Henderson, J.@mdashThis appeal is by the defendant. The first contention made on his behalf is that the notice to quit was not a valid notice.
2. It is common ground that the lease was an oral lease. The respondent brought a previous suit which was compromised. The terms of the compromise are not before us and the notice served by the respondent has not been proved.
3. Ordinarily this would be sufficient to cause the plaintiff to fail. The plaint, however, sets out the terms of the notice. There was no denial in the written statement and accordingly it must be accepted that the case made in the plaint is correct.
4. The contention made by Mr. Hemendra Kumar Das on behalf of the appellant is that S. 110, T. P. Act, does not apply, firstly because the lease was an oral lease and secondly because there was no time limited and this is not a case of holding over. In addition, he contended that the notice was a bad notice as it called upon the defendant to vacate on the 2nd of the Bengali month.
5. On the plaint read as a whole there can be no doubt that the allegation of the plaintiff is that the defendant was called upon to vacate on the 1st of the month. The notice was therefore a good notice if S. 110 applies and a bad notice if it does not.
6. The applicability of this section was considered in 48 C. W. N. 76 Calcutta Landing and Shipping Co., Ltd. v. Victor Oil Co., Ltd. (''44) 31 A. I. R. 1944 Cal. 84 : 211 I. C. 503 : 48 C. W. N. 76. Unfortunately the learned Judges disagreed. I myself would be disposed to agree with Rau J. that the section is not confined to written leases. The term "expressed" can include both oral and written statements. On the second point I should agree with my learned brother Mukherjea that as there was no time limited by the lease, S. 110 does not apply.
7. Finally, Mr. Gopendra Nath Das contended that S. 106 does not apply to the facts of this particular case. There is nothing in the plaint to suggest that in this particular case there was a contract to the contrary which would take the case out of the terms of the section. Indeed the service of a notice to quit would then be redundant.
8. From this it follows that the present notice was a bad notice and that the original notice was a good notice. In view of the contradictory pleadings of the defendants in the last suit which set up a permanent tenancy, I should certainly not be prepared to allow him any costs.
9. The result is that the decree of the lower appellate Court is set aside and that of the Munsif restored.
10. The parties will bear their own costs both in this Court and in the lower appellate Court.
