Mohammad Haji vs Umananda Kamath on 16 June, 1975

Kerala High Court
Mohammad Haji vs Umananda Kamath on 16 June, 1975
Equivalent citations: AIR 1976 Ker 26
Author: N Maboodiripad
Bench: N Namboodiripad


N.D.P. Maboodiripad, J.

1. These two revisions arise out of a proceeding under Section 11 of the Kerala Buildings (Lease and Rent Control) Act, Act 2 of 1965, and referred to herein as the Act. The premises in dispute were let out to the tenant by the petitioner-landlord under Ext. A-1 dated 4-4-1969 for a monthly rent of Rs. 65/-. The landlord is occupying the first floor of the same building, and the premises rented out is the ground floor. Eviction was sought on the ground that the landlord bona fide needed the building for conducting a trade. It was after issuing Ext. A-2 notice dated 9-6-1971 that the eviction proceedings were launched. The tenant denied the bona fide need alleged by the landlord and also contended that the business run by him in the disputed premises is the main source of his income. The tenant also had a case that Ext. A-2 is not in accordance with law. The Rent Control Court repelled the contentions of the tenant and allowed eviction. The tenant took the matter in appeal. The appellate authority confirmed the finding of the Rent Control Court regarding the bona fide need of the landlord, but dismissed the eviction petition on the ground that Ext. A-2 is violative of Section 106 of the Transfer of Property Act. Both the tenant and the landlord took the matter in revision. The revisional Court confirmed the decision of the appellate authority. Hence the tenant has filed C. R. 134/ 1975 and the landlord has preferred C. R. P. 518/1975.

2. In C. R. P. 134/1975 preferred by the tenant the sole question arising for decision is whether I must interfere with the finding of fact entered by the authorities below to the effect that the landlord bona fide aeeds the disputed premises for his own use. Three courts, on an appreciation of the evidence in the case concurrently found that the landlord’s need is bona fide and that the tenant has got another flourishing business in the same locality in another building. On a perusal of the evidence in the case I entirely agree with the conclusions reached by the authorities below in that respect. I confirm the finding that the landlord bona fide needed the premises for bis use and occupation and dismiss C. R. P. 134/1975. No costs.

3. Through C. R. P. 518/1975 the landlord challenges the decision of the revisional authority regarding the invalidity of Ext. A-2 notice. The relevant portion of the notice is in the following terms:

“My client is now living without any job or vocation and he finds it extremely difficult to maintain himself and the members of his family, My client sincerely and honestly wants to start a trade of his own in the room let out to you. My client has no other building. Since my client bona fide needs the room for his own occupation in connection with the trade which he intends to start immediately your tenancy is hereby terminated and you are hereby called upon to surrender possession of the room on or before 4-7-1971 and also pay him the arrears of rent failing which my client will be constrained to file a petition for eviction against you at your risk as to costs which please note.”

The appellate authority and the revisional authority look the view that by the use ot the expression “your tenancy is hereby terminated” what the landlord did was to terminate the tenancy forthwith. The tenancy commenced on 4-4-1969 and Ext. A-2 notice demands surrender on or before 4-6-1971. The question for decision is whether the use of the expression “hereby” could be interpreted as meaning “forthwith” or “from the very same date”. As rightly pointed by the revision petitioner the authorities below have not really understood the basis of the conclusion in the decision reported in H.Z. Islam v. Mohd. Rafi (AIR 1971 All 302.) The expression used in that case was “your tenancy of the aforesaid house is determined with effect from today.” On the other hand, the decision that is more relevant to the facts of this case is Laxmi Devi v. Chandramani (AIR 1971 All 506), which distinguished, AIR 1971 All 302. In that case the expression used in the notice which came up for consideration was “you are, therefore, informed that your tenancy is hereby terminated.” Commenting on the expression “hereby” the Court held as follows:

“The word “hereby” used in business and legal correspondence does not connote the point of time. It always means ‘through.’ When it is said that the tenancy is hereby terminated, it will mean that the tenancy is terminated through the notice.”

I respectfully agree with the construction put on the expression “hereby” in that case. It follows, therefore, that the expression “hereby” used in Ext. A-2 means “through this notice” and not “from today”. The authorities below were clearly wrong in taking the view that because of the use of the expression “hereby” the notice has the effect of terminating the tenancy forthwith. I am satisfied that Ext. A-2 is in conformity with Section 106 of the Transfer of Property Act and that there is a valid notice to quit as contemplated by law. The view taken by the appellate and the revisional authorities cannot be sustained,

4. In the result, the orders passed by the revisional authority and the appellate authority are hereby set aside and the order passed by the Rent Control Court allowing eviction is hereby restored. The revision is allowed. In the circumstances of the case I make no order as to costs.

5. It was represented on behalf of the respondent-tenant that he may be given some time to vacate the premises. I am prepared to show some indulgence in that matter. The respondent-tenant in C. Rule P. 518/1975 is given time till 30th of July, 1975 to vacate the premises.

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