JUDGMENT
D.R. Deshmukh, J.
1. This is the defendant/tenant’s second appeal. He is aggrieved by the judgment and decree dated 21-10-2002 passed in Civil Appeal No. 10-A/1998 by Shri Sharad Gupta, Additional District Judge, Khairagarh, District Rajnandgaon, whereby reversing the judgment and decree of dismissal of the suit for eviction passed by Civil Judge Class I, Khairagarh in Civil Suit No. 39-A/1993 vide judgment dated 17-3-1998, the appeal was allowed granting eviction of the tenant upon termination of lease under Section 106 of the Transfer of Property Act, 1882 (henceforth ‘the Act, 1882’).
2. During the course of arguments, it was not disputed that the suit accommodation, which is situated in Gandai, Tehsil Chhuikhadan, District Rajnandgaon does not fall within the First Schedule of the Chhattisgarh Accommodation Control Act, 1961 (henceforth ‘the Act, 1961’) and, therefore, the provisions of the Act, 1961 were not applicable to the suit accommodation. It is also not disputed in this appeal that the appellant/defendant is the tenant of the respondent/plaintiff in the suit accommodation situated in Gandai, Tehsil Chhuikhadan, District Rajnandgaon at a monthly rent of Rs. 87.50. It is also admitted that the appellant/defendant had replaced the wooden door providing entry to the suit accommodation and had affixed a new iron shutter in its place.
3. The respondent/plaintiff had instituted Civil Suit No. 39-A/1993 before the Civil Judge Class I, Khairagarh for recovery of the arrears of rent and for eviction of the tenant. It was pleaded that the appellant/defendant was in arrears of rent since January, 1993 and had, without obtaining permission from the respondent/plaintiff replaced the wooden door of entry by affixing a new iron shutter. It was also pleaded that the suit accommodation was in a dilapidated condition and needed immediate repairs, which was not possible without vacating the suit accommodation. It was further pleaded that since the appellant/defendant was in arrears of rent of Rs. 700/- being for the period from 1-1-1993 at the rate of Rs. 87.50 per month, the respondent/plaintiff served a notice Exh. P-2, dated 12-7-1993 upon the appellant/defendant which was received by the appellant/defendant on 13-7-1993 and whereby 15 days’ clear notice to vacate the premises was given to the appellant/defendant. Since the appellant/defendant did not vacate the suit accommodation, the respondent/ plaintiff prayed for a decree for Rs. 700/- towards arrears of rent, vacant possession of the suit accommodation and mesne profits at the rate of Rs. 87.50 per month.
4. The appellant/defendant pleaded that in March, 1993 the wooden door at the entry of the suit accommodation was completely damaged and replacement had become necessary. Therefore, he had with the prior permission of the respondent/plaintiff replaced the damaged wooden door by a new iron shutter in which he incurred expenses of Rs. 5,000/-. It was also pleaded that the respondent/plaintiff had agreed that the expenses incurred in replacement of the wooden door by an iron shutter would be adjusted towards monthly rent. In this manner, on the date of suit, the appellant/defendant was not in arrears of rent. It was also denied that the suit accommodation was in a dilapidated condition requiring immediate repairs. Receipt of notice dated 12-7-1993 was also denied.
5. The learned Civil Judge, Class I, Khairagarh framed the following issues:
¼1½ D;k izfroknh dk fookfnr ifjlj dk 700-00 fdjk;k cdk;k gS \
¼2½ D;k fookfnr ifjlj vR;ar th.kZ&’kh.kZ gks x;k gS] ,oa mls cxSj [kkyh djk;s mldh ejEer fd;k tkuk laHko ugh gS \
¼3½ D;k izfroknh }kjk oknh ds vuqefr ds fcuk fookfnr ifjlj es jnkscny fd;k x;k gS \
¼4½ D;k fookfnr ifjlj [kkyh djkus ,oa cdk;k fdjk;k 700-00 ikus dk vf/kdkjh gS \
¼5½ lgk;rk ,oa okn O;; \
No issue relating to termination of the tenancy of the appellant/defendant by a notice under Section 106 of the Act, 1882 was framed.
6. Upon appreciation of evidence, learned Civil Judge Class I, Khairagarh recorded a finding that the appellant/defendant had incurred an expenditure of Rs. 5,000/- in replacement of the old wooden door by a new iron shutter and was entitled to adjustment towards monthly rent, as agreed by the respondent/plaintiff and was, therefore, not in arrears of rent. It also recorded a finding that it was not proved that the suit accommodation was in a dilapidated condition requiring immediate repairs or that the appellant/defendant had made any substantial alteration in the suit accommodation without the consent of the respondent/plaintiff. On these findings, the suit was dismissed.
7. Aggrieved, the respondent/plaintiff preferred Civil Appeal No. 10-A/1998. Although no ground was taken in the appeal relating to termination of tenancy by a quit notice under Section 106 of the Act, 1882 or the non-application of the Act, 1961, the learned Additional District Judge, Khairagarh recorded a finding that since the suit accommodation was situated in Village Gandai, the Act, 1961 was not applicable to the suit accommodation. Appreciating the evidence led by the parties, the learned Additional District Judge recorded a finding that the tenancy of the appellant/defendant being from month to month and a clear 15 days’ notice having been given, was validly terminated by the Notice Exh. P-2. It also negatived the finding recorded by the Civil Judge Class I, Khairagarh that with the consent of the respondent/plaintiff the expenses of Rs. 5,000/- incurred by the appellant/defendant in replacing the wooden door by a new iron shutter were to be adjusted towards rent. It also recorded a finding that the parties had led evidence on the question of termination of tenancy and, therefore, absence of an issue was neither fatal nor caused any prejudice to any party. Consequently, the learned Additional District Judge, Khairagarh granted a decree for eviction of the tenant and for arrears of the rent as also for mesne profits.
8. The following substantial question of law arises for determination in this appeal:
Whether the Lower Appellate Court was justified in granting a decree for eviction of the tenant on the ground of termination of tenancy under Section 106 of the Transfer of Property Act, especially when it was not in issue before the Trial Court?
9. Shri B.P. Sharma, learned Counsel for the appellant has argued that a perusal of the plaint, the issues framed by the Trial Court as also the memo of appeal before the Lower Appellate Court shows that the respondent/plaintiff was pursuing the suit as also the appeal under the provisions of the Act, 1961 and, therefore, the tenant had, at no point of time, any idea that the suit was under the Act, 1882. It was further contended that even before the Lower Appellate Court, the respondent/plaintiff had not alleged in the memo of appeal that the provisions of the Act, 1882 and not the Act, 1961 were applicable to the suit accommodation. Therefore, the appellant/defendant was completely taken by surprise and was seriously prejudiced due to absence of an issue on the question of termination of tenancy by a notice to quit under Section 106 of the Act, 1882. It was urged that the Lower Appellate Court ought to have remanded the matter to the Trial Court for framing a specific issue as to whether the tenancy of the appellant/defendant had been validly terminated with a direction to return a finding thereon. On this premise, it was contended that the impugned judgment and decree passed by the Lower Appellate Court was liable to be set aside. Reliance was placed by learned Counsel for the appellant on Ishwar Dutt v. Land Acquisition Collector and Anr. , while arguing that the Appellate Court could not go outside the pleadings for making out a new case while granting a decree for eviction and arrears of rent against the appellant/defendant.
10. On the other hand, Smt. Renu Kochar, learned Counsel for the respondent placing strong reliance on Nedunuri Kameswaramma v. Sampati Subba Rao , contended that the parties went to trial fully knowing the rival case and led all the evidence not only in support of their contentions, but in refutation of those of the other side and, therefore, it could not be said that the absence of an issue was fatal to the case, or that there was a mistrial which had vitiated the proceedings. It was further contended that while granting a decree for eviction, arrears of rent and mesne profits, the Lower Appellate Court on appreciation of evidence, correctly reversed the finding recorded by the Lower Court by holding that tenancy was validly terminated by the notice to quit Exh. P-2.
11. Having considered the rival submissions. I have perused the record.
12. Section 1 of the Act, 1961 reads as under:
1. Short title, extent and commencement.–(1) This Act may be called the Chhattisgarh Accommodation Control Act, 1961.
(2) It extends to the whole of Chhattisgarh.
(3) The Act shall, in the first instance, be in force in the arrears specified in the first Schedule. It shall come into force in other areas of the State on such dates as the State Government may, by notification, appoint and different dates may be appointed for different areas and for different provisions of the Act and thereupon the first Schedule shall be deemed to have been amended accordingly.
13. The First Schedule gives the areas in which the Act is applicable. Entry No. 19 reads as under:
19. Durg Durg Municipal Area, Kawardha
Municipal Area, Rajnandgaon
Municipal Area, Khairagarh
Municipal Area, Bemetara Not-
ified Area, Dongargarh Municipal
Area.
14. The suit accommodation is admittedly situated in Village Gandai, Tehsil Chhuikhadan, District Rajnandgaon beyond the Municipal Area of Rajnandgaon. The Act, 1961 was thus rightly held by the Lower Appellate Court to be not applicable to the suit accommodation. The tenancy was not protected by the Act, 1961.
15. A perusal of the plaint clearly goes to show that the suit was based primarily on termination of the tenancy of the appellant/defendant upon non¬payment of rent from 1-1-1993 to 31-8-1993. It was specifically pleaded that tenancy was from month to month and was terminable by clear 15 days’ notice. In this manner, the suit was clearly under the provisions of the Act, 1882 and not under the provisions of the Act, 1961. Viewed from another angle, no suit for eviction of the tenant on ground available to the landlord under Section 12(1)(a) of the Act, 1961 could be instituted unless the tenant had failed to pay or tendered the whole of the arrears of rent legally recoverable from him within two months of the date on which a notice of demand for the arrears of rent had been served on him by the landlord in the prescribed manner. In this manner, no suit under Section 12(1)(a) of the Act, 1961 could be instituted in any Civil Court against the tenant for his eviction under Section 12(1)(a) of the Act, 1961 unless a period of two months had elapsed from the date of service of notice on the tenant. In the present suit, receipt of notice dated 12-7-1993 was admitted by the tenant in his testimony. As per acknowledgment, Exh. P-4, the notice was served on 13-7-1993. The suit was instituted on 2-9-1993, i.e., before the expiry of the period of two months. On this reasoning also, the suit for recovery of rent and eviction of the tenant could not be under Section 12(1)(a) of the Act, 1961.
16. It now requires consideration whether non-framing of an issue has caused substantial prejudice to the appellant/defendant of such a nature so as to vitiate the proceedings before the Trial Court or before the Lower Appellate Court or to justify a remit. In Nedunuri Kameswaramma v. Sampati Subba Rao (supra), the Apex Court has held as under:
(6)…No doubt, no issue was framed, and the one, which was framed, could have been more elaborate: but since the parties went to trial fully knowing the rival case and led all the evidence not only in support of their contentions but in refutation of those of the other side, it cannot be said that the absence of an issue was fatal to the case, or that there was that mis-trial which vitiates proceedings. We are, therefore, of opinion that the suit could not be dismissed on this narrow ground, and also that there is no need for a remit, as the evidence which has been led in the case is sufficient to reach the right conclusion. Neither party claimed before us that it had any further evidence to offer. We, therefore, proceed to consider the central point in the case….
17. Nedunuri Kameswaramma (supra) was relied in Swami Atmanand v. Sri Ramakrishna Tapovanam A.I.R. 2005 S.C. 2392, wherein the Apex Court held as under:
If the parties went to the trial knowing fully well the rival issues involved and adduced evidence in such a case without establishing prejudice, it would not be appropriate to raise the question of non-framing of particular issue.
18. The Lower Appellate Court has thus rightly held that the absence of an issue did not cause any prejudice to the tenant because the parties were fully aware of the rival pleadings and had led evidence in support thereof and had also the opportunity to cross-examine the witnesses for the other side. The respondent/plaintiff had in the plaint specifically pleaded that the tenancy was from month to month and had been terminated by the notice 12-7-1993 giving clear 15 days’ notice to the appellant/defendant to vacate the premises by 31-7-1993. Receipt of notice was admitted by the defendant in his deposition. The parties had led evidence on this issue and had proved the acknowledgment and receipt and the defendant had also admitted receipt of the notice. Thus, the evidence led by the parties in support of their pleadings is sufficient to reach a right conclusion. Therefore, placing reliance on Nedunuri Kameswaramma (supra), I am of the considered opinion that the finding recorded by the learned Additional District Judge, Khairagarh that absence of an issue on the question of termination of tenancy was neither fatal nor caused any prejudice to the appellant/defendant is impeccable.
19. However, the learned Lower Appellate Court failed to notice that the replacement of a new iron shutter in the suit accommodation by the tenant was not only admitted by the plaintiff in the plaint, but also by his Mukhtyar Sheetal Chopra (P.W. 1), in Paragraph 3 before the Trial Court. The defendant had also proved the receipt, Exh. D-1 issued by Kawaljeet Engineering Works, Raipur to show that a sum of Rs. 5,000/- had been spent in replacing the new iron shutter. The respondent/plaintiff Bhikham Chand Kothari did not enter the witness-box. His Mukhtyar Sheetal Chopra had clearly admitted in Paragraphs 6 and 9 that he was not aware of any conversation between the landlord and the tenant prior to his assumption of charge in May or June, 1993. Thus, the testimony of the defendant that on approval by the plaintiff that amount spent in replacing the new iron shutter shall be adjusted towards rent, he had incurred an expenditure of Rs. 5,000/- in replacing the new iron shutter is wholly unrebutted and beyond doubt. I thus wholly agree with the finding recorded by the learned Trial Judge that the tenant had proved that he had with the prior approval of the landlord replaced a new iron shutter at the cost of Rs. 5,000/-, which was to be adjusted towards the rent and, therefore, on the date of suit, the tenant was not in arrears of rent and on the date of suit more than half the amount of Rs. 5,000/- spent by him was yet to be adjusted towards rent. The decree for arrears of rent passed by the Lower Appellate Court is, therefore, liable to be set aside. So far as the mesne profits are concerned, the appellant/ defendants shall be liable to payment aimesne profits at the rate awarded by the Lower Appellate Court from the date of adjustment of Rs. 5,000/- towards rent due from 1-1-1993.
20. A lease is defined in Section 105 of the Act, 1882. Section 106 of the Act, 1882 deals with duration of certain leases in absence of written contract or local usage and reads as under:
106. Duration of certain leases in absence of written contract or local usage.–(1) In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months’ notice; and 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 fifteen days’ notice.
(2) Notwithstanding anything contained in any other law for the time being in force, the period mentioned in Sub-section (1) shall commence from the date of receipt of notice.
(3) A notice under Sub-section (1) shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under that sub-section, where a suit or proceeding is filed after the expiry of the period mentioned in that sub-section.
(4) Every notice under Sub-section (1) must be in writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property.
21. Section 111 of the Act, 1882 deals with the determination of lease of immovable property and reads as under:
111. Determination of lease.–A lease of immovable property determines-
(a) by efflux of the time limited thereby;
(b) where such time is limited conditionally on the happening of some event–by the happening of such event;
(c) where the interest of the lessor in the property terminates on, or his power to dispose of the same extends only to, the happening of any event–by the happening of such event;
(d) in case the interests of the lessee and the lessor in the whole of the property become vested at the same time in one person in the same right;
(e) by express surrender; that is to say, in case the lessee yields up his interest under the lease to the lessor, by mutual agreement between them;
(f) by implied surrender;
(g) by forfeiture: that is to say, (1) in case the lessee breaks an express condition which provides that, on breach thereof, the lessor may re-enter, or (2) in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself, or (3) the lessee is adjudicated an insolvent and the lease provides that the lessor may re-enter on the happening of such event; and in any of these cases the lessor or his transferee gives notice in writing to the lessee of his intention to determine the lease;
(h) 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.
22. Thus, the under Section 111(h) of the Act, 1882, a lease of immovebale 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.
23. Section 113 of the Act, 1882 deals with waiver of notice to quit and reads as under:
113. Waiver of notice to quit.–A notice given under Section 111, Clause (h), is waived, with the express or implied consent of the person to whom it is given, by any act on the part of the person giving it showing an intention to treat the lease as subsisting.
Illustrations
(a) A, the lessor, gives B, the lessee, notice to quit the property leased. The notice expires. B tenders and A accepts, rent which has become due in respect of the property since the expiration of the notice. The notice is waived.
(b) A, the lessor, gives B, the lessee; notice to quit the property leased. The notice expires, and B, remains in possession. A gives to B as lessee a second notice to quit. The first notice is waived.
24. A reading of the above provision makes it clear that in the absence of a written contract or local usage a lease of immoveable property for any purpose other than agricultural or manufacturing purpose is a lease from month to month terminable on the part of either lessor or lessee by 15 day’s notice. It means that in the absence of a written contract or local usage, the lessor has an unfettered right to terminate a lease of immoveable property by giving 15 days’ clear notice to the lessee. Under Sub-section (4) of Section 106 of the Act, 1882, a notice to quit must be in writing and signed by or on behalf of person giving it and may be either sent by post or be tendered or delivered personally to the lessee or to one of his family or servants at his residence. In the present case, the notice to quit Exh. P-2 was dispatched by registered post with acknowledgment due, on 12-7-1993 and was served on the appellant/defendant on 13-7-1993. The lessee was asked to hand over vacant possession on 31st July, 1993 thereby meaning that clear 15 days’ notice was given to the lessee. Receipt of notice was admitted by the appellant/defendant in Paragraph 8 of his testimony. It is also proved by the acknowledgment Exh. P-4. Thus, 15 days’ notice was given to the lessee to vacate the premises. In this manner, the Lower Appellate Court rightly held that the notice Exh. P-2 validly terminated the tenancy of the appellant/defendant and upon such termination, the respondent/plaintiff became entitled to evict the tenant from the suit accommodation.
25. Although the tenant had, upon approval of the landlord, spent Rs. 5,000/- towards replacement of the iron shutter, it did not in any manner prevent the landlord from terminating the tenancy by issuing a 15 days’ clear notice to quit at any time prior to the adjustment of the rent. The appellant/defendant has failed to establish an express or implied consent of the landlord to show an intention to treat the lease as subsisting till the amount of Rs. 5,000/-would be fully adjusted. In the absence of proof of such specific written contract or local usage by the appellant/defendant, the notice to quit Exh. P-2 validly determined the tenancy of the appellant/defendant under Section 111(h) of the Act, 1882. The mere fact that the landlord had agreed to adjust the amount spent by the tenant towards replacement of an iron shutter cannot be determinative in any manner to show that the landlord had expressly intended waiver of the quit notice. The mere oral agreement to adjust the amount of Rs. 5,000/- spent by the appellant/defendant towards rent did not by itself constitute an act of the nature envisaged by Section 113 of the Act, 1882. The fact remains that even after agreeing to adjust the amount spent by the appellant/defendant, the landlord did exercise his unfettered right to determine the tenancy under Section 111(h) of the Act, 1882 by giving a notice to quit Exh. P-2, as required under Section 106(1) of the Act, 1882.
26. In Sarup Singh Gupta v. S. Jagdish Singh and Ors. , it was held by the Apex Court that although the landlord accepted rent for subsequent months after issuing two notices to quit, the fact remained that even after accepting the rent tendered, the landlord did file a suit for eviction and even while prosecuting the suit accepted the rent which was being paid to him by tenant. It could not, therefore, be said that by accepting rent he intended to waive the notice to quit and to treat the lease as subsisting.
27. In any event, where a part of the amount spent by the tenant towards replacement of an iron shutter remained to be adjusted towards rent on the date of giving notice to quit, the landlord would not be entitled to any arrears of rent till such adjustment. It cannot, therefore, be said that the mere promise of the landlord to adjust the amount spent by the tenant in replacement of an iron shutter towards rent would amount to waiver of notice to quit or would invalidate such notice in any manner.
28. Accordingly, the substantial question of law is answered that the absence of an issue on the question of termination of tenancy did not cause any prejudice to the appellant/defendant and the Lower Appellate Court was justified in reversing the judgment and decree of the Trial Court and granting a decree for eviction of the appellant/defendant from the suit accommodation.
29. In the result, the appeal is partly allowed. While affirming the impugned judgment and decree dated 21-10-2002 passed in Civil Appeal No. 10-A/1998 by the Additional District Judge, Khairagarh granting eviction of the appellant/defendant from the suit accommodation, it is set aside in so far as it relates to granting arrears of rent and modified as regards mesne profits. The appellant/defendant shall be liable to pay mesne profits at the rate of Rs. 87.50 per month after adjustment of Rs. 5,000/- towards arrears of rent due from 1-1-1993. In the circumstances of this case, the parties shall bear their own cost.
30. A decree be drawn accordingly.