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S. 106‑Notice to quit on or before a date, being the date on which tenancy expires is a good notice.
Held, notices to quit are to be construed not with a desire to find faults in them which would render them defective, but in accordance with the maxim "Ut res magis valeat quam pereat."
Held, that the insertion of the words "on or before" in the notice to quit was on a proper construction, an offer to the tenant to accept from him a determination of the tenancy on or any earlier date than that named on which he would give up possession of the premises.
46 Cal. 485 (B C) 1931 Mad. 352 ; 1933 Cal. 260 ; 1953 Born. 306 ; 46 B L R 244 ; 1946 All England Law Reports 133 followed.
S. 9‑Building need not be in a hopelessly, old and rickety condition.
Held, the Rent Restriction Act does not lay down as to what evidence the landlord should produce in order to satisy the Rent Controller that fie wants the building bona fide for erection or reconstruction. It was not necessary for the landlord to have proved that the building was in a hopelessly old and rickety con dition in order to be entitled to a certificate under section 9 of the Act. If he could satisfy the Rent Controller that he wanted bona fide and reasonably for the purpose of reconstructing the building, though the building was not in dangerous condition, the Rent Controller would have been justified in granting the certificate under section 9 of the Act.
Zulfiquar Ali Valliani for Plaintiff.
Sharifuddin for Defendant.
‑These are four connected suits for trespass under section 24 of the Karachi Small Causes Court Act which have, by consent of the parties, been heard together and the evidence in the one suit has been read in the other.
In the present suits the parties did not lead any oral legal evidence. The advocates of the parties made their submissions on the pleadings and the documents filed by them.
The defendant in all the four cases is one Haji Saleh Muhammad Jamal. He is the landlord of the building situated on plot No. 2 sheet G‑K. 2 in Ghulam Hussain Quarter, Karachi. All the four plaintiffs are his tenants who occupy different portions of the said building.
The plaintiffs' case shortly put is as under :‑
The defendant obtained an ejectment order on 26th May 1952 against the plaintiffs. The plaintiffs challenge the order of ejectment on three grounds :‑
(1) That no proper notice as contemplated by section 106 of the Transfer of Property Act was served on the plaintiffs.
(2) That the defendant obtained the order of ejectment on false representation that the house was in a dangerous con dition.
(3) That in view of section 9 (5) (a) of the Sind Rent Restriction Act of 1947 the certificate obtained by the landlord was invalid and as such no ejectment proceeding lay against the plaintiffs.
The plaintiffs in all the four suits claim damages of Rs. 100 on account of trespass of the defendant‑landlord.
The defence in all the four suits was that the defendant had not committed any act of trespass on the grounds mentioned above. The notice, the defendant alleged, was valid.
The pleadings of the parties , gave rise to the following issues :‑
(1) Whether the suit is incompetent and/or not maintain able
(2) Whether the act of the defendant in obtaining an order of ejectment is an act of trespass on any ground mentioned in the plaint
(3) Whether no notice has been served by the defendant on the plaintiff terminating the tenancy
(4) Whether section 9 (5) (a) is a bar to the proceeding before the Rent Controller
(5) What is the effect of the Certificate of the Rent Controller as upheld by the Chief Judge, Small Cause Court
(6) To what reliefs the plaintiff is entitled to
(7) General.
I have redrafted issue No. 3 as under :‑
Issue No. 3.‑Whether the notice served on the plaintiffs terminating the tenancy was a proper notice as contemplated by section 106 of the Transfer of Property Act
My findings are as under :‑
Issue No. 1.‑The suit is maintainable.
Issue No. 2.‑The defendant has not committed any act of trespass.
Issue No. 3.‑In the affirmative.
Issue No. 4.‑In the negative.
Issue No. 5.‑The certificate of the Rent Controller was a valid certificate.
Issues 1, 2 and 3.‑All these issues can be conveniently dis posed of together. The contention of the learned counsel for the defendant was that inasmuch as the defendant has not committed any act of trespass, the suit was not maintainable.
The first contention of the learned counsel for the plaintiffs was that the defendant was not entitled to eject the plaintiffs as he had failed to serve a proper notice on the plaintiffs as con templated by section 106 of the Transfer of Property Act. The relevant portion of the notice dated 20th April 1951 on which the counsel for the plaintiffs has relied for his contention that the notice was not proper, is as under:
"Our client has accordingly instructed us to give you notice which we hereby do of one calendar month of the termination of the tenancy commencing from 1st May 1951 and terminating on 31st May 1951 and to call upon you to quit and deliver vacant possession of the premises on or before the last men tioned date failing which our client will be compelled to take proceedings against you for your ejectment at your risks and costs."
The notice is the same in all the four cases. The contention of the learned counsel for the plaintiffs was that it was not in compliance of section 106 of the Transfer of Property Act to have asked the plaintiffs to vacate the premises on or before the 31st May 1951, as under the law he was entitled to get the premises vacated by the mid‑night of 31st May 1951. The learned counsel for the plaintiffs in other words contended that the words "on or before" curtail the period of possession of the plaintiffs and therefore it cannot be said that the notice complied the requirement of section 106, Transfer of Property Act. The learned counsel for the plaintiffs relied on the following portion of section 106 of the Transfer of Property Act :‑‑
"A lease of immovable property for any other purpose shall be deemed to be a lease from month to month terminable on the part of either lessor or lessee by 15 days' notice expiring with the end of a month."
The learned counsel for the plaintiffs contended that the defendant asked to vacate the premises not by the end of the month but on or before the 31st May, 1951.
In considering whether the notice dated 20th April 1951 was in compliance of section 106, Transfer of Property Act or not, I may state the general principle as laid down by their Lordships of the Privy Council about the construction of notice to quit. In 46 Calcutta p. 458 their Lordships held as under:
"The principles laid down by the English authorities are equally applicable to cases arising in India. They establish that notices to quit, though not strictly accurate or consistent in the statements embodied in them, may still be good and effective in law; that the test of their sufficiency is not what they would mean to a stranger ignorant of all the facts and circumstances touching the holding to which they purport to relate, but what they would mean to tenants presumably con‑] versant with all those facts and circumstances ; and, further,, that they are to be construed not with a desire to find faults in them which would render them defective, but in accordance with the maxim "Ut res magis valeat quam pereat."
The same principle was followed, following the case of the Privy Council, in A I R 1931 Mad. p. 352. In that case the notice to quit was to expire on the forenoon of the next day, but their Lordships of the Madras High Court held that the notice, though not worded with strict accuracy, but it was sufficient com pliance of section 106 of the Transfer of Property Act.
The same view was taken in A I R 1933 Cal. 260. In that case the notice described the tenant as trespasser and no time was given to quit as prescribed by law, but it was held to be a good notice under section 106 of the Transfer of Property Act.
Their Lordships of the Bombay High Court also followed the Privy Council case in giving a liberal interpretation to the notice under section 106, Transfer of Property Act in A I R 1943 Bom. 306.
The important case directly on the point is that of Ismail Dada v. Bai Zulekha Bai of the Bombay High Court reported in (46 Bombay Law Reporter, 244.). The notice in that case read as under :‑
"We are instructed by our client to call upon you to quit, vacate and deliver to our client peaceful possession of the portion of the said premises in your occupation on or before 31st January 1943 following which our client will adopt ejectment proceeding----------"
Their Lordships of the Bombay High Court held that the notice was a proper notice within the meaning of section 106 of the Transfer of Property Act.
In Daggar v. Shepherd (1946 All England Law Report, p. 133.), their Lordships construed a notice to quit on or before March 25 next, to be a valid notice. Their Lordships held that the insertion of the words "on or before" in the notice to quit was, on a proper construction, an offer to the tenant to accept from him a determination of tenancy on or any B earlier date than that named on which he would give up possession of the premises. This is a well considered case and it reviews the earlier authorities on the question of notice to quit.
The words "on or before" moreover in relation to the present notice which was to expire on 31st May 1951 would mean immediately at the expiry of the midnight of 31st May. The meaning given in the Law of Lexicon by P. Ramanath Ayer is as under:
"On or before‑‑
With relation to a specified time or even immediately at or at any time in advance of the incident by such time or event ; or event; that is, to the exclusion of any time after that to which the proposition has relation, not after."
I am clearly of the opinion that the notice dated 20th April 1951, was a valid notice as required by section 106, Transfer of Property Act.
The second contention of the learned counsel for the plaintiff was that the defendant obtained the ejectment order by falsely alleging that the house was in a dangerous state. The plaintiffs have led no evidence to show that the allegation of the defendant was false, and in the next place the ground on which the ejectment certificate under section 9 of the Sind Rent Restriction Act was granted by the Rent Controller cannot be challenged in this Court.
The third contention of the learned counsel for the plain tiffs was that the Small Cause Court Judge was misled by the defendant in placing reliance upon the certificate under section 9 of the Sind Rent Restriction Act which was not proper and legal. The learned counsel for the plaintiff challenged the certificate under section 9 on the ground that the defendant had not filed any certificate by the Chief Officer of the Cor poration before the Rent Controller showing the premises were in a ruinous or dangerous condition and as such the certificate granted by the Rent Controller was illegal. The learned counsel relied on sub‑clause (5) (a) of section 9 which reads as under:-
"(5) (a) Nothing in subsection (1) shall apply in the case of any premises, (a) which being situated within the municipal limits of the City of Karachi have been specially certified for the purpose of this Ordinance to be in a ruinous or dangerous condition by the Chief Officer of the Corporation."
The contention of the learned counsel for the plaintiff was that in those cases in which a certificate was sought on the ground that the building was in a ruinous or dangerous condition; the certificate of the Chief Officer of the Corporation was essential and without that no certificate can be granted. The contention of the learned counsel for the plaintiff is erroneous and has no force. Section 9 (1) reads as under:
"Save as hereinafter provided, no order of the recovery of possession of any premises shall be made by any Court so long as the tenant pays or is ready and willing to pay the rent payable under this Ordinance and performs the other conditions of the tenancy.
A reading of subsection (1) of section 9 together with sub section (5) (a) to section 9 makes it clear that in those cases in which the Chief Officer of the Corporation gives a certifi cate that the building is in ruinous or dangerous condition, section 9 (1) will have no application. In other words the landlord can, on the basis of that certificate, file a suit for ejectment against the tenant without having recourse to the Rent Controller.
The learned counsel for the plaintiff further contended that the Rent Controller was not justified in granting the certificate under section 9 of the Sind Rent Restriction Act inasmuch as the ground on which the certificate was asked for was that the building was in a dangerous condition and this fact was not proved. In the first place the certificate granted by the Rent Controller is not open to challenge unless it be shown that he had no jurisdiction to pass the order, and in the second place the Rent Restriction Act does not lay down as to what evidence the landlord should produce in order to satisfy the Rent Controller that he wants the building bona fide for erec tion or reconstruction. It was not necessary for the landlord to have proved that the building was in a hopelessly old and rickety condition in order to be entitled to a certificate under section 9 of the Act. If he could satisfy the Rent Controller that he wanted bona fide and reasonably for the purpose of reconstructing the building, though the building was not in a dangerous condition, the Rent Controller would have been justified in granting the certificate under section 9 of the Act.
The other argument of the learned counsel for the plain tiff' was that the certificate obtained under section 9 of the Sind Rent Restriction Act was no longer valid in view of the fact that it was obtained under the Act which was not valid at the time when the certificate was obtained. His contention was that the defendant must obtain certificate under Ordinance I of 1953 in order to succeed in his suit for ejectment. He con tended that under sub‑clause 3 of section 1 of Ordinance I of 1953 the Ordinance would be deemed to have taken effect on the 28th March 1948, and therefore the ejectment certificate should be under the Ordinance and not under the Sind Rent Restriction Act, 1947. Section 1 (3) of the Ordinance reads as under:
"It shall come into force at once, and shall be deemed to have taken effect on the 28th day of March 1948."
The learned counsel for the defendant has relied upon sub section (2) of section 29 of Ordinance I of 1953 in order to show that the Ordinance has given validity to those orders that had been passed under the Sind Rent Restriction Act. The relevant portion of section 29 (2), relied upon by the learned counsel for the defendant, is as under:
" . . . . and every order made or deemed to have been made or act done or deemed to have been done by any officer or authority . . . shall be deemed to have been made or done by such officer or authority under the corresponding provisions of this Ordinance."
It is clear from the above that Ordinance I of 1953 has validated those orders that purported to have been made under the Sind Rent Restriction Act of 1947. The contention of the learned counsel for the plaintiff has no force.
The suits are dismissed with costs. This order will govern all the four cases.
Suits dismissed.
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