B. Dayal, J. - (1.) THIS case has been referred to us by a learned Single Judge who was of the opinion that an important question of law regarding the interpretation of Section 106 of the Transfer of Property Act and the validity of the notice given under that section was involved in that case. On the one hand, it was argued before him on behalf of the tenant that the Full Bench decision of this Court in Bradley v. Atkinson, ILR 7 All. 894 was in his favour, but it was contended on behalf of the landlord that that decision was contrary to a number of decisions of the English court?. This question was considered important by the learned Single Judge and the matter was, therefore, referred as aforesaid to a Division Bench.
(2.) THE facts giving rise to this case may be stated very shortly. The Appellant was a tenant at Rs. 9/ - per month of a shop situate in Mestonganj at Rampur. The Plaintiffs served a notice upon him demanding arrears of rent from the 1st of April, 1965 to 31st July, 1965. In the notice it was alleged that he was a habitual defaulter. It was then said as translated by the lower appellate court: You are hereby given notice that you should pay the entire amount of arrears of rent within one month of the receipt of the notice, otherwise, your tenancy shall be terminated and a suit for recovery of arrears of rent and for ejectment shall be filed against you and you will be liable for damages and costs. After the service of this notice which was served on the Defendant on 10 -8 -1965, the Defendant failed to pay the arrears demanded. The present suit for ejectment was then filed. The Defendant in his written statement in paragraph 4 contended that no notice under Section 106 of the Transfer of Property Act terminating his tenancy had been given and that the only notice dt. 9 -8 -1965 which was served on him was a notice demanding arrears of rent and therefore, the suit for ejectment could not be decreed. The learned Munsif who tried the case, held that the notice given by the landlord merely demanded arrears of rent and threatened the Defendant with the consequences that if the arrears was not paid within one month from the date of the notice, he would be liable to ejectment and that the landlord will then terminate his tenancy . This notice did not amount to the termination of the tenancy and therefore, dismissed the prayer for ejectment but decreed the suit for arrears of rent. Against that decree the Plaintiff landlord filed an appeal which was heard by the District Judge of Rampur. The learned District Judge, after quoting the relevant words of the notice as above, was of the opinion that the finding of the learned Munsif was not correct and he thought that the Plaintiff had clearly mentioned that unless the money was paid within one month, tenancy would be terminated and a suit would be filed. That means that he had clearly shown his intention to file a suit for ejectment and this amounted to termination of tenancy. For this proposition, he relied upon the case of Tikkam Ram v. Prakash Chand, 1966 AWR 615. That was a case decided by a learned Single Judge of this Court. In that case the notice which had been given by the landlord had been translated as follows: 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 permitted by law, failing which I shall file a suit for your ejectment. (Italicised by us). It was upon those words that the learned Single Judge held that the notice clearly showed the intention of terminating the tenancy on the expiry of one month. It may be noted here that in the case which was being interpreted by the learned Single Judge, it was clearly said that the tenant should vacate the premises on the expiry of one month. In the present notice which we have to interpret, there is neither a demand for vacating the premises, nor is there a categorical statement that the tenancy is terminated. The Learned Counsel appearing for the Respondent also relied upon an unreported Single Judge case of this Court in Lakshman Das v. Om Nandan Agarwal Second Appeal No. 4179 of 1959, decided on 10 -9 -1964. The words of that notice which fell for interpretation in that case were: Your are hereby informed that you have been in arrears of rent in respect of the shop in your tenancy since 1 -7 -1957. You are therefore, required to pay the said arrears in one month's time, or you will be liable to ejectment from the shop and in that case this notice will also serve as a notice to quit within a period of thirty days during which you can remain in occupation and then deliver the possession of the shop to us. In this notice, therefore, it was also clearly mentioned that possession was to be delivered at the expiry of thirty days and that this very notice was to be treated as a notice to quit. The words of that notice were, therefore, entirely different from those in the present case. The Learned Counsel also referred to a Division Bench case of this Court in Mushtaq Husain v. Mohd. Siddiq, 1967 AWR 573. The words which fell for interpretation in this Division Bench case were: You are hereby given notice to pay the amount of rent due on you within one month of the service of this notice. If you do not propose to pay and do not pay this amount of arrears of rent within the stipulated period of one month, then you can be ejected from the premises without the permission of the Rent Control and Eviction Officer Moradabad. Take notice that if you do not pay the amount within the stipulated period, then your tenancy is terminated and you are given notice of clear thirty days to vacate the premises immediately after the expiry of thirty days from the date of the receipt of this notice, failing which my client shall take recourse to law and shall file a suit for ejectment and recovery of arrears of rent and damages. In this notice also it would be seen that there was a clear demand for delivery of possession and for treating the notice as a notice terminating the tenancy. The learned Judge, who delivered the judgment, while repelling the argument on behalf of the tenant that the notice was vague, observed: The landlord may be in a state of doubt as to the course which the tenant may decide to take, but so far as the tenant is concerned, he must be imputed knowledge of the future course of his own action and it is impossible to sustain a contention on behalf of the tenant that the notice was void or uncertain. The ratio of decision of this case was that the landlord gave an option to the tenant either to pay arrears within time and protect his tenancy or, if he did not intend to pay the arrears, then to treat this notice as a notice terminating the tenancy. Since the tenant must have known his own mind, whether he was prepared to pay arrears or not, it was for him to decide whether this notice was merely a notice demanding arrears of rent, or it was to be a notice terminating the tenancy. No analogy can be taken from this case with regard to the interpretation of the notice in the present case. In this connection the decision of a learned Single Judge of this Court in Military Stores and Anr. v. Ram Lal Kohli, 1965 ALJ 298 also requires notice. While giving the facts of the case in the beginning, the learned Judge who decided the case stated: On 8 -5 -1961 the Plaintiff served another notice demanding payment of rent and simultaneously terminating the tenancy and asking the Appellant to vacate the accommodation within one month. The actual words of the notice have not been quoted in the judgment, but the argument which was advanced with regard to the notice, which was the second point argued, was that the notice terminating the tenancy is invalid as it is conditional. Repelling this argument at page 301, col. 2, the learned Judge observed: A notice stating that the tenancy shall stand terminated unless the tenant pays arrears of rent within the prescribed period, is really a notice terminating the tenancy with a proviso in the tenant's favour that it shall stand automatically waived on payment of rent. I do not see how a tenant can object to the validity of a notice which leaves nothing uncertain but gives him an option to treat the notice as waived on payment of rent. This ratio of decision in this case was not at all helpful to the Learned Counsel for the Appellant in the case before us.
(3.) IN view of the above discussion the Full Bench case of Bradley v. Atkinson, ILR 7 All. 898 does not appear to us to have any application to the facts of this case. But since Learned Counsel for the Appellant strongly re -lied on it and the learned Single Judge who made the reference to this Court, had particularly referred to it we think it necessary to discuss that Full Bench case also. That was a case in which a notice Under Section 106 of the Transfer of Property Act, as it then stood, came up for consideration. The relevant words of the notice were: If the rooms you occupy in house No. 5, Thornhill Road, are not vacated within a month from this date, I will file a suit against you for ejectment, as well as for recovery of the rent due at the enhanced rate. The only question for consideration was whether these words were sufficient to terminate the tenancy Under Section 106 of the Transfer of Property Act. Chief Justice Petheram who delivered the first judgment quoted the relevant words of Section 106 as follows: A lease of immoveable property for any other purpose...shall be deemed to be a lease from month to month, terminable on the part either of lessor or lessee by fifteen days' notice, expiring; with the end of a month of the tenancy. The learned Chief Justice observed: The question here really is, whether the notice in question was a notice of Mr. Fairlie's intention to terminate the contract at the end of a month of the tenancy. I am of opinion that it cannot be so considered. (Italicised by us). The learned Judge further observed: I am clearly of opinion that it was not. It is an intimation on the part of the lessor that, if the rent should not be paid within a month's time from that date, he would bring a suit against the lessee. He merely tells the lessee to vacate the rooms or to pay the penalty. This is not a notice which can terminate the tenancy and therefore, the tenancy was not determined.;