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Rajasthan High Court · body

2012 DIGILAW 1919 (RAJ)

Ram Pal v. Sohan Lal

2012-09-10

VINEET KOTHARI

body2012
Hon'ble Dr. KOTHARI, J.—The present first appeal has been filed by the defendant – tenant – Ram Pal s/o Mahadev Prasad under Section 96 CPC aggrieved by the judgment and decree dated 02.05.2011 for eviction of a suit shop situated at Nokha, district Bikaner, in which the defendant – appellant is carrying on the business in the name and style of M/s. Kanchan General Store, Pancharia Market, Ghantaghar, Nokha, Tehsil Nokha, district Bikaner. 2. The plaintiff / lessor / landlord – Sohanlal s/o Hiralal by caste Pancharia, filed a suit on 25.01.2005, which was registered as 43/2005, which was later on registered as Suit No.129/2008 – Sohanlal vs. Rampal and came to be decreed by the learned trial court on 02.05.2011. According to the plaintiff, the lease / tenancy in question was terminated after serving a notice under Section 106 of Transfer of Property Act dated 22.11.2004 and sending the same by registered A.D. post to the defendant - lessee at the address of the suit shop on 22.11.2004 itself. On the acknowledgment receipt of which, the signatures of Rampal's adult son, Shri Suresh vide Ex.3 were obtained for service on 23.11.2004. 3. The learned trial court decided the said issue in favour of the plaintiff holding that the service under Section 106 of the Transfer of the Property Act terminating lease, was proper and in accordance with law on the said son Suresh, comparing his signatures on Ex.3 A.D. with another document Ex.7 – a letter dated 19.01.2004 addressed to the defendant's business firm M/s. Kanchan General Store by M/s. Pancharia Transport of India, the plaintiff's another business firm – a Transport Company, in which the acknowledgment of receipt by the said defendant's son were taken and comparing the signatures of the said son Shri Suresh on these two documents Ex. 3 and Ex.7, the learned court below came to the conclusion that the service on said son Suresh was in accordance with law and consequently the tenancy / lease stood terminated and accordingly the eviction suit was decreed, since in Nokha, Rent Control Act did not apply at that point of time. Being aggrieved by the same, the defendant – tenant – appellant – Rampal has preferred this first appeal in this Court, which was filed on 23.05.2011. 4. Mr. R.K. Thanvi, Sr. Advocate assisted by Mr. Being aggrieved by the same, the defendant – tenant – appellant – Rampal has preferred this first appeal in this Court, which was filed on 23.05.2011. 4. Mr. R.K. Thanvi, Sr. Advocate assisted by Mr. D.D. Chitlangi submitted that the tenancy was not terminated in accordance with Section 106 of the Transfer of Property Act as the service of the notice Ex.1 dated 22.11.2004 was not effected in accordance with Section 106 (4) of the Act. According to Mr. Thanvi, learned counsel for the appellant – defendant the word “at his residence” in Section 106(4) of the Act governs and restricts the provisions to the two modes of service prescribed in Section 106(4) of the Act, namely (i) that such registered notice is either be sent by post to the party who is intended to be bound by it or, (ii) be tendered or delivered personally to such party, or to one of his family or servants at his residence, or if such service is not practicable, affixed to a conspicuous part of the property as per the second part of Section 106 (4) of the Act. 5. Learned counsel urged that not only the defendant Rampal (DW-1) denied the signatures of his son Suresh on the said Ex.3 – Acknowledgment Receipt and also stated before the Court that the said son Suresh was not doing business with him regularly and, therefore, service upon him by the said registered post could not be taken as sufficient service, as the same was not effected at the residential address of the defendant, which in any case was different than the shop address, namely being at Ward No.2, Udhampura Mohalla, Nokha, whereas shop address was M/s. Kanchan General Store, Pancharia Market, Ghantaghar, Nokha, Tehsil Nokha, district Bikaner. 6. Learned counsel for the appellant – defendant, Mr. 6. Learned counsel for the appellant – defendant, Mr. Thanvi though could not produce any case laws in support of his aforesaid contentions, but sought to distinguish the judgment relied upon by the learned court below and also relied upon the learned counsel for the respondent – plaintiff – landlord before this Court in the case of Sukumar Guha vs. Naresh Chandra Ghosh and another reported in AIR 1968 Calcutta 49 and submitted that the argument raised before this Court namely that the service through the registered A.D. post or through the personal delivery should be effected at the residential address of the defendant, was never raised before the Calcutta High Court and, therefore, the said judgment is distinguishable. He also submitted that the provisions of Order 5 Rule 12 to 16 CPC, particularly Rule 15, which lays down that where service may be effected on an adult member of defendant's family, cannot be imported while considering the provisions of Section 106(4) of the T.P. Act, as the same independently prescribes the different modes of service of notice terminating the lease in that provision itself and, therefore, there is no need to refer to the provisions of Order 5 Rule 12 to 16 CPC, particularly Rule 15 in this regard. 7. He also submitted that the learned court below could not have compared the two signatures of Suresh on Ex.3 and Ex.7 since the defendant Rampal had categorically denied his son's signatures on these documents, therefore, in these circumstances, the signatures being not admitted signatures, no adverse inference could be drawn of service of notice by comparing these two signatures by the learned court below. He, therefore, submitted that the eviction decree under appeal deserves to be set aside and the present first appeal of the defendant - tenant deserves to be allowed. 8. On the other hand, Mr. Sajjan Singh and Mr. He, therefore, submitted that the eviction decree under appeal deserves to be set aside and the present first appeal of the defendant - tenant deserves to be allowed. 8. On the other hand, Mr. Sajjan Singh and Mr. J.K. Bhaiya, learned counsels appearing for the plaintiff – respondent – landlord/lessor supported the judgment and decree of the court below and submitted that the purpose of the providing different modes in Section 106(4) of the Transfer of Property Act, 1882, wherein four modes and not two modes as contended by the learned counsel for the defendant – tenant, have been prescribed by the Legislature and with the use of words “or” between these four clauses of Section 106(4) of the Act”, the same are made mutually independent and exclusive modes of service of the notice under Section 106(1) of the Act for terminating the lease by 15 days notice or 6 months' notice depending upon the nature of the use of the suit property and if the service is effected by one of the modes to the satisfaction of the Court, the tenancy / lease will be deemed to have been validly terminated and, therefore, the eviction decree could very well be granted and since the provision of Rent Control Law under 1950 Act, did not admittedly apply to Nokha at the relevant point of time, the decree in the present case is perfectly just and legal. 9. Emphasizing the submissions, with the help of Calcutta High Court decision in the case of Sukumar Guha vs. Naresh Chandra Ghosh and another (supra), learned counsel for the plaintiff – respondent submitted that actually last two modes of Section 106(4) of the Act namely (1) vicarious tender or delivery and (2) by affixure of notice are dependent and relevant only for second mode of service namely “be tendered or delivered personally to such party or to one of his family or service at his residence”, whereas the first mode namely “by sending by post to party who is intended to be bound by it”, is an independent mode and if such notice is served at the address of the suit shop itself, there is no question of serving the said notice at the different address or residential address as contended by learned counsel for the appellant – defendant. 10. Explaining the provisions of sub-section (4) of Section 106 of the Act, Mr. 10. Explaining the provisions of sub-section (4) of Section 106 of the Act, Mr. Sajjan Singh argued that the notice of terminating the lease under Section 106 of the Transfer of Property Act by effecting the service of such notice on the defendant or any of the adult members of his family or even at his business place, would be sufficient to terminate such lease and for this, the provisions of Order 5 Rule 12 to 16 CPC can also be validly read in conjunction with the provisions of Section 106(4) of the T.P. Act, as there is no repugnancy or conflict in these provisions and therefore, if the service of the notice is effected on the adult member of the family, even at the business place, in the absence of any defendant – lessee himself at such address, the Court can correctly come to the conclusion that the lease / tenancy stood terminated with the service of such notice. 11. He also drew the attention of the Court towards another later decision of the Allahabad High Court in Smt. Sudha Agarwal vs. VII Additional District Judge, Ghaziabad and others reported in 2006 AIR (NOC) 1246 (All.) Head Note B, wherein the learned Single Judge of Allahabad has held that words “at his residence” in Section 106(4) of the Act relate only to service upon family or servants of tenant and, therefore, the notice sent at tenanted shop in dispute was not improper. He also drew the attention of the recent decision of this Court rendered in the case of Gopal Krishan vs. Braham Prakash (S.B. Civil Second Appeal No.216/2012) decided on 3rd September, 2012 and in the case of Om Prakash vs. LRs of Dev Raj (S.B. Civil Second Appeal No.857/2011) decided on 14th August, 2012 and Babu Lal vs. Smt. Anita Devi (S.B. Civil Second Appeal No.85/2012) decided on 28th August, 2012 dealing with the provisions of Section 106(4) of the Act in support of his contentions. A reference to which will be made hereinafter. 12. Having heard learned counsels at length and upon perusal of the judgment under appeal, record of the trial court and judgments cited at the bar, this Court is of the opinion that present appeal of defendant – tenant deserves to be dismissed. The reasons are as under: 13. Section 106 of the Transfer of Property Act is reproduced below for ready reference. The reasons are as under: 13. Section 106 of the Transfer of Property Act is reproduced below for ready reference. Section 106. Duration of certain leases in absence of written contract or local usage. - (1) In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months' notice; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days' notice. (2) Notwithstanding anything contained in any other law for the time being in force, the period mentioned in sub-section (1) shall commence from the date of receipt of notice. (3) A notice under sub-section (1) shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under that sub-section, where a suit or proceeding is filed after the expiry of the period mentioned in that sub-section. (4) Every notice under sub-section (1) must be in writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property. 14. This Court interpreting Section 106(4) of the Act in the case of Om Prakash vs. LRs of Devi Raj (SBCSA No.857/2011) decided on 14.08.2012 has already held that Section 106(4) of the Act envisages four modes of service of notice terminating the lease under sub-section (1) of Section 106 of the Act and the service was treated as complete in that case, even though the registered notice was tendered by postman at the correctly given address, which was returned with the postal remark “not found available”. Interpreting the words “receipt of the said notice” in Section 106 of the Court held as under: “6. Interpreting the words “receipt of the said notice” in Section 106 of the Court held as under: “6. Sub-section (4) of Section 106 of the Transfer of Property Act envisages four modes of service terminating the lease under sub-clause (1) (i) notice must be in writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it, or (ii) notice must be tendered or delivered personally to such party, or (iii) it should be offered to any member of his family or servants at his residence, or (iv)- if such tender or delivery is not practicable, notice may be affixed to a conspicuous part of the property. 7. The word 'or' in these four different parts of sub-Section (4) of Section 106 of the T.P. Act makes these modes of service mutually exclusive and not dependent or connected with each other. In the present case, since the envelope of registered post containing such notice (Ex.3) was admittedly tendered by the postman at the correctly given address, which address, the defendant himself during the course of evidence, has admitted that given address on Ex.3 notice was the correct address and he usually received his posts/ “Dak” at this address, the courts below, therefore, cannot be said to be at fault in drawing the presumption of service/receipt of the notice by the defendant-tenant in view of aforesaid postal remark. The Hon'ble Apex Court clearly held in para 6, quoted above, that the postman is not expected to act as a process server and is not expected to do what process server does under O. V of CPC, and go to the extent of affixture of the notice or, either to find out the whereabouts of the addressee, or wait for his return, if not found available at that time when such post is tendered for service. The burden of proving the Issue No.2 in this regard was laid on the defendant-tenant, and upon the perusal of his statements, it does not even indicate that either he was permanently out from the said address or none of his family members or servants were available at the address given at that time. The provision of sub-Section (4) of Section 106 of the T.P. Act, speaks about service even on family members or servant at his residence. The provision of sub-Section (4) of Section 106 of the T.P. Act, speaks about service even on family members or servant at his residence. As per own showing of the defendant-tenant, he was running some ice factory at the given address and, therefore, it cannot be said that nobody was present at that time to take the notice. The defendant-tenant can hardly take advantage of the aforesaid postal remark written on the envelope that he was not found available at the given moment. Mere tender of notice at his given address was thus sufficient to presume the “receipt” of the same or service of the same on the defendant-tenant. 8. Essentially, it remains a finding of fact that whether the notice in question terminating the lease was properly served or not, and the findings arrived at in the present case by the courts below, are not perverse in any manner. But, on the contrary, the same are perfectly in accord with the law laid down by the the Hon'ble Apex Court in the case of M/s Madan & Co. (supra).” 15. Later on, following the said judgment, this Court again in Gopal Krishan vs. Braham Prakash (SBCSA No.216/2012) decided on 03.09.2012 held that service of such notice returned with the postal remark “refused” was sufficient to construe the service of the same upon the defendant in view of presumption of such service raised on the basis of the postal remark “refused”. The relevant extract from 13 and 14 is quoted below: “13. As far as service of notice under Section 106 of the Transfer of Property Act is concerned, the same is indisputably a finding of fact. The notice in question was returned with the postal remark “refused”. Same is bound to give rise to the presumption of service on the defendant. The contention of the defendant – lessee that the same was never received by the defendant does not hold any water especially when he wants to plead about validity of said notice of minimum 6 months' period in view of his carrying on manufacturing activities of Bidi in the suit premises. A place, where some manufacturing activities are taking place is not supposedly occupied by only a single person for whose non-availability or refusal, the notice would be returned back by Postal Department. A place, where some manufacturing activities are taking place is not supposedly occupied by only a single person for whose non-availability or refusal, the notice would be returned back by Postal Department. However, since the question of manufacturing activities not being there stands concluded against the defendant with the dismissal of his application under Order 41 Rule 27 C.P.C. upheld by this Court, the question about validity of said notice under Section 106 of the Transfer of Property Act also pales into insignificance because 15 days' notice was admittedly given. The tenancy in question has been shown and established at monthly rent of Rs.149/- per month by the defendant – lessee. He has himself moved more than once, applications before the learned trial Court to pay such monthly rent of Rs.149/- per month after lapse of a year or more. Mere payment of accumulated rent for a period more than one year does not convert it into an annual lease. The requirement of law about the annual lease being in the form of a registered lease document has admittedly not been complied with in the present case. The correctness of address where notice terminating the lease was sent at the address of suit premises or even at the residential address of the defendant is not in dispute. Therefore, once 15 days' notice is served terminating the lease, the occupation of suit premises by the lessee becomes unauthorized. The findings of court below based on evidence cannot be said to be perverse in the facts and circumstances of the case. The Hon'ble Supreme Court in the case of Shri Janki Devi Bhagat Trust (supra) has even held that even a manufacturing lease which is not from year to year, does not require six months' notice of termination of the lease and it will fall in the second half of Section 106 requiring 15 days notice of termination. Here in the present case, the fact of manufacturing activities carried on in the suit premises is not established by the lessee. 14. In the considered opinion of this Court, therefore, both the issues about the receipt of notice terminating lease as well as period of notice and thus validity of notice have rightly been decided in favour of the plaintiff – respondent and against the defendant lessee. 14. In the considered opinion of this Court, therefore, both the issues about the receipt of notice terminating lease as well as period of notice and thus validity of notice have rightly been decided in favour of the plaintiff – respondent and against the defendant lessee. No substantial question of law arises in the present second appeal requiring further consideration by this Court under Section 100 C.P.C. 16. The learned Single Judge of Calcutta High Court in Sukumar Guha vs. Naresh Chandra Ghosh and another reported in 1968 AIR Calcutta 49 in para 23 of the judgment held that the principal modes of service of notice mentioned in Section 106 T.P. Act are two (i) either by sending by post to the correct address or (ii) by tender or delivery to the party. The other two modes are alternative to 2nd mode of tender or delivery, viz., (3) vicarious tender or delivery and (4) by affixure of notice. This Court cannot agree with the said proposition more, then respectfully quoting the relevant extract from Head Note (B) at page 49 of the said judgment : “The principal modes of service of notice mentioned in Section 106, T.P. Act are two, either by sending by post to the correct address or by tender or delivery to the party. Other two modes are alternatives to 2nd mode of tender or delivery, viz., (3) vicarious tender or delivery and (4) by affixure of notice. The second mode is independent alternative to 1st, while 3rd and 4th modes are alternatives to 2nd, the 4th mode being available only when neither 2nd nor 3rd mode is practicable. It follows that when 1st mode is satisfied either by proof and/or presumption, none of the other modes are necessary or relevant; when 2nd mode is satisfied by proof of tender or delivery either by evidence or by presumption regarding delivery or tender by postman, neither 3rd nor 4th mode is necessary or relevant. If 2nd or 3rd mode appears to have been practicable but has not been availed, giver of the notice cannot avail of the 4th mode. The two principal modes of service of notice above mentioned may be effective at any place though that place is neither the residence of the party nor the property in suit. If 2nd or 3rd mode appears to have been practicable but has not been availed, giver of the notice cannot avail of the 4th mode. The two principal modes of service of notice above mentioned may be effective at any place though that place is neither the residence of the party nor the property in suit. But vicarious tender or service must be at his residence and nowhere else; affixing the notice must be at the property in suit and nowhere else, not even at his residence if property in suit is not the residence. Residential premises taken on rent for residential purposes by the defendant where a part of his family resides is a correct address or the defendant where notice under Section 106, T. P. Act can be sent by post for effective service and that such a place is residence of the defendant within the meaning of that Section, though the defendant personally may be living elsewhere for the time being. Where notice under S. 106 was sent by registered post at Kanpur where the defendant was but the address given was not correct and notice was returned unserved and subsequently the notice was sent under a Certificate of posting to the correct address at Calcutta where defendant's family resided in the tenanted premises it was held that the service of notice by post was effective under S.106 and S.13(6) of W.B. Premises Tenancy Act.” 17. This Court also finds little force in the contentions raised on behalf of the appellant – defendant that the provisions of Order 5 Rule 12 to 17 CPC cannot be imported in Section 106(4) and read with the same. Provisions are quoted below for ready reference. Order 5: Rule 12. Service to be on defendant in person when practicable, or on his agent.- Wherever it is practicable, service shall be made on the defendant in person, unless he has an agent empowered to accept service, in which case service on such agent shall be sufficient. Rule 13. Service on agent by whom defendant carries on business. Order 5: Rule 12. Service to be on defendant in person when practicable, or on his agent.- Wherever it is practicable, service shall be made on the defendant in person, unless he has an agent empowered to accept service, in which case service on such agent shall be sufficient. Rule 13. Service on agent by whom defendant carries on business. - (1) In a suit relating to any business or work against a person who does not reside within the local limits of the jurisdiction of the Court from which summons is issued, service on any manager or agent, who, at the time of service, personally carries on such business or work for such person within such limits, shall be deemed good service. (2) For the purpose of this rule the master of a ship shall be deemed to be the agent of the owner of charterer. Rule 14. Service on agent in charge in suits for immovable property. -Where in a suit to obtain relief respecting, or compensation for wrong to, immovable property, service cannot be made on the defendant in person, and the defendant has no agent empowered to accept the service, it may be made on any agent of the defendant in charge of the property. Rule 15. Where service may be on an adult member of defendant's family. -Where in any suit the defendant is absent from his residence at the time when the service of summons is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept service of the summons on his behalf, service may be made on any adult member of the family, whether male or female, who is residing with him. Rule 16. Person served to sign acknowledgment. - Where the serving officer delivers or tenders a copy of the summons to the defendant personally, or to an agent or other person on his behalf, he shall require the signature of the person to whom the copy is so delivered or tendered to an acknowledgment of service endorsed on the original summons. Rule 17. Procedure when defendant refuses to accept service, or cannot be found. Rule 17. Procedure when defendant refuses to accept service, or cannot be found. - Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgment, or where the serving officer, after using all due and reasonable diligence, cannot find the defendant, who is absent from his residence at the time when service is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and there is no agent empowered to accept service of the summons on his behalf, nor any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the Court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did no, and the name and address of the person, if any, by whom the house was identified and in whose presence the copy was affixed.” 18. It is nobody's case that provisions of Section 106 (4) of the Act are in derogation or in conflict with or are repugnant with the above quoted provisions of Order 5 Rule 12 to 17 CPC. 19. A closer perusal of Order 5 Rule 15, which provides that where in any suit the defendant is absent from his residence at the time, when the service of summons is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept service of the summons on his behalf, service may be made on any adult member of the family, whether male or female, who is residing with him. Since we are dealing with a business place of the suit premises, substitute the word “shop” or “business premises” for the words “residence” in Order 5 Rule 15 CPC and thus read for harmonious interpretation, because Order 5 CPC is not meant for any particular class of litigation and the contention of the learned counsel for the defendant in the present case stands watered down. There is no reason to hold that an adult member of the family cannot accept such a notice at the business place, but only at the residence. 20. Since this Court finds no force in the contention of the learned counsel for the defendant – appellant, Mr. R.K. Thanvi that the words “at his residence” employed in Section 106(4) of the Act, restricts the service of the notice by post or tendered or delivered personally at such residence only, for which there appears to be no justification at all, there is nothing in law, which would restrict the court from importing Order 5 Rule 15 and reading the same with the Section 106(4) of the Act, while holding that the service on an adult member of the family would also be equally good and sufficient service of the notice. With great respects, the learned Single Judge of Calcutta High Court was absolutely right in holding that the basic two modes of service in Section 106(4) of the Act are (i) either by post and (ii) by tendering personally or by delivering personally. Such notice can be served by post either on defendant – tenant / lessee himself or on his agent or any adult male / female member of the family, if such service is by post or by personal tender or deliver and when such personal tender or delivery is not practicable for any good reason, last portion of Section 106(4) of the Act provides like Order 5 Rule 20 provides, a substituted mode of service viz. by affixture of notice to the conspicuous part of the property, namely, the suit property. 21. by affixture of notice to the conspicuous part of the property, namely, the suit property. 21. The sum and substance of making the various provisions providing for different modes of service of a notice is ultimately to ensure that the defendant has been put a notice for intended litigation by way of a suit, which the plaintiff intends to file, in case the desired relief in the notice is not extended or given by the defendant, without the need of the plaintiff approaching the court of law. 22. In the light of this, equally devoid of merit is the contention of the learned counsel for the defendant – appellant, Mr. R.K. Thanvi that the learned court below also could not have compared the two signatures under Section 73 of the Evidence Act on Ex.3 A.D. Receipt and Ex.7 the letter dated 19.01.2004, even though such Ex.7 was produced during the cross-examination of the defendant, the fact remains that the same was taken on record and was marked as Ex.7 by the learned court below. The purpose of Section 73 of the Evidence Act is to permit a satisfaction of the Court to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing, or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing, or seal has not been produced or proved for any other purpose. In the absence of any other handwriting experts' opinion, such a comparison by the trial court, cannot be denied merely because a party to the lis does not admit the same. The very purpose of allowing the Court to arrive at such a satisfaction of its own is to over-come the admission or denial of the same by the party. Therefore, in the present case also, the learned court below could rightly compare these two signatures and arrive at the satisfaction. The very purpose of allowing the Court to arrive at such a satisfaction of its own is to over-come the admission or denial of the same by the party. Therefore, in the present case also, the learned court below could rightly compare these two signatures and arrive at the satisfaction. Even this Court did the same and a bare comparison of these signatures on Ex.3 A.D. Receipt and Ex.7 the letter dated 19.01.2004, makes it clear that the service of the notice Ex.3 dated 22.11.2004 terminating the lease was effected on the adult son of the defendant Rampal, namely Shri Suresh and, therefore, all objections taken by the defendants contrary to that he was not doing the business with him, he was sitting casually there or used to live outside, are sham excuses and nothing more than that and, therefore, the court below was perfectly justified in holding that the notice in question has been correctly and properly served on the defendant through his son and the tenancy in question stood terminated with the same. It is well settled that after termination of the lease / tenancy under Section 106 of the Act, the status of the tenant is nothing more than that of a trespasser or encroachee and, therefore, the court below on the stated grounds was justified in deciding the issue No.1 in favour of the plaintiff – respondent and against the defendant and was justified in passing the decree for eviction. 23. The present first appeal of appellant – defendant is devoid of any merit and the same is therefore dismissed with no order as to costs. 24. The appellant-defendant-tenant or his assignee, sub-lettee, servants and agents, whoever is in the present occupation of the suit premises shall hand over the peaceful and vacant possession of the suit property viz. shop situated at Pancharia Market, Ghantaghar, Nokha, Tehsil Nokha, district Bikaner in question to the respondent-plaintiff within a period of nine months from today and shall pay further mesne profits @ Rs.1,500/- per month, commencing from September, 2012 and will further continue to pay the mesne profits each month by 15th day of the next succeeding month or in advance to the respondent also and in case there is any default in payment of mesne profits, the period of nine months for eviction shall stand reduced and the decree of eviction would become executable forthwith. The defendant tenant shall also clear all the arrears of rent and mesne profits and pay the same to the plaintiff within three months from today, otherwise the same will bear interest @ 9% per annum and the same may be executed as a money decree against the defendant - tenant. 25. The tenant shall also not sub-let, assign or part with the possession of the suit premises or any part thereof in favour of any one else and would not create any third party interest in the same during the aforesaid period and the same, if so created, would be treated as void. The appellant-defendant shall furnish a written undertaking incorporating the aforesaid conditions in the trial court within one month and one copy thereof along with affidavit, in this Court. It is made clear that if the peaceful and vacant possession of the suit shop is not handed over to the respondent-landlord within a period of nine months from today or mesne profits are not paid as directed above, besides the expeditious execution of the decree in normal course, the respondent-plaintiff shall also be entitled to invoke the contempt jurisdiction of this Court. A copy of this judgment be sent to the learned court below and the concerned parties forthwith.