P L D 1956 (W (PLP)

YAQUB ALI, J.

On the 1st of July 1951. Maulvi Faiz Bakhsh defendant-appellant obtained a lease of a vacant site situated in the city of Multan from Sayyed Shadi Shah plaintiff-respondent for a period of one year. On the expiry of the period of lease the defendant continued in possession of the site as a tenant from month to month on the terms embodied in the original agreement, which inter alia provided that the plaintiff would be entitled to eject the defendant on issue of one month's notice. Such a notice was issued by the plaintiff on the 3rd of August 1954, and received by the defendant on the 8th of August 1954. This was followed by a suit instituted by the plaintiff on the 13th of November 1954, for the ejectment of the defendant, out of which this second appeal has arisen. The main contention raised by the defendant at the trial was that the notice issued to him prior to the institution of the suit was invalid, because it did not terminate with the last day of the month of tenancy as required by section 106 of the Transfer of Property Act. Both the Courts below have overruled this contention and decreed the plaintiff's suit. In my view the objection raised by the defendant has no force, because the agreement of lease provided that the lease could be terminated in a manner other than that laid down in section

106. The provisions of section 106 apply only to those cases in which the parties themselves do not make a relevant provision. The learned counsel for the appellant contended before me that the only variation provided for in the agreement of lease was regarding the period of notice and not with regard to the date of its termination. In support of this contention, he has relied upon a number of authorities, which, with the exception of a Single Bench authority of this Court, have no direct bearing on the facts of this case. In Chuni Lai v. Chuni Lal (A I R 1923 Lah. 659), Moti Sagar J. held that the provisions of section 106 apply where there is no contract provided for by the parties to the contrary. A condition in the lease that the landlord would give one month's notice if he wanted to have the premises vacated, in his Lordship's opinion, did not mean that notice could be given at any time, and that it was not to expire with the end of the month of tenancy. The objection taken by the landlord in that case that the provisions of section 106 of the Transfer of Property Act did not apply in this Province was repelled on the ground that section 106 merely lays down in a codified form what in fact has always been understood to be the general law on the subject. There fore, although section 106 does not specifically apply to this Province, in the absence of a contract to the contrary, the provisions of this section would apply to cases of tenancy in this Province. I find myself in respectful agreement with the view expressed by Moti Sagar J. on this point, but I regret my inability to do so with regard to the decision in that case that a condition in the lease that the landlord would give one month's notice does not mean that notice could be given at any time and it was not to expire with the end of the month of tenancy as required by section

106. It is obvious that when parties are providing for a particular mode for the termination of tenancy by issuing a notice for a period different from that provided in section 106 the case falls within the clause in the absence of a contract to the contrary", which is a pre-condition for the application of the provisions of section

106. It is not reasonable to infer that while making the relevant provision the parties are merely providing for the period of notice and leaving the point of its termination to be governed by the provisions of section

106. In my opinion, therefore, when section 106 recites that "In the absence of a contract" it means where the parties have themselves made no provision at all for the termination of the lease by issuing a notice for a specified period. Assuming that in a given case the parties provided for issue of a notice for a week without mentioning the point of its termination and the provisions of section 106 that the notice must expire with the last day of the month of tenancy were made applicable to it, the result would be that period of notice will be automatically enlarged against the express condition of the lease for although the period of notice under section 106 is only 15 days, a lease cannot be termi nated before the expiry of the last day of the current month of tenancy. Thus if the landlord or the tenant wanted, to terminate the lease on the 1st day of the month of tenancy, he Would not be able to do so until the last day of the month. This certainly could not have been the intention of the legislature otherwise it would not have inserted the clause "in the absence of a contract" in section

106. The above conside ration does not appear to have been brought to the notice of the learned judge in coming to a different conclusion in Chuni Lai's case. There is yet another aspect of the case on account of which this appeal must be dismissed. It has been noticed that the suit for ejectment was filed by the plaintiff on the 13th of November 1954, that is, more than three months after the notice had been received by the defendant. No prejudice could, therefore, have been caused to him merely because the period mentioned in the notice did not coincide with the last date of the month of tenancy. In Karam Chand v. Amar Nath Mohsan (A I R 1933 Lah. 377), Bhide J. following an earlier authority of this Court in Kaka v. Ram Saran (A I R 1926 La h. 129), refused to interfere in second appeal where no notice had been issued at all by the landlord on the ground that the suit for ejectment had remained pending for over two years, and the appellant could not have any reasonable grievance on the ground of lack of notice. For the foregoing reasons, I find no substance in this appeal and dismiss it with costs throughout. A. H. Appeal dismissed.