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2016 DIGILAW 4016 (ALL)

Maheshwar Prasad Tiwari v. Renu Rastogi

2016-12-14

RITU RAJ AWASTHI

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JUDGMENT Ritu Raj Awasthi,J. Heard Mr. Kuldeep Bajpai, learned counsel for revisionist as well as Mr. Sunil Kumar Singh, learned counsel for respondent and perused the record. The sole ground on which the present SCC Revision under Section 25 Provincial Small Cause Courts Act, 1887 against the judgment dated 25.11.2015 passed in SSC Case No. 4400017/2012 (Smt. Renu Rastogi vs. Maheshwar Prasad Tiwari) has been filed is that the respondent vide notice dated 26.12.2011 had provided only 15 days time to vacate the house in question which is contrary to the provision contained in Section 106 Transfer of Property Act, 1882 (for short 'Act') and, as such, the impugned judgment passed by the learned Court below is not sustainable in the eyes of law. Learned counsel for revisionist submits that the revisionist had taken the house No. C-923, Sector B, CID Colony, Mahanagar, Lucknow on rent at a consideration of Rs. 3000/- per month. The revisionist had paid the rent and electricity bill, etc. in time. The respondent being the landlord had sent notices through his Lawyer for termination of tenancy and vacation of premises. The said notices were dated 26.9.2011 and 26.12.2011. By the said notices, 15 days time was allowed to the revisionist to vacate the premise. It is submitted that under amended provision of Section 106 of the Act, the mandatory period of 30 days is required to be provided for the tenant to vacate the premise and in case any period less than 30 days has been provided in the notice, the said notice is invalid. In support of his submissions, he has relied on the judgment of this Court in the case of Mohammad Afzal vs. Smt. Ramesh Kumar; [ 2014 (3) ARC 864 ]. It is further submitted that the learned Trial Court has grossly erred in allowing the suit filed by the respondent and directing the revisionist to vacate the house in question and pay the arrears of rent and damages. Submission is that in case the notice was invalid the institution of suit itself was not maintainable. Mr. Sunil Kumr Singh, learned counsel for respondent, on the other hand, submits that it is wrong to say that only 15 days time was allowed to the tenant/revisionist to vacate the premise. In fact, the alleged notices were dated 26.9.2011 and 26.12.2011 which were served on 05.10.2011 and 29.12.2011 respectively on the revisionist. Mr. Sunil Kumr Singh, learned counsel for respondent, on the other hand, submits that it is wrong to say that only 15 days time was allowed to the tenant/revisionist to vacate the premise. In fact, the alleged notices were dated 26.9.2011 and 26.12.2011 which were served on 05.10.2011 and 29.12.2011 respectively on the revisionist. The suit was instituted on 27.2.2012. Submission is that from the date of service of notice till the institution of suit, the period of more than 30 days had expired and, as such, the revisionist cannot take this plea that he was provided only 15 days time by the notice to vacate the premise. It is further submitted that the learned Trial Court has rightly decreed the suit in favour of the landlord and has directed the revisionist to pay arrears of rent and damages, etc. I have considered the submissions made by the parties' counsel and gone through the record. The short question involved in this revision is whether the notice under sub-Section (1) of Section 106 of the Act shall be deemed to be invalid merely because the period mentioned therein falls short of the period specified under that sub-Section although the suit was filed after expiry of the period mentioned in that sub-Section. Section 106 of the Act, for convenience, is reproduced below: "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. (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." Perusal of sub-Section (3) of Section 106 of the Act clearly indicates that 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. It is the admitted position that the notice dated 26.9.2011 was served on the revisionist on 05.10.2011 and the notice dated 26.12.2011 was served on the revisionist on 29.12.2011. The suit filed by the respondent was instituted on 27.02.2011, as such, it is evidently clear that the mandatory period of 30 days had expired from the date of service of the notice at the time of institution of the suit, therefore, I am of the considered view that in view of sub-Section (3) of Section 106 of the Act the notice terminating the tenancy of the revisionist sent by the landlord was not invalid and the suit filed by the respondent in this regard was fully maintainable. So far as the judgment of this Court in the case of Mohammad Afzal (supra), on which reliance has been placed by the revisionist's counsel, is concerned, it is to be noted that in the said case the suit was filed before the expiry of 30 days from the date of service of notice and in the notice sent by the landlord the period of only 15 days was provided. This Court has held that wherein notice provided 15 days which has been substituted by Amendment Act, 2002 w.e.f. 31.12.2002 as 30 days notice and the said 30 days notice is mandatory requirement for terminating the tenancy, as such, the suit instituted prior to expiry of 30 days notice is not maintainable. In the present facts and circumstances of the case, the law laid down by the Court in the case of Mohammad Afzal (supra) would not be applicable for the sole reason that in the present case the suit was instituted after expiry of the mandatory period of 30 days from the date of serviced of the notice. In view of above, I do not find any infirmity or illegality in the judgment impugned. The revision being devoid of merit is dismissed. Interim order stands discharged.