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2017 DIGILAW 2889 (ALL)

MUNESH v. DEEPA RANI

2017-12-11

VIVEK KUMAR BIRLA

body2017
JUDGMENT Hon’ble Vivek Kumar Birla, J.—Heard Sri B.N. Rai, learned counsel appearing for the petitioners and Sri P.K. Jain, learned Senior Counsel assisted by Ms. Shreya Gupta, learned counsel appearing for the landlord-respondent. 2. Present petition has been filed for quashing the judgment and order dated 26.11.2015 passed by Judge Small Causes Court/Additional District Judge (Junior Division) Court No. 3, Muzaffar Nagar in SCC Suit No. 39 of 1994 (Jagdish Prasad v. Sahansar Pal) and order dated 9.8.2017 passed by the Additional District Judge, Court No. 2, Muzaffar Nagar in SCC Revision No. 31 of 2015 (Smt. Munesh and others v. Smt. Deepa Rani and another). 3. Sole question has been raised about the validity of the notice given by the landlord to the tenant for vacating the shop in question. Although dispute regarding applicability of the Act was raised before the Court below, however, no such issue has been raised before this Court and as such it is clear that the provisions of the U.P. Act 13 of 1972 (hereinafter referred to as the Act) are not applicable in the present case. The ground was taken before the Court below that the notice dated 16.2.1994 was not a valid notice and issue in this regard was framed by the trial Court. It is not in dispute that the notice was received by the tenant and was duly replied by him. 4. Submission of learned counsel for the petitioner, by drawing attention to the boundaries given in the notice and boundaries given in the plaint, is that the notice is not in regard to the shop in possession of the tenant and therefore, the same cannot be treated to be a valid notice. In the notice on south of the shop in question road has been shown, whereas in the plaint on western side of the shop in question road has been shown. On the basis of this change of direction it is being sought to be contended that the notice is not valid as correct boundaries have not been given in respect of shop in possession of the tenant, therefore, the trial Court has illegally allowed the suit and revision was also illegally dismissed by the Court below and both the judgments are liable to be set aside. 5. 5. In support of his argument learned counsel for the petitioner has placed reliance on a judgment of Hon’ble Apex Court in the case of Satish Chand Makhan v. Govardhan Das Byas, (1984) 1 SCC 369 and one judgment dated 28.7.2016 passed in SCC Revision No. 143 of 2016 (Man Singh v. Smt. Gurmeet Kaur Virdhi) to contend that there has to be a valid notice to quit under Section 106 of the Transfer of Property Act, which does not exist in the present case. 6. Per contra, Sri P.K. Jain has supported the impugned judgments and submitted that the petitioner is in possession of only one shop and notice was given in respect of the same shop only. The service of notice is not in dispute. The same was duly replied by the tenant and no such plea that the notice is not valid was taken in the written statement and only during course of argument it was asserted that notice is not valid, which was rightly not entertained by the trial Court. He further submitted that even otherwise DW-1 Ankur, who is the son of the tenant has admitted that his father has received the notice and was duly replied and we have not vacated the shop No. 6 after receiving of the notice and only this shop in question is in dispute and that there is no other shop is in possession of the tenant. It is submitted that the intention of the notice is to be seen, which was rightly understood by the tenant, therefore, the notice was perfectly valid. 7. In support of his argument Sri Jain has placed reliance on a judgment in the case of Som Nath Sehgal v. Arvind Kumar Sethi and another, 2014 (107) ALR 629. 8. I have considered the rival submissions and have perused the record. 9. From perusal of the record I find that the notice has been received by the tenant, which was duly replied by him also. There is only one shop is in possession of the tenant and therefore, the question of identity of the shop as to which shop is to be vacated does not arise in the present case. Moreso, the notice was accepted and replied and no plea in this regard was taken in the written statement. There is only one shop is in possession of the tenant and therefore, the question of identity of the shop as to which shop is to be vacated does not arise in the present case. Moreso, the notice was accepted and replied and no plea in this regard was taken in the written statement. The petitioner has not annexed the reply given by the tenant in response to the such notice, which would have clarified the position and hence it can be safely understood that there was no such dispute about the identity of shop and the intention the notice, therefore, I do not find that findings recorded by the trial Court is incorrect, illegal, perverse or suffers from any jurisdictional error. 10. Under such circumstances, the rulings relied on by the learned counsel for the petitioner has no application in the present case, which are to the effect that a notice to quit is required to be given under Section 106 of the Transfer of Property Act, which were admittedly not given in the cases cited by learned counsel for the petitioner. 11. This issue of valid notice was also raised before the revisional Court, wherein also the Court has found that it is only because the front of the shop was being disputed, it cannot be said that the notice was vague in nature. The intention of the landlord to get the shop vacated is clearly reflected from the notice and the defence on the basis of validity of notice on the ground of difference in boundaries was not taken in the written statement hence it was not open to the tenant to challenge the validity of notice subsequently. 12. In Som Nath Sehgal (supra) placing reliance on judgment of Hon’ble Apex Court in Parwati Bai v. Radhika, 2003(51) ALR 625, it was held that if the tenant has not taken specific objection about the validity of notice in his initial proceedings, then it would be deemed that he has waived his right to object the validity of the notice. 13. 13. In the present case, although a challenge was raised to the validity of notice during course of argument before the trial Court and was also raised before the revisional Court, however, I find that there is no confusion about the identity of shop in question and intention to get the shop vacated was clear in the present case which was duly replied also. The statement of DW-1 as noticed above is also relevant in the this regard. Hence, the notice was not invalid in the present case. 14. In such view of the matter, I do not find any legal infirmity or jurisdictional error in the order impugned herein. Present petition is devoid of merit and is accordingly dismissed.