Back
IN THE HIGH COURT OF BOMBAY
Dharmadhikari C.S., J.
Appellants: P. Ratnam Yeshwantraj Mudliyar
Vs.
Respondent: Vimalchandra Shiv Datta Grovar and Ors.
A.F.A.D. No. 480 of 1971 Decided On: 25.08.1972
Counsels:
For Appellant/Petitioner/Plaintiff: P.G. Palshikar, Adv.
For Respondents/Defendant: A.S. Bobde and M.L. Vaidya, Advs.
TRANSFER OF PROPERTY ACT - SECTION 106 - RENT CONTROL ORDER - CLAUSE 13 - EJECTMENT SUIT - NOTICE TO DETERMINE LEASE - VALIDITY - WAIVER - SUBJECT-MATTER OF SUIT - IDENTITY OF CAUSE OF ACTION - ORDER 23, RULE 1, CODE OF CIVIL PROCEDURE.
Fact of the Case:
The plaintiffs, landlords, filed a suit for ejectment and mesne profits against the defendant-tenant, alleging that they had purchased the suit premises from the previous owner and that the defendant had attorned the tenancy in their favor. The plaintiffs had obtained permission from the Rent Controller to determine the tenancy, and they had served a notice to the defendant accordingly. However, the defendant did not vacate the premises, and the plaintiffs filed a suit for ejectment. The defendant resisted the claim, contending that the suit was barred in view of the provisions of Order 23 of the Code of Civil Procedure, as the plaintiffs had withdrawn a previous suit based on the same cause of action. The defendant also contended that the permission granted by the Rent Control authorities had been exhausted by the previous notice, and that the plaintiffs were required to obtain a fresh permission before filing the present suit.
Finding of the Court:
The court held that the previous notices served by the plaintiffs were not valid and legal notices, as they did not expire with the end of the tenancy month. Therefore, the tenancy of the defendant was not determined by those notices, and the plaintiffs were entitled to serve a fresh notice to determine the tenancy. The court also held that the subject-matter of the present suit was not the same as that of the previous suit, as the previous suit was based on a different notice. Therefore, the present suit was not barred under Order 23, Rule 1, of the Code of Civil Procedure.
Issues: 1. Whether the previous notices served by the plaintiffs were valid and legal notices. 2. Whether the tenancy of the defendant was determined by those notices. 3. Whether the plaintiffs were entitled to serve a fresh notice to determine the tenancy. 4. Whether the subject-matter of the present suit was the same as that of the previous suit. 5. Whether the present suit was barred under Order 23, Rule 1, of the Code of Civil Procedure.
Ratio Decidendi: 1. A notice to determine a lease under Section 106 of the Transfer of Property Act must expire with the end of the tenancy month. 2. A tenancy is not determined by a notice that does not expire with the end of the tenancy month. 3. A landlord is entitled to serve a fresh notice to determine the tenancy if the previous notice was not valid and legal. 4. The subject-matter of a suit is the series of acts or transactions alleged to exist giving rise to the relief claimed. 5. A subsequent suit is not barred under Order 23, Rule 1, of the Code of Civil Procedure, if the subject-matter of the suit is not the same as that of a previous suit.
Final Decision: The court dismissed the appeal filed by the defendant-tenant.
2. Civil Suit No. 175 of 1970 was filed by the plaintiffs-landlord for ejectment and mesne profits regarding the suit premises, that is a bungalow, bearing Corporation House No. 64/0-4 situated in Ward No. 38 at Nagpur. It was alleged in the plaint by the plaintiffs that by registered sale-deed dated 1-3-1966 they purchased this bungalow. Even prior to purchase of this bungalow the defendant was a tenant and after the purchase of the house the defendant attorned the tenancy of the premises in favour of the plaintiffs and also paid the rent. After purchase of the house, as the plaintiffs badly needed the house for their own residence, they filed an application to the Rent Controller for permission to determine the tenancy, of the defendant and the Rent Controller by his order dated 23-8-1967 granted permission to the plaintiffs to determine the tenancy of the defendant in Revenue case No. 583/A-71 (2) of 1965-66. As the permission granted by the Rent Controller was a partial one, an appeal was filed against the said order and the appellate authority granted permission in respect of the whole house by his order dated 2-3-1968 in Revenue Appeal Nos. 43, 44 and 55/A-71(2) of the 1967-68. Against this order a writ petition was filed in the High Court, being Special Civil Application No. 823 of 1968, by the tenant and that writ petition was also dismissed.
3. Thereafter a notice dated 10-3-1968 determining the tenancy of the defendant was served on the defendant and since the defendant did not vacate the premises, a suit for ejectment was filed by the plaintiffs. This suit was numbered as Civil Suit No. 813 of 1968. It is alleged by the plaintiffs that this suit was withdrawn by them as they found that the notice was defective. Thereafter a fresh notice was served on 7-11-1968 terminating the tenancy of the defendant with effect from 24-12-1968 and as the defendant failed to vacate a suit bearing Civil Suit No. 175 of 1970 was filed. In this suit the plaintiffs have also claimed rent and mesne profits.
4. The defendant by his written statement resisted the claim of the plaintiffs. It was specifically alleged in the written-statement by the defendant that this suit is barred in view of the provisions of Order 23 of the Code of Civil Procedure. It was further alleged that the permission granted by the Rent Control authorities stands exhausted in view of the previous notice given by the plaintiffs, and therefore, unless a fresh permission was obtained by the plaintiffs it was not open for them to file the present suit.
5. The trial Court decreed the suit filed by the plaintiffs and an appeal filed by the defendant was also dismissed by the appellate Court. Hence this second Appeal is filed by the defendant under Section 100 of the Code of Civil Procedure.
6. Mr. Palshikar, appearing for the appellant-tenant, has contended before me that the plaintiffs have failed to prove the date the plaintiffs have failed to prove the date of the tenancy, and therefore, the notice served by them is illegal being not in conformity with the provisions of Section 106 of the Transfer of Property Act. After obtaining the permission from the Deputy Collector the plaintiffs had served a noti
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
