- (1.) THE circumstances in which the following three question of law have been referred to this Full Bench at the instance of P. C. Pandit, J. are given in substantial details in the order of reference passed by the learned Single judge, on july 23, 1968, and need not be recapitulated any detail:- (i) whether an ejectment application under section 13 of the East Punjab urban Rent restriction Act (3 of 1949) can be field without the prior issue of notice under section 106 of the Transfer of property Act, 1882; (ii) Whether the objection regarding non-issue of a notice under section 106 of the Transfer of property Act can be waived by the tenant; and (iii) whether objection as to the validity of the notice can be waived by a tenant in a case in which a defective notice has been issued.
(2.) THE admitted facts giving rise to this reference are that the respondent (hereinafter called the landlord) gave one week's notice of ejectment to the petitioner (hereinafter referred to as the tenant) on July 26, 1965, before presenting an application to the Rent Controller for ejectment under Section 13 (3) (a) (I) of the East Punjab Urban Rent Restriction Act (3 of 1949) (hereinafter referred to as the Act) on August 27, 1965, and that the contractual monthly tenancy of Bhaiya Ram tenant had not been terminated any earlier by any other notice. The saving of the notice was pleaded in the petition for eviction. In the tenant's written statement, the receipt of the notice was denied. No issue was framed regarding the factum of service or validity of the notice referred to above. The Rent controller passed an order for ejectment which was upheld by the appellate authority. In the revision petition field by the tenant in this court under section 15 of the Act, it was sought to be argued, inter alia, that no notice under section 106 of the Transfer of property Act terminating the lease in favour of the tenant had been issued by the landlord before filing the application for ejectment and, therefore, no order for eviction of the tenant under section 13 of the Act could be passed against him. It had been held by a division Bench of this court (Falshaw and J. L. Kapur, JJ.) in Bawa Singh V. Kundan Lal, 1952-54 Pun LR 358= (AIR 1952 Punj 422), that the Act is a complete code by itself and, therefore, excludes the necessity of serving a notice under Section 106 of the Transfer of property Act as a condition precedent for successfully claiming ejectment of a monthly tenant. In Sawaraj Pal V. Janak Raj 1968-70 Pun LR 720= (AIR 1969 Punj 26), my Lord shamsher Bahadur, J. and myself held following the subsequent chain of authorities by the supreme Court, to which reference will presently be made, that the only effect of a landlord succeeding in providing that his case fell within one of the clauses of Section 13 entitling him to eject his tenant was to take the case out of the purview of section 13 which grants a blanket protection against the eviction of the tenant subject to the exceptions carved out in that provision, and that the said section merely places further restrictions and fetters on the ordinary rights of a landlord to eject his tenant, but does not purport to take away any of the preexisting rights of a tenant under the general law of the state. The Division Bench in Sawaraj Pal's case, 1968-70 Pun LR 720= (AIR 1969 Punj 26) (Supra) held, inter alia that the argument of the landlord to the effect that the act being a complete code by itself could no more be invoked in view of the ratio of the judgments of the Supreme Court in cases under the Bombay Rents, Hotel and Lodging House rates (control) Act (57 of 1947) (hereinafter called the Bombay Rent Act) and in manujendra Dutt V. Purnedu Prasad Roy, AIR 1967 Sc 1419, under the West bengal Thika Tenancy Act. As the earlier Division Bench judgment in the case of bawa Singh, 1952-54 Pun LR 358= (AIR 1952 Punj 422) (Supra) was not Sawaraj pal's case, 1968-70 Pun LR 720= (AIR 1969 Ounj 26) and as reliance was sought to be placed on the same for canvassing the point of view of the landlord, the learned Single Judge rightly thought it necessary to have the main point (question no. 1) settled more authoritatively by a full bench on account of the apparent conflict between the two Division Bench Judgments, the earlier of which was not noticed in the later one though arguments on which the earlier judgment was based had been dealt with by us in Sawaral Pal's case, 1968-70 Pun LR 720= (AIR 1969 Punj 26 ). This is how in the present reference we are called upto answer the above said three questions so as to resolve the conflict between the Division bench judgments of this Court in the case of Bawa singh, 1952-54 Pun LR 358= (AIR 1952 Punj 422) on the one hand and the later Bench decision in Sawaraj Pal's case, 1968-70 Pun LR 720= (AIR 1969 Punj 26) on the other.
(3.) IT is the common case of both sides that the statutory provisions of the Transfer of property Act do not apply to the Punjab. Nor is there any dispute about the well settled proposition of law that the equitable principles contained in any of the provisions of that enactment have all along been and are entitled to be followed in punjab and principles of equity, justice and good conscience relating to the points covered by those provisions, for or against which there is no specific statutory enactment in force in the State. The first question on which the parties, therefore, joined issue before us during the course of their arguments was whether the requirements of section 106 of the transfer of property Act, and if so to what extent, contain principles of equity, justice and good conscience which may be invoked as such by litigants in this state. The relevant part of section 106 of the transfer of property Act reads:- "in the absence of a contract or local law or usage to the contrary. . . . . . . . . . . . . . . . . . . . . . . . . . a lease of immovable property for any other purpose (for any purpose other than agricultural or manufacturing) shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen day's notice expiring with the end of a month of the tenancy. Every notice under this section must be in writing signed by or on behalf of the person giving it, and either be sent by post. . . . . . . . . . . . . . " The relevant requirements of the section in the absence of a contract or law to the contrary, are:- (1) a monthly tenancy can be terminated by a notice in writing; (2) the notice should be of fifteen days; (3) the fifteen days' notice must expire with the end of a month of the tenancy; and (4) the notice should be served in the manner prescribed by the section. Section 111 of the Transfer of property Act enumerates the methods by which a lease of immovable property may be determined Clause (h) of that section which is relevant reads:- "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. " Section 6 of the Punjab Laws act (4 of 1872) provides that in cases not otherwise specially provided for i. e. , in cases not covered by any statutory law or customary law or customary law personal law, the judges have to decide cases coming before them "according to justice, equity and good conscience. " It is on account of the said statutory provision that the courts in the state are bound to decide questions - not covered by the general. Statutory, customary or personal law applicable in the state - according to justice, equity and good conscience.;