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Panchoo Singh Vs. Bala Sahai - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtRajasthan High Court
Decided On
Case NumberCivil Revn. No. 159 of 1957
Judge
Reported inAIR1958Raj306
ActsDelhi and Ajmer Rent Control Act, 1952 - Sections 35; Code of Civil Procedure (CPC) , 1908 - Sections 115 - Order 18, Rule 2; Transfer of Property Act, 1882 - Sections 106
AppellantPanchoo Singh
RespondentBala Sahai
Advocates: M.K. Garg, Adv.
DispositionRevision dismissed
Cases ReferredHukumchand Kishanlal v. Nathmal
Excerpt:
.....defendant, as is evident from a perusal of the judgment of the lower court was that the plaintiff did not require the house bona fide for his own use, and the notice was bad in law.orderk.l. bapna, j. 1. this is a revision under section 35 of the delhi and ajmer rent control act, 1952 (no xxxviii of 1952). 2. the respondent bala sahai instituted a suit for ejectment and arrears of rent. the allegation was that he required the house bona fide for his own use. a notice was given to the defendant to vacate, but he did not do so. the plea of the defendant, as is evident from a perusal of the judgment of the lower court was that the plaintiff did not require the house bona fide for his own use, and the notice was bad in law. in respect of the claim for arrears of rent, a counter claim for adjustment of a certain sum spent by the defendant on repairs was made. the defence was struck off because of the non-compliance of the order given by the court under section 13(5) of.....
Judgment:
ORDER

K.L. Bapna, J.

1. This is a revision under section 35 of the Delhi and Ajmer Rent Control Act, 1952 (No XXXVIII of 1952).

2. The respondent Bala Sahai instituted a suit for ejectment and arrears of rent. The allegation was that he required the house bona fide for his own use. A notice was given to the defendant to vacate, but he did not do so. The plea of the defendant, as is evident from a perusal of the judgment of the lower court was that the plaintiff did not require the house bona fide for his own use, and the notice was bad in law. In respect of the claim for arrears of rent, a counter claim for adjustment of a certain sum spent by the defendant on repairs was made. The defence was struck off because of the non-compliance of the order given by the court under section 13(5) of the Act. Thereafter the trial court held that the plaintiff bona fide required the premises for his own use, and the notice was valid. The plaintiff's claim for ejectment was decreed and arrears were also decreed to the extent of Rs. 10/-.

The plaintiff was further granted damages for use and occupation at Rs. 10/- p. m. from the date of suit till delivery of possession on payment of additional court fee. The defendant filed an appeal, which was dismissed by the Senior Sub-Judge, First Class, Ajmer, on 27-3-1957. The defendant has come in revision under section 35 of the Delhi and Ajmer Rent Control Act, 1952.

3. The powers of revision under section 35 of the Delhi and Ajmer Rent Control Act, 1952, are slightly larger than those conferred under section 115 of the Code of Civil Procedure, for that section says:

'(1) The High Court may, at any time, call for the record of any case under this Act for the purpose of satisfying itself that a decision made therein is according to law and may pass such order in relation thereto as it thinks fit'.

4. Learned counsel urges that the notice for termination of the tenancy was not valid. Learned counsel read the plaint and the written statement from his brief. While the plaintiff alleged that he had given notice for termination of the tenancy, the defendant in one paragraph did not admit the fact of the notice having been given to him, but in another paragraph said that the notice was not in accordance with law. In the first place in a plead-ing of that nature, no issue need have been raised about the legality of the notice, for Order VIII, Rule 2, C. P. C. made it incumbent on the defendant to show in what manner the notice was not valid, it he wished to raise the defence that it was invalid. However, an issue was raised whether the notice was valid. The first appellate court has given reasons why that notice should be held to be valid. The original notice was produced by the defendant, and was marked as Ex. A. 2, It is curious that the defendant had the audacity to deny receipt of the notice when the notice itself was produced by him. It is said that the tenancy terminated on the 15th of every month. The notice was that the defendant should vacate on the 16th of the particular month. The contention is that the notice should have been to vacate on the 15th. The defendant relied on a ruling of the Court of the Judicial Commissioner, Ajmer, reported in Sunder Singh v. Arjun Singh, 1949 A. M. LJ 66: (AIR 1949 Ajmer 38) (A). The learned Civil Judge, however, referred to a later decision of the Ajmer Judicial Commissioner's Court reported in Hukumchand Kishanlal v. Nathmal AIR 1954 Ajmer 62 (B), in which a notice asking the defendant to quit on the next day of the date on which the monthly tenancy terminated was held to be valid. It was contended in the first place that the defence having been struck out, the court should not have taken notice of Ex. A. 2. There is no force in this contention. The notice was the subject of an issue, and it was produced by the defendant and the court had to decide whether that notice Ex. A. 2 was valid. It did not matter whether it was produced by one party or the other. It may, however, be borne in mind that the notice was given by the plaintiff to the defendant, and it was the defendant alone who could produce it. On the question of law whether such a notice was valid under section 106 of the Transfer of Property Act, I have no doubt that the tenant was entitled to remain in possession till the last hour of 15th, and, therefore, if the plaintiff asked him to vacate as soon as the last hour of 15th was over, that is, on the 16th, it was a valid notice. The view taken by the lower court is correct, and there is no error of law in that.

5. No other point was canvassed.

6. There is no force in this revision, and it is accordingly dismissed.

7. The stay application automatically fails and is dismissed.


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