R.S.Narula, J. - (1.) THE Landlord -Petitioner filed an application for ejectment of the tenant -Respondent on October 20,1973, under Section 12 of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter called the Act). The written statement was filed by the tenant in January 1974, and evidence of the parties having been closed, the case was fixed for final arguments on October 6,1975. After the arguments, the case was adjourned for prouncement of judgment, to October 6, 1975. On that very day. i.e., October, 6, 1975, the Respondent made an application under, Order 6, Rule 17 of the Code of Civil Procedure for leave to amend his written statement, by substituting for the existing paragraph 2 there in the following paragraph: Para No. 2 of the application is admitted correct to this extent only that a notice was sent as the notice was defective as the premises in a question is a manufacturing concern and six months' notice is required under Section 106 of the Transfer of Property Act. On this ground the ejectment petition is liable to be dismissed. Paragraph 2 of the original petition for eviction stated as below: That the tenancy of the Respondent was statutory. However, without prejudice to this plea and to avoid any further complication a notice under Section 106 of the Transfer of Property Act was sent by the Petitioner through Shri Sukhpat Rai adhere Advocate to the Respondent. This notice was notice No. 284 dated 26th September, 1973 and was sent under registered cover acknowledgement due and under certificate of posting That this notice was duly received by the Respondent and a reply to the same was also sent by the Respondent through Shri S. S. Oberoi Advocate on 29th September, 1973. In the corresponding paragraph of his written statement, the Respondent had replied to the above averments by merely saying: Para No. 2 of the application is admitted correct to this extent only that a notice was sent to the answering Defendant and the contents of which were repudiated on 29th September, 1973 by the counsel for the Respondent In spite of the fact that no particular objection to the validity of the notice as such had been taken in the written statement , one of the issues framed by the Rent Controller in the case related to this matter. That was issue No. 2 which was in the following terms: Whether a valid notice under Section 106 of the Transfer of Property Act, is served. The trial Court by its order dated January 28, 1976, which is sought to be impugned, allowed the application of the Respondent and permitted the amendment of his written statement.
(2.) MR . M. L. Sarin, the Learned Counsel for the Petitioner, has submitted that the application for amendment was in the circumstances of this case, not bona fide and should therefore, have been dismissed on that short ground. He submits that his client's case in the first alternative was and is that the tenancy was statutory. If he is able to prove that, no question of notice under Section 106 of the Transfer of Property Act would arise. It is only in the alternative that the Petitioner had prayed that even if the tenancy is not found to be statutory it stood terminated by a notice. The question of terminating by notice can arise only in the case of a contractual tenancy. The requirement of a six months' notice in the case of manufacturing concern is only for a tenancy from year to year and as such all that Section 106 of the Transfer of Property Act provides is that in the absence of a contract to the contrary, a lease of immovable properly for agricultural or manufacturing purposes shall be deemed to be a lease from year to, year. In the instance case, it is the Respondent's own case that the tenancy was contractual. Whether the contract was oral or in writing makes no difference If there is a contract then no question to go into the deeming provision would arise and the parties would be governed by the terms of the contract. The landlord had pleaded that the agreed rent was on monthly basis and that was not disputed by the tenant. In his own statement as a witness, the Respondent had admitted that the rate of rent was Rs. 200/ - per mensem. From the record of the case, as it is, it cannot be said that the tenancy was from year to year. This is independent of the fact that a tenancy for more than a year or from year to year has to be in writing and registered. It is nobody's case that any such document exists. Even it all this is not take into account. It is now clear that no notice under Section 10c of the Transfer of Property Act is necessary in order to bring an application for eviction under Section 13 of the Act in view of the latest authoritative pronouncement by their Lordships of the Supreme Court in Puwada. Venkateswara Rao v. Chidamana Venkata Ramana : AIR1976 SC 869. That was a case of a petition for eviction under Section 10 of the Andhra Pradesh Building (Lease, Rent and Eviction) control Act (15 of 1960). One of the questions that arose for decision before the Supreme Court was whether in order to file an application for eviction under the Rent Control Act it was or was not necessary to terminate a tenancy by a notice under Section 106 of the Transfer of Property Act. The Andhra Pradesh High Court held on that point in favour of the landlord relying on its earlier Division Bench judgment in Ulligappa v.S. Mohan Rao, 19 9 -2 Andh LT 268 wherein a Division Bench of that Court had held that the Andhra Pradesh Act provided a procedure for eviction of tenants which was self contained so that no recouse to the provisions of Section 106 of the Transfer of Property Act was necessary. After mentioning the Division Bench judgment of the Andhra Pradesh, High Court, their Lordships of the Supreme Court referred to their own earlier judgment in Raval and Company v. K.C. Ramchandran : AIR 1974 SC 818, wherein they had held as follows: - On behalf of the Appellants reliance is placed upon two decisions of this Court, ( : (1903) 3 S.C.R. 312 : A.I.R. 1963 S.C. 120) and Monujandra v. Purandu Prosad, : (1967)1 S.C.R. 476: (A.I.R. 1967 S.C 1419). They are cases dealing with eviction. In those two cases it was held broadly speaking, that the provisions of the Acts there under consideration were in addition to and not in derogation of the provisions of the Transfer of Property Act. There are certain general observations in those two decisions upon which reliance was placed to contend that they apply to Cases of fixation of rent also. The argument was that as it was held in those cases that the Acts did not provide the landlord with additional rights which he did not possess under his contract of tenancy, similarly where there was a subsisting contract of tenancy it is not open to the landlord to take advantage of the provisions of the Act to apply for fixation of a fair rent at a figure higher than the contract rent. We are not called upon in this case to consider whether those two cases were correctly decided. But we must point out that the general observations therein should be confined to the facts of those cases Any general observation cannot apply in interpreting the provisions of an Act unless this Court has applied its mind to and analysed the provisions of that particular Act. We may also point out that in both those cases the contract of tenancy was not subsisting, In a sense, therefore, the observations therein were not really necessary for deciding those cases. We may also point out that in Brij Rai Krishna v. S. K. Shaw and Bros., ( : 1951 S.C R. 145 : A.I.R. 1951 S.C. 115) dealing with the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 and interpreting Section 11 of that Act this Court observed as follows: -Section 11 begins with words 'Notwithstanding anything contained in any agreement or law to the contrary' and hence any attempt to import the provisions relating to the law of transfer of property for the interpretation of the section would seem to be out of place. Section 11 is a self -contained section, and it is wholly unnecessary to go outside the Act for determining whether a tenant is liable to be evicted or not, and under what conditions he can be evicted It clearly provides that a tenant is not liable to be evicted except on certain conditions, and one of the conditions, laid down for the evictions of a month to month teanant is non -payment of rent. Similarly in Shri Hem Chand v. Smt. Sham Devi, AIR (1955) P&H. 36 which dealt with the Delhi and Ajmar Merwara Rent Control Act, Section 13 (i) of which provided that no decree or order for the recovery of possession of any premises shall be passed by any court favour of the landlord against tenant notwith standing anything to the contrary contained in any other law or any contract, it was held that the Act provided the procedure for obtaining the relief of ejectment and that being so the provisions of Section 106 of the Transfer of Property Act had no relevance. Both these cases were referred to the decision in : (1963) 3 SCR 312 : (AIR 1963 SC 120). Therefore, the following observations in, (1957) SCR 475 , ( : AIR 1967 SC 1419) that 'Rent Act are not ordinarily intended to interfere with contractual leases and are Acts for the protection of tenants and are consequently restrictive and not enabling conferring as new right of action but restricting the existing rights either under the contracts or under the general law' should not be held to apply to all Rent Acts irrespective of the scheme of those acts and their provisions. The decisions of the Madras High Court in R. Krishanamurthy v. Parthasarathy, AIR 1949 Mad 780 :, (1949) 1 Mad LJ 412 where it was held that Section 7 of the Madras Buildings (Lease and Rent Control) Act of 1946 had its own scheme of procedure and therefore there was no question of an attempt to reconcile that Act with the transfer of Property Act and that an application for eviction could be made to the Rent Controller even before the contractual tenancy was terminated by a notice to quit, should not have been summarily dismissed on the grounds that it was contrary to the decisions of this Court in Abbasbhai's case, ( : (1964) 5 S.C.R. 157: A.I.R. 1964 S.C. 1341) and Mongilal's case : (1964) 5 S C.R 239 . ( : A.I.R. 1965 S.C. 101) and therefore was not a correct law, without examining the provisions of that Act."
(3.) THEIR Lordships drew a clear distinction between the law laid down by them in the cases covered by the Rent Control Act, such as the case of Raval and Company and of Rai Brij Rai Krishna and Anr. v. Messrs S.R Shaw and Brothers : AIR 1951 SC 115 on the one hand, and cases like Mangilal v. Sugan Chand Rathi, : AIR 1965 SC 101. where regular suit for eviction had to be filed, on the other hand. Their Lordships approved the judgment of the Punjab High Court in Shri Hem Chand v. . Shrimati Mam Devi, ILR 1955 P&H. 36 in which a Division Bench of this Court bad clearly held that the provisions of Section 10ft of the Transfer of Property Act requiring the serving of a notice, upon the tenant have no relevance when considering an application for ejectment made under the Rent Control Act and that, therefore, no such notice was necessary to be served.;