The defendant who suffered a decree for ejectment before both the Courts below prefers the second appeal.
2.The plaintiff has alleged that the defendant who is a tenant under him on a monthly rent of Rs.1200/- failed to pay the rent and has not vacated the premises as directed in the notice issued by him. Hence, the suit for ejectment.
3.The defendant in the written statement disputes the allegation that the defendant neglected to pay the rent. She also set up a plea that the plaintiff agreed to sell the suit property to the defendant and received a sum of Rs.1,50,000/- towards advance of sale consideration. In the additional written statement filed by the defendant at the fag end of the trial of the suit attributed impropriety in the matter of issuance of statutory notice as contemplated under
Section 106 of the Transfer of Property Act 1882.
4.The Courts below concurrently returned a finding that the defendant who came forward with a plea that there was an oral agreement of sale between plaintiff and the defendant failed to establish it: that the arrears of rent was not paid by the defendant/plaintiff and that the notice issued under
Section 106 of Transfer of Property Act 1882 was a valid one and therefore the plaintiff was entitled to a decree of ejectment as prayed for.
5.The plaintiff lodged a Caveat in this matter and therefore, this Court issued pre-cognizance notice to the plaintiff before ever entertaining the Second Appeal and also granting interim relief as sought for by the defendant.
6.The learned counsel appearing for the appellant/defendant would vehemently submit that the notice as contemplated under
Section 106 of the Transfer of Property Act 1882 was not personally handed over to the defendant. It is his further submission that the lease arrangement was not terminated as contemplated under
Section 106 (1) of the said Act. No separate notice was also issued terminating the tenancy arrangement. The Courts below have not properly adverted to the evidence let in on the side of the defendant and therefore the appeal may be admitted and the interim order as sought for may be granted.
7.The learned counsel appearing for the respondent/plaintiff would submit that the defendant failed to specifically allege in the original written statement filed by her that the statutory notice was invalid in the eye of law. A notice issued through the counsel is as good as a notice issued by the party concerned. Though the expression "terminated" is not found in the notice Ex.A7, inasmuch as 7 days ultimatum has been served on the defendant, the plaintiff has meant to terminate the relationship of landlord and tenant. It is his further submission that the concurrent decisions of the Courts below with respect to the legality of the notice issued under
Section 106 of the Transfer of Property Act 1888 cannot be causally upset by this Court. Therefore, he seeks for dismissal of the appeal.
8.On a perusal of the reply notice dated 10.10.2006 issued by the plaintiff through his counsel to the counsel for the defendant, the plaintiff having brought to the notice of the defendant about the default in payment of the rent committed by the defendant directed him to settle all the dues within seven days and hand over vacant possession of the house.
9.
Section 106(1) of the Transfer of Property Act 1882 speaks of termination of the lease arrangement on issuance of the statutory notice. The expression "terminated" need not be specifically stated in the statutory notice contemplated under
Section 106 of the Transfer of Property Act 1882. If the notice directs the tenants to vacate the premises within a stipulated time, the Court can very well construe that the landlord has meant to terminate the relationship between the parties. The very fact of the plaintiff has directed the defendant to vacate the premises by paying rent within seven days would go to show that he has terminated the relationship and asked the tenant to vacate the premises within the stipulated time.
10.It is found that a separate notice was not issued by the plaintiff but in the reply to the lawyer's notice issued by the defendant to the plaintiff through his counsel he has directed the defendant to vacate the premises. Ex.A7 is not only a reply to the notice Ex.A6 issued by the defendant but also a notice of termination of the lease arrangement. Law does not mandate that there should be a separate notice and that the notice of termination shall not form part of the reply notice.
11.The reply was issued on 10.10.2006 whereunder the defendant was directed to vacate the premises. The suit was filed on 24.11.2007. Though the notice Ex.A7 contemplates vacation of the premises within seven days after paying the rental dues, it is found that the suit has been filed after the expiry of 15 days notice contemplated under
Section 106(1) of the Transfer of Property Act. Therefore, the period mentioned under Ex.A7 though falls short of the period specified under
Section 106(1) of the Act, inasmuch as the suit has been filed after the expiry of the period specified in
Section 106(1) of the Act, the statutory notice issued by the plaintiff is held to be valid one.
12.As rightly pointed out by the learned counsel appearing for the plaintiff, only during the course of recording evidence the defendant chose to file additional written statement attacking the very validity of the notice issued under
Section 106(1) of the Act. Having not raised any objection as to the validity of the notice under
Section 106 of the Transfer of Property Act, the defendant has come forward with such objection only at the fag end of the trial of the case.
13.It is found that the trial Court as well as the first Appellate Court have returned the concurrent findings which are consistent with the evidence on record as also with the provisions of law. In such circumstances, it is not proper for the Court to interfere with the well considered judgment of the Courts below.
14.In view of the above, the appeal fails and it stands dismissed. There is no order as to cost. Time for vacating the premises is one month from the date of judgment. As the main appeal is disposed of, the petition becomes infructuous and therefore it stands dismissed.
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