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2016 DIGILAW 2606 (ALL)

MAN SINGH v. GURMEET KAUR

2016-07-28

PANKAJ MITHAL

body2016
JUDGMENT Hon’ble Pankaj Mithal, J.—Heard Sri B.N. Rai, learned counsel for the defendant-revisionist and Sri Nand Lal Yadav, learned counsel appearing for the plaintiff-respondents. 2. The parties have exchanged the pleadings and the same have also been perused by me. 3. The plaintiff-respondent is the owner of Flat No. B-301 Alaknanda Apartment, Rampuri, Ghaziabad. The aforesaid flat was let out by her to the defendant-revisionist on Rs. 7,000/- per month. She instituted a suit for rent and eviction against the defendant-revisionits in the Court of Judge Small Causes Court, Ghaziabad. The suit has been decreed vide judgment and order dated 18.3.2016. 4. The aforesaid judgement and order passed by Judge Small Causes Court has been impugned by filing this revision under Section 25 Provincial Small Causes Court Act, 18871. 5. Sri B.N. Rai, learned counsel for the defendant-revisionist has raised only one argument that the suit for his eviction cannot be decreed unless his tenancy has been validly determined under the provisions of Section 106 of the Transfer of Property Act. The alleged notice dated 20.12.2011 by which the tenancy is said to have been terminated is not a valid notice. 6. The plaint of the above suit has been filed as annexure-6 to the stay application. The plaintiff-respondent in the plaint alleges that the notice dated 20.12.2011 was sent to the defendant-revisionist for vacating the flat and demanding arrears of rent and damages. The plaint is completely silent about the manner in which the notice was sent but states that the notice was given by Jasvinder Singh Virdi, Special Power of Attorney holder of the plaintiff-respondent. 7. The defendant-revisionist in his statement vide paragraph 16 has categorically denied having received the alleged notice. He has further pleaded that the copy of the notice which has been enclosed with the plaint, demonstrates that it is not valid notice on the basis of which his tenancy could have been determined. Therefore, no cause of action for the suit arises to the plaintiff-respondent. 8. The copy of the notice dated 20.12.2011 is also on record and it is given by an advocate on behalf of Jasvinder Singh Virdi. Therefore, no cause of action for the suit arises to the plaintiff-respondent. 8. The copy of the notice dated 20.12.2011 is also on record and it is given by an advocate on behalf of Jasvinder Singh Virdi. The notice reads as under : “Under the instructions from and on behalf of my client, Sri Jasvinder Singh Virdi S/o Late Pritpal Singh Virdi, R/o C-313 Eastend Apartments Mayur Vihar, Phase-1 Delhi 110096 duly authorized by his brother Sri Amarjeet Singh who is the actual owner of Flat No. B-301, Alaknanda Apartments, Rampuri, Ghaziabad and residing in United States of America, I, the undersigned, do hereby serve you with this legal notice.” 9. A plain reading of the contents of the above notice reveals that the above notice was given by an advocate under instructions or on behalf of Jasvinder Singh Virdi who was duly authorised by his brother, the owner of the said flat. The aforesaid notice was not under the instructions or on behalf of the plaintiff-respondent Smt. Gurmeet Kaur Vardhi who claims herself to be the owner and landlord of the flat. Therefore, it do not validly terminates the tenancy of the defendant-revisionist. 10. Sri Nand Lal Yadav, learned counsel for the plaintiff-respondent has placed reliance upon the Special Power of Attorney held by aforesaid Jasvinder Singh Virdhi of Smt. Gurmeet Kaur Virdi. The said Special Power of Attorney is annexure-7 to the stay application. It reads: “by this Special Power of Attorney executed on 22nd day of February 2012 Ms. Gurmeet Kaur Virdhi W/o Amarjeet Singh Virdi, do hereby nominate, constitute and appoint Jasvinder Singh Virdi S/o Late Dr. Prith Pal Singh Virdi, as my attorney to do the following acts, deeds and things.” 11. The narration of the above Power of Attorney clearly reveals that it was granted to Jasvinder Singh Virdhi on 22nd February, 2012 meaning thereby that he was not holding any power of attorney of Smt. Gurmeet Kaur Virdi on 20.12.2011, the date on which the alleged notice determining the tenancy was given. 12. Sri Nand Lal Yadav, learned counsel for the plaintiff-respondent has placed reliance upon annexure-2 to the counter-affidavit, which is an authorisation by the the plaintiff-respondent in favour of Jasvinder Singh Virdi to take steps to get the above flat vacated. The said authorisation is dated 11.12.2011. 12. Sri Nand Lal Yadav, learned counsel for the plaintiff-respondent has placed reliance upon annexure-2 to the counter-affidavit, which is an authorisation by the the plaintiff-respondent in favour of Jasvinder Singh Virdi to take steps to get the above flat vacated. The said authorisation is dated 11.12.2011. On its basis it has been argued that as Jasvinder Singh was given authorisation, he had rightly issued notice determining the tenancy of the defendant-revisionist on behalf of plaintiff-respondent. 13. I am afraid that no congnizance of the aforesaid authorisation is possible for the reason that it was not part of the evidence in the Court below. Sri Yadav, has very fairly admitted that the said authorisation was not adduced in evidence in the Court below and has been filed with the counter-affidavit for the first time in the revision itself. 14. In view of the aforesaid facts and circumstances, the notice dated 20.12.2011 by which the tenancy of the defendant-revisionist is said to have been determined is not a valid notice on behalf of plaintiff-respondent determining the tenancy of the defendant-revisionist. 15. It is not the case of the plaintiff-respondent that the tenancy of the defendant-revisionist of the aforesaid flat was time bound tenancy which would have expired by efflux of time. 16. The trial Court while dealing with issue No. 3 simply records that a notice determining tenancy was sent on 20.12.2011; it was sent to the defendant-revisionist on 23.12.2011 by registered post and courier and the copy of it is on record and as such the tenancy of the defendant-revisionist stand determined by completely ignoring its contents so as to whether it actually and validly terminates the tenancy of the defendant-revisionist on behalf of the plaintiff-respondent. 17. In Satish Chand Makhan and others v. Govardhan Das Byas and others, AIR 1984 SC 143 , it has been held where a suit for ejectment and mesne profits was filed without a notice to quit under Section 106 of the Transfer of Property Act against a tenant in occupation of the rented property after expiry of lease, the suit would not be maintainable inasmuch as a notice to quit under Section 106 of the T.P. Act is mandatory before filing a suit for eviction. 18. 18. In view of the aforesaid facts and circumstances, as the plaintiff-respondent has failed to fulfil the mandatory requirement of determining the tenancy of the defendant-revisionist by issuing a valid notice under Section 106 of the T.P. Act, the judgement and order impugned herein cannot be sustained in law. 19. Accordingly, the impugned judgement and order dated 18.3.2016 passed by Small Causes Court/Additional District Judge, Court No. 12, Ghaziabad, in SCC Suit No. 23 of 2012 (Smt. Gurmeet Kaur Virdi v. Man Singh) is hereby set aside and the revision is allowed but with costs upon the parties.