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TMI Blog1964 (9) TMI 76X X X X Extracts X X X X X X X X Extracts X X X X ..... opening a book-stall and a betel shop in the premises in addition to the hotel. The plaintiff claimed interest on the arrears of rent at the rate of one per cent per month. 2. The defendant contested the suit and pleaded that the suit was not maintainable and there was no cause of action. His main plea was that the plaintiff was not the owner of the suit premises. The defendant took a permanent settlement of that land by two registered permanent leases on the 12th August 1946 and 1st April 1948 from Tripurari Charan Palit, Advocate, Patna, to whom the land belonged. The two leases were, however, taken in the name of the plaintiff, as the defendant apprehended that if he acquired the property in his name, his five brothers might claim a share in that property. The plaintiff was in fact his friend in whom he had full confidence. He paid ₹ 24,500/- as salami for that land but to keep up the pretence, he paw that money to the plaintiff and caused the salami to be paid through a cheque by him. After taking the lease, he applied for sanction to the Patna Municipality for construction of the houses on the land and spent ₹ 14,500/- in the latter part of 1953 over the constru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined the lease by giving a notice in writing as is provided under Section 111 Clause (g) of the Transfer of Property Act, According to the plaint allegations, the plaintiff wanted to exercise his right of re-entry as the defendant had forfeited his lease. One integral part of forfeiture which would determine the lease is a notice In writing, the other part being breach of a condition involving the light of re-entry by the lessor. In this Case, the default in payment of rent for two consecutive instalments happened on the 31st August 1956 and the suit was instituted on the following day. There would be no time left for giving a notice. In that view, learned counsel contended that there was no determination of the tenancy and, therefore, no cause of action arose for a suit for eviction. 6. He referred to the case of Niranjan Pal v. Chaitanya Lal Ghosh, 1964 BLJR 583: (AIR 1984 Pat 401) (FB) where it was held that before any action under Section 11 of the Bihar Buildings Control Act, 1947, for eviction of a tenant could be taken, there must be determination of the tenancy as provided under the Transfer of Property Act The batch of cases covered by that decision were suits for evict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fendant and Rule 2 prescribes that the defendant must raise by his pleading all matters which show the suit not to be maintainable. The matters referred in the written statement to show that the suit was not maintainable did not include the absence of notice. The main defence was a challenge to plaintiff's title and setting up the defendant's own. When he disputed the tenancy there could be no occasion to refer to lack of determination of the tenancy. It is true, inconsistent pleas on different grounds of defence can be pleaded. Rule 7 of Order 8, Civil Procedure Code, allows that. As early as In 1878 the case of Berdan v. Greenwood, (1878) 3 Ex. D. 251 recognised such privilege in defence. The power has been given to the Court under the Code of Civil Procedure, Rule 16 of Order 6 to strike out any matter in a pleading that may tend to embarrases a fair trial of the suit. There is a certain amount of peril for the party who takes absolutely inconsistent pleas grounded on different and contradictory facts, and while leading evidence in support of them he will have to blow hot and cold in the same breath which is bound to shake confidence in the truth of his allegations. F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the suit was not maintainable. The plaintiff could not, in the first instance, anticipate any contest on the question of notice, and, therefore, it was not for him to plead the condition precedent in the first instance. It was for the defendant to raise the point if he wished to contest it and this he did not do. In this connection the learned Judge referred to the cases of Gates v. Jacobs, (1920) 1 Ch. 567 and Murli Manohar v. Raja Nand Singh, AIR 1924 Pat 206. Referring to Order 6 Rule 11, the learned Judge observed that that was not a rule laying down that notice must be pleaded. That merely prescribed the form which the pleading should take in such cases as it was material to allege notice. ft governed the statement in the pleadings of anything which was a part of the cause of action, as notice might sometimes be. But he observed: Strictly speaking, however, a condition precedent merely as such does not form part of the cause of action. 10. Section 111(g) of the Transfer of Property Act as it was before 1929 was referred in that case, because the suit related to that period. Under that provision the lessor was required to do some act knowing his intention to determine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to give rise to a cause of action for the suit. 12. Learned counsel for the appellant also contended that as a matter of fact the Court ought to assume in this case that there was no such notice given by the plaintiff to the defendant. He pointed out that the day following the default in payment of the second quarterly instalment of rent (31st August 1956) the present suit was instituted, and there was little time available for service of such notice after breach of condition of payment. There was another condition which was alleged and has now been found to have been broken by the defendant-tenant, and that also according to the terms of the lease, entailed re-entry on the premises by the lessor. That was about the sub-letting of a portion of the premises for a book-stall and a betel shop. That amounted to a forfeiture also and took place long before the lodging of the suit. Whether the plaintiff gave a notice in writing of his intention to determine the lease on that account could have been enquired if the defendant had raised that question in his written statement or during trial. A belated attempt to scuttle the suit by such a plea in second appeal is bound to embarrass a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was entitled to rent from his sub-lessees. That position was accepted by the Court and the plaintiff's suits were decreed. Those facts are distinguished from our present case. Neither the plaintiff in those cases denied the title of his lessor, the municipality, nor there was any lack of materials on record in support of a finding that no notice had been served by the municipality on the plaintiff. 15. I may here refer to a decision cited for the plaintiff-respondent in the case of Lalu Gagal v. Bai Motan Bibi, ILR 17 Bom 631 the plaintiff's suit was for recovery of certain fields alleging that he was a permanent tenant of the defendant, having purchased the right of occupancy from the previous occupants of the lands. The trial court found that the plaintiffs vendors were yearly tenants and not permanent tenants. So the plaintiff could not be anything more than a yearly tenant and was entitled to a notice to quit from the defendant before he could be validly ejected from the fields. Learned Judges of the Bombay High Court took a different view and held that as the plaintiff in his plaint and during trial of the suit denied his landlords' title (defendants) as ho ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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