The only substantial question of law involved in this case relates to the
requirement of law. Learned counsel for the defendant has submitted that it is the
requirement of subsection
(4) of Section 106 of T.P. Act that notice must be in
writing and signed by the lessor. According to him, this requirement of law has not
been fulfilled in this case, as the only notice which has been stated to be sent to the
defendant by the plaintiff' was a telegram dated 28.8.1987. He submits that it is
now well settled law that a telegraphic notice is no notice in the eye of law and,
therefore, the substantial question of law has to be answered in the negative and in
favour of the defendant.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
SECOND APPEAL No. 299 OF 1995.
Vithalrao Narayanrao Agre
VERSUS
Surendrakumar s/o Shankarlal Agrawal,
CORAM
: S.B. SHUKRE , J .
DATE : NOVEMBER 26, 2013.
Citation; 2014(4) ALLMR 34 Bom
Read original judgment here; click here
This appeal is preferred against the judgment and decree passed in
Regular Civil Appeal No. 11 of 1994 by the Additional District Judge, Gondia,
thereby allowing the Appeal and reversing the judgment and decree passed in
Regular Civil Suit No. 424 of 1987 by the Civil Judge, Jr.Dn., Gondia, on 5.1.1994.
2. Appellants are the legal heirs of deceased original defendant and
respondent is the original plaintiff. For convenience, they are being hereinafter
referred to as defendant and plaintiff, as they were before trial Court. The plaintiff
being the landlord of Block No.3, situated in the chawl on sheet no. 4, plot no. 8/14,
8/15 and 8/24, at Railtoli, Gondia, hereinafter referred to as suit premises, filed a
suit against his tenant, the defendant, for recovery of possession of suit premises
and damages, after obtaining necessary permission to issue quit notice from the
Rent Controller.
3. The plaintiff submitted that after receiving necessary permission, he had
issued several notices under Section 106 of Transfer of Property Act, 1882, to the
defendant informing him that the tenancy had been terminated and calling upon
him to vacate the suit premises by the end of 15.9.1987. It was the contention of the
plaintiff that five quit notices issued by him to the defendant were returned
unserved, but the sixth notice issued on 28.8.1987 was received by him. He had
also submitted that additionally he had sent quit notice through telegram. As the
defendant did not respond to these notices, the plaintiff' filed the aforestated
suit
against the defendant.
4. The defendant resisted the suit by denying that any permission by Rent
Controller was granted to the plaintiff' and that no notice, as required by law,
determining the tenancy and vacating of the suit premises was received by him. He
also submitted that he did not receive any notice dated 28.8.1987 nor any telegram.
On these grounds, he urged that the suit be dismissed with costs.
5. The trial Court after finding that the defendant was a tenant of the
plaintiff, found that there was no valid notice issued by the plaintiff to the
defendant terminating his tenancy and accordingly dismissed the suit with costs.
6. The first appellate Court in the appeal filed against the judgment and
decree of the trial Court, after hearing both the sides, allowed the Appeal. It found
that the plaintiff' had rightly terminated the tenancy of the defendant by serving
upon him a notice dated 20.7 (sic – August) 1987. Accordingly, the first appellate
Court directed the defendant to hand over vacant possession of the suit premises to
the plaintiff' within one month from the date of judgment and order rendered on
5.4.1995. He also directed initiation of separate enquiry for mesne profits under
Order XX Rule 12 of Code of Civil Procedure. The present appeal is against the
aforestated
judgment and order passed on 5.4.1995 by the first appellate Court.
This appeal has been admitted by this Court on 14.6.1996 on the following
substantial question of law :
“Whether a telegram sent besides unserved notices u/s 106
T.P.Act amounts to a compliance of notice not signed by the
sender within the meaning of Section 106 T.P. Act?”
7. I have heard learned counsel for the appellants(defendants) and learned
counsel for the respondent(plaintiff). With their assistance, I have gone through the
paperbook
of appeal and record of the trial Court.
8. The only substantial question of law involved in this case relates to the
requirement of law. Learned counsel for the defendant has submitted that it is the
requirement of subsection
(4) of Section 106 of T.P. Act that notice must be in
writing and signed by the lessor. According to him, this requirement of law has not
been fulfilled in this case, as the only notice which has been stated to be sent to the
defendant by the plaintiff' was a telegram dated 28.8.1987. He submits that it is
now well settled law that a telegraphic notice is no notice in the eye of law and,
therefore, the substantial question of law has to be answered in the negative and in
favour of the defendant. Learned counsel for the plaintiff, however, submits that
apart from telegraphic notice, there also has been another notice received by the
defendant. He submits that there is yet another question involved in this case and it
relates to the time at which the objection as to the validity of the notice should be
raised. He submits that it should have been taken at the earliest possible
opportunity or otherwise as per settled law, it is deemed to be waived.
9. Sofar as subsection
(4) of Section 106 is concerned, it is clear from the
language of the subsection
that it is the mandatory requirement of this provision of
law that notice issued under Section 106(1) must not only be in writing but must
also be signed by the lessor. The telegram, as the one issued in the instant matter,
was not signed by the respondent and, in fact, no telegram for that matter would
bear signature of the sender of the telegram. Therefore, any telegraphic notice
purported to have been issued under Section 106(1) of the T.P. Act would not be in
compliance with the requirement of its subsection
(4). In the case of Maduri
Satyanarayana v. Singamsetti Veerahadraswamy reported in AIR 1990 AP
169 the learned Single Judge of Andhra Pradesh High Court has also taken the same
view. The learned Single Judge has held that telegraphic notice terminating the
tenancy is not a valid notice as it does not satisfy the requirement of signature of the
lessor under Section 106 of T.P. Act.
10. No doubt, objection as to the validity of telegraphic notice ought to have
been taken by the tenant, i.e. the defendant at the earliest possible opportunity. It
appears from the judgment of the first appellate Court that objection in this regard
was indeed taken by the defendant at the first appellate stage. It was a different
matter that the objection was overruled.
The first appellate Court has observed that
the telegram itself can be a valid notice as per the provision of Section 106 of T.P.
Act. The first appellate Court has committed a serious error in recording this
observation. It appears that it has lost sight of the provision contained in subsection
(4) of Section 106 of T.P. Act, which in clear terms lays down a rule that every
notice under subsection
(1) must be in writing, signed by or on behalf of the person
giving it. The language of this provision is imperative and admits of no exceptions.
Whatever may be the finding of the first appellate Court, the fact remains that
objection indeed was taken at the stage of the first appeal. Learned counsel for
plaintiff would submit that it ought to have been taken before the trial Court. In
support, he places reliance upon the decision in the case of Parvatibai v. Radhika
reported in AIR 2003 SC 3995. In this case, the Hon'ble apex Court in para 6 has
observed that an objection as to the invalidity or infirmity of notice under Section
106 of T.P. Act should be raised specifically and at the earliest, else it would be
deemed to have been waived. There can be no dispute about the law so laid down
by the Hon'ble Supreme Court. But it must be noted here that these observations of
the Hon'ble apex Court have appeared in the facts and circumstances peculiar to the
said case of Parvatibai. In that case, the defendant had admitted receipt of notice in
the written statement and had not taken any specific objection as to the validity of
the notice. It was in this backdrop that the Hon'ble apex Court held that the
defendant therein was deemed to have waived the objection as regards the validity
of the notice under Section 106 of T.P. Act. In the instant case, the facts are
different. The defendant had never admitted receipt of the notice rather he had
specifically denied receipt of the notice. He had taken the objection as to its validity
not in the suit but before the first appellate court. This objection, one must say,
was in the nature of an objection as to the requirements of law to be
fulfilled by a party. Such an objection is of law and, therefore, can be taken at any
stage of the proceedings. If the defendant had admitted receipt of the notice in the
instant case, position would have been different and he would have been estopped
from denying what he had admittedly received. Therefore, in my humble opinion,
the law laid down in the said case of Parvati would be of no assistance to the
plaintiff when he submits that the objection as to the validity of the notice ought to
have been taken by the appellant at the earliest stage, i.e. in the suit proceedings.
11. The objection as to the validity of the notice can always be considered by
this Court at the stage of the second appeal, except when the receipt of notice is
admitted. I have already considered this objection and found that the telegraphic
notice alleged to be sent by the respondent to the appellant was not in compliance
with the requirements of subsection
(4) of Section 106 of T.P. Act. This telegraphic
notice was, therefore, an invalid notice and, as such, it would not have been
sufficient by itself to terminate the tenancy of the appellant. The substantial
question of law is, therefore, answered in the negative.
12. But the question still remains, despite answer to the substantial question
of law going in favour of the defendant, whether any consequential relief should be
granted to the appellant or not. Consequential relief in the nature of dismissal of the
suit could have been granted by this Court, had the decree of the first appellate
Court been based upon only the telegraphic notice and unserved notices. On going
through the judgment and decree of the first appellate Court, this does not seem to
be the case. It is seen that the decree is not purely based upon the telegraphic notice
and unserved notices. It is also based upon a notice dated 28.8.1987, copy of which
was held to be received by the defendant in addition to telegraphic notice.
Therefore, in my opinion, no further consequential relief to the appellant can be
granted.
13. Learned counsel for the defendant has submitted that the findings
recorded by the first appellate Court with regard to service of notice dated 28.8.1987
are not only erroneous but perverse as well. He points out from the pleadings of the
parties that the plaintiff had never pleaded in his plaint that the notice dated
28.8.1987 was also served upon the defendant through the mode of personal service.
He further submits that in the absence of such a material pleading, the first appellate
Court could not have found that the notice was personally served upon the
appellant. In support, he places reliance upon the principles of law laid down in the
cases of Kisan Ramji Khandare v. Kausalyabai Gangaram Korde & ors.
reported in 2007(4) Mh.L.J. 43 and Govind Vishwanath Bansode & anr. v.
Manika Gangaram Bansode & ors. reported in 2008(6) Mh.L.J. 715. In the case
of Kisan, supra, it has been held by the learned Single Judge of this Court that the
Court cannot consider vague pleadings in the plaint and if they are to be considered,
then, it would be difficult to expect appropriate reply to such pleadings by the other
side. In the case of Govind, supra, it has been held that evidence cannot be adduced
against pleadings. Relying upon these decisions, learned counsel for the defendant
submits that in the instant matter basically there have been no specific pleadings
with regard to mode of service of notice dated 28.8.1987 and whatever pleadings
were there in that regard, were vague, not capable of being replied appropriately by
the defendant. Therefore, according to him, the first appellate court's findings
recorded in this behalf are perverse.
14. Now, it would be necessary to consider the pleadings in the plaint in
order to appropriately deal with these submissions made on behalf of the
defendant. It is seen from the plaint, page no.2, that the respondent had specifically
mentioned that, “vide notice dated 28.8.1987, the plaintiff terminated the tenancy of
the defendant no.1 …..” On page 3 of the plaint, the plaintiff further pleaded in the
words “...... plaintiff has prior to the notice dated 28.8.1987 has sent the notices four
times but the defendant has avoided to receive the notice. The plaintiff has also
served the defendant notice by telegram on 28.8.1987.” It is clear from these
pleadings that the plaintiff' has generally pleaded about sending of notice dated
28.8.1987 and also about sending of telegraphic notice. These pleadings, in my
opinion, are sufficient to give notice to the defendant of what was sought to be
contended and proved by the plaintiff' in the suit filed by him against the former.
What is important to state and canvass is, sending of notice and this has been done
in the instant case by the plaintiff'. The averment relating to service of notice by
personal delivery relates to only evidence of the pleading. Under Order 6 Rule 2,
Code of Civil Procedure, only the material facts are to be pleaded and not the
evidence by means of which they are to be proved. (See Bharat Singh v. State of
Haryana – (1988) 4 SCC 534). Mode of service of a notice is a matter of evidence.
Therefore, I am not inclined to accept the argument of learned counsel for the
defendant that even the mode of service of notice ought to have been pleaded in the
instant case. There was neither any vagueness in the pleadings as far as sending of
notice dated 28.8.1987 is concerned nor, as seen from the evidence adduced by the
plaintiff, any tendering of evidence against the pleadings on record. Pleadings
generally were already there on record. Therefore, the reliance placed by the
learned counsel for the defendant on the cases of Kisan (supra) and Govinda
(supra) is misplaced.
15. Learned counsel for the defendant has further argued that the defendant
had never received the notices and that he had denied his signature appearing on
the second page of the document vide Ex. 53. He submits that this document Ex.53
was alleged to be a copy of the notice dated 28.8.1987 sent by the plaintiff to the
defendant and served upon the defendant on 28.8.1987. According to him, the
evidence on record would show that the plaintiff has falsely stated that a notice
was sent by him on 28.8.1987 and that it was also received by the defendant on
28.8.1987. From the evidence of plaintiff's witness Shankarlal (P.W.1), learned
counsel submits, falsity of the claim of plaintiff' could be very well seen. In the
evidence of P.W.1 Shankarlal, it has appeared on record that the defendant had
approached the plaintiff' after receipt of the telegraphic notice and had paid him
the amount of arrears of rent and thereafter had received the copy of the notice
which is at Ex.53. Learned counsel for the defendant submits that the receipt issued
in acknowledgment of payment of arrears of rent at Ex.54 is dated 31.8.1987. He
submits that it would mean that arrears of rent were paid on 31.8.1987 and then
going by the own evidence of plaintiff, said notice could not have been received
before 31.8.1987, as the plaintiff claims that after payment of rent arrears, the
defendant had received copy of the said notice. He submits that the alleged
acknowledgment of receipt appearing on second page of notice copy at Ex.53 is
dated 28.8.1987 and this shows falsity of claim of plaintiff. He, therefore, submits
that a serious doubt is created about the service of notice upon the defendant.
16. In this appeal, no substantial question of law as regards presence of any
perversity in the findings recorded by the first appellate Court on receipt of notice
dated 28.8.1987 by the defendant has been formulated. Upon going through the
judgment and decree of the first appellate Court as well as the evidence available on
record, one can very well see that no perversity could be found in the finding
recorded by the first appellate Court as regards service of notice and, therefore, no
substantial question of law can be seen to be involved in this case. No doubt, the
signature on the acknowledgment appearing on page 2 of the copy of the notice
vide Ex.53 is of 28.8.1987. The signature appearing in this acknowledgment
purported to be of the defendant has also been denied by him. But one can see
from the reasons stated by the first appellate Court that the first appellate Court has
considered the evidence in its entirety. It has also considered not only the
acknowledgment vide Ex.53 but also the conduct of the parties. It has found that the
plaintiff had submitted that the defendant was not in arrears of rent and he had so
claimed on the basis of the receipt of arrears of rent vide Ex.54. The first appellate
Court has observed that, on the other hand, the defendant had also admitted that he
was not in arrears of rent. According to the first appellate Court, in such a situation,
it fell upon the defendant to show as to when or on what date he had paid the
arrears of rent and since he did not do so, the first appellate Court drew an inference
against him that he had impliedly admitted to have paid the arrears of rent as
evidenced by the receipt Ex.54. The first appellate Court has also found that the
defendant had not claimed that his alleged signatures on the copy of the notice
and the rent receipts were forged by somebody. The first appellate Court has
further found that the defendant, by his own conduct, had shown that he was not a
man worthy of credence as he had denied his signature even on his own written
statement. These observations of the first appellate Court were based upon the
evidence available on record and this evidence only resonably indicated that the rent
arrears must have been paid on 28.8.1987 and the rent receipt issued on 31.8.1987.
It must be noted here that it was not the case of the plaintiff that the defendant had
received the copy of notice after issuance of rent receipt (Ex.54). His case was,
defendant received copy of notice after he had paid rent arrears. This is also not the
case where the first appellate Court took into account any inadmissible evidence or
left out from consideration any admissible evidence while coming to its conclusion
as noted above. Therefore, I see no perversity in the findings recorded by the first
appellate Court with regard to service of notice dated 28.8.1987.
17. There can be another view possible upon appreciation of evidence
available on record. But, the well settled law on the scope of second appeal under
Section 100, Code of Civil Procedure, 1908, would not permit me to do so. It has
been held by the Hon'ble apex Court in catena of judgments that reappreciation
of
evidence in second appeal is not permissible, howsoever erroneous the appreciation
of evidene by the Courts below might be, and howsoever gross the error might be.
[See Navaneethammal v. Arjuna Chetty – (1996) 6 SCC 166 and Pakeerappa
Rai v. Seethamma Hengsu (dead) by L.Rs. & ors. (
2001) 9 SCC 521.]
18. In the circumstances of the case, the finding recorded by the first
appellate Court that the defendant had indeed received quit notice dated
28.8.1987 cannot be upset and interfered with, as it is based upon the appreciation
of evidence available on record. No perversity could be seen in the finding
recorded in that behalf by the first appellate Court. Therefore, no consequential
relief could be granted to the defendant/appellants in spite of the fact that the
substantial question of law involved in this appeal has been answered in favour of
the defendant/ appellants.
19. The appeal, therefore, fails and it deserves to be dismissed. Accordingly,
the appeal stands dismissed. In the circumstances of the case, parties to bear their
own costs.
requirement of law. Learned counsel for the defendant has submitted that it is the
requirement of subsection
(4) of Section 106 of T.P. Act that notice must be in
writing and signed by the lessor. According to him, this requirement of law has not
been fulfilled in this case, as the only notice which has been stated to be sent to the
defendant by the plaintiff' was a telegram dated 28.8.1987. He submits that it is
now well settled law that a telegraphic notice is no notice in the eye of law and,
therefore, the substantial question of law has to be answered in the negative and in
favour of the defendant.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
SECOND APPEAL No. 299 OF 1995.
Vithalrao Narayanrao Agre
VERSUS
Surendrakumar s/o Shankarlal Agrawal,
CORAM
: S.B. SHUKRE , J .
DATE : NOVEMBER 26, 2013.
Citation; 2014(4) ALLMR 34 Bom
Read original judgment here; click here
This appeal is preferred against the judgment and decree passed in
Regular Civil Appeal No. 11 of 1994 by the Additional District Judge, Gondia,
thereby allowing the Appeal and reversing the judgment and decree passed in
Regular Civil Suit No. 424 of 1987 by the Civil Judge, Jr.Dn., Gondia, on 5.1.1994.
2. Appellants are the legal heirs of deceased original defendant and
respondent is the original plaintiff. For convenience, they are being hereinafter
referred to as defendant and plaintiff, as they were before trial Court. The plaintiff
being the landlord of Block No.3, situated in the chawl on sheet no. 4, plot no. 8/14,
8/15 and 8/24, at Railtoli, Gondia, hereinafter referred to as suit premises, filed a
suit against his tenant, the defendant, for recovery of possession of suit premises
and damages, after obtaining necessary permission to issue quit notice from the
Rent Controller.
3. The plaintiff submitted that after receiving necessary permission, he had
issued several notices under Section 106 of Transfer of Property Act, 1882, to the
defendant informing him that the tenancy had been terminated and calling upon
him to vacate the suit premises by the end of 15.9.1987. It was the contention of the
plaintiff that five quit notices issued by him to the defendant were returned
unserved, but the sixth notice issued on 28.8.1987 was received by him. He had
also submitted that additionally he had sent quit notice through telegram. As the
defendant did not respond to these notices, the plaintiff' filed the aforestated
suit
against the defendant.
4. The defendant resisted the suit by denying that any permission by Rent
Controller was granted to the plaintiff' and that no notice, as required by law,
determining the tenancy and vacating of the suit premises was received by him. He
also submitted that he did not receive any notice dated 28.8.1987 nor any telegram.
On these grounds, he urged that the suit be dismissed with costs.
5. The trial Court after finding that the defendant was a tenant of the
plaintiff, found that there was no valid notice issued by the plaintiff to the
defendant terminating his tenancy and accordingly dismissed the suit with costs.
6. The first appellate Court in the appeal filed against the judgment and
decree of the trial Court, after hearing both the sides, allowed the Appeal. It found
that the plaintiff' had rightly terminated the tenancy of the defendant by serving
upon him a notice dated 20.7 (sic – August) 1987. Accordingly, the first appellate
Court directed the defendant to hand over vacant possession of the suit premises to
the plaintiff' within one month from the date of judgment and order rendered on
5.4.1995. He also directed initiation of separate enquiry for mesne profits under
Order XX Rule 12 of Code of Civil Procedure. The present appeal is against the
aforestated
judgment and order passed on 5.4.1995 by the first appellate Court.
This appeal has been admitted by this Court on 14.6.1996 on the following
substantial question of law :
“Whether a telegram sent besides unserved notices u/s 106
T.P.Act amounts to a compliance of notice not signed by the
sender within the meaning of Section 106 T.P. Act?”
7. I have heard learned counsel for the appellants(defendants) and learned
counsel for the respondent(plaintiff). With their assistance, I have gone through the
paperbook
of appeal and record of the trial Court.
8. The only substantial question of law involved in this case relates to the
requirement of law. Learned counsel for the defendant has submitted that it is the
requirement of subsection
(4) of Section 106 of T.P. Act that notice must be in
writing and signed by the lessor. According to him, this requirement of law has not
been fulfilled in this case, as the only notice which has been stated to be sent to the
defendant by the plaintiff' was a telegram dated 28.8.1987. He submits that it is
now well settled law that a telegraphic notice is no notice in the eye of law and,
therefore, the substantial question of law has to be answered in the negative and in
favour of the defendant. Learned counsel for the plaintiff, however, submits that
apart from telegraphic notice, there also has been another notice received by the
defendant. He submits that there is yet another question involved in this case and it
relates to the time at which the objection as to the validity of the notice should be
raised. He submits that it should have been taken at the earliest possible
opportunity or otherwise as per settled law, it is deemed to be waived.
9. Sofar as subsection
(4) of Section 106 is concerned, it is clear from the
language of the subsection
that it is the mandatory requirement of this provision of
law that notice issued under Section 106(1) must not only be in writing but must
also be signed by the lessor. The telegram, as the one issued in the instant matter,
was not signed by the respondent and, in fact, no telegram for that matter would
bear signature of the sender of the telegram. Therefore, any telegraphic notice
purported to have been issued under Section 106(1) of the T.P. Act would not be in
compliance with the requirement of its subsection
(4). In the case of Maduri
Satyanarayana v. Singamsetti Veerahadraswamy reported in AIR 1990 AP
169 the learned Single Judge of Andhra Pradesh High Court has also taken the same
view. The learned Single Judge has held that telegraphic notice terminating the
tenancy is not a valid notice as it does not satisfy the requirement of signature of the
lessor under Section 106 of T.P. Act.
10. No doubt, objection as to the validity of telegraphic notice ought to have
been taken by the tenant, i.e. the defendant at the earliest possible opportunity. It
appears from the judgment of the first appellate Court that objection in this regard
was indeed taken by the defendant at the first appellate stage. It was a different
matter that the objection was overruled.
The first appellate Court has observed that
the telegram itself can be a valid notice as per the provision of Section 106 of T.P.
Act. The first appellate Court has committed a serious error in recording this
observation. It appears that it has lost sight of the provision contained in subsection
(4) of Section 106 of T.P. Act, which in clear terms lays down a rule that every
notice under subsection
(1) must be in writing, signed by or on behalf of the person
giving it. The language of this provision is imperative and admits of no exceptions.
Whatever may be the finding of the first appellate Court, the fact remains that
objection indeed was taken at the stage of the first appeal. Learned counsel for
plaintiff would submit that it ought to have been taken before the trial Court. In
support, he places reliance upon the decision in the case of Parvatibai v. Radhika
reported in AIR 2003 SC 3995. In this case, the Hon'ble apex Court in para 6 has
observed that an objection as to the invalidity or infirmity of notice under Section
106 of T.P. Act should be raised specifically and at the earliest, else it would be
deemed to have been waived. There can be no dispute about the law so laid down
by the Hon'ble Supreme Court. But it must be noted here that these observations of
the Hon'ble apex Court have appeared in the facts and circumstances peculiar to the
said case of Parvatibai. In that case, the defendant had admitted receipt of notice in
the written statement and had not taken any specific objection as to the validity of
the notice. It was in this backdrop that the Hon'ble apex Court held that the
defendant therein was deemed to have waived the objection as regards the validity
of the notice under Section 106 of T.P. Act. In the instant case, the facts are
different. The defendant had never admitted receipt of the notice rather he had
specifically denied receipt of the notice. He had taken the objection as to its validity
not in the suit but before the first appellate court. This objection, one must say,
was in the nature of an objection as to the requirements of law to be
fulfilled by a party. Such an objection is of law and, therefore, can be taken at any
stage of the proceedings. If the defendant had admitted receipt of the notice in the
instant case, position would have been different and he would have been estopped
from denying what he had admittedly received. Therefore, in my humble opinion,
the law laid down in the said case of Parvati would be of no assistance to the
plaintiff when he submits that the objection as to the validity of the notice ought to
have been taken by the appellant at the earliest stage, i.e. in the suit proceedings.
11. The objection as to the validity of the notice can always be considered by
this Court at the stage of the second appeal, except when the receipt of notice is
admitted. I have already considered this objection and found that the telegraphic
notice alleged to be sent by the respondent to the appellant was not in compliance
with the requirements of subsection
(4) of Section 106 of T.P. Act. This telegraphic
notice was, therefore, an invalid notice and, as such, it would not have been
sufficient by itself to terminate the tenancy of the appellant. The substantial
question of law is, therefore, answered in the negative.
12. But the question still remains, despite answer to the substantial question
of law going in favour of the defendant, whether any consequential relief should be
granted to the appellant or not. Consequential relief in the nature of dismissal of the
suit could have been granted by this Court, had the decree of the first appellate
Court been based upon only the telegraphic notice and unserved notices. On going
through the judgment and decree of the first appellate Court, this does not seem to
be the case. It is seen that the decree is not purely based upon the telegraphic notice
and unserved notices. It is also based upon a notice dated 28.8.1987, copy of which
was held to be received by the defendant in addition to telegraphic notice.
Therefore, in my opinion, no further consequential relief to the appellant can be
granted.
13. Learned counsel for the defendant has submitted that the findings
recorded by the first appellate Court with regard to service of notice dated 28.8.1987
are not only erroneous but perverse as well. He points out from the pleadings of the
parties that the plaintiff had never pleaded in his plaint that the notice dated
28.8.1987 was also served upon the defendant through the mode of personal service.
He further submits that in the absence of such a material pleading, the first appellate
Court could not have found that the notice was personally served upon the
appellant. In support, he places reliance upon the principles of law laid down in the
cases of Kisan Ramji Khandare v. Kausalyabai Gangaram Korde & ors.
reported in 2007(4) Mh.L.J. 43 and Govind Vishwanath Bansode & anr. v.
Manika Gangaram Bansode & ors. reported in 2008(6) Mh.L.J. 715. In the case
of Kisan, supra, it has been held by the learned Single Judge of this Court that the
Court cannot consider vague pleadings in the plaint and if they are to be considered,
then, it would be difficult to expect appropriate reply to such pleadings by the other
side. In the case of Govind, supra, it has been held that evidence cannot be adduced
against pleadings. Relying upon these decisions, learned counsel for the defendant
submits that in the instant matter basically there have been no specific pleadings
with regard to mode of service of notice dated 28.8.1987 and whatever pleadings
were there in that regard, were vague, not capable of being replied appropriately by
the defendant. Therefore, according to him, the first appellate court's findings
recorded in this behalf are perverse.
14. Now, it would be necessary to consider the pleadings in the plaint in
order to appropriately deal with these submissions made on behalf of the
defendant. It is seen from the plaint, page no.2, that the respondent had specifically
mentioned that, “vide notice dated 28.8.1987, the plaintiff terminated the tenancy of
the defendant no.1 …..” On page 3 of the plaint, the plaintiff further pleaded in the
words “...... plaintiff has prior to the notice dated 28.8.1987 has sent the notices four
times but the defendant has avoided to receive the notice. The plaintiff has also
served the defendant notice by telegram on 28.8.1987.” It is clear from these
pleadings that the plaintiff' has generally pleaded about sending of notice dated
28.8.1987 and also about sending of telegraphic notice. These pleadings, in my
opinion, are sufficient to give notice to the defendant of what was sought to be
contended and proved by the plaintiff' in the suit filed by him against the former.
What is important to state and canvass is, sending of notice and this has been done
in the instant case by the plaintiff'. The averment relating to service of notice by
personal delivery relates to only evidence of the pleading. Under Order 6 Rule 2,
Code of Civil Procedure, only the material facts are to be pleaded and not the
evidence by means of which they are to be proved. (See Bharat Singh v. State of
Haryana – (1988) 4 SCC 534). Mode of service of a notice is a matter of evidence.
Therefore, I am not inclined to accept the argument of learned counsel for the
defendant that even the mode of service of notice ought to have been pleaded in the
instant case. There was neither any vagueness in the pleadings as far as sending of
notice dated 28.8.1987 is concerned nor, as seen from the evidence adduced by the
plaintiff, any tendering of evidence against the pleadings on record. Pleadings
generally were already there on record. Therefore, the reliance placed by the
learned counsel for the defendant on the cases of Kisan (supra) and Govinda
(supra) is misplaced.
15. Learned counsel for the defendant has further argued that the defendant
had never received the notices and that he had denied his signature appearing on
the second page of the document vide Ex. 53. He submits that this document Ex.53
was alleged to be a copy of the notice dated 28.8.1987 sent by the plaintiff to the
defendant and served upon the defendant on 28.8.1987. According to him, the
evidence on record would show that the plaintiff has falsely stated that a notice
was sent by him on 28.8.1987 and that it was also received by the defendant on
28.8.1987. From the evidence of plaintiff's witness Shankarlal (P.W.1), learned
counsel submits, falsity of the claim of plaintiff' could be very well seen. In the
evidence of P.W.1 Shankarlal, it has appeared on record that the defendant had
approached the plaintiff' after receipt of the telegraphic notice and had paid him
the amount of arrears of rent and thereafter had received the copy of the notice
which is at Ex.53. Learned counsel for the defendant submits that the receipt issued
in acknowledgment of payment of arrears of rent at Ex.54 is dated 31.8.1987. He
submits that it would mean that arrears of rent were paid on 31.8.1987 and then
going by the own evidence of plaintiff, said notice could not have been received
before 31.8.1987, as the plaintiff claims that after payment of rent arrears, the
defendant had received copy of the said notice. He submits that the alleged
acknowledgment of receipt appearing on second page of notice copy at Ex.53 is
dated 28.8.1987 and this shows falsity of claim of plaintiff. He, therefore, submits
that a serious doubt is created about the service of notice upon the defendant.
16. In this appeal, no substantial question of law as regards presence of any
perversity in the findings recorded by the first appellate Court on receipt of notice
dated 28.8.1987 by the defendant has been formulated. Upon going through the
judgment and decree of the first appellate Court as well as the evidence available on
record, one can very well see that no perversity could be found in the finding
recorded by the first appellate Court as regards service of notice and, therefore, no
substantial question of law can be seen to be involved in this case. No doubt, the
signature on the acknowledgment appearing on page 2 of the copy of the notice
vide Ex.53 is of 28.8.1987. The signature appearing in this acknowledgment
purported to be of the defendant has also been denied by him. But one can see
from the reasons stated by the first appellate Court that the first appellate Court has
considered the evidence in its entirety. It has also considered not only the
acknowledgment vide Ex.53 but also the conduct of the parties. It has found that the
plaintiff had submitted that the defendant was not in arrears of rent and he had so
claimed on the basis of the receipt of arrears of rent vide Ex.54. The first appellate
Court has observed that, on the other hand, the defendant had also admitted that he
was not in arrears of rent. According to the first appellate Court, in such a situation,
it fell upon the defendant to show as to when or on what date he had paid the
arrears of rent and since he did not do so, the first appellate Court drew an inference
against him that he had impliedly admitted to have paid the arrears of rent as
evidenced by the receipt Ex.54. The first appellate Court has also found that the
defendant had not claimed that his alleged signatures on the copy of the notice
and the rent receipts were forged by somebody. The first appellate Court has
further found that the defendant, by his own conduct, had shown that he was not a
man worthy of credence as he had denied his signature even on his own written
statement. These observations of the first appellate Court were based upon the
evidence available on record and this evidence only resonably indicated that the rent
arrears must have been paid on 28.8.1987 and the rent receipt issued on 31.8.1987.
It must be noted here that it was not the case of the plaintiff that the defendant had
received the copy of notice after issuance of rent receipt (Ex.54). His case was,
defendant received copy of notice after he had paid rent arrears. This is also not the
case where the first appellate Court took into account any inadmissible evidence or
left out from consideration any admissible evidence while coming to its conclusion
as noted above. Therefore, I see no perversity in the findings recorded by the first
appellate Court with regard to service of notice dated 28.8.1987.
17. There can be another view possible upon appreciation of evidence
available on record. But, the well settled law on the scope of second appeal under
Section 100, Code of Civil Procedure, 1908, would not permit me to do so. It has
been held by the Hon'ble apex Court in catena of judgments that reappreciation
of
evidence in second appeal is not permissible, howsoever erroneous the appreciation
of evidene by the Courts below might be, and howsoever gross the error might be.
[See Navaneethammal v. Arjuna Chetty – (1996) 6 SCC 166 and Pakeerappa
Rai v. Seethamma Hengsu (dead) by L.Rs. & ors. (
2001) 9 SCC 521.]
18. In the circumstances of the case, the finding recorded by the first
appellate Court that the defendant had indeed received quit notice dated
28.8.1987 cannot be upset and interfered with, as it is based upon the appreciation
of evidence available on record. No perversity could be seen in the finding
recorded in that behalf by the first appellate Court. Therefore, no consequential
relief could be granted to the defendant/appellants in spite of the fact that the
substantial question of law involved in this appeal has been answered in favour of
the defendant/ appellants.
19. The appeal, therefore, fails and it deserves to be dismissed. Accordingly,
the appeal stands dismissed. In the circumstances of the case, parties to bear their
own costs.
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