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Bipat Vs. 1st Addl. Dist. Judge, Gonda and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad High Court
Decided On
Case NumberWrit Petn. No. 44 of 1979
Judge
Reported inAIR1980All142
ActsTransfer of Property Act, 1882 - Sections 106
AppellantBipat
Respondent1st Addl. Dist. Judge, Gonda and ors.
Appellant AdvocateH.S. Sahai and ;H.D. Srivastava, Advs.
Respondent AdvocateZ. Jilani, Adv. for Respondents Nos. 3 to 9
DispositionPetition dismissed
Excerpt:
civil - termination notice - section 106 of transfer of property act, 1882 - incomplete copy of notice filed by petitioner - opposite party filed the certified copy of notice - notice contains termination of tenancy clause - interpretation of word 'now' - it does not mean 'with effect from today' but means 'hereby'. - - apko is notice ke jariye suchit kiya jata hai ki andar ek mah baqaya kiraya mubligh 1836/- ada kar dijiye aur dukan mazkoora notice pane ke 30 din bad khali kar dijiye warna ap ke khilaph dawa baqaya kiraya wa takhliya dukan ka adalat majaz men kiya jayega......of validity of notice and observed that no other points had been pressed. the petitioner then filed a review petition with the allegations that he had wanted to press the other points also, but did not consider it necessary to do so merely because he was told that his revision was to be allowed on the question of validity of notice. this review petition was dismissed on 6-12-1978. the writ petition was filed against both orders, namely, the order dismissing the revision and also the order dismissing the review petition. by order dated 19-1-1979 this court dismissed the writ petition so far as challenge to the order annexure 5 (dismissing the review application) was concerned, and admitted the writ petition only in so far as the petitioner's challenge to the revisional order dated.....
Judgment:
ORDER

K.N. Goyal, J.

1. The petitioner was a tenant of an urban building consisting of a shop against whom a suit of ejectment brought by the landlord has been decreed by the Small Cause Court. The Additional District Judge also dismissed the revision filed by the petitioner on 23-9-1978. In that revision, the learned Additional District Judge discussed only the question of validity of notice and observed that no other points had been pressed. The petitioner then filed a review petition with the allegations that he had wanted to press the other points also, but did not consider it necessary to do so merely because he was told that his revision was to be allowed on the question of validity of notice. This review petition was dismissed on 6-12-1978. The writ petition was filed against both orders, namely, the order dismissing the revision and also the order dismissing the review petition. By order dated 19-1-1979 this Court dismissed the writ petition so far as challenge to the order annexure 5 (dismissing the review application) was concerned, and admitted the writ petition only in so far as the petitioner's challenge to the revisional order dated 23-9-1978 was concerned. Thus, the only question for consideration now in this writ petition is whether the notice to quit by which the petitioner's tenancy was terminated was valid or not.

2. It appears that the petitioner had filed an alleged copy of the notice as annexure 9. This copy has been shown to be an incorrect and incomplete copy as the opposite parties have filed a certified copy of the notice as annexure D-1 to their supplementary counter affidavit. We are, therefore, required to consider the validity of the notice, annexure D-1. The notice contains at first the recitals that the petitioner was tenant on a monthly rent of Rs. 36/- and that his month of tenancy commenced on 1st of every calendar month. The second paragraph contains recitals to the effect that the petitioner was a chronic defaulter in payment of rent and that a sum of Rupees 1836/- was due from him. Thereafter, the relevant part of third paragraph is as follows :

'Ab apki Kirayadari khatam ki jati hai aur ap ko kirayadar rakhna manzoor nahin hai. Apko is notice ke jariye suchit kiya jata hai ki andar ek mah baqaya kiraya mubligh 1836/- ada kar dijiye aur dukan mazkoora notice pane ke 30 din bad khali kar dijiye warna ap ke khilaph dawa baqaya kiraya wa takhliya dukan ka adalat majaz men kiya jayega.'

Learned counsel for the petitioner has contended that this notice is of the type D mentioned in the judgment of the Division Bench in Abdul Jalil v. Haft Abdul Jalil (AIR 1974 All 402) and not of the type E as mentioned in that ruling. Learned counsel placed considerable stress on the use of the word 'ab' (now) with which this paragraph of the notice starts. His contention is that the word 'now' has the same meaning as 'with effect from today' or 'with immediate effect'. I am, however, unable to agree with this contention. The notice has to be construed as a whole and not by reading one word in isolation. The word 'now' has been used in this notice merely in the sense of 'Whereas.....; And whereas....; Now, Therefore ....' The expression 'now' does not relate to the point of time at which the termination of tenancy was to take effect. It merely has the connotation of 'hereby'. Thus, in my opinion, the view taken by the learned Additional District Judge that the notice falls in the category E and not in category D of the aforesaid Division Bench decision is correct.

3. There is thus no force in this writ petition which is hereby dismissed. No order as to costs.

4. Learned counsel for the petitioner at the end prayed for some time to vacate the premises. The petitioner undertakes to vacate the accommodation at the expiry of three months from today. On this undertaking the petitioner is allowed three months' time to vacate the premises.


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