- (1.) SANJAY Misra, J. The petitioner has filed this writ petition for quashing the judgment and order dated 16-4-1990 passed by the Court of Judge Small Causes Kanpur Nagar in S. C. C. Suit No. 598 of 1983 (Smt. Vijaya Nigam v. Sudama Kumar) whereby the suit has been dismissed for ejectment of the defendants and allowed for recovery of arrears of rent and the judgment and order dated 12-4-1993 passed by the Xth Additional District Judge Kanpur in S. C. C. Revision No. 99 of 1990 (Smt. Vijaya Nigam v. Sudama Kumar) whereby the revision of the petitioner has been dismissed.
(2.) HEARD Sri Avinash Swaroop learned Counsel for the petitioner and Sri Ramendra Asthana, learned Counsel appearing on behalf of the respondents. The petitioner who claims herself to be owner and landlord of the shop No. 3 situate in Premises No. 62/3 Block 7, Govind Nagar Kanpur filed the suit on the allegations that the shop was constructed in the year 1978 and was given on a rent of Rs. 225 per month to the respondent No. 3 for a period of 11 months by a written agreement. The period of tenancy was extended by subsequent agreements of 11 months each. The period of the last agreement came to an end on 30-4-1983 where after the petitioner sent a notice dated 7-5-1983 to quit which was received by the respondent No. 3 on 16-5-1983. The tenancy is alleged to have been terminated upon the expiry of thirty days from the date of service of notice. The respondent No. 3 contested the suit claiming therein that a permanent irrevocable tenancy had been created by virtue of the agreement and it would, therefore, continue forever unless any terms of the agreement were violated by the respondent. The trial Court framed issues and on issue No. 1 as to whether plaintiff is owner and landlord of the premises in question, it held that the petitioner was not owner of the disputed shop in as much as it has been taken by the petitioner on lease of 99 years from the Kanpur Development Authority. However, the trial Court found that the petitioner was landlord of the premises in question. On issue No. 2 as to whether the tenancy was permanent and irrevocable or a month to month tenancy, the trial Court found that it was not a permanent irrevocable tenancy it being dependent upon the terms of the agreement and further held that it was a tenancy for 11 months created by separate agreements from time to time. On the issue as to whether the provisions of U. P. Act No. 13 of 1972 would apply to the premises, the trial Court found that the shop in question was not governed by the Act on the date of institution of the suit. On the issue as to whether tenancy of the defendant had been legally terminated and whether notice was legal and valid, the trial Court found that tenancy was not legally terminated and the notice was illegal and invalid. With respect to the issue of default in payment of rent, the trial Court decided in favour of the tenant and found that he was not in arrears of rent. It also found that question of title was not involved in the suit and the defence of the respondent was not liable to be struck off under Order XV Rule 5 Code of Civil Procedure. It, therefore, decreed the suit for recovery of arrears of rent from 1-5-1983 to 18-7-1983 at the rate of Rs. 225/- per month and for rent pendente lite from 19-7-1983 to 15-4-1990 at the same rate. However, the suit for ejectment of the defendant from the shop in question was dismissed. The revisional Court found that the finding recorded by the trial Court on the question of fact and law were in accordance with law and therefore, it has dismissed the revision filed by the petitioner.
(3.) THE argument on behalf of learned Counsel for the petitioner is that the notice under Section 106 of the Transfer of Property Act served by the petitioner upon the tenant was valid and legal and both the Courts below have committed error in law in holding that the notice was invalid and therefore, the tenancy was not terminated. It is this question alone which has been canvassed by the learned Counsel for the parties. Upon going through the findings recorded by the Courts below the tenancy by virtue of the last agreement admittedly was up to 30-4-1983 where after no fresh agreement was entered into between the parties. The notice to quit was served on the respondents on 16-5-1983 and therefore, the tenancy stood terminated after expiry of thirty days of service. The Courts below have concurrently held that the tenancy was not a permanent irrevocable tenancy but was governed by the terms of the agreement. The agreement period of 11 months expired on 30-4-1983. The Courts below have however, held that since there has been no breach of any condition of the lease deed, therefore, the notice to quit could not have been given to the respondents validly and legally. The Court below found that the terms and conditions as enumerated in the lease had not been violated by the respondents and therefore, the petitioner was not entitled in law to terminate the tenancy. It also found that since no default had been committed in payment of rent the notice to quit was illegal.;