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PETITIONER: CHIMANLAL

       Vs.

RESPONDENT: MISHRILAL

DATE OF JUDGMENT12/11/1984

BENCH: PATHAK, R.S. BENCH: PATHAK, R.S. MADON, D.P. THAKKAR, M.P. (J)

CITATION:  1985 AIR  136            1985 SCR  (2)  39  1985 SCC  (1)  14        1984 SCALE  (2)725  CITATOR INFO :  D          1988 SC 976  (18)

ACT:       "Madhya Pradesh Accommodation Control Act 1961 section (1)(a). scope  of-Notice of  demand referred  to in  section 12(1  1(a)  to  be  valid  must  inter-alia  relate  to  the accommodation actually  rented to  the tenant  and  not  any other accommodation-A  defective notice  vitiates the entire trial as  the suit  itself is  not  maintainable-Distinction between notice  and the plaint explained-Amending the plaint with the permission of the Court does not cure the defective notice.

HEADNOTE:        The respondent landlord issued a notice dated October 21, 1969  to the  appellant demanding  arrears  of  rent  in respect of accommodation, which according to the respondent, consisted of  a  portion  of  a  shop  and  a  verandah  and terminated the  tenancy; and  he filed  a suit  for eviction under section  12(1)(a) of  the Madhya Pradesh Accommodation Act, 1961  and for  payment of  arrears of rent totaling Rs. 2550. The  appellant after  depositing the entire arrears as required under  section 13(1)  of the Act contested the suit disputing the area and portion of accommodation tenanted and claimed expenditure  incurred by  him for repairs. The trial court dismissed  the suit  accepting the  contention of  the appellant  that  since  the  respondent  has  not  correctly described  the   extent  of   the  premises  in  the  notice terminating the  tenancy, the  tenancy had  not been validly terminated. An  appeal having  been dismissed the respondent filed a  second appeal before the High Court. The High Court granted permission to the respondent for an amendment of the plaint and  relying on  the decision of the Supreme Court in V. Dhanapal  Chettair v.  Yesodai Ammal  [1980] 1 S C.R. 334 that no notice under section 106 of the Transfer of Property Act was  necessary, allowed  the second  appeal.  Hence  the tenant’s appeal after obtaining Special Leave of the Court.      Allowing the Appeal, the Court ^      HELD: 1.  The notice referred to in section 12(1)(a) of the Madhya Pradesh Accommodation Control Act, 1961 must be a

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notice  demanding   the  rental   arrears  in   respect   of accommodation actually  let to  the tenant.  It  must  be  a notice (a)  demanding the  arrears of rent in respect of the accommodation let  to the tenant and (b) the arrears of rent must be legally recoverable from the tenant. There can be no admission by  a tenant  that arrears  of rent are due unless they relate  to the accommodation let to him. A valid notice demanding arrears of rent relatable to the accommodation let to the tenant from which he . 40 is sought  to be  evicted  is  a  vital  ingredient  of  the conditions which govern the maintainability of the suit, for unless a  valid demand  is made  no complaint can be laid of non-compliance  with   it,  and  consequently  no  suit  for rejectment of  the tenant  in respect  of the  accommodation will lie on that ground. [13 F-H; 44 A]      1: 2.  It is  true that  amendment of the plaint in the suit in order to relate to the accommodation asserted by the appellant does  relate back  to the institution of the suit, but  it  cannot  amend  an  invalid  notice  earlier  issued terminating the  tenancy. The  notice of  demand is  an  act independent of the institution of the suit. 44 A-B, D]      The notice  and the  plaint are  two distinct  matters, different by  nature, designed  for different  purposes  and located in two different points of time. They operate in two different planes,  and are relate(l insofar only that one is a condition for maintaining the other. [44 B-C]      1: 3.  The notice  of demand  dated  October  21,  1969 served by  the respondent  on the appellant was invalid and, therefore, the  suit was  not maintainable. It is clear that there is  a substantial difference between the accommodation mentioned in  the notice  and the  accommodation let  to the appellant. It  must be  taken that  the  notice  relates  to accommodation which  cannot be  effectively identified  with the accommodation  constituting the  tenancy. This  is not a case of  a mere  misdescription or  the accommodation  where both parties knew perfectly well that the notice referred to accommodation let  to the tenant. Nor is it a case where the discrepancy  between   the  accommodation   alleged  by  the landlord and  that actually let to the tenant is marginal or insubstantial. the proceedings show that there was a serious dispute between the parties as to the material extent of the accommodation let  be the  one to  the other.  No congruency between the  two versions  was possible.  Not at least until the respondent  was compelled  to seek  an amendment  of his plaint in  the high Court at the stage of second appeal. [43 B-E]

JUDGMENT:      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3356 of 1979. Appeal  by special  leave from  the Judgment and order dated the  12th October,  1979 of  the Madhya  Pradesh  High Court (Indore Bench) in Second Appeal No. 148 of 1976.      R.K. Garg,  S.K. Gambhir,  Mrs. Ashok  Mahajan and Mrs. Sunita Kirplani for the Appellant.      V.K.  Jain,   B.P.  Singh  and  Anjeet  Kumar  for  the Respondent.      The Judgment of the Court was delivered by      PATHAK, J. This is a tenant’s appeal, by special leave, against a  decree  of  the  High  Court  of  Madhya  Pradesh allowing  the   landlord’s  second  appeal  in  a  suit  for eviction.      The respondent,  as landlord,  filed  a  suit  for  the

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eviction of  the appellant  tenant on  the ground  that  the appellant had neither paid nor 41 tendered the  arrears of  rent legally recoverable from him. The plaint  A recited that the appellant had taken a portion of a  shop and a verandah on the ground floor on rent at Rs. l SO  per month  for the purpose of his cloth business, that the appellant  had not paid the arrears of rent totaling Rs. 2,550 for  the period June 26, 1968 to October 11, 1969, and that he was, therefore, liable to eviction on the ground set forth  in   section   12(1)(a)   of   the   Madhya   Pradesh Accommodation Control Act, 1961.      In his written statement the appellant pleaded that the respondent had  described the tenanted premises incorrectly, that in  fact the  premises consisted  of an  entire shop, a kotha behind  the shop  and a verandah in front of the shop, that the  expenditure on  repairs to the premises undertaken by the  appellant had  to be adjusted against the arrears of rent and  that the  notice dated October 21,1969 terminating the tenancy was invalid.      On receiving  the writ  of summons  in  the  suit,  the appellant deposited  the arrears  of rent in compliance with s. 13(1)  of the  Act, but  further compliance with s. 13(1) was not  effected in  as much  as the rent which should have been  deposited  regularly  from  month  to  month  was  not deposited for several months.      The trial  court found  that the expenditure claimed by the appellant on repairing the premises had not been proved. It found  further that the appellant was not entitled to the benefit of  s. 13(1)  of the Act as he had failed to deposit the monthly  rent regularly during the pendency of the suit. But it agreed with the appellant that the respondent had not correctly described the extent of the premises in the notice terminating the  tenancy, and  holding that  the tenancy had not been  validly terminated  it  dismissed  the  suit.  The respondent filed  an appeal,  and that appeal was dismissed. The respondent  then preferred  a second  appeal, and during the pendency  of the  appeal the  High Court  permitted  the respondent to  amend the  plaint so  that references  to the tenanted premises  now  included  the  entire  accommodation claimed by  the  appellant  In  consequence,  the  suit  now related to  that accommodation.  Thereafter, the High Court, by its  judgment and  decree dated  October 12, 1979 allowed the second  appeal. It held that no notice under section 106 of the  Transfer of Property Act terminating the tenancy was required in  view of  the  decision  of  this  Court  in  V. Dhanapal Chettiar  v. Yeshodai Ammal,(l) and it affirmed the finding of  the subordinate  courts that  the appellant  had failed to prove payment for repairing the premises.      (1) [1980] 1 S.C.R. 334 42      On a  conspectus of  the  entire  proceeding  it  would appear that  the only ground on which the subordinate courts dismissed the suit is that the notice dated October 21, 1969 did not  validly terminate  the tenancy  as it referred to a part only of the tenanted premises, while the High Court, in second  appeal,   proceeded  on  the  view  that  no  notice terminating the  tenancy was required at all and, therefore, after permitting the respondent to amend his plaint in order to bring  the entire tenanted premises within the purview of the suit, it decreed the suit.      S. 12(1)(a) of the Madhya Pradesh Accommodation Control Act, 1961 provides:           " 12. Restriction on eviction of tenants,-(l ) Not      with standing anything to the contrary contained in any

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    other law  or contract,  no suit  shall be filed in any      Civil Court  against a tenant for his eviction from any      accommodation except  on one  or more  of the following      grounds only,  namely:      (a)  that the  tenant has neither paid nor tendered the           whole  of   the  arrears   of  the   rent  legally           recoverable from him within two months of the date           on which  a notice  of DEMAND  for the  arrears of           rent has been served on him by the landlord in the           prescribed manner."      S. 12(3)  prohibits the  court from  making an order of eviction on  the ground  specified in  s.  12(1)(a)  if  the tenant makes payment or deposit as required by s. 13. And s. 13 provides:          "13.  When tenant  can get  benefit  of  protection      against eviction-(1)  on a  suit  or  proceeding  being      instituted by  the  landlord  on  any  of  the  grounds      referred to in section 12, the tenant shall, within one      month of  the service  of writ  of summons  on  him  or      within such  further time  as  the  Court  may,  on  an      application made  to it,  allow in this behalf, deposit      in  the   Court  or  pay  to  the  landlord  an  amount      calculated at the rate of rent at which it was paid for      the period  for which  the tenant may have made default      including the  period subsequent  thereto up to the end      of the  month previous  to that in which the deposit or      payment is  . made,  and shall  thereafter continue  to      deposit or  pay, month  by month,  by the  15th of each      succeeding month  a sum  equivalent to the rent at that      rate." 43      It  is   urged  by  the  appellant  that  an  essential condition of  the A  maintainability of  the  suit  IS  non- compliance by  the tenant  with a valid notice demanding the rental arrears,  and the notice to be valid must inter alia, relate to the accommodation rented to the tenant and not any other accommodation.  [t is  pointed out that in the present case the notice dated October 21, 1969 did not relate to the entire accommodation  let to  the appellant  but only  to  a lesser part of it. There is substance in the contention. The notice dated  October 21,  B 1969  is a notice demanding the arrears of rent in respect of accommodation which, according to the  respondent, consisted  of a  portion of a shop and a verandah. The  appellant, on the other hand, pleaded that he had been let the entire shop, the verandah and also a kotha. The subordinate  courts held,  on  the  evidence,  that  the appellant was  right. It  is apparent, therefore, that there is  a   substantial  difference  between  the  accommodation mentioned in  the notice  and the accommodation actually let to the  appellant. It  must be taken that the notice relates to accommodation  which cannot be electively identified with the accommodation  constituting the  tenancy. l his is not a case of  a mere  misdescriptlon of  the accommodation  where both parties knew perfectly well that the notice referred to accommodation let  to the tenant. Nor is it a case where the discrepancy  between   the  accommodation   alleged  by  the landlord and  that actually let to the tenant is marginal or insubstantial. The proceedings show that there was a serious dispute between the parties as to the material extent of the accommodation let  by the  one to  the other.  No congruency between the  two versions  was possible.  Not at least until the respondent  was compelled  to seek  an amendment  of his plaint in  the High  Court at  the stage  of second  appeal. Learned counsel for the respondent points out that there was no dispute  that the  rent for the accommodation was Rs. 150

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per month,  and urges  that is  the amount of the arrears of rent is  admitted between  the  parties  that  is  all  that matters. To  our mind,  that is  not sufficient.  The notice referred to  in s.  12(1)(a) must  be a notice demanding the rental arrears  in respect  of accommodation actually let to the tenant. It must be a notice (a) demanding the arrears of rent in  respect of  the accommodation let to the tenant and (b) the arrears of rent must be legally recoverable from the tenant. There  can be  no admission by a tenant that arrears of rent  are due unless they relate to the accommodation let to him.  A valid  notice demanding arrears of rent relatable to the  accommodation let  to the  tenant from  which he  is sought to be evicted is a vital ingredient of the conditions which govern  the maintainability  of the suit, for unless a valid demand  is made  no complaint  can  be  laid  of  non- compliance with it. and consequently no Suit for 44 ejectment of the tenant in respect of the accommodation will lie on that ground.      It is  contended by  learned counsel for the respondent that the  plaint in  the suit was amended in order to relate to the  accommodation asserted by the appellant and that the amendment relates  back to  the institution of the suit. The submission can be of no assistance to the respondent. We are concerned here  not with  the subject matter of the suit but with the  validity of  the notice which is a prior condition of the  maintainability of the suit. The notice of demand is an act  independent of  the institution  of  the  suit.  The notice and the plaint are two distinct matters, different by nature, designed  for different  purposes and located in two different points  of time.  They operate  in  two  different planes, and are related insofar only that one is a condition for maintaining the other.      Accordingly, we  hold that  the notice  of demand dated October 21,  1969 served  by the respondent on the appellant was invalid  and therefore the suit was not maintainable. In the circumstances,  we consider it unnecessary to enter upon the  other   points  raised  before  us  on  behalf  of  the appellant.      In the  result, we  allow the  appeal,  set  aside  the judgment and  order of  the High Court and dismiss the suit. In the  circumstances of  the case.  there is no order as to costs. S.R.                                         Appeal allowed. 45