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Shambhu Dayal Vs. District Judge, Rae Bareli and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad High Court
Decided On
Case NumberWrit Petition No. 182 of 1974
Judge
Reported inAIR1977All447
ActsTransfer of Property Act, 1882 - Sections 106
AppellantShambhu Dayal
RespondentDistrict Judge, Rae Bareli and ors.
Appellant AdvocateU.C. Srivastava, Adv.
Respondent AdvocateBiseshwar Nath, Adv.
DispositionPetition dismissed
Excerpt:
property - affixation of notice - section 106 of transfer of property act,1882 - notice refused - notice not affixed in the premises - notice held to be sufficient. - .....1972 respectively but they were returned unserved. ultimately, on 14th december, 1972 chandra mohan opposite party no. 3 took a written notice for delivery on the petitioner who refused the same. the notice was read out loudly in the presence of the witnesses. this notice was also signed by one phool chand jain, chandra mohan thereafter filed a suit. the evidence led by the landlord chandra mohan was believed by the learned judge small causes court and he accordingly decreed the suit, finding the petitioner, in arrears of rent. against this decree of ejectment and arrears of rent revision was filed by the petitioner before the district judge but the same was dismissed on 7th february, 1974. this is how the petitioner has come up before this court by means of the present petition......
Judgment:
ORDER

D.N. Jha, J.

1. The petitioner has filed this petition under Article 226 of the Constitution praying for the quashing of the judgment and decree passed by the Small Causes Court and the District Judge Rae Bareli dated 31st May, 1973 and 7th February 1974 respectively.

2. Briefly stated the facts are that the petitioner was a tenant of shop of which opposite party No. 3 Chandra Mohan was the landlord. The petitioner fell in arrears of rent and after serving notice under Section 106 of the T. P. Act opposite party No. 3 Chandra Mohan filed a suit for arrears of rent and ejectment against the petitioner Two notices were sent by Registered Post on 15th November, 1972 and 22nd November, 1972 respectively but they were returned unserved. Ultimately, on 14th December, 1972 Chandra Mohan opposite party No. 3 took a written notice for delivery on the petitioner who refused the same. The notice was read out loudly in the presence of the witnesses. This notice was also signed by one Phool Chand Jain, Chandra Mohan thereafter filed a suit. The evidence led by the landlord Chandra Mohan was believed by the learned Judge Small Causes Court and he accordingly decreed the suit, finding the petitioner, in arrears of rent. Against this decree of ejectment and arrears of rent revision was filed by the petitioner before the District Judge but the same was dismissed on 7th February, 1974. This is how the petitioner has come up before this Court by means of the present petition. The petition has been contested on behalf of opposite party No. 3 Chandra Mohan and a counter-affidavit has also been filed. An effort has been made to justify, the orders passed by the courts below and it is asserted that the matter is concluded by finding of fact, as regards tender of the notice and it being refused by the petitioner, consequently the petition deserves to be dismissed.

3. I have heard the learned counsel for parties. Learned counsel for the petitioner only argued with respect to the service of the notice and he maintained that this notice was not served as required by Section 106 of the Transfer of Property Act and as such the petitioner had not been served with any notice and he was not liable to be ejected from the premises. He argued that the proviso to Section 106 of the T. P. Act (hereinafter referred to as the Act) envisages the contingency that in case the tender or delivery was not practicable the notice ought to have been affixed to a conspicuous part of the property and that not having been done, there Was no notice of termination of tenancy ill the eyes of law. On the other hand learned counsel for the opposite party vehemently argued that, the notice in the eye of law would be deemed to have been tendered personally to the defendant in the presence of the witnesses; the written notice was handed over to the petitioner who refused to accept the same. He maintained that since the petitioner refused to accept the notice that was tendered and which had been believed by the Courts below the notice would be deemed to have been tendered lawfully. I have given my anxious consideration to the arguments advanced by the learned counsel for the parties and I have also gone through the statements contained in Annexures CI and C-2 viz. that of Chandra Mohan and his witness Phool Chand Jain. It may be mentioned that both the Courts below have accepted the evidence led by opposite party No. 3 and recorded a concurrent finding of tact with respect to tendering of the notice and it being refused by the petitioner. That being so it is difficult for this court to hold that there was no sufficient service of notice in the eye of law. The technical objection raised by the petitioner, no doubt, cannot be said to be devoid of substance but the law has to be laid down in the light of the facts and circumstances of a particular case. It is not possible for this Court, exercising jurisdiction under Article 226 of the Constitution, to specifically hold the technical objection as legal and valid. The latter paragraph of Section 106 of the T. P. Act reads as under:--

'Every notice under this Section 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.' The last alternative of an affixation of a notice is contemplated only if such tender or delivery is not practicable. It does not contemplate a refusal of a personal delivery but on the other hand it envisages the situation where either the person concerned or his family members or his servants are not available at the premises. It is only then that the notice has to be affixed. In my opinion, if the personal delivery is refused and that is proved by evidence then it would be a lawful tender of the notice. The service of the notice in the circumstances, in my opinion, was rightly held to be sufficient by the Courts below on the face of the evidence led by the parties.

4. No other point has been argued. I, therefore, see no force in this writ petition on merits.

5. Learned counsel for the petitioner, however, on compassionate grounds pointed out that the petitioner was a Medical Practitioner and it will cause a hardship if immediately he has to vacate the premises. I find that there is force in this submission and I, therefore think it just and proper to grant four months' time to the petitioner to vacate the premises peacefully and handover possession to opposite party No. 3 Chandra Mohan, the landlord. With this observation I maintain the orders passed by the Courts below.

6. The result is that the writ petition fails on merits and is dismissed. I also make no orders as to costs. As observed earlier I allow four months' time to the petitioner to remain in the premises on payment of rent The period shall commence from the date of this order and in case the petitioner does not vacate the premises on the expiry of four months opposite party No. 3 Chandra Mohan shall eject the petitioner from the premises on the basis of the decree passed in his favour.


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