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2013 DIGILAW 2662 (ALL)

Badri Prasad Verma v. Ketki Chowdhary

2013-10-25

SANJAY MISRA

body2013
JUDGMENT Sanjay Misra,J.: - Heard Sri R.K. Saxena, learned counsel for the revisionists and Sri Ajay Kumar Singh appearing on behalf of both the plaintiff-respondent. 2. Since all the parties are represented notice need not be issued. 3. This revision under Section 25 of the Provincial Small Causes Court Act is directed against the judgment and order dated 24.09.2013 passed by the Additional District Judge, Court No.10, Varanasi in Suit No.2 of 2002 (Ketki Chowdhary & others Vs. Badri Prasad & others) whereby the suit of the plaintiff-respondent has been decreed for recovery of arrears of rent and ejectment. Learned counsel for the revisionists has referred to the notice given by the plaintiff-landlord filed as annexure to this revision and submits that a perusal of the notice does not indicate that the tenancy of the petitioner was terminated or that there was any element of forfeiture as provided under Section 111(g) of the Transfer of Property Act. He further states that the suit was filed with respect to three tenancies which was incompetent and the plaintiff-respondent could have brought an action for arrears of rent and eviction individually against all the three defendant-revisionist. 4. According to Sri A.K. Singh, learned counsel for the respondent, insofar as the first submission of learned counsel for the defendant-revisionist is concerned, the notice which has been annexed as annexure with this revision clearly indicates that the plaintiff-respondent had in the notice stated that he does not want to keep the defendant-revisionist as tenant any more and that he has specifically written that the tenancy is terminated. He states that the submission to contrary made by learned counsel for the defendant-revisionist is incorrect. 5. On the second question, learned counsel states that the plea taken by the defendant-revisionist in this revision regarding notices to be issued separately to the three tenants is contradictory to the stand which he had taken before the court below. He refers to the findings recorded on Issue No.1 and states that it was clear case of the defendant-revisionist that since the tenancy of all the three revisionists is joint therefore a joint notice ought to have been sent and not separate notice. According to Sri A.K. Singh, the said plea was rejected by the Trial Court and now the defendant-revisionist has changed his stand to state that one suit could not be maintained. 6. According to Sri A.K. Singh, the said plea was rejected by the Trial Court and now the defendant-revisionist has changed his stand to state that one suit could not be maintained. 6. Having considered the submission of learned counsel for the parties and perused the record, clearly three notices which have been filed as annexure indicates that the tenancy was terminated under Section 106 of the Transfer of Property Act. Insofar as the submission regarding Section 111(g) of the Act is concerned, the conditions and requirements mentioned therein are not made out in the present case so as to hold that the impugned order is illegal on that score. Insofar as the submission that three separate notices to the three defendants-revisionists could not be decided in one suit and joint notice should have been sent since the tenancy is joint is concerned, it was the case of the defendant-revisionist before the Trial Court that the joint notice ought to have been sent whereas in this revision he is stating that separate suits ought to have been filed. Admittedly, separate notices were sent and admittedly it was a joint tenancy hence one suit was competent. 7. At this stage the defendant-revisionist cannot be permitted to change his defence with respect to notice to be sent jointly and say that notice sent separately could not be decided in one suit. The said submission of learned counsel for the defendant-revisionist cannot be accepted at this stage. 8. Sri R.K. Saxena prays that since the defendant-revisionists are in occupation of commercial space which is subject matter of these proceedings hence sometime may be granted to vacate the same so that they may arrange alternative accommodation to earn their livelihood. 9. Sri A.K. Singh, learned counsel for the plaintiff-respondent submits that in case the entire decreetal amount is deposited and an undertaking is given by the defendant-revisionist to vacate the premises within six months and hand over vacant possession he would have no objection to the same. 10. In view of the aforesaid agreement between the parties this revision is disposed of on the following terms: - (1) The defendant-revisionist shall deposit the entire decreetal amount before the court below within one month from today. 10. In view of the aforesaid agreement between the parties this revision is disposed of on the following terms: - (1) The defendant-revisionist shall deposit the entire decreetal amount before the court below within one month from today. (2) The defendant-revisionist shall also deposit the damages for use and occupation w.e.f. today till the date the premises is vacated before the court below within two months from today at the same rate as decreed by the impugned order. (3) The defendant-revisionist shall vacate the premises on or before 25.04.2014 and hand over vacant possession to the plaintiff-respondent without inducting any third person. (4) The defendant-revisionist shall give an undertaking to such effect before the Trial Court within six weeks from today. 11. In the event of failure to comply with any of the above condition this liberty shall stand withdrwan and the decree against the defendant-revisionist shall be executed forthwith. 12. The revision is finally disposed of as above. 13. No order is passed as to costs.