Shyam Behari Lal vs Kamla Devi and others

Shishir kumar, J.

Heard the learned counsel for the petitioner.

When in spite of the notice, the respondents did not put in appearance, then the petitioner was permitted to serve respondents personally and to file an affidavit of service. An affidavit of service has been filed. Respondent no.4 has accepted notice himself as well as on behalf of respondent no.1 but respondents no. 2 and 3 have refused to take the notice. The affidavit of service has been filed on 29.9.2008. The respondents are the joint tenants living in the same accommodation, therefore, legally it will be presumed that notice upon all the respondents are sufficient.

This writ petition has been filed for quashing the orders dated 14.1.1998 and 2.12.2000, Annexures4 and 5 to the writ petition by which the suit filed by the petitioner being landlord for arrears of rent and ejectment has been dismissed and the revision has also been dismissed.

Learned counsel for the petitioner submits that a finding has been recorded that there is a default on the part of the respondents but only on the technical ground that a notice under Section 106 of the Transfer of Property Act is defective as only 30 days'' time has been given in the notice though, being a commercial accommodation, it should have been 6 months, only on this technical ground, the Judge Small Causes Court has dismissed the suit filed by the petitioner.

The petitioner has placed reliance upon a judgment of this Court reported in ARC 1982 page 403 in the case of Smt. Ram Murti Devi Vs. Addl. District Judge, Meerut and others and para 13 of the judgment has been referred to. Taking support of the aforesaid judgment, learned counsel for the petitioner submits that it may be for manufacturing purposes, if the parties are agreed, that the tenancy would be from month to month irrespective of purpose of tenancy, then in that situation, one month notice is sufficient. Another judgment relied upon by the learned counsel for the petitioner is 2008 (2) ARC 370 rendered in the case of Triloki Nath Tandon Vs. A.K. Bhattacharya and reliance has been placed upon para 31 of the said judgement which is quoted below:

"31. It is, therefore, clear from the aforesaid decision that where the lease has been granted for manufacturing purposes but the tenancy is from month to month then the lease can be terminated under Section 106 of the Transfer of Property Act by giving one month notice. The aforesaid decision has placed reliance upon an earlier decision of this Court which was affirmed by the Supreme Court. The finding to the contrary recorded by the Small Cause Courts is, therefore, liable to beset aside and is, accordingly, set aside and it is held that the tenancy was validly terminated."

In view of the aforesaid fact, the learned counsel for the petitioner submits that as the tenancy was month to month, therefore, the notice was valid but the courts below have not taken into consideration the said fact.

In spite of the service upon the respondents, no counter affidavit has been filed . Even they have not put in appearance on behalf of the respondents. Therefore, the allegations made in the writ petition remained unrebutted.

I have considered the submissions made on behalf of the petitioner and perused the record. I am also of the view that in case the lease has been granted for manufacturing purposes, but if the tenancy is from month to month basis, then lease can be terminated under Section 106 of the Transfer of Property Act by giving one month''s notice. In the case of Binda DinVs. Smt. Pran Devi, reported in 1968 A.L.J. Page721, it has been held that in case it is proved from the pleadings of the parties that that the tenancy was month to month, then it would be a case of contract to the contrary, as provided under Section 106 of the Transfer of Property Act, in such a case 6 months'' notice for terminating the tenancy would not be required.

The only ground on which the relief of ejectment has been denied to the petitioner is that the notice is not valid. In such circumstances, as the finding has been set aside to this effect that notice is valid, petitioner is entitled for relief.

The writ petition is allowed. The orders passed by the courts below dated 14.1.1998 and 2.12.2000, Annexures4 and 5 to the writ petition, are hereby quashed and the petitioner is entitled for relief of ejectment against the respondents.

No order is passed as to costs.