A plea that a lease was for manufacturing purposes attracting six months’ notice under Section 106(1) of the Transfer of Property Act cannot be raised for the first time in second appeal when no such plea was taken in the pleadings and no issue was framed or decided on that aspect. Concurrent findings of fact regarding default in payment of rent do not give rise to a substantial question of law under Section 100 CPC.

advocatemmmohan

Transfer of Property Act, 1882 – Section 106(1) – Notice to quit – Six months’ notice for manufacturing lease – Plea not raised in pleadings – Cannot be raised for first time in second appeal – Para 3

Code of Civil Procedure, 1908 – Section 100 – Second Appeal – Scope – Concurrent findings of fact regarding default in payment of rent – No substantial question of law – Appeal liable to be dismissed at admission stage – Para 2, 4

Landlord–Tenant – Eviction on ground of default – Thirty days’ notice – Auto repair business not manufacturing activity – Section 106(1) not attracted – Para 4

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FACTS

• Respondent/plaintiff filed O.S. No.143 of 2016 for eviction of defendant/tenant on ground of default in payment of rent.

• Trial Court decreed suit after recording finding of default.

• First Appellate Court confirmed decree.

• Tenant filed second appeal contending:

  • He was carrying on manufacturing business.

  • Six months’ notice under Section 106(1) T.P. Act was mandatory.

  • Only 30 days’ notice was issued.

  • Suit therefore not maintainable.

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ISSUE

Whether a tenant can, in second appeal, raise for the first time a plea that the lease was for manufacturing purpose attracting six months’ notice under Section 106(1) of the Transfer of Property Act?

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COURT’S ANALYSIS

I. Absence of Pleading (Para 3)

• No plea in written statement that:

  • Lease was for manufacturing purpose.

  • Six months’ notice required.

  • Notice issued was invalid.

• No issue framed on this aspect.

• No finding recorded by trial or first appellate court.

Principle applied:

A new plea involving mixed question of fact and law cannot be raised for the first time in second appeal.

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II. Nature of Business (Para 4)

• Even as per submissions, appellant was running auto repair business.

• Such activity does not qualify as “manufacturing purpose” under Section 106(1) T.P. Act.

Thus:

• Six months’ notice provision not attracted.

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III. Scope under Section 100 CPC

• Two courts below recorded concurrent findings of fact:

  • Defendant committed default in payment of rent.

• No perversity or legal error shown.

• No substantial question of law arises.

Second appeal dismissed at admission stage.

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RATIO DECIDENDI

A plea that a lease was for manufacturing purposes attracting six months’ notice under Section 106(1) of the Transfer of Property Act cannot be raised for the first time in second appeal when no such plea was taken in the pleadings and no issue was framed or decided on that aspect. Concurrent findings of fact regarding default in payment of rent do not give rise to a substantial question of law under Section 100 CPC.