Delhi High Court
Sh. Rabinder Nath Saha vs Smt. Sushma Jain on 26 August, 2011
Author: Valmiki J. Mehta
Bench: Valmiki J.Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RSA No.10/2011
% 26th August, 2011
SH. RABINDER NATH SAHA ...... Appellant
Through: Mr. R.N.Singh, Adv.
VERSUS
SMT. SUSHMA JAIN ...... Respondent
Through: Mr. G.P.Thareja with
Mr. Arun Sukhija, Advs.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
1. Whether the Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in the Digest?
VALMIKI J. MEHTA, J (ORAL)
1. The challenge by means of this Regular Second Appeal is to the two concurrent judgments of the Courts below, the first being of the Original Court dated 26.5.2010, and second being of the second Court/Appellate Court dated 14.12.2010, and by which judgments, the Courts below have decreed the suit for possession of the landlord/respondent against the tenant/appellant. The only issue which is argued and urged before me is that the suit should not have been decided under Order 12 Rule 6 CPC inasmuch as the appellant had disputed receipt of the notice terminating tenancy sent under Section 106 of the Transfer of Property Act, 1882. This legal notice is dated 30.5.2007. It is argued that since there was no service of this notice, the tenancy cannot RSA No.10/2011 Page 1 of 3 be said to have been terminated and therefore the suit for possession did not lie.
2. The Appellate Court has dealt with this aspect in the following terms:
"The only dispute which the appellant has been raising in the appeal is that he has never admitted in the written statement with respect to service of notice upon him u/s 106T.P. Act and the order of the Ld. Trial Court thereby presuming the service upon the appellant is bad in law. The Ld. Trial Court while appreciating that part has relied upon 1973 RLR 17 and 1997 III AD 989 coupled with presumption on the basis of UPC as well as affixation done on the suit property. A perusal of the report shows that the notice through registered post was sent by the respondent at the tenanted premises which is received back with the report of refusal. Legal notice issued to the appellant by UPC is not received back and there is no reply by the appellant with respect to the service of notice by way of affixation. In corresponding para i.e. para no. 10 of the plaint, the appellant ahs simply denied the service of notice. He has also submitted that he was out of station during this period. The assertion of the appellant is too vague to be appreciated as the appellant has not mentioned anywhere as to where he has gone and when he came back and whether he observed any notice affixed on his premises or not. The Ld. Trial Court has relied upon judgment titled as Nopany Investment(P) Ltd. V Santokh Singh(HUF) (2008) 2 SCC 728 wherein the Hon'ble Supreme Court has inter-alia held that "22. In any view of the matter, it is well settled that filing of an eviction suit under the general law itself is a notice to quit on the tenant. Therefore, we have no hesitation to hold that no notice to quit was necessary under Section 106 of the Transfer of Property Act in order to enable the respondent to get a decree of eviction against the appellant".
The Court is of the considered opinion that law as relied upon by the Ld. Trial Court with respect to presuming the service upon the appellant, does not suffer from any legal infirmity or illegality."
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3. I do not find any error in the reasoning of the Courts below in holding that the notice terminating tenancy can be said to have been served upon the appellant.
4. In any case, the arguments as raised by learned counsel for the appellant has been dealt with by me and negated in the case of M/S. Jeevan Diesels & Electricals Ltd. Vs. M/S. Jasbir Singh Chadha (HUF) & Anr., RFA 179/2011 decided on 25.3.2011 in which I have held that the summons of the suit with which the plaint is accompanied, can also be treated as a notice under Section 106 of the Transfer of Property Act, 1882 read with Order 7 Rule 7 CPC considering the intendment of Act 3 of 2003 by which Section 106 of the Transfer of Property Act, 1882 was amended to do away with the defence of the inadequacies in termination of tenancy, once otherwise a period of 15 days expires prior to filing of the suit. In the case of M/S. Jeevan Diesels & Electricals Ltd. (supra), I have also held that along with the suit for possession, the copy of the notice terminating tenancy is filed and is also served upon the defendant/tenant/appellant and again the same can be said to be service under Section 106 of the Transfer of Property Act, 1882 read with Order 7 Rule 7 CPC. An SLP against the said judgment being SLP No.15740/2011 has been dismissed by the Supreme Court on 7.7.2011.
5. No other issue is pressed or argued before me.
6. In view of the above, no substantial question of law arises. Dismissed.
AUGUST 26, 2011 VALMIKI J. MEHTA, J.
ak
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