SHISHIR KUMAR,J. - (1.) HEARD Sri A.B.L. Gaur, learned counsel for the petitioner and Sri P.K. Jain, learned Senior Advocate assisted by Sri Saurabh Jain.
(2.) THIS writ petition has been filed for quashing the order dated 9.10.2009, Annexure-5 to the writ petition passed in Revision No. 5 of 2003. It appears that a suit by the respondent was filed for ejectment and arrears of rent of the shop in dispute against the petitioner. It was alleged in the plaint that the plaintiff is a religious and charitable trust registered under the Societies Registration Act and is the landlord of the property in dispute. The defendant is the tenant of the aforesaid shop on a monthly rent of Rs.240/- per month. The petitioner being a religious charitable trust, Act No. XIII of 1972 was not applicable and the landlord has a right to terminate the tenancy by serving a notice under Section 106 of the Transfer of Property Act and the tenancy will be terminated immediately after one month mentioned in the notice. In spite of the notice the shop in question was not vacated, hence, the suit was filed before the Judge Small Causes Court. After issuance of the notice, a written statement was filed by the petitioner and after hearing both the parties, after confirming various issues on the various questions, the Judge Small Causes Court vide its judgment and order dated 6.3.2003 has dismissed the suit of the respondent. The respondent landlord filed a revision. The revision has been allowed. Hence, the present writ petition. Sri A.B.L. Gaur, learned counsel for the petitioner submits that the revisional court has reversed the finding recorded by the Judge Small Cause Court without any basis and without reversing the finding recorded. The revisional court has not discussed anything and allowed the revision. Once a finding has been recorded that there is no default, then the suit itself is not maintainable because the basis of the filing of the suit was not there. Further the Judge Small Cause Court has recorded a finding that Act No. XIII of 1972 is not applicable. If that was so and if there is no default then the petitioner cannot be ejected and the revisional court has wrongly allowed the revision.
(3.) ON the other hand, Sri P.K. Jain, learned Senior Advocate submits that a finding was recorded that the notice was sufficiently served and from the perusal of the finding recorded by the Judge small Causes Court each and every finding on each issue has been decided in favour of the plaintiff-respondent and once it has been held that Act No. XIII of 1972 is not applicable, the simplicitor notice is sufficient for terminating the tenancy. Sri Jain has brought to the notice of the Court relying on a judgment in the case of Jaswant Raj Soni Vs. Prakash Mal reported in 2006 (1) ARC 36. Taking support of the aforesaid judgment, learned counsel submits that the Apex Court has gone to this extent that issuance of notice under Section 106 of T.P. Act is not necessary before institution of the suit and it has been held that there is no legal requirement for issuance of a notice under Section 106 of T.P. Act before institution of an eviction petition, therefore, requirement of notice under Section 106 of T.P. Act is not necessary. Therefore, once a finding has been recorded that the Act is not applicable, the simplicitor notice is sufficient and the revisional court has considered the same and has allowed the revision. The revisional court has held that as the finding has been recorded by the Judge Small Causes Court in favour of the landlord, but in spite of the aforesaid fact, the suit has been dismissed, in such circumstances the revisional court has held that Act No. XIII of 1972 is not applicable therefore, in spite of the fact that tenant is in arrears of rent or not, is liable for ejectment.;