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2016 DIGILAW 1777 (ALL)

Babu Lal Patel v. Taaran Taran Digamber Jain Thirth Chetra Nisaji Trust

2016-05-09

SUNITA AGARWAL

body2016
JUDGMENT Sunita Agarwal, J. – Challenging the eviction decree, submission of Sri Vishnu Gupta learned counsel for the petitioner is that the notice dated 2.9.1999 whereby the tenancy was allegedly determined, is not a valid notice. It was sent by the power of attorney who had no right to determine the tenancy. 2. Admittedly, the suit property is a trust property. The registered trust deed was brought on record. 3. On issue no. 1, a categorical finding is recorded by the Court below that the trust was registered and the trust deed provides for filing of suit by the power of attorney holder. The General power of attorney, the basis of filing the suit is also a registered document. Furthermore, the registered power of attorney is dated 20.5.1998 and the notice to quit was sent on 2.9.1999. As such the contentions raised herein regarding validity of the notice, are misconceived. 4. Second ground urged by the learned counsel for the petitioner is that the contents of notice Paper No. 7Ga was not proved by the plaintiff in his oral evidence. The plaintiff had appeared in the witness box and deposed that the notice Paper No. 7Ga was sent by him but he did not narrate the contents of notice nor did state that the tenancy was determined by him by the said notice. The Court below, therefore, has erred in concluding that it was a case of termination of tenancy under Section 106 of Transfer of Property Act. 5. To deal with the submission, suffice it to say that the service of notice Paper No. 7Ga was proved by the plaintiff. The copy of the notice was brought on record and a categorical finding has been recorded by the Court below on issue nos. 4 and 7 that the intention to terminate tenancy has clearly been reflected from the said notice. 6. It is undisputed that it was a simpliciter notice under Section 106 of Transfer of Property Act. Once the notice and its contents were brought on record before the Court, the findings recorded after reading the document itself cannot be said to be illegal on the ground that the plaintiff did not narrate the contents of the notice in his examination-in-chief. 7. Once the notice and its contents were brought on record before the Court, the findings recorded after reading the document itself cannot be said to be illegal on the ground that the plaintiff did not narrate the contents of the notice in his examination-in-chief. 7. This apart, the present petition has been filed under Article 227 of the Constitution of India, the error in the order of the Court below, if any, is not to be examined by this Court in exercise of supervisory power under Article 227 of the constitution of India. 8. It is repeatedly held by the Apex Court that the supervisory jurisdiction under Article 227 of the Constitution of India is to be exercised sparingly only in cases where grave material injustice has been occasioned to the party, invoking this jurisdiction. The supervisory power cannot be exercised to correct errors of law or fact. 9. For all the reasons given above, no interference is required. 10. Lastly learned counsel for the petitioner submits that the petitioner may be provided a reasonable time to shift his belongings. 11. To this submission, learned counsel for the respondent raises no serious objection. 12. In view thereof, it is provided that: - (1) The petitioner shall file an undertaking before the court below within three weeks that he will vacate the premises in question on or before 15th August, 2016 and shall continue to pay rent @ Rs. 600/- per month as fixed by this Court vide interim order dated 25.9.2012, regularly month by month. (2) In case of default of any of the above condition, the eviction decree shall become executable forthwith. 13. Learned counsel for the petitioner submits that the decretal amount has already been deposited by him. 14. The deposits already made by the petitioner shall be released by the Court below in favour of the respondent/landlord on an application moved by him. 15. Dismissed. Petition dismissed.