 77 and Niranjan Pal's case, (FB), in the view that the first case dealt with a
case of absence of notice under Section 111, while the Full Bench case dealt with a case of absence of notice under Section 106. On the merits, the Bench took the view that when the tenant denied the title of the landlord, it did not lie in his mouth to contest that there should be a notice determining the lease for that reason.
44. The matter again came up for consideration in Ramayan Prasad v. Fulabo Kuer, . The court held that if there is no
denial of title as to entail a forfeiture under Section 111, a notice to quit under Sec. 106 is a necessary part of the plaintiff's cause of action and the plaint itself would suffer from an infirmity in the sense that the facts stated in the plaint do not disclose the cause of action for a suit for eviction. In that case, though the objection as to the absence of notice was raised in the written statement, no issue was framed. The principle of the decision of the Full Bench in Niranjan Pal's case, (FB) was followed and the suit was
dismissed as not disclosing a cause of action. It was held that even though there was no issue, this point as to the absence of notice could be raised for the first time even in second appeal.
The learned Judge discussed the matter on the footing that in the case of objection as to the absence of notice to quit under Section 106 the plaintiff himself should mention in his plaint that such a notice had been issued and if the plaintiff had not mentioned, it would be open to the defendant to raise the objection even at a belated stage, while if the objection is of want of notice under Section 111(g) for forfeiture, the case would be governed by Order 6, Rule 6, Civil P. C. implying the condition precedent in favour of the plaintiff, making it incumbent upon the defendant to raise an objection in his written statement, and that if he failed to do so, he would not be permitted to raise the objection in the later stages. Objection as to want of notice under Section 106 was entertain by the High Court and the suit was dismissed as premature on the ground that the plaint did not contain facts disclosing the cause of action.
45. In Mahabir Ram v. Shiva Shanker Prasad, (FB) the matter was again considered by the Full Bench. In that case, the plaintiff had filed a suit against the tenant for recovery of arrears of rent and for evicting him, and as the defendant had not deposited the arrears of rent in accordance with the Bihar Rent legislation his defence was struck off. The defendant filed an application to amend his written statement (which was allowed by the trial court) to raise the plea of the absence of notice under Section 106 of the Transfer of Property Act. The question arose whether in the course of the cross-examination of the plaintiff, it would be open to the defendant to cross-examine the plaintiff regarding the absence of notice under Section 106. The tenant relied upon the fact that he had raised this objection in his additional written statement. As the written statement was struck off, it was held that the defendant could not be permitted to cross-examine the plaintiff and that he also cannot be permitted to adduce his own evidence on the point of non-service.
46. In Manakarani Marza v. Mohinder Singh Jaggi, AIR 1968 Orissa 113, the objection as to want of notice was sought to be raised in a writ petition directed against orders passed in a proceeding under the Orissa House Rent Control Act, and the Bench declined to permit the tenant to raise his objection as vitiating the proceeding before the Rent Controller. It was pointed out that even though it was mandatory in law for the landlord to plead that the requisite notice was given and prove the same, and there was merely reference to a notice to quit in the suit without mentioning the exact terms and whether it was in accordance with Section 106 of the Transfer of Property Act (just as in the instant cast), in the written statement, the tenant did not traverse this point, and no argument was advanced in the trial court or in the appeal in the Rent control proceeding and the High Court refused to allow this point to be raised by the tenant for the first time in the view that this point involved a mixed question of fact and law and cannot be allowed to be raised for the first time, and the High Court would be exercising its duty illegally to allow such a point to be canvassed for the first time.
47. In a recent Bench decision of the Calcutta High Court in Dooni Lal Seal v. Smt. Giniya Devi Pateria. , it was observed
that while it is necessary for the plaintiff to refer to the determination of the lease by a notice to quit as a necessary part of the cause of action, that can be inferred from the allegations in the plaint taken as a whole and it is not necessary that the words "determination of the lease" should be expressly used in the plaint--vide observations at paras 18 and 19.
48. I may next refer to the Full Bench decision in Bhaiyaram Hargo Lal v. Mahavir Parshad Murari Lal Mahajan, (FB) dealing with this aspect. There points, as set out in p. 111, were raised before the Full Bench for decision. Point 2 and 3 related to the question whether the objection either regarding the non-issue of a notice or regarding as to the validity of a notice, under Section 106, can be waived by the tenant. The Full Bench held that it is only one of the objections that the tenant can raise and that it is open to him to waive the objection and not contest that aspect.--Vide discussion at pp. 128 and 129. It was pointed out that as provided in Section 106, there can be a contract to the contrary, while there is no such provision, providing for a contract to the contrary, in Section 111(g) of the Transfer of Property Act. If this objection is not raised in the written statement and is sought to be raised at the later stages, the matter may be considered in one of two ways. The defendant may be utterly indifferent and may not have bestowed any thought about the want of necessary averments in the plaint and raise the objections at a belated stage or the defendant, being alive to the infirmities in the plaint, may deliberately choose not to raise the objection and may concentrate in his defence on the other points.
It is merely a question of indifference and not bestowing any thought, it may not amount to waiver and the only point would be whether the defendant who did not take the objection at the earlier stage should be allowed to raise it at a later stage when it will cause serious prejudice to the plaintiff. If, however, the defendant, fully aware of the defects in the plaint, does not (deliberately) raise the objection it would amount to waiver and even though the plaint does not contain the necessary averments, the defendant cannot be allowed to raise that objection later on. When the defendant pursues a course of conduct in the early stages of the proceedings, that he was not pressing the objections, he cannot later on turn round and put forward that objection. In my view, this is an essential distinction between a "mere omission and failure" to raise the plea, and the defendant deliberately refraining from raising the objection fully knowing the defects in the plaint, which would attract the doctrine of waiver. In the later case, the defendant, by his own conduct, is not allowed to raise the objection, later on, even though the plaint may be defective or may not disclose the necessary particulars for the cause of action. In my view, it is only in the latter context the question of waiver comes in.
49. Even though, the decisions in England and India recognise a distinction between the facts necessarily to be pleaded by the plaintiff under O. 7, R. 1, as disclosing the cause of action, as distinct from a mere condition precedent under O. 6, R. 6, Civil P. C., it is difficult to precisely formulate the test for determining whether it is a question of cause of action or of a mere condition precedent. If it is a condition precedent, it means that the cause of action has already arisen for the suit and the statute which enjoins a condition to be complied with like a notice under Section 80, Civil P. C., or even the registration of a firm under Section 69 of the Partnership Act, should be complied with. In a notice under Section 80, Civil P. C., all the facts are set out, including the events which gave rise to the cause of action and the date and place where it arose, and the notice is issued only after such a cause of action had arisen. In that context, undoubtedly a notice under Section 80, Civil P. C., would merely be a condition precedent. Similarly, the plaintiff may have a completed cause of action accrued in his favour against a firm and the plaintiff may get the firm registered later on to enable him to institute the suit. In that context, too the registration of the firm is merely a condition precedent to the institution of the suit for which the cause of action might have already accrued.
50. In Azizuddin & Co. v. Union of India, this
distinction between a condition precedent to be complied with and a cause of action was pointed out. In that case, the plaintiff filed the suit at Tiruchirapalli for damages for non-delivery of goods, against the railway owned by Union of India, and the suit filed in the Tiruchi Court was sought to be sustained on two grounds (1) that the defendant railway resided and carried on business at Tiruchi Headquarters of the railway, (2) that part of the cause of action arose there, because the notice under Section 80 was served at Tiruchi. It was held that the Union Government could not be said to reside or personally work for gain within the limits of the court at Tiruchi under Section 20, Civil P. C. It was also held that the statutory notice under Section 80 was merely an essential preliminary step for the valid institution of the suit and it would not be a part of the cause of action for the suit itself.
Upholding the contention that the issue of notice under Section 80 is not a part of the cause of action, Rajamannar, C. J. observed as follows:
"The question was considered in a recent decision of the Bombay High Court in Bata Shoe Co. v. Union of India, . It was
held that a statutory notice was required by the provisions of the Railways Act as well as the Civil P. C., though no doubt an essential preliminary step for the valid institution, of a suit, would not be part of the cause of action for the suit itself. The reason which the learned Judge gave for this conclusion appears to us to be conclusive. 'If it is borne in mind that such a notice is required to state amongst other facts the cause of action on which the proposed suit would be based and the relief intended to be claimed, it would be clear that the notice follows the cause of action and it merely paves the way for the institution of the suit itself. That is why it is an essential preliminary step and no more."
In the case of a suit in ejectment, whether it is a notice under Section 106 or a notice of forfeiture under S. 111, the plaintiff's right to institute a suit accrues only after the lease is determined, in the one case by a simple notice to quit determining the lease under Section 106 and in the other case after the issue of notice in terms of Section 111 read with Section 114-A of the Transfer of Property Act and on the default of the lessee to remedy the breach. The cause of action for the suit itself would be the issue of the notice by the landlord and the failure of the lessee to comply with such notice. Such a notice may not be a mere condition precedent as in the case of notice under Section 80, Civil P. C. I have already referred to the decisions in England and India, in all of which such a notice has been regarded as a condition precedent.
51. I have so far dealt with in detail the relevant decisions of the various courts, in which this question of want of notice was either allowed or not allowed to be raised at a belated stage. All these decisions were rendered before the decision of the Supreme Court in , observations at p. 39, already referred to. In view of this pronouncement of the Supreme Court clearly holding that the High Court properly refused to allow the point to be raised for the first time in revision in the High Court, the law has to be taken as settled by the Supreme Court that merely because it is a crucial point going to the root of the matter it cannot be raised for the first time in the High Court.
52. I shall next consider the question whether in the instant case the landlord is entitled to a decree for eviction, even assuming that the issue of notice determining the lease is not merely a condition precedent, but amounts to a cause of action within the meaning of Order 7, Rule 1, Civil P. C. In paragraph 4 of the petition, it is stated that as the landlord required the premises for demolition and reconstruction, he called upon the tenants in the first floor and in the ground floor to vacate the respective portions and hand over possession with a view to enable the landlord to carry out the work of demolition and reconstruction, that while the tenant in the first floor vacated the portion in his possession, the tenant in the ground floor was evading to vacate, with the result that the landlord had been prevented from carrying out the work of demolition. In the petition, it is not specifically mentioned in what form the demand upon the tenant was made, to vacate and hand over possession, whether such a notice was oral or in writing and whether such a demand was merely under S. 14(1)(b) of the Rent Control Act or whether it was a demand for delivery of possession terminating the lease as specified in Section 106 of the Transfer of Property Act and also delivery of possession under Section 14(1)(b) of the Rent Control Act.
It is settled law that it is not necessary that two notices should be issued, one under Section 106 terminating the lease and another under the Rent Control Act demanding possession. Both the aspects may be combined in one single notice--Vide Siddappa Adiveppa v. Venkatesh Raghavendra Bubballi, AIR 1965 Mys 65 and Surya Properties Pvt. Ltd. v. Bimalendu Nath Sarkar, and (FB).
The tenant in his objection statement did not deny that such demand for delivery of possession was issued as alleged in paragraph 4 of the petition for eviction. The correspondence which passed between the parties, has been marked at Exs. P. 2 to P. 8 In Ex. P. 8. the notice dated 7-8-1965, the landlord after setting out the items of work proposed to be done by him, had stated:--
"The work will be taken up by October 1965 and will last for four to six months. I shall therefore be obliged if you will kindly arrange to give vacant possession of the portion occupied by you before that day."
The tenant, in his reply Ex. P. 7 dated 2-9-1965, indicated that it would not be possible for him to vacate and that he should be permitted to continue to occupy the premises even during the period of remodelling of the house. The next letter from the landlord is Ex. P. 6 dated 20-12-1965. The contents of this letter reveal that subsequent to the correspondence Exs. P. 8 and P. 7 there has been a meeting between the landlord and the tenant at which the tenant had promised the landlord that he would vacate the premises as early as possible, at any rate not later than 31st January 1966. It is necessary here to extract Ex. P. 6, the letter of the landlord to the tenant:--
"Dear Sri Henry. 20th December 1965.
This is to confirm the discussions I had with you on Sunday the 19th December 1965. In view of the extensive alterations and remodelling that I have proposed to effect in the ground floor and first floor, it will be difficult for you to continue when the works are in progress.
Hence I would request you to vacate the house as promised by you as early as possible at any rate not later than 31st January 1966. Meanwhile, kindly note that the rent from 1st December 1965 will be Rs. 150 as already advised to you. You may kindly send the cheque accordingly. With kind regards.............."
53. Ex. P. 5 is the reply of the tenant dated 29th December 1965, where the tenant has indicated that it would not be possible for him to vacate. Even though this letter of the tenant is a long letter, he has not denied the statement of the landlord in Ex. P. 6 that the tenant had promised the landlord to vacate as early as possible, at any rate not later than 31st January 1966. The further correspondence merely refers to the unsuccessful attempts made by the landlord to obtain possession from the tenant. The question for consideration is whether in the light of the aforesaid correspondence, it can at all be postulated that it is a case to which Section 106 of the Transfer of Property Act is attracted so as to make it incumbent upon the landlord to allege in his petition that a notice to quit was given an constituting a cause of action for the petition, as required by Order 7, Rule 1, Civil P. C. There is no clear admission in the petition that the lease in question was a lease from month to month, so as to attract Section 106. Even assuming that it was a lease from month to month, there can be a contract to the contrary dispensing with a notice as prescribed under Section 106. It is sufficient to refer to the Bench decision of this court in E. T. Moosa Kutti v. K. P. Kovilakath Thekke, AIR 1928 Mad 687, which contains a discussion of the relevant case-law. The Bench has observed that if a tenant agrees that he will surrender possession on demand, no notice is necessary in order to enable the landlord to sue in ejectment. The mere fact that the tenant had agreed to pay rent at a particular amount per month, would not by itself attract Section 106. After referring to the Bench decision of this court in Kelu v. Ammad Kully, (1911) 9 Mad LT 198, this court observed as follows:--
"This is a direct authority for the position that, when there is a contract that the tenant will surrender on demand, no notice is necessary in order to enable the landlord to sue in ejectment. In Mukat Singh v. Misra Paras Ram, AIR 1924 All 726 it was found that the defendants had taken a lease of the house from plaintiffs on an agreement to pay a rent of Re. 1 per mensem. It was contended that the suit was bad for want of notice. Section 106. Transfer of Property Act does not require the sending of such a notice where there is a contract or local law or usage to the contrary. The allegation in the plaint was that the defendant had agreed to vacate the house on demand......... There is no allegation that any term was fixed for the tenancy; and in view of the evidence, which goes to show that the defendant had agreed to vacate the house when the plaintiff wanted. Section 106 cannot be made applicable and the omission to give notice cannot be regarded as fatal to the present suit."
From this, it will be sent that it is difficult to state, that in every case the plaint should contain a statement that such a notice was given as constituting the cause of action within the meaning of Order 7, Rule 1, Civil P. C. If there real contract of tenancy was such that the tenant had undertaken to deliver possession on demand, it will not be necessary for the plaintiff to state in his plaint that the tenancy is not governed by Section 106, and therefore, a notice to quit is unnecessary. It is not incumbent upon the plaintiff to anticipate the defendant's defence--Vide also the statement of law in Woodfall's Law of Landlord and Tenant, 27th Edn. Vol. I. page 927, to the effect that the parties to a tenancy may expressly stipulate that in certain events the tenant may quit without a notice. Vide also pages 932 and 933, paragraphs 1993 and 1995. In the English case refereed to by the author, it was held that a notice to quit was not necessary, where the agreement was that the tenant should vacate.
"if the tenant finds anything that may at all lead him to suspect that there is any embarrassment in his landlord."
In any event, I do not think the rules of pleading would require the plaintiff to eliminate all the negative aspects and refer to the same in the plaint. It will be impossible to ask the plaintiff to do so. A contract to the contrary in the terms of Section 106 may be in various forms. The parties may agree for an oral notice. The parties may agree for a shorter or longer notice. The parties may agree upon a mere demand for possession and dispense with a notice altogether. Can it be postulated that it is incumbent upon the plaintiff to state in the plaint the details of the contract to the contrary and why a notice as specified by Section 106 was not issued on peril of his plaint being rejected under Order 7, Rule 11(a), Civil P. C. It may be a different thing altogether, if in the plaint there is an admission of a tenancy either from year to year or from month to month, as specified by Section 106 of the Transfer of Property Act. Even in such a case, there may be a subsequent agreement taking the lease out of the purview of Section 106. Here again, it is difficult to hold that it is for the plaintiff to allege that the original lease was governed by Section 106, and that by subsequent arrangement, the lease became one out of the purview of Section 106 and therefore no notice to quit was necessary.
54. After a careful consideration of all the aspects of the matter, I am inclined to take the view that it would not be correct to lay down any inflexible rule in the abstract that in every case the plaint or the petition of the landlord for eviction should contain an averment of the issue of notice under Section 106 Transfer of Property Act. The instant case illustrates this principle. The correspondence between the landlord and the tenant shows that the tenant had promised to vacate and hand over possession as early as possible, at any rate, not later than 31st January 1966. In the face of such agreement between the parties, as reflected in the correspondence, there is no need for the issue of any notice under Section 106 of the Transfer of Property Act. It is not incumbent upon the plaintiff to refer in his petition to the original tenancy and the subsequent agreement between the parties and then specifically mention that in view of such subsequent agreement, notice under Section 106. Transfer of Property Act is not necessary.
55. It is in this context that the question of serious prejudice that would be caused to the landlord by allowing the tenant to raise his objection at this belated stage becomes relevant. If the point had been raised by the tenant earlier, the landlord would have rectified the mistake, if any, either by alleging all the facts in full or by withdrawing the petition and file a petition after giving proper notice to quit. It makes a world of difference between the defendant raising the objection at the earlier stage and his raising the objection after six years. It is an important aspect which should be borne in mind when considering whether the objection should be allowed to be raised. The point cannot, by any means, be said to be one of pure question of law. Undoubtedly, it is a mixed question of fact and law and calls for an investigation of facts in the light of the landlord's statement in the notice, Ex. P.6. After seven years the landlord cannot be called upon to establish the promise of the tenant referred to in Ex. B. 6.
Further, in a proceeding like this, it would work serious injustice and hardship upon the landlord, if some objections were to be raised for the first time in the course of the hearing of the revision petition. When a landlord files an application under Section 14(1) he must be ready with the plan sanctioned and with all the money and materials to start the work, as soon as the order is passed. It cannot mean that the landlord should keep his money idle ad infinitum till the tenant exhausts all his objections raising them in driblets at every stage. Further, the tenant may not have raised the objection in the view that such a notice to quit is not necessary; he should not now be allowed to raise the plea because there is a change in the law by subsequent pronouncement.
56. The basic principle in court proceedings is that it is not right and proper that parties to a litigation should be permitted to set up grounds of their claims or defence in driblets at different stages causing prejudice to the opponent. Considerations of justice and public policy require that a party who succeeded should not at the appellate stage be faced with new grounds of attack, he having successively met and defeated the opponent with respect to the points already raised.
57. With respect, I entirely agree with Kailasam, J. in declining to entertain the new objection, I prefer to follow the note of warning given by Lord Birkenhead. L. C. in Wilson v. United Counties Bank Ltd., 1920 AC 102 at p. 106, that "the practice is extremely inconvenient and ought to be discouraged in every possible way."
58. For all these reasons, the revision petition fails and is dismissed with costs.
59. The petitioner prays for some time and he has also filed an affidavit praying for six months' time. The affidavit which has been filed has been recorded. From the affidavit it is seen that he is in possession of the premises. Taking all the circumstances into account, the petitioner will vacate on or before 30-9-1971.
60. Revision dismissed.