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SUPREME COURT OF INDIA
RANGANATH MISRA AND M.M. DUTT, JJ.
Civil Appeal No. 1160 of 1978,
D/-22-1-1987.
Dipak Kumar Ghosh, Appellant
versus
Mrs. Mira Sen, Respondent.
West Bengal Premises Tenancy Act, 1956 –Section 13(l) (j), 13(1) - Transfer of Property Act,1881 - Section 106 - Tenancy - Rents - Vacate Premises - Suit For Eviction - Possession Of Premises - While remitting by postal money order rents for months appellant stated in writing in money order coupon we shall vacate premises within next 6/8 months - It is not disputed before us that said statement was made in money order coupon by appellants brother under his specific instruction - After respondent had received said money order coupon, he by his letter sent to appellant by registered post, inter alia, wrote as"I also take note of your notice to vacate said premises within 6/8 months time - I shall be obliged if you kindly let me know precisely date on which you will vacate said premises, so that I may arrange my occupation of said premises accordingly - Said letter of respondent was not replied to by appellant - Thereafter, respondent instituted a suit for ejectment on ground that appellant had failed to deliver vacant possession of premises in accordance with said statement in money order coupon which was treated as notice to quit - Whether High Court was justified in decreeing suit for ejectment on ground under Cl. (j) of S. 13(l) of West Bengal Premises Tenancy Act, 1956 - Whether a notice to quit under Cl. (j) is really a notice as contemplated by S. 106 of Transfer of Property Act – Held, A notice to quit even if it is defective can be accepted by landlord and after such acceptance tenant will be estopped from challenging validity of the notice given by him - Indeed, question came up for consideration before this Court in Calcutta Credit Corporation Ltd. v. Happy Homes - It has been held by this Court that a notice which does not comply with requirements of S. 106 of Transfer of Property Act in that it does not expire with end of month of tenancy, or end of year of tenancy, as case may be, or of which duration is shorter than duration contemplated by S. 106. may still be accepted by party served with notice and if that party accepts and acts upon it, party serving notice will be estopped from denying its validity - If respondent had not accepted notice to quit, there was no necessity for him to enquire the appellant as to precise date of his vacating premises - Thus, notice having been accepted by respondent, appellant is precluded from challenging validity thereof - High Court was, therefore, in court opinion, justified in decreeing suit for eviction on ground as contained in Cl. (j) of S. 13(l) of Act - Appellant is, however, granted time to vacate premises which will stand extended provided appellant files within four weeks from date an undertaking in writing to effect that he will vacate and deliver up vacant and peaceful possession of premises to respondent - Appellant shall also go on depositing in trial Court an amount calculated at rate of rent, month by month, by fifteenth of next month following that for which it is due - In default of such deposit for any two months, respondent will be at liberty to execute decree at once notwithstanding time, be it the initial or extended one, granted to appellant - Respondent will be entitled to withdraw any amount that may be deposited by appellant in terms of this judgment without furnishing any security – Appeal Dismissed.
Judgment
DUTT, J. :- The only question that is involved in this appeal by special leave is whether the High Court was justified in decreeing the suit for ejectment on the ground under Cl. (j) of S. 13(l) of the West Bengal Premises Tenancy Act, 1956, hereinafter referred to as "the Act".
2. One of the grounds for ejectment is that contained in Cl. (j) of S. 13(1) of the Act and reads as follows : -
"S. 13(l). Notwithstanding anything to the contrary in any other law, no order or decree for the recovery of possession of any premises shall be made by any Court in favour of the landlord against a tenant except on one or more of the following grounds, namely : -
..................................................
(j) where the tenant has given notice to quit but has failed to deliver vacant possession of the premises to the landlord in accordance with such notice."
3. It appears that while remitting by postal money order the rents for the months of November and December, 1968, the appellant stated in writing in the money order coupon "we shall vacate the premises within next 6/8 months." It is not disputed before us that the said statement was made in the money order coupon by the appellants brother under his specific instruction. After the respondent had received the said money order coupon, he by his letter dated April 19, 1969 sent to the appellant by registered post, inter alia, wrote as follows : -
"I also take note of your notice to vacate the said premises within 6/8 months time. I shall be obliged if you kindly let me know precisely the date on which you will vacate the said premises, so that I may arrange my occupation of the said premises accordingly."
The said letter of the respondent was not replied to by the appellant. Thereafter, on May 11, 1970 the respondent instituted a suit for ejectment on the ground that the appellant had failed to deliver vacant possession of the premises in accordance with the said statement in the money order coupon which was treated as the notice to quit. In other words, the suit was instituted by the respondent on the ground of Cl. (j) of S. 13(l) of the Act. The appellant contested the suit. His plea was that it was never intended by him to vacate the premises in question, and that the said statement in the money order coupon was not made by him but by his brother without any authority from him in that behalf.
4. The trial Court dismissed the suit holding that the said statement in the money order coupon was neither written by the appellant nor by his authorised agent and, accordingly, it did not amount to a notice to quit within the meaning of Cl. (j) of S. 13(l) of the Act. On appeal by the respondent, the lower appellate Court affirmed the finding of the trial Court that the statement in the money order coupon did not constitute a notice to quit. It was, however, found by the lower appellate Court that the said statement in the money order coupon was made by the brother of the appellant under his specific instruction. The appeal preferred by the respondent was, consequently, dismissed.
5. The respondent filed a second appeal in the High Court. The learned single Judge of the High Court took the view that the said statement in the money order coupon constituted a valid notice to quit within the meaning of Cl. (j) of S. 13(l) of the Act and as the appellant had failed to vacate the premises in accordance with the said notice to quit, the respondents suit for eviction should be decreed. In that view of the matter, the learned Judge set aside the judgments and decrees of the Courts below dismissing the suit and decreed the respondents suit for eviction. Hence this appeal by special leave.
6. The Act provides for the protection of tenants against eviction. Under S. 13(1), no order or decree for recovery of possession of any premises shall be made by any Court in favour of the landlord against a tenant except on one or more of the grounds as mentioned thereunder. One of the grounds of eviction is that c
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