ASHOK SHARMA v. ADDITIONAL SESSIONS JUDGE COURT NO 9 LUCKNOW
2008-09-03
RAKESH SHARMA
body2008
DigiLaw.ai
RAKESH SHARMA, J. By means of instant writ petition, the petitioners have assailed the judgment and order dated 12. 1. 2007, whereby the Suit No. 39 of 1997 [shiv Raj Singh (since deceased) and others versus Ashok Kumar] was decreed by the Judge, Small Causes Court and the judgment and order dated 18. 5. 2007 whereby, the revision filed by the petitioners was dismissed and the judgment of the Small Causes Court was confirmed. 2. Learned counsel for the petitioners submits that both the Courts below have erred in holding that the notice was properly served before initiating litigation, which in fact was defective and it was not served on the petitioners correct address. In this regard, he points out that the petitioners correct address is 8/52, Vikas Nagar, Lucknow, whereas the notice has been served at 5/82, Vikas Nagar, Lucknow. Since the property notice was not served at the correct address of the petitioners, the findings recorded by the Courts below were erroneous. 3. As regard the default in payment of rent,learned counsel for the petitioners submitted that he was regularly paying the rent and during litigation, it was deposited in the lower Court. The Court has committed an error in not considering the fact that the petitioners had deposited the amount till October, 1999. The tenancy agreement, according to learned counsel for the petitioners, was not properly terminated. 4. Mr. S. K. Mehrotra, learned counsel appearing for the respondents has resisted the admission of the writ petition. According to him, the notice was legal and valid and it was duly served at the address of the petitioners shop. Admittedly, he was carrying on business at the premises situated in Aliganj. Both the courts below have dealt with this point and has come to the conclusion that the notice was duly served and the provisions of Section 106 of the Transfer of Property Act were rightly followed. 5. In this regard, he has placed reliance on the law laid down by this Court in the case of Gulab Chand Verma Versus Badri Narain Misra 2004 (57) ALR 11 : [air 2005 Alld 133]. If a co-owner of the shop has sent a notice, it can be treated as a valid notice. 6. Counsel for the respondents has also submitted that the interim order dated 25. 5.
If a co-owner of the shop has sent a notice, it can be treated as a valid notice. 6. Counsel for the respondents has also submitted that the interim order dated 25. 5. 2007 has been passed as the order passed by the Honble Supreme Court was not brought to the notice of this Court and no condition has been imposed in the interim order as laid down in the case of Ganga Prasad Versus M/s. Hanif Opticians and others. 7. As urged by the counsel for the petitioner that on 28. 2. 2007, this Court has passed a specific order for depositing the rent in the Court. Against this order, the respondents filed an S. L. P. before the Apex Court and the Apex Court passed the following order on 26. 3. 2007:- "heard learned counsel for the parties. In the facts and circumstances of the case, the petitioner is granted one months time to deposit Rs. 64,933/- towards arrears of rent. Upon the deposit being made, the seal put on the shop shall be removed. The special leave petition is, accordingly, disposed of. " 8. On 7. 5. 2007, this Court passed an interim order directing that the seal put on the shop shall be removed immediately. 9. I have heard learned counsel for the petitioner and perused the record. 10. A perusal of the two judgments, would reveal that both the courts below have come to the conclusion that the notice issued was valid in all respects and the co-owner is also entitled to send notice. As far as address of the house No. 8/52 is concerned, both the Courts have recorded concurrent findings of fact that the notice was sent to the address mentioned in the memo of case. The registered notice was not received back. Admittedly, the petitioner is carrying on a business at 18-D, Counter Pragti Kendra, Kapoorthala, Lucknow, which address was also mentioned in the notice. The notice was sent by the co-owner and he is also empowered to initiate proceedings in view of the law laid down in the case of Atma Ram Properties (P) Limited Versus Federal Motors (P) Ltd. 2005 (58) ALR 650 (SC) = 2005 (260 AIC 84 : [ (2005) 1 Supreme Court Cases 705]. 11. It was a case of termination of lease/licence which the petitioner was carrying on business from the premises of the contesting respondents.
11. It was a case of termination of lease/licence which the petitioner was carrying on business from the premises of the contesting respondents. The protection was withdrawn as the lease was terminated after giving proper notice as the tenant defaulted in payment of rent. Both the courts below had recorded a detailed reasoning in arriving at conclusion drawn by them. Admittedly, the evidence was considered and appreciated. 12. Accordingly, no interference is required under Article 226 of the Constitution of India. 13. The writ petition is dismissed with costs. 14. This Court has been informed that execution proceedings are at final stage. The execution court shall immediately take positive steps for implementing the judgment. The execution proceeding have remained stalled for more than a year. The respondents-landlords shall be entitled to Rs. 10,000/- as costs, which shall be paid to the landlord within one month from today. The judgment and order has been pronounced in the Court in the presence of contesting parties. The contesting parties shall ensure the compliance of the Courts Order and vacate the premises as directed by the Courts below. The amount deposited in the lower Court, in furtherance of this Courts Order and Honble Apex Court, shall be immediately released. .