SHISHIR KUMAR,J. - (1.) HEARD Sri P.K. Ganguley, learned counsel for the petitioner and Sri Ajai Kumar Singh, learned counsel for the respondent.
(2.) THIS writ petition has been filed by a tenant against an order passed by the Judge Small Causes Court by which the landlord's suit for arrears of rent and ejectment has been decreed and the revision filed by the petitioner has been dismissed. Though this writ petition is liable to be dismissed without affording opportunity to the petitioner or giving an opportunity of hearing in view of the fact that petitioner has concealed the relevant fact regarding filing of Writ Petition No. 63793 of 2008 which was dismissed on 11.12.2008 in the same proceeding but in the interest of justice the petitioner has been heard.
(3.) THE main argument raised on behalf of the petitioner is that the notice sent under Section 106 of the Transfer of Property Act is invalid in view of the fact that tenancy of the petitioner has been terminated in the notice and arrear of rent from 1982 to 2000 was demanded . It is admittedly barred by time. As the validity of the notice was challenged and it is not in consonance with the provisions of law, the total proceeding is vitiated. Reliance has been placed upon a judgment delivered in the case of Hakim Ziaul Islam Vs. Mohd. Rafi reported in A.I.R. 1971 Allahabad page 302. The learned counsel for the petitioner has placed reliance upon paragraphs 4 and 5 of the said judgment which are quoted below: "4. The notice, a copy of which is Ex. V on record, is dated 7.10.1963 and was served on the defendant on8.10.1963. It is a combined notice demanding arrears of rent and calling upon the defendant to vacate the house. The material part of the notice translated by me and relevant for my purposes is as follows: "Your tenancy of the aforesaid house is determined with effect from today. Therefore, within one month from the date of receipt of this notice after vacating the house deliver its actual possession tome otherwise upon the expiry of the aforesaid period I will be compelled to take action against you in a competent court of law." The contention of the learned counsel for the appellant was that the notice was invalid inasmuch as it terminated the tenancy, that is, the relationship of landlord and tenant in praesenti and not a month hence from the date of the receipt of it by the tenant, therefore, the notice failed to comply with the statutory requires of Scion 106 of the Transfer of Property Act and will, be invalid. The submission was that the landlord having terminated the tenancy on the day the notice was written, he manifested an intention to keep the defendant not as a tenant but as a mere licencee or on sufferance for one month then asking him to deliver possession within that period and threatening him with legal action on his failure to do so. To put in other words, the submission was that the notice could not be construed as one terminating the tenancy on the expiry of one month from the date of receipt and then asking the tenant to quit. The learned counsel for the plaintiff-respondent did not seriously contest the interpretation or the construction put on the language of the notice on behalf of the appellant. But he attempted to justify the notice as meeting the requirement of law by submitting that since under the law a tenancy could not be terminated or determined unless a notice of one month is given the first part thereof be ignored as it failed to bring about a legal termination of the tenancy then the second part of it demanding vacation of the premises on the expiry of one month from the receipt thereof would be effective in law as a notice to quit under Section 111(h) read with Section 106 of the Transfer of Property Act. ;