Shishir Kumar, J. - (1.) This writ petition has been filed for quashing the orders dated 28.2.2009, 22.11.2006 as well as the order dated 28.2.2009 rejecting the application for amendment filed by the petitioner.
(2.) The brief facts as stated in the writ petition are that a suit for ejectment and arrears of rent was filed by the respondent against the petitioner with an allegation that the petitioner is a tenant of pottery factory from 1996 on payment of Rs. 500/- per month as rent and he has not paid the rent and a claim was made that rent is due from 3 years. A notice was given and after that the suit was filed. In spite of filing the suit, the possession of the property has not been delivered. A written statement was filed and it was stated in the written statement that it is a factory with machinery, was handed over to the petitioner, therefore, it was necessary to give six months' notice whereas only one month notice has been given. The petitioner has paid rent up to 2002. Thereafter it was not accepted. Even the money order which was sent, has not been accepted. Then the deposit was made under Section 30 of the Act No. XIII of 1972. Further an objection was made that the suit before the Judge Small Causes Court was not maintainable. After considering the evidence on record, oral as well as documentary filed on behalf of the parties, the trial Court framed 7 issues and ultimately vide its judgment and order dated 22.10.2006, decreed the suit for arrears of rent. The petitioner aggrieved by the aforesaid order, filed a revision which was ultimately dismissed vide its order dated 28.2.2009. Further an amendment application was also filed during the pendency of the revision, but the same was rejected. It was submitted before the Court that owner of the premises in dispute is Government and it was only let out to the respondent-landlord who in turn has given possession to the petitioner. Therefore, the respondent has got no right to file a suit for ejectment. An objection was also taken in the written statement that the suit is not maintainable in view of the fact that it has been flied by only one person though the property belong to three persons and all the co-owners have not filed the application, therefore, it is not maintainable.
(3.) Sri Satish Mandhyanh, learned counsel appearing for the petitioner has raised two main points for consideration before this Court. First is that being a factory, the suit itself before the Judge Small Causes Court was not maintainable in view of the provisions of the Act and further being a factory, the notice should have been given under Section 106 of the Transfer of Property Act mentioning the time in the notice as 6 months but only one month has been mentioned, therefore, the suit itself is not maintainable in view of the fact that the notice itself was defective. He has placed reliance upon a judgment of this Court in the case of Munni Lal v. Ajai Kumar reported in 1983 ARC 282 and reliance has been placed upon para 5 of the said judgment which is quoted below: "5. It is thus apparent that the building was only one of the items which were leased out. Besides the building (Sheds) open piece of land and other properties in the shape of machinery of Saw Mill including mother and electric connection were also leased. The learned counsel for the respondent argued that in the Explanation "building" meant residential or non-residential structure. The Explanation further included land, garages, out houses appurtenant to such building and also included any fittings and fixtures affixed to the building for the more beneficial enjoyment thereof. It is true that if a building is let out, it may included open piece of land for beneficial enjoyment thereof may be in the shape of lawn, drive or otherwise vacant land may be having fittings like fans, lights, air conditional or coolers, sanitary fittings, heaters and so on. Those fittings are meant for beneficial enjoyment of the building itself. But where the purpose is to run a factory and the building is merely to cover or protect the machinery, stocks etc. it cannot be said that the machinery fitted in it was for beneficial enjoyment of the building. In that case the building will be for the protection of the valuable machinery which is the subject-matter of lease. In the instant case I find that not only two tin sheds butt open piece of land and various machines for running the business were let out. All these things cannot be termed as building or building or cannot be said to be installed for beneficial enjoyment of the building which were two shes and a kothari. I agree with the view of the learned chief Justice in the case of Durga Prasad (supra) and hold that the lease in the present case was not of a building with open land and fitting for more beneficial enjoyment of the building. The lease was in respect of a factory which also had some covered portion necessary for running the same. The suit between landlord and tenant in respect of such a lease was not cognizable by the Small Causes Court. In the instant case the judgment and decree passed by the Court below has to be set aside. As it has been found that the Court of Small Causes has no jurisdiction to try the suit the decree falls.";