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2011 DIGILAW 2120 (ALL)

Kuljit Kaur (Smt. ) v. Mahesh Chandra Kulshresth

2011-09-09

SANJAY MISRA

body2011
Sanjay Misra, J.— Heard Sri R.N.Singh, learned Senior Counsel assisted by Sri A.K.Rai, learned counsel for the defendant-revisionist (tenant) and Sri S.K.Kulshrestha, learned counsel for the plaintiff-respondent (landlord). The tenant revisionist is aggrieved by the judgement and order dated 24.10.2011 passed in SCC Suit No. 38 of 2004 (Sri Mahesh Chandra Kulshresth Vs. Smt. Kuljit Kaur) by the Additional District Judge, Court No.1, Kanpur Nagar, whereby the suit of the plaintiff-respondent for eviction and arrears of rent has been decreed by the court below. Learned counsel for the defendant-revisionist at the outset has submitted that the finding on Issue No.1 with respect to the rent of the accommodation in question is illegal inasmuch as the lease agreement itself although stipulated the rate of rent would be Rs. 2,400/- per month but there is no contemplation with respect to the tax and security charges to be paid by the landlord and as such the finding on arrears of rent without considering the liability to pay tax and security charges is illegal. The other submission of learned counsel for the defendant-revisionist is that the finding on Issue No. 4 regarding validity of notice under Section 106 of the Transfer of Property Act is illegal. According to learned counsel for the defendant-revisionist the court below has illegally found the reply given by the plaintiff-landlord to the notice sent by the defendant-respondent as notice under Section 106 of the Transfer of Property Act. The submission is that no notice was given to the tenant and the earlier notice dated 9.10.2003 given by the plaintiff-respondent was abandoned and it was with respect to this notice that the defendant-tenant replied to which the plaintiff-respondent sent his reply on 24.5.2004, which could not be a notice to quit under Section 106 of the Transfer of Property Act. Having considered the submission of learned counsel for the parties and perused the record, the decree granted by the court below with respect to the rate of rent is purely on the basis of written lease agreement which is Paper No. 15-C where the rate of rent is Rs. 2,400/- per month. There is no decree with respect to the payment of tax and security charges as such the issue raised at this stage is not subject matter of the lease deed nor the defendant-tenant has been fastened with that liability under the impugned order. 2,400/- per month. There is no decree with respect to the payment of tax and security charges as such the issue raised at this stage is not subject matter of the lease deed nor the defendant-tenant has been fastened with that liability under the impugned order. Consequently, the submission based on issue no. 1 does not find favour with the Court. Insofar as the decision on the validity of the notice under Section 106 of the Transfer of Property Act is concerned, it will be seen that the plaintiff had earlier given notice on 09.10.2003 which he abandoned and subsequently he gave notice on 24.05.2004. According to learned counsel for the defendant-revisionist, such notice dated 24.05.2004 was not a notice under Section 106 of the Transfer of Property Act but it was reply to the notice given to the plaintiff by the tenant and it cannot be considered as a notice under Section 106 of the Transfer of Property Act. The court below has come to the conclusion that apart from being a reply it was a notice dated 24.05.2004 and it has held that it was the second notice under Section 106 of the Transfer of Property Act. Clearly the notice dated 24.05.2004 asked the tenant to quit and pay the arrears of rent. Even if it is considered as a response of the plaintiff to any earlier communication between the parties the sum and substance of the document indicated that it was a notice to quit and pay arrears of rent. When the requirement of Section 106 of the Transfer of Property Act are present then it could not be held to not be a notice. The view of the court below does not suffer from any illegality. The notice was admittedly sent by registered post it was duly stamped and correctly addressed. The finding is that it was personally served on the defendant-tenant. In view of the aforesaid circumstances, no error or irregularity can be found in the view taken by the court below. There is no merit in this revision. It is accordingly dismissed. No order is passed as to costs. _