2013 Supreme(Bom) 978

In the High Court of Bombay at Goa
R.P. SONDURBALDOTA & U.V. BAKRE, JJ.
Guido Loyola Furtado
Versus
M/s. National Insurance Co. Ltd.
First Appeal No. 61 of 2007
Decided on : 10-05-2013

Headnote:Civil Procedure Code, 1908 - Order XLI, Rule 22(1) - Appeal against dismissal of suit.

       Failure of defendant to file cross-objection in appeal filed by plaintiff, not disentitled defendant to challenge these findings of trial Court which goes against him. - In the present matter, since the suit has been dismissed, the defendant neither could file appeal nor could he take cross-objection to the decree. It could only support the decree on the grounds decided in its favour as also on any of the grounds decided against it, by the lower Court. In view of the above, though the defendant has not filed any cross-objection, it can very well assail the finding of the trial Court, which is against it, for supporting the decree, which has been passed against the plaintiff.

       GOA, DAMAN AND DIU BUILDINGS (LEASE, RENT AND EVICTION) CONTROL ACT, 1968 - Section 3. - Transfer of Property Act, 1882, Sections 106 and 107 - Suit for recovery of vacant possession of suit premises and for mesne profits - Dismissed by trial Court - Appeal against - Contention that trial Court erred in dismissing suit holding that termination of lease by plaintiff was illegal - No written registered lease deed executed between plaintiff and defendant in respect of suit premises - Plaintiff given a notice dated 19.9.1995 in terms of Section 106 of T.P. Act terminating lease w.e.f. 31.10.1995 and directing defendant to handover vacant possession of suit premises on 1.11.1995 - Defendant, not a protected tenant under Rent Control Act - No reason required to be given by plaintiff for terminating lease - Notice terminating lease, valid - Plaintiff entitled to vacant possession of suit, premises as also to mesne profits - Impugned judgment, order and decree dated 28.11.2006 of trial Court quashed and set aside - Suit of plaintiff partly decreed - Appeal partly allowed.

       GOA, DAMAN AND DIU BUILDINGS (LEASE, RENT AND EVICTION) CONTROL ACT, 1968 - Section 3(1)(c) [as amended in 1994] - Applicability of.

       Amended Section 3(1)(c) of Act, merely deals with non- applicability of Rent Act to certain buildings which have not completed 15 years of its construction. - Section 3 of the Rent Control Act does not speak about accrual of any substantive right as a statutory tenant, under the Act but it deals with the non-applicability of the Act to certain buildings. The defendant had a right to take advantage and enjoy the said statutory protection as long as the provision remained in force and was applicable to it. As soon as the said provision changed, the defendant cannot claim continue to have the old statutory protection, it was another thing if the plaintiff had filed the suit when the provision of Section 3(l)(c) of the Rent Control Act had the word "four" instead of "fifteen". In that case, the defendant could have taken advantage of the said provision to resist the eviction by the plaintiff.

       Section 3 of the Rent Control Act, does not create any substantive rights in the tenant but it only provides for some protection or benefit, in certain eventualities mentioned therein.

       It imposes certain conditions for application of the Rent Control Act. The said protection or benefit can be utilized as long as it exists but a party cannot claim a vested right in the same and as soon as the said protection or benefit is taken away, the party cannot claim the same on the ground that it was previously existing. The plaintiff had not filed the suit prior to 5.5.1994, but had filed it on 19.3.1996. The beneficial provision as was existing on 19.3.1996, would apply.

       Mere protection/benefit given by the provision does not give arise to any vested right. Therefore, merely because prior to 5.5.1994, the Rent Control Act did not apply to any newly constructed building for a period of four years from the date of completion and because the building consisting of suit premises had already completed the said period of four years, in or about 1989, it cannot be said that on account of the said protection of non-application of the Rent Control Act, a vested, right, as protected tenant, accrued in favour of the plaintiff.

       If any proceedings for eviction were filed against the defendant prior to 5.5.1994, the defendant could have taken benefit of the said protection. However, as from 5.5.1994, the said provision of Clause (c) of Section 3(1) of the Rent Control Act changed and as per the amended provision, nothing in the Rent Control Act applies to any newly constructed building for a period of 15 years from the date of its completion. Admittedly, the building consisting of the suit premises was completed in December 1984. The suit was filed on 19.3.1996. The period of 15 years from the date of completion of the building had not expired as ’on the date of filing of the suit. Therefore, the Rent Control Act cannot apply to the suit premises. [AIR 1960 SC 936, (1984) 1 SCC 206, AIR 1984 Bom 144, (2003) 2 SCC 577 - Distinguished; AIR 1995 SC 1781 - Relied on].

       GOA, DAMAN AND DIU BUILDINGS (LEASE, RENT AND EVICTION) CONTROL ACT, 1968 - Section 3(1)(c) [as amended in 1994] - Substitution of word "fifteen" in place of "four".

       Effect of amendment in Section 3(1)(c) of Act would be that a newly constructed building would mean a building in respect of which 15 years have not expired from date of construction. - Section 3(1)(c) of the Rent Control Act, as is presently existing, provides that nothing in this Act shall apply to any newly constructed building for a period of "fifteen" years from the date of its completion. The word "fifteen" came to be substituted in place of the word "four" by virtue of amendment, which came into force as from 5.5.1994, in terms of Goa Buildings (Lease, Rent and Eviction) Control (Amendment) Act, 1993 published in the Official Gazette Series I, No. 5 dated 5.5.1994. Except for the change of the period from four years to fifteen years, there is no other change in the said provision.

       There is no dispute that the expression "newly constructed building" was there in that provision even prior to the amendment of the said clause (c). The amendment does not add the words "as from the date of coming into force of this. amendment" after the expression "newly constructed building". The expression "newly constructed building" cannot be read literally to mean a recently constructed building. The entire clause (c) should be read. Newly constructed building means a building in respect of which a period of fifteen years has not expired from the date of completion of its construction.

       Prior to coming into force of the amendment newly constructed building meant a building which had not completed four years from the date of completion of its construction. The meaning of newly constructed building, for the purposes of the Rent Control Act, has changed after the said amendment. Therefore, the submission of counsel for the defendant that the word ’newly’ means from the date of amendment i.e. from 5.5.1994 is without merit.

       GOA, DAMAN AND DIU BUILDINGS (LEASE, RENT AND EVICTION) CONTROL ACT, 1968 - Section 3(1)(cc) [as amended in 1994] - Insertion of date "20.4.1994" in provision. -

       Since on date of filing of suit by landlord, date, i.e. 20.4.1994’’ was not existing in Section 3(1)(cc) of Act, hence its subsequent insertion would not affect case of landlord filed earlier. - Therefore, the trial Judge has rightly relied upon the said provisions of clauses (c) and (cc) of Section 3(1) of the Rent Control Act, as they were existing on the date of filing of the suit and has correctly held that on account of the said provisions, the Act does not apply to the defendant. In the circumstances above, the defendant cannot at all be considered as a protected tenant as the Rent Control Act does not apply to it.

       Transfer of Property Act, 1882 - Sections 105 and 106 - Registration Act, 1908, Sections 17(1) and 47 - Termination of lease by landlord.

       Since plaintiff, landlord, can terminate month to month lease at expiry of any month with necessary notice and without any explanation hence termination of lease not illegal. - Admittedly, the plaintiff had given a notice dated 19. 9 1995 (Exhibit 27) to the defendant thereby terminating the lease w.e.f. From 31/10/1995 and directing the defendant to hand over vacant possession of the suit premises on 1.11.1995. It is not understood as to why the trial Court has observed that there was no reason for the plaintiff to terminate the lease all of a sudden w.e.f. 31.10.1995. As was held by the trial Court, the defendant was not a protected tenant under the Rent Control Act. This notice is in terms of Section 106 of the T.P. Act, since it terminates the lease w.e.f. the expiration of the month of tenancy i.e. as from 31.10.1985. No reasons were required to be given for terminating the lease

       It is now settled law that a notice to quit must be construed not with a desire to find faults in it, which would render it defective, but it must be construed ut re magis valeat quam pereat. "The validity of a notice to quit", as pointed out by Lord Justice Lindley. L.J. in Sidebothan v. Holland "ought not to turn on the splitting of a straw".

       It is further observed that it must not be read in a hyper-critical manner, nor must its interpretation be affected by pedagogic pedantism or over refined subtlety, but it must be construed in a common sense way. In the case supra, it has been held that under Section 106 of the T.P. Act, the notice to quit must expire with the end of the month of the tenancy, or in other words, it must terminate the tenancy with effect from the expiration of the month of the tenancy. It has been held that if it terminates the tenancy with effect from the earlier date, it would be clearly invalid.

       In the circumstances above, the finding of the trial Court that the tenancy was not validly terminated w.e.f. 31.10.1995 is erroneous. In our view, the tenancy has been validly terminated w.e.f. 31.10.1995, by the plaintiff by means of the said notice dated 19.9.1995 and the plaintiff is, therefore, entitled to vacant possession of the suit premises as also to mesne profits.