# Govind Saran Revisionist v. Km. Shubhi Mishra

- **Citation:** (2022) 3 ILRA 228
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-14
- **Case number:** S.C.C. Revision No. 125 of 2014
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/govind-saran-revisionist-v-km-shubhi-mishra-48183
- **Pages:** 13

## Headnote

A. Tenancy Law - UP Urban Buildings
(Regulation of Letting, Rent and Eviction)
Act, 1972 - Transfer of Property Act, 1882
- U.O.I. 106 - Notice to quit - Termination
of tenancy - Validity - Classification of
notices into seven category, marked as 'A'
to 'J', made by the Supreme Court in Abdul
Jalil's case, was overruled by the larger
Bench in Dharam Raj Sahu's case -
Consequence - Held, there is no prescribed
form or language which alone would
qualify for a valid notice under Section 106
of the Act of 1882 - Notice has to be
liberally construed and read as a whole in
order to find out the intention of the
landlord or the lessor. (Para 20, 22 and 23)
B. Tenancy law - Transfer of Property Act,
1882 - Secton 114 - Tenant's entitlement
to be relieved of liability from eviction on
deposit of arrears of rent and cost of suit -
No written lease for specific period - Effect
- Held, the question of forfeiture generally
arises if there is a written lease carrying
terms that entitle the lessor to re-enter, if
violated by the tenant and the lease is for a
specific duration or perpetual in nature.
The entire gamut of provisions of Sections
111, 112, 113 and 114 of the Act of 1882
would not apply in the case of a tenancy
that is month-to-month, which can be
terminated by a notice simplicitor under
Section 106 of the Act of 1882, without the
question of forfeiture at all figuring -High
Court granted six months time to vacate
the demised shop. (Para 26)
Revision dismissed. (E-1)
List of Cases cited :-

## Text

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228 INDIAN LAW REPORTS ALLAHABAD SERIES
justice. His bail application has rightly been
rejected by the Juvenile Justice Board and
appeal by the appellate court. Both the
courts below have not committed any legal
error in rejecting the bail application. There
is no perversity or illegality in the findings
recorded by the learned courts below. The
revisionist (child in conflict with law) is not
entitled for bail. Revision is liable to be
dismissed. For speedy trial, direction may
be issued.

14. Accordingly, the revision is
hereby dismissed.

15. The trial court is directed to
expedite
the
trial
and
conclude
it,
preferably within one year from the date of
production of this order placed before it,
without
granting
any
unnecessary
adjournments,.
----------
(2022)03ILR A228
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.03.2022

BEFORE

THE HON'BLE J.J. MUNIR, J.

S.C.C. Revision No. 125 of 2014

Govind Saran ...Revisionist
Versus
Km. Shubhi Mishra ...Opposite Party

Counsel for the Revisionist:
Sri Ashutosh Srivastava

Counsel for the Opposite Party:
Ms. Babita Upadhyay, Sri Pradeep Kumar,
Sri Sanjeev Kumar Gaur

A. Tenancy Law - UP Urban Buildings
(Regulation of Letting, Rent and Eviction)
Act, 1972 - Transfer of Property Act, 1882
- U.O.I. 106 - Notice to quit - Termination
of tenancy - Validity - Classification of
notices into seven category, marked as 'A'
to 'J', made by the Supreme Court in Abdul
Jalil's case, was overruled by the larger
Bench in Dharam Raj Sahu's case -
Consequence - Held, there is no prescribed
form or language which alone would
qualify for a valid notice under Section 106
of the Act of 1882 - Notice has to be
liberally construed and read as a whole in
order to find out the intention of the
landlord or the lessor. (Para 20, 22 and 23)
B. Tenancy law - Transfer of Property Act,
1882 - Secton 114 - Tenant's entitlement
to be relieved of liability from eviction on
deposit of arrears of rent and cost of suit -
No written lease for specific period - Effect
- Held, the question of forfeiture generally
arises if there is a written lease carrying
terms that entitle the lessor to re-enter, if
violated by the tenant and the lease is for a
specific duration or perpetual in nature.
The entire gamut of provisions of Sections
111, 112, 113 and 114 of the Act of 1882
would not apply in the case of a tenancy
that is month-to-month, which can be
terminated by a notice simplicitor under
Section 106 of the Act of 1882, without the
question of forfeiture at all figuring -High
Court granted six months time to vacate
the demised shop. (Para 26)
Revision dismissed. (E-1)
List of Cases cited :-
1. Abdul Jalil Vs Haji Abdul Jalil; AIR 1974 All
402
2. Atkinson Vs Bradley; (1885) ILR 7 All 899
(FB)
3. B.R. Trading Company & anr. Vs Dharam Raj
Sahu & ors.; 2007 SCC OnLine All 885
4. Vinod Kumar & ors. Vs Arya Samaj Mandir;
2016 SCC OnLine All 2938
(Delivered by Hon'ble J.J. Munir, J.)

1. This is a tenant's revision under
Section 25 of the Provincial Small Cause
Courts Act, 1887 (for short "the Act of
3 All. Govind Saran Vs. Km. Shubhi Mishra
229
1887"), questioning a decree for ejectment,
besides recovery of arrears of rent and
mesne profits.

2. S.C.C. Suit No.15 of 2012 was
instituted on behalf of the plaintifflandlady, Km. Shubhi Mishra, then a minor
aged about 16 years through her father, Dr.
Pramod Kumar Mishra, acting as her next
friend. This suit was instituted before the
District Judge of Pilibhit sitting as the
Judge, Small Cause Court, against the
defendant-tenant, Govind Saran, seeking
the defendant's ejectment from a shop
situate in Mohalla Desh Nagar, District
Hospital Road, Pilibhit, details whereof are
given at the foot of the plaint, giving rise to
the suit. Besides ejectment, a decree for
recovery of a sum of Rs.41,433/- as arrears
of rent was also sought. A further decree for
recovery of mesne profits in the sum of
Rs.2000/- with effect from the date of
determination of the tenancy until the date
of the suit, worked out at the rate of
Rs.250/- per day, besides Rs.1500/- as costs
of the notice, was also claimed. Apart from
the aforesaid items of the claim, a decree
for recovery of mesne profits at the rate last
mentioned was claimed for the period
pendente lite and future.

3. The suit was instituted on behalf of
the
plaintiff-landlady
(for
short,
'the
plaintiff') alleging that the shop in question,
which shall hereinafter be referred to as the
'demised shop', was let out on her behalf by
her father to the defendant-revisionist (for
short, 'the defendant') in the year 2008 for a
period of eleven months. The rate of rent
was Rs.5500/- per month. The tenancy was
month-to-month, commencing on the first
day of each English calendar month. The
provisions of The Uttar Pradesh Urban
Buildings (Regulation of Letting, Rent and
Eviction) Act, 1972 (for short "U.P. Act No.
13 of 1972") did not govern the tenancy.
The
defendant
committed
default
in
payment of rent w.e.f. February, 2012 and
continued to do so, extending false
promises to pay. He avoided paying the due
rent on one pretext or the other that he
came up with. Despite repeat demands to
pay his outstanding rent, the defendant did
not comply. In the circumstances, the
plaintiff caused a notice under Section 106
of the Transfer of Property Act, 1882 (for
short, "the Act of 1882") to be issued to the
defendant on 13.08.2012, calling upon the
defendant to pay the entire arrears of rent
and determining the tenancy on expiry of a
period of thirty days of the receipt of
notice. The defendant was also called upon
to vacate the demised shop and hand over
possession thereof on the expiry of the
notice period. The notice was dispatched at
the correct residential address of the
defendant as well as his business address
by registered post. The notice was duly
served upon the defendant personally on
16.08.2012. The defendant's tenancy stood
determined w.e.f. 16.09.2012. Despite
termination of his tenancy, the defendant
did not vacate the demised shop or remit
the arrears of rent. It was asserted that the
defendant owed the plaintiff a sum of
Rs.41,433/- in arrears of rent from
01.02.2012 till 16.09.2012. A sum of
Rs.2000/- was claimed to be due towards
mesne profits from 17.09.2012 till the date
of institution of the suit, worked out at the
rate of Rs.250/- per day, besides Rs.1500/-
on account of fee and expenses of the
notice served.

4. The suit was instituted on
24.09.2012 and a summons returnable on
24.11.2012 was issued to the defendant.

5. A written statement was filed on
behalf of the defendant, admitting himself
230 INDIAN LAW REPORTS ALLAHABAD SERIES
to be a tenant in the demised shop at the
rate of Rs.5500/- per month. It was,
however, pleaded that rent in the year 2007
was Rs.4500/- per month, but in deference
to wishes of the plaintiff's father, the rent
was enhanced to Rs.5500/-. It was claimed
that until 30.06.2012, rent was paid to the
plaintiff's father, who despite demand, did
not issue any receipt. The plaintiff's father
would ward off his obligations and never
issued any receipt. The defendant on
05.08.2012, along with his son, went to the
plaintiff's father in order to pay rent for the
period 01.07.2012 to 31.07.2021 and
demanded a receipt thereof. The plaintiff's
father refused to issue a receipt. He asked
the defendant to deposit rent by cheque in
lieu of cash. The defendant and his son
thereupon issued a cheque on 05.08.2012,
favouring the plaintiff's father, signed by
himself and his son and handed it over to
the payee. The plaintiff's father thereupon
instructed the defendant that in future, he
should pay rent by cheque. In compliance
with those instructions, the defendant
handed over to the plaintiff's father Cheque
No.779463 worth Rs.5500/- on 03.09.2012,
Cheque No.779464 worth Rs.11,000/-,
being the accumulated rent for two months
on 18.11.2012, Cheque No.774650 worth
Rs.11,000/- on 17.01.2013, which was in
liquidation of his liability up to 31.12.2012.
On 01.02.2013, when the defendant went
over to the plaintiff's father to pay him rent
for the month of January, 2013, he avoided
receiving it and told the defendant that he
would accept rent in some wholesome
figure in future.

6. It is the defendant's case that he
received envelopes from Mr. B.S. Ashok,
Advocate by registered post and speed post,
but upon opening the envelopes, each of them
were found to carry blank papers with nothing
scripted on it. The next day, the defendant
went to the city in connection with some
personal work and upon his return, sent a letter
dated 14.09.2012 by registered post to Mr.
B.S. Ashok, Advocate, informing him that he
had received an envelope from the learned
Advocate
carrying
blank
papers.
The
defendant also requested the addressee to let
him know the purpose of it all, and not to
misuse the same.

7. The defendant claims to have come to
know about the suit upon publication of
summons
in
the
newspaper.
Prior
to
publication, he had no knowledge about the
pending suit. It is asserted that from
01.01.2013 to 31.03.2013, rent has been
deposited in Court through tenders for the
purpose. Any kind of default was denied and it
is the defendant's further case that provisions
of U.P. Act No. 13 of 1972 apply to the
demised shop. Service of notice under Section
106 of the Act of 1882 was denied. The notice
filed along with the plaint is said to be bogus,
which was not served upon the defendant at
all. It did not terminate his tenancy and,
therefore, no decree of eviction etc. could be
passed on its basis.

8. After exchange of pleadings, the Trial
Court framed the following issues (Translated
into English from Hindi):

"(1) Whether the plaintiff and the
defendant bear the relationship of landlord and
tenant relating to the shop in dispute?

(2) Whether the suit is not barred by
the provisions of U.P. Act No. 13 of 1972?

(3) Whether the notice dated
13.08.2012 served upon the plaintiff is illegal
and void?

(4) Whether the defendant has
committed default in the payment of settled
rent? If yes, its effect?

(5) To what relief is the plaintiff
entitled?"
3 All. Govind Saran Vs. Km. Shubhi Mishra
231

9. The plaintiff, in support of her case,
filed documentary evidence that includes a
copy of the notice dated 13.08.2012, AD
Card, the postal receipt, the statement of
account of the plaintiff's father duly
certified. For her oral evidence, an affidavit
sworn by Pramod Kumar Mishra, the
plaintiff's father was filed under Order
XVII Rule 4 CPC. He testified himself as
PW-1 and was cross-examined.

10. The defendant filed documentary
evidence, being challans dated 02.09.2013,
29.03.2013 and 04.08.2013; still more
dated
29.03.2013,
04.05.2013
and
01.06.2013. Besides, photostat copies of
four cheques were also filed. The detail of
documentary
evidence
finds
its
enumeration in the summary thereof set out
in the judgment of the Trial Court, which
need not be scripted for every detail of it.
The defendant examined himself as a
witness in support of his case and filed his
affidavit. He testified in the witness-box as
DW-1, where he was cross-examined.

11. Issue No.1 was decided on
admission, holding the relationship of
landlord
and
tenant
well
established
between parties. About Issue No.2, the Trial
Court held that since the monthly rent was
Rs.5500/-, a figure that is not in dispute,
which exceeds Rs.2000/- per month, the
building is exempt from the operation of
U.P. Act No.13 of 1972 by virtue of Section
2(g) thereof. Returning its finding on Issue
No.3, it was held by the Trial Court that the
notice to quit was valid and effectively
determined the defendant's tenancy. As
regards Issue No.4, it was held that the
defendant
committed
default
in
the
payment of monthly rent, rendering him
liable to eviction. So far as Issue No.5 goes,
it was opined that deposit of a sum of
Rs.33,000/- towards rent, that was remitted
by cheques, issued by the defendant, was
well established. Also, money that was
deposited by tenders in Court was also
opined to be established. The said sum of
money was directed to be adjusted against
the plaintiff's claim for arrears of rent and
mesne profits. The suit was decreed for
eviction as well as arrears of rent and
mesne profits, after adjusting the sum of
money towards rent and mesne profits that
was remitted through cheque or deposit by
tender in Court. Also, w.e.f. 17.09.2012 till
delivery of possession, the tenant was
ordered to pay mesne profits at the rate of
Rs.250/- per day.

12. This revision was entertained on
13.03.2014 and notice pending admission
was issued. By an interim stay order, the
defendant's eviction was stayed, subject to
deposit of the entire decretal amount within
a period of one month from the date of the
stay order. Subsequently, after appearance
of parties, the revision was admitted to
hearing vide order dated 21.07.2014 and
the lower court records were summoned.

13. Heard learned Counsel for the
defendant and Mr. Pradeep Kumar, Senior
Advocate,
assisted
by
Ms.
Babita
Upadhyay,
learned
Counsel
for
the
plaintiff.

14. The only point, that has been
pressed in support of this revision by the
learned Counsel for the defendant, is about
validity of the notice to quit dated
13.08.2012, that was subject matter of Issue
No.3 before the Trial Judge. The learned
Counsel for the defendant has assailed the
notice on three counts, to wit, the fact that
the notice was never served and in its stead,
a registered cover carrying blank papers
was sent to the defendant on behalf of the
plaintiff; secondly, the language of the
232 INDIAN LAW REPORTS ALLAHABAD SERIES
notice does not effect a determination of
the tenancy or work as a notice to quit
within the meaning of Section 106 of the
Act of 1882, as applicable to the State of
Uttar Pradesh; and thirdly, the defendant
having deposited rent beyond the month of
December, 2012 through tender in Court at
the hearing of the suit, including accrued
interest and full costs, is entitled to be
relieved of his liability against forfeiture
under Section 114 of the Act of 1882. In
short, on the last score, it is submitted that a
notice to quit under Section 106 of the Act
of 1882 would not entitle the plaintiff to
evict the defendant, once he has complied
with the provisions of Section 114 last
mentioned.

15. Mr. Pradeep Kumar, learned
Senior Advocate appearing for the plaintiff,
on the other hand, has refuted these
submissions and urged that a valid notice to
quit was served, that effectively determines
the tenancy, which is for a residential
purpose. He submits that the U.P. Act
No.13 of 1972 does not apply, and,
therefore, all that is required is a notice to
quit under Section 106 of the Act of 1882
without reference to any case of forfeiture
on account of default, or a violation of the
other terms of the lease.

16. This Court has keenly considered
the submissions advanced on behalf of both
sides and perused the record.

17. So far as the first part of the
challenge to the notice determining the
defendant's
tenancy
is
concerned,
it
proceeds on a purely factual premise that
the notice to quit dated 13.08.2012 is a
non-existent document, where a registered
cover was served upon the defendant
carrying blank sheets with no contents
scripted. This document, sent by registered
post on behalf of the plaintiff by her
Counsel, purporting to be a notice under
Section 106 of the Act of 1882, is a nonexistent document, which would not work
to determine the defendant's tenancy. The
learned Trial Judge has examined the
matter in considerable detail and has
opined that the defendant does not dispute
the fact that the registered cover, purporting
to carry the notice to quit, was served upon
him, but says that it carried blank papers.
The learned Trial Judge has opined that in
the face of this plea, the minimum
evidential burden which the defendant had
to shoulder was to produce the registered
cover that he received in original along
with the blank sheets, that he says were
placed there. He has neither filed the
registered cover that he received admittedly
nor the blank sheets, which he claims to
bear the contents thereof. In the face of an
allegation of this kind sans evidence led by
the defendant, the Trial Judge has refused
to accept the defendant's case about service
of blank sheets in a registered cover that
the defendant duly received. It appears to
be part of the reasoning that no prompt
action was taken upon receipt of the
aforesaid registered cover, which the
defendant alleged carried blank papers, and
a reply was given by the defendant to the
plaintiff's Counsel on 14.09.2012, though
the notice was served on 16.08.2012.
Apparently, the long lapse of time has been
inferred to generate an afterthought with
the defendant on the foot of sound
reasoning that a person, served with blank
papers from a person who is an Advocate
through registered cover, would promptly
react.

18. The case that the addressee left
station shortly after receiving the notice,
causing the delay, has not been accepted by
the Trial Judge. There is nothing perverse
3 All. Govind Saran Vs. Km. Shubhi Mishra
233
about the reasoning that the Trial Judge has
adopted to disbelieve the defendant's case
on this score. The finding on this part of the
issue, that the defendant assails, is a pure
finding of fact regarding which the Trial
Court has recorded a reasonable opinion on
the evidence available. There is absolutely
no reason for this Court to take a different
view
in
exercise
of
our
revisional
jurisdiction under Section 25 of the Act of
1887.

19. The language of the notice dated
13.08.2012 under Section 106 of the Act of
1882, served upon the defendant on behalf
of the plaintiff, in the material part, reads:

"4- That you have committed a
default in the payment of rent and my client
now does not want you to continue as her
tenant. Your tenancy shall be terminated
immediately after the expiry of the period
of 30 days of the receipt of this notice. You
are already called upon to pay all the
arrears of rent within month from the
receipt of this notice.

5- That you are hereby called
upon to pay the entire arrears of rent as
aforesaid and hand over the possession of
the shop after the expiry of the period of
this notice to my client failing which my
client shall be compelled to file a suit in a
competent court of law for ejectmen and
arrears of rent and in that event you will be
further liable for the damages @ Rs.250/-
per day and costs of the suit Which Pleas
NOTE."

20. Learned Counsel for the defendants
submits that this does not qualify as a valid
notice to quit and for the purpose, has placed
reliance upon the decision of a Division
Bench of this Court in Abdul Jalil v. Haji
Abdul Jalil, AIR 1974 All 402. In the said
decision, their Lordships of the Division
Bench have classified notices into seven
categories, marked by Alphabets A to G,
enumerated in Paragraph No.10 of the report
and dealt with in Paragraphs Nos.11 to 20. In
the specified categories, enumerated in
Abdul Jalil (supra), notices worded like
those in Categories D and G alone have been
held invalid, while all others were held valid.
The effective words of a notice in Categories
D and G read:

"D. Your tenancy is terminated
with effect from today and you are required
to vacate the premises on the expiry of thirty
days from the date of service of this notice on
you.

G. You are required to vacate the
premises on the expiry of thirty days from the
date of receipt of this notice."

21. Notice in Category D was held
invalid because it effects a termination of the
tenancy in presenti and allows the tenant to
stay in the premises for thirty days before
vacating the same reducing him to the status
of "a licencee or a tenant on sufferance which
is in contravention of the law", to employ the
words of their Lordships. Likewise, in
Category G, the notice was held invalid,
because it simply carries a demand for
possession without purporting to determine
the tenancy expressly or by necessary
implication. It has been opined that in the
absence of a clear and explicit intimation to
the tenant that if he continues in the premises
beyond the specified period, he will become a
trespasser, the notice to quit would not work
to determine the tenancy. This follows a old
Full Bench decision of this Court in
Atkinson v. Bradley, (1885) ILR 7 All 899
(FB).

22. A perusal of the notice to quit
involved here would show that it does not
effect a termination of tenancy in presenti,
234 INDIAN LAW REPORTS ALLAHABAD SERIES
permitting the tenant to stay in the demised
shop for thirty days as a matter of grace or
on licence or at sufferance. Clearly, the
notice says in Paragraph No.4 that "tenancy
shall be terminated immediately after the
expiry of the period of 30 days of the
receipt of this notice". This notice, for the
worst, would fall in Category E enumerated
in Abdul Jalil, and more specifically, in
Category C, both of which have been held
to be notices bringing about a valid
determination of tenancy. Quite apart,
though nothing has been brought to the
notice of this Court during the course of
hearing, that the principles in Abdul Jalil
regarding the validity of various categories
of notices, have been overruled by a Larger
Bench, or by their Lordships of the
Supreme Court, the perspective of the law
regarding the validity of a notice has fairly
changed to lean in favour of the view that
what matters is the intention of the landlord
to determine the lease, where Section 106
of the Act of 1882 governs the rights of
parties. It is not so much about the words
employed as it is about the intent. In this
connection, reference may be made to the
decision of this Court in B.R. Trading
Company and another v. Dharam Raj
Sahu and others, 2007 SCC OnLine All
885.

23. This Court, while examining the
precise words to be employed in order to
qualify as a valid notice under Section 106
of the Act of 1882, remarked that there is
no prescribed form or language which
alone would qualify for a valid notice under
Section 106 of the Act of 1882. It was held
that the notice, as aforesaid has to be
liberally construed and read as a whole in
order to find out the intention of the
landlord or the lessor. The Court expressed
this opinion after a survey of high authority,
including decisions of the Supreme Court
and the comments of Sir D.F. Mulla in his
Commentary on the Act of 1882, 4th
Edition. In B.R. Trading Company, it has
been held:

"19. There is no prescribed form
or language in which a notice under section
106 of the Act has to be given. In such
circumstances, the notice has to be liberally
construed and has to be read as a whole. All
that is necessary is that the notice should
express clearly the intention to terminate
the tenancy. The language of the notice is
immaterial and in such a case the word
''terminate' may not be used at all.

20. This is what was observed by
this Court in Tikka Ram (supra):

"The
short
answer
to
this
argument is that the plaint does contain this
averment. In para. 4, the respondent alleged
that he had served a notice on the appellant
that the tenancy was no longer acceptable
to him and had further demanded (in the
notice) that the appellant should vacate the
premises on the expiry of 30 days from the
service of notice. Mr. Chaturvedi contended
that this was not enough, and the notice
should have expressly stated that the
tenancy was being terminated. I cannot
agree. No particular words have been
prescribed under section 106 of the Act of
1882 as amended by the U.P. Legislature,
which merely provides that "a lease..........
shall be terminable on the part of either
lessor or lessee by one month's notice."
Section 111 (h) of the same Act provides
that "a lease of immovable property
determines....(h) on the expiry of a notice to
determine the lease, or to quit or of
intention to quit, the property leased, duly
given by one party to another."

D.F. Mulla in his commentary on
the Act of 1882, 4th edition, has observed,
".............the notice to quit must indicate in
substance and with reasonable clarity an
3 All. Govind Saran Vs. Km. Shubhi Mishra
235
intention on the part of the person giving it
to determine the existing tenancy at a
certain time." (p. 619). The same author has
observed, a liberal construction is therefore
put on a notice to quit in order that it
should not be defeated by inaccuracies
either in the description of the premises or
the name of the tenant, or the date of expiry
of notice. The author's observation is based
on authorities cited in the footnote on this
page.

Thus the crucial test is (1)
whether the language of the notice
indicates a clear intention to terminate the
tenancy, and (2) whether the date of
determination of the tenancy is certain.

Applying these principles and
tests to the notice in the present case, I
think it is a valid notice of termination. If a
landlord writes to the tenant, "I am no
longer willing to continue this tenancy, you
are therefore given notice that you should
vacate the premises on the expiry of one
month which is the time limit prescribed by
law failing which I shall file a suit for your
ejectment," this indicates a clear intention
to terminate the tenancy on the expiry of
the period of one month."

(emphasis supplied)

21. The
Supreme
Court
in
Mangilal v. Sugan Chand Rathi (deceased)
[AIR 1965 SC 101.] , while commenting on
the language used in the notice sent under
section 106 of the Act observed:

"On April 11, 1959 the plaintiffs
served a notice on the defendant bringing to
his notice the fact of his being in arrears of
rent for 12 months and requiring him to
remit to them Rs. 1,020/- within one month
from the date of service of notice and
stating that on his failure to do so, a suit for
ejectment would be filed against him. In
addition to this the notice called upon the
defendant to vacate the premises by April,
30, 1959 upon two grounds.

.......The requirement of section
106 of the Act of 1882 is that a lease from
month to month can be terminated only
after giving fifteen days' notice expiring
with the end of a month of the tenancy
either by the landlord to the tenant or by the
tenant to the landlord. Such a notice is
essential for bringing to an end the
relationship of landlord and tenant. Unless
the relationship is validly terminated the
landlord does not get the right to obtain
possession of the premises by evicting the
tenant.

.........Now, the learned Additional
Solicitor General states that the notice of
April, 1959 may be a good notice for the
purposes
of
section
4
(a)
of
the
Accommodation Act but it is not a good
notice for the purposes of section 106 of
the Act of 1882 for two reasons; in the first
place it does not purport to determine the
tenancy and in the second place the notice
falls short of the period of 15 days
specified in section 106 of the Act of 1882.
The High Court has, however, treated this
as a composite notice under section 4 (a) of
the Accommodation Act and section 106 of
the Act of 1882 and in our opinion rightly.
It has to be observed that the plaintiffs,
after requiring the defendant to pay the
rental arrears due up to the end of March,
1959 within one month from the date of
service of the notice, proceeded to say
"failing which suit for ejectment will be
filed". These recitals clearly indicate the
intention of the landlord to terminate the
tenancy of the defendant under the relevant
provisions of both the Acts."

 (emphasis supplied)

22. This Court in Suraj Prasad v.
Smt. Kusumlata Sinha [AIR 1973 Alld.
198.]
,
also
while
considering
the
236 INDIAN LAW REPORTS ALLAHABAD SERIES
requirements of the notice under section
106 of the Act observed:

"The third objection to the
validity of the notice was that it did not
meet the requirement of section 106 of the
Act of 1882 as amended by U.P. Civil Law
1954 as it was not a thirty days notice of
termination of tenancy. In fact at one stage
the learned Counsel strenuously argued that
the tenancy has not at all been terminated
and there is nothing in the notice
terminating the tenancy but merely calling
upon the tenant to vacate the premises
leased would not amount to terminating the
tenancy. The learned Counsel referred to an
old Full Bench decision of this Court in the
case of Bardley v. Atkinson [ (1885) ILR 7
All 899 (FB).] . Much water has flown
down the bridge since the Full Bench
decided that case and I need not encumber
this judgment by referring to the numerous
cases in which the Full Bench decision in
(1885) ILR 7 All. 899 (FB) has been
considered and explained. A notice calling
upon the tenant to vacate the leased
premises would always amount to a notice
terminating the tenancy. Under clause (h)
of section 111 of the Act of 1882 a lease of
immovable property determines on the
expiration of a notice to determine the lease
or to quit, or of intention to quit, the
property leased, duly given by one party to
the other. Whether the lessor has given a
notice expressing an intention that the lease
will stand terminated or he by the notice
calls upon the lessee to quit, that is, to
leave, the legal consequence of both would
be that the lease would stand determined.
The provisions of section 106 of the Act of
1882 lay down the manner in which such a
notice is to be served and fixes the time
before which it has to be given. In Ram
Chandra v. Lala Duli Chand [AIR 1958 All
729.] , a notice calling upon the tenant to
vacate the premises let out has been held to
be a notice which successfully determines
the tenancy." (emphasis supplied)

23. In Sita Ram v. Moti Lal [AIR
1976 All. 70.] , similar observations were
made by this Court:

"Coming
to
the
second
contention, the notice sent by the plaintiff
terminating the tenancy of the defendant is
contained in paper No. Ext. 1. In this
notice, the plaintiff claimed Rs. 920/- after
adjusting Rs. 111/- sent by the defendant by
money order and Rs. 54/- paid by the
defendant towards taxes, at the rate of Rs.
15/- per mensum, and in the end, the
plaintiff asked the defendant to vacate the
premises in dispute on the expiry of 30
days from the receipt of the notice and give
its possession to the plaintiff. The plaintiff
added that on the expiry of that period, the
plaintiff would take legal action for the
recovery of the balance and possession of
the house in a proper Court and the
defendant would be held responsible for the
expenses. In this notice, the plaintiff has
expressed in unambiguous and unequivocal
terms that the defendant should vacate the
house and give its possession to the
plaintiff on the expiry of thirty days after
the receipt of the notice.

In the present case, as I have
noted above, there is a clear indication in
the notice of ejectment that in default by
the defendant, the plaintiff would take legal
proceedings regarding the ejectment of the
defendant
in
a
proper
law
Court.
..................The notice of ejectment served
by the plaintiff on the defendant was
perfectly valid and the contention advanced
by the appellant to the contrary must be
rejected." (emphasis supplied)

24. The observations made by
Supreme Court in Bhagabandas Agarwalla
v. Bhagwandas Kanu [AIR 1977 SC 1120 :
1977 (3) ALR 40 (Sum) (SC).] , are also
relevant:
3 All. Govind Saran Vs. Km. Shubhi Mishra
237

"The only question which arises
for determination in this appeal is whether
the notice to quit given by the appellant to
the respondents was invalid as not being in
conformity with the requirements of section
106 of the Act of 1882. The notice to quit,
so far as material, was in the following
terms:

"You are hereby informed by this
notice that you will vacate the said house
for our possession within the month of
October, 1962 otherwise you will be treated
as trespassers from 1st November in
respect of the said house."

.........................................

Now, it is 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 res
magis valeat quam pereat. "The validity of
a notice to quit" as pointed out by Lord
Justice Lindley, L.J. in Side-botham v.
Holland [(1895) 1 QB 378.] , "ought not to
turn on the splitting of a straw". It must not
be read in a hyper critical manner, nor must
its interpretation be affected by pedagogic
pendantism or over refined subtlety, but it
must be construed in a common sense way.
See Harihar Banerji v. Ramsashi Roy [ 45
Ind App 222 : AIR 1918 PC 102.] . The
notice to quit in the present case must be
judged for its validity in the light of this
well recognised principle of interpretation."
 (emphasis supplied)

25. In Budh Sen v. Smt. Rahiman
[1979 (5) ALR 299 : AIR 1978 Alld. 549.] ,
the language used in the notice sent under
section 106 of the Act was very much
similar to the language used in the notice
sent in the present case. This Court
observed that the tenancy was terminated
on the expiry of thirty days and the relevant
observations are as follows:

"In the notice the appellant has
already expressed an intention that he did
not wish the respondent to continue in
possession of the premises after the expiry
of the period of one month. It is true that in
notice in question it has not been stated that
the tenancy of the defendant-respondent
was being terminated. However, if an
intention to terminate the tenancy can be
clearly discerned by construing the words
used in the notice as a whole, the mere fact
that the expression that tenancy was being
terminated is not used, would not render
the notice invalid. The language which has
been used in the notice given by the
appellant
to
the
respondent,
does
unmistakably evidenced an intention on the
part of the plaintiff-appellant not to
continue the tenancy of the respondent. The
notice would validly terminate the tenancy
of the respondent." (emphasis supplied)

26.
In
Pyare
Lal
v.
IIIrd
Additional District Judge, Allahabad [ 1980
ALJ 643.] , this Court again observed:

"As I have mentioned above, the
notice under consideration clearly requires
the tenant to vacate and deliver up
possession to the lessor within thirty days
of the notice, failing which, it states, the
lessor would be constrained to file a suit for
the ejectment of the petitioner. Such a
notice is similar to the notice contemplated
under illustration F mentioned in the case
of Abdul Jalil [ 1974 ALJ 381.] . It accords
with requirements of section 106 of the T.P.
Act as regards the period. It will hence
validly determine the tenancy on the expiry
of the period of the notice under section
111 (h)."

27. In Smt. Sushila Devi v.
Mahohar Lal [1985 (11) ALR 213.] , the
notice sent under section 106 of the Act
read as follows:

"......In default of payment of rent
during the period aforesaid after occupation
of the shop for a period of full 30 days you
vacate the shop and put it in possession of
238 INDIAN LAW REPORTS ALLAHABAD SERIES
plaintiff;.........on expiry of the said period
your status would be that of a trespasser
only and you will be liable to ejectment and
damages for use and occupation at the rate
of Rs. 10 per day.............."

28. This Court observed that the
aforesaid notice terminated the tenancy in
accordance with the provisions of section
106 of the Act.

29.
The
aforesaid
decisions
clearly holds that the crucial test is to find
out from the notice whether the language
used expresses
a clear intention of
terminating the tenancy after the expiry of
thirty days and in such a case, the absence
of the word ''terminate' in the notice is not
conclusive. The decisions also hold that if
the landlord clearly expresses, in the notice,
an intention that he does not desire the
tenant to continue in possession of the
premises after the expiry of one month and
asks the tenant to handover the vacant
possession of the property after the expiry
of the aforesaid period failing which he
would file a suit for ejectment then in that
case it would be a notice which determines
the tenancy after 30 days even though it
may not be mentioned in the said notice
that "the tenancy shall be terminated on the
expiry of the period of one month".

30. In the present case, as pointed out
above, the notice clearly mentions that it was
not acceptable to the landlord to permit the
tenant to continue in occupation of the premises
and that he was required to handover the vacant
possession immediately after the expiry of 30
days from the date of receipt of the said notice
sent to him under section 106 of the Act and
that in the event he failed to handover the
possession on the expiry of the said period, the
landlord would file a suit for ejectment."

24. In view of what the law is about a
valid notice under Section 106 of the Act of
1882 and what this Court has remarked
above about the notice here, this Court
finds that the notice to quit effectively
determines the defendant's tenancy, and
there is absolutely no flaw in its language
that may vitiate the said notice. The notice
to quit well effectuates its statutory
purpose.

25. The third limb of challenge to the
validity of the notice is founded on the
principle
that
the
defendant
having
tendered in Court at the hearing of the suit,
all arrears of rent together with interest
thereon and full costs of the suit, the
defendant is entitled to be relieved of his
liability from eviction under Section 114 of
the Act of 1882.

26. This Court does not intend to go
into the details of how much the arrears of
rent were and if the deposit claimed to be
made at the hearing of the suit under
Section 114 of the Act last mentioned is
sufficient to relieve the defendant of his
liability from eviction. The moot point is
whether in a suit instituted on the basis of a
notice simplicitor to terminate a tenancy
under Section 106 of the Act of 1882, the
provisions of Section 114 providing for
relief against the eviction, upon deposit of
certain outstandings, would be available to
the defendant. This question has engaged
attention of this Court in B.R. Trading
Company (supra) and in another decision
in Vinod Kumar and others v. Arya
Samaj Mandir, 2016 SCC OnLine All
2938. The principle is that if the notice to
quit comes by on account of forfeiture of
the lease for violating an express condition
thereof, which provides for a right to the
lessor to re-enter, a notice under Section
111(g) of the Act of 1882 may issue, and if
that be the case, a suit based on a notice
forfeiting the lease may attract the
3 All. Govind Saran Vs. Km. Shubhi Mishra
239
provisions of Section 114 of the Act of
1882, providing a locus poententiae to the
tenant against forfeiture. It has been opined
in Vinod Kumar that in a case where there
is no written lease and the tenancy is
governed by oral compact, the provisions
relating to forfeiture would not come into
play. The question of forfeiture generally
arises if there is a written lease carrying
terms that entitle the lessor to re-enter, if
violated by the tenant and the lease is for a
specific duration or perpetual in nature. The
entire gamut of provisions of Sections 111,
112, 113 and 114 of the Act of 1882 would
not apply in the case of a tenancy that is
month-to-month, which can be terminated
by a notice simplicitor under Section 106 of
the Act of 1882, without the question of
forfeiture at all figuring.

27.