1975 (2) TMI 122 - HC - Indian Laws

Summary

Issues Involved:
1. Whether notice to quit under Section 106 of the Transfer of Property Act to a tenant holding over is necessary when the original lease deed contains a term that the tenant will quit without notice after the expiry of the period fixed by the original lease.
2. Whether the defendant-appellant can be deemed to have waived its right to question the validity of the plaintiff's notice Ex. A-1 terminating the tenancy.

Detailed Analysis:

Issue 1: Necessity of Notice to Quit under Section 106 for a Tenant Holding Over
The judgment begins by examining the necessity of a notice to quit under Section 106 of the Transfer of Property Act (TPA) for a tenant holding over. The court analyzed the provisions of Sections 106, 111(h), 113, and 116 of the TPA. Section 106 prescribes the duration of leases and the requirement of notice to terminate such leases. Section 111 outlines the determination of leases, and Section 116 deals with the renewal of leases by holding over.

The court emphasized that the tenancy created by holding over is a new tenancy and not merely a continuation of the old lease. Therefore, the terms of the original lease, including any stipulation dispensing with notice to quit, cannot be imported into the new tenancy created by holding over unless there is a specific agreement to that effect. The court cited various precedents, including decisions from the Calcutta High Court and the Federal Court, to support this view.

The court concluded that in the absence of a specific agreement to the contrary, a valid notice to quit under Section 106 is necessary to terminate a tenancy created by holding over. The stipulation in the original lease that the tenant would quit without notice after the expiry of the lease period does not apply to the new tenancy created by holding over.

Issue 2: Waiver of Right to Question the Validity of the Notice
The court then addressed whether the defendant-appellant had waived its right to question the validity of the notice Ex. A-1 terminating the tenancy. The concept of waiver, as defined by the Supreme Court in Associated Hotels of India v. Ranjit Singh, is an intentional relinquishment of a known right. The court noted that waiver is distinct from estoppel and requires the consent of both parties.

The court found that there was no express waiver by the defendant-appellant. The plaintiff-respondent's claim of implied waiver, based on the defendant's failure to reply to the notice and the delayed amendment of the written statement, was rejected. The court held that the omission to reply to a defective notice does not constitute waiver, and the defendant is not estopped from raising the plea of invalid notice at a later stage.

The court also noted that the amendment to the written statement was allowed by the trial court on payment of costs to the plaintiff-respondent, and this conditional order was not challenged by the plaintiff. Therefore, the plaintiff, by accepting the costs, was precluded from challenging the amendment.

The court further emphasized that the validity of the notice is a question of law that can be raised at any stage, and mere delay in raising the plea does not constitute waiver unless prejudice is caused to the other party. The court found no prejudice to the plaintiff-respondent from the delayed plea and concluded that the defendant-appellant had not waived its right to a valid notice.

Conclusion:
The court answered the first issue in the affirmative, holding that a valid notice to quit under Section 106 of the TPA is necessary to terminate a tenancy created by holding over. The second issue was answered in the negative, concluding that the defendant-appellant had not waived its right to question the validity of the notice. Consequently, the appeal was allowed with costs throughout.