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Transfer of Property Act (IV of 1882)-

S. 106-Notice of termination of tenancy of factory--Act not in terms applicable to Province of Punjab--Filing of suit by landlord--Held, satisfies requirement of principle involved in S. 106 especially if tenant's ejectment ordered after expiry of six months of institution of suit-Non-service of six months' notice before filing of suit would be of no consequence in such circumstances-Notice served by landlord before institution of suit and six months' period expiring during pendency of suit-Held, landlord cannot be non-suited for reason that he had sued tenant within six months of service of notice of termination on him.-CG. A. Jaffery v. Karachi Port Trust P L D 1962 Kar. 32 dissented from].

Barkatullah v. Abdul Hamid P L D 1980 Lab. 548; Syed Mukhtar Ali and another v. Ghulam Rasool Chaudhary and 2 others P L D 1980 Lab. 623; Abdullah Bhai and others v. Ahmad Din P L D 1964 S C 106; Mst. Amina Begum and others v. Mehar Ghulam Dastgir P L D 1978 S C 220; Raja Muhammad and 11 others v. Haj Mohammad Zareen and 3 others 1980 S C M R 339; Manzoor Ahmad Khan v. Syed Magsood Ali P L D 1975 Lah. 1521; Muhammad Ashraf and 6 others v. Muhammad Abdullah Khan P L D 1981 Lab. 33 ; Maulvi Faiz Bakhsh v. Syed Shadi Shah P L D 1556 261 and Karam Chand v. Amar Nath Mohsan A I R 1933 Lab. 377 ref.

G. A. Jaffery v. Karachi Port Trust P L D 1962 Kar. 32 dissented from.

Sh. Bashir Ahmad v. Nisar Ahmed and another P L D 1980 Lab. 302 distinguished.

Ch. Mushtaq Ahmad Khan for Appellant.

Muhammad Ismail Chaudhry for Respondent.

Date of hearing : 21st February, 1981.

The facts giving rise to this regular second appeal are that the respondent, Barkat Ali, instituted a suit against the appellant. Muhammad Siddiq, for recovery of Rs. 280 as arrears of rent for certain premises let out to him and for his ejectment from those premises. The suit was resisted by the appellant on various grounds. Resultantly, following issues were framed by a Civil Judge, who was seized of the suit;--

(1) Whether the defendant paid or tendered the rent to the plaintiff upto June, 1973 O. P. D.

(2) Whether the suit property is a Factory O. P. D.

(3) Whether the plaintiff requires the property in dispute for his personal use O. P. P.

(4) Whether the defendant made certain alterations in the building in dispute without the permission of the plaintiff O. P. P.

(5) Whether the period of tenancy has exhausted. If so, to what effect O. P. P.

(6) Whether the plaintiff is entitled to recover Rs. 280 as arrears of rent O. P. P.

(7) Whether there was any agreement alleged in the preliminary abjection No. 1 between the parties. If so, what that agreement was O. P. D.

(8) Whether the valuation of the suit is incorrect. If so,. what is the correct valuation O. P. P.

(9) Relief.

The learned Civil Judge decided all the issues, except Issue No. 1, in favour of the respondent and decreed the suit on 13th May, 1974. The judgment and decree of the learned Civil Judge was challenged by the appellant by means of an appeal: On 19th January, 1976, an Additional District Judge, who heard the appeal affirmed the findings of the learned trial Court on all the issues drawn up by the said Court. It was, however, felt by him that it was necessary to frame and decide an issue relating to service of notice under section 106 of the Transfer of Property Act, 1882, but as that bad not been done, the suit required fresh decision after framing an additional issue in that behalf. He, therefore, accepted the appeal and remanded the case to the learned trial Court with the direction that it shall strike an additional issue relating to the service of notice and then decide the suit afresh after recording finding on the additional issue. On getting back the case, the learned Civil Judge drew up the following issue :-

"Whether the notice mentioned in the: plaint is .a .legal notice under section 106 of the Transfer of Property Act O. P. D."

On 18th May, 1577, the learned Civil Judge decided the above issue against the appellant and decreed the suit again. On this, the appellant went in appeal before another Additional District Judge but in vain. He has, therefore, come up in second appeal to this Court.

2. Learned counsel for the appellant contended that .while deciding the suit on 18th May, 1977, the learned trial Court did not record a proper finding on the additional issue and, therefore, its judgment was no judgment in the eye of law: The argument proceeds that according to rules 4 and 5 of Order XX of the Code of Civil Procedure the learned Civil Judge ought to have given reasons for deciding the additional issue against the appellant but. that was not done by him.

3. On the other hand, it was submitted by the learned counsel for the respondent that the learned trial Court had recorded reasons in support of his decision on the said issue and, therefore, his judgment did not suffer from any legal infirmity.

4. The relevant discussion relating to the additional issue finds mention in paragraph 6 of the lead Civil Judge. It makes the following reading :-

"Analysing this section it is clear that notice must be in writing, signed by the parties and delivered to the persons upon whom it is to be served. The period of the notice for immovable property which is on lease for agricultural and manufacturing purposes is 6 months otherwise the period is one month. In the present case the property was given on lease for a period of 4 years by agreement Exh. D. 1 and it was provided that a rent note has also been executed which will be acted upon between the parties. In the rent note Exh. P. I it is provided that in case of failure to pay the rent the plaintiff will be entitled to get the ejectment of the defendant from the property in dispute and consequently in view of my findings on Issue No. 1 in my previous judgment dated 7-4-1976 I agree with the plaintiff and decide .that a . valid legal notice under section 106, Transfer of Property Act was duly served upon the defendant and this issue is decided in favour of the plaintiff:"

This extract from his judgment clearly shows that the learned Civil Judge did record a finding on the additional issue and also gave reasons iii support thereof. Even if the reasons given by him do not find favour with any one, it cannot be said that he had failed to comply with the requirements of rules 4 and 5, Order XX of the Code of Civil Procedure. I am,. therefore, unable to agree with learned counsel for the appellant that the judgment of the learned Civil Judge is no judgment in the eye of law.

5. The next argument raised by learned counsel for the appellant was that the property in dispute was a factory and, therefore, under section 106 of the Transfer of Property Act, six months' notice should have been served on the appellant before seeking his ejectment. It was further submitted that since the notice given by the respondent was of one month only it was not a valid notice and, therefore, the appellant's ejectment could not be ordered on the basis thereof. He relied on G. A. Jaffery v. Karachi Port Trust (P LD 1962 Kar. 32) to support his contention.

6. While replying to the above argument, learned counsel for the respondent did not question the concurrent findings of the two Courts below that the disputed property was a factory. It was, however, urged by him that the Transfer of Property Act was not applicable to the Province of the Punjab and, therefore, the appellant could not take the benefit of section 106 of the said Act for resisting the suit brought by the respondent. Another proposition canvassed by him was that even if the service of notice under section 106 was necessary, the filing of the suit against him was; by itself, a notice to the appellant and since his ejectment was actually ordered after six months of the filing of the suit he could not be allowed to 'take capital out of the non-service of six months' notice before the institution of the suit. In this connection, he invited my attention to Barkatullah v. Abdul Hamid (P L D 1980 Lah. 548) and Syed Mukhtar Ali and another v. Ghulam Rasool Chaudhary and 2 others (P L D 1980 Lah. 623). It was also submitted by learned counsel for the respondent that there are numerous authorities on the point that if proceedings initiated by a party before a cause of action therefor has arisen or matured but the cause of action accrues to him or matures during the pendency of the proceedings he cannot be non-suited on the ground that when the proceedings were launched, the cause of action had not arisen or, as the case may be, matured. Some of the authorities relied upon by him in this behalf are Abdullah Bhai and others v. Ahmad Din (P L D 1964 S C 106), Mst. Amina Begum and others v. Mehar Ghulam Dastgir (P L D 1978 S C 220), Raja Mohammad and 11 others v. Haji Mohammad Zareen and 3 others (1980 S C M R 339), Manzoor Ahmed Khan v. Syed Maqsood All (P L D 1975 Lah. 1521) and Muhammad Ashraf and 6 others v. Muhammad Abdullah Khan, (P L D 1981 Lab. 33).

7. While commenting on the contentions raised by learned counsel for the respondent, learned counsel for the appellant invited my attention to Sh. Bashir Ahmad v. Nisar Ahmed and another (P L D 1980 Lab. 302) and maintained that the fact that suit was decided after six months of its institution was of no help to the appellant.

8. It is true that Under section. 106 of the Transfer of Property Act six months' notice of termination of tenancy is required to be served on the tenant of a factory but the said Act is not in terms applicable to the Province of the Punjab. It was also held by this Court in Maulvi Falz Bakhsh v. Syed Shadi Shah (P L D 1956 Lab. 261), Karam Chand v. Amar Nath Mohsan (A I R 1,933 Lab. 377), Barkatullah v. Abdul Hamid (P L D 1980 Lab.8) and Syed Mukhtar Ali and another v. Ghulam Rasoo Chaudhary and 2 others (P L D 1990 Lah. 623) that if no notice of termination of tenancy given before the fling of a suit for ejectment, the very institution of the suit would amount to - notice of termination of: tenancy and the suit would trot fait due to non-service of formal notice of termination of tenancy. The case of G. A. Jaffary cited by the learned counsel was considered in the case of Barkatutlah but the view expressed therein was not followed by me in preference to the- law laid down in the cases of Maulvi Fair Bakhsh and Karam Chand. I see no reason to take a contrary. view in the present case and would, with respect to the learned Judge who decided the case of G. A: Jqffary, hold that with the filing of his suit by the respondent, the requirement of the principle involved in section 106 of the Transfer of Property Act was satisfied especially when the petitioner's ejectment was ordered after the expiry of six months of the institution of the suit, In the circumstances, the non-Service of six months' notice before the filing of the suit is of .no consequence.