ORAL ORDER :- Heard.

2. The facts, in brief, are that the landlord initially issued a notice seeking termination of tenancy. In this notice, he pleaded that the tenancy commenced from 8th day of every month.

The tenant replied the notice, and disputed the proposition, contending that the tenancy commenced from first day.

It seems that the landlord realized the facts or folly in the notice, and issued a fresh notice wherein he claimed that the tenancy commenced from first day. In view of termination of tenancy, landlord filed a suit for possession.

In the suit, landlord averred that in the first notice it was pleaded that the tenancy commenced from 8th day, however, he pleaded that in view of the tenant's reply, the tenancy commenced from first day.

3. It is seen that the suit proceeded and trial Court found that the defendant tenant was making deliberate attempts of delaying the suit. He, therefore, adjourned the case on payment of cost. Tenant had even taken out the proceedings for transfer of the case. It is also an admitted ground that proceedings of contempt of Court were taken on account of the conduct of the defendant and the language used by him in the proceedings. Upon apology by the tenant, the proceedings were dropped.

4. It is further seen that the suit proceeded and it was decreed. The decree has been confirmed in appeal.

This second appeal is filed against these concurrent Judgments and Decrees.

5. The learned Advocate has addressed mainly on two points, namely :-

(a) whether the question of validity of termination of tenancy is pivotal, since, according to the plaintiff, in his first notice, it is mentioned that the tenancy commenced from 8th day of the Gregorian Calendar, while the notice, which was later on issued terminating the tenancy, determines the tenancy from 31st day, whereby the tenancy has not been terminated, statutory time and the notice is illegal and no ejectment on that basis can be sought, and

(b) the trial resulted into want of fair opportunity to the defendant, because he had failed to pay the costs, and by referring to section 35B, Civil Procedure Code, his defence was struck off and his prayer for recalling of that order or review was also declined erroneously. This was contrary to the scheme of section 35-B of Civil Procedure Code.

6. The learned Advocate, in order to make his point good, took this Court even through the record and attempted to show that the defendant did not get fair and reasonable opportunity.

7. This Court would now deal with the appellant's plea about date of· commencement of tenancy.

8. At the cost of repetition, it may be worth mentioning that the plaintiff is seen to have come before the Court with a candid admission, and with no suppression, that in first notice issued to the defendant, he averred that the tenancy commenced from 8th day of month. Tenant replied the notice and stated that the tenancy commenced from first day of month. However, in second notice issued by landlord-plaintiff, he had corrected his stand as per defendant's version, and proceeded on the foundation that the tenancy commenced from 1st day of the month.

9. Insofar as the first question about notice is concerned, the trial Court recorded a finding that the tenancy commenced from first day of month. This finding is reached on the basis of testimony of the plaintiff and the admission of the defendant in his reply to plaintiffs notice [Exh. 105] and subsequent letters [Exhs. 108 and 109]. Thus, the finding that the tenancy has commenced from the first day of the Gregorian calendar month is based on defendant's version and admission on which landlord-plaintiff has acted by giving up his initial stand.

10. The finding of the trial Court about the date of commencement of month of tenancy to be first day of the month is confirmed by the First Appellate Court, and it cannot be faulted on the ground that in earlier correspondence, the plaintiff claimed commencement of tenancy from a particular date in

Click Here to Read the rest of this document