- (1.) THE appellants-plaintiffs, Vipin Jain S/o Atarsen and Kanwarsen S/o late Banarasidas Jain, have preferred this first appeal under Section 96 of the Code of Civil Procedure, 1908, against the judgment and decree dated 08.12.2006 passed by learned Additional District Judge, Abu Road, District Sirohi in Civil Original Suit No.51/04- Vipin Jain & Anr. Vs. Bhagwandas & Ors., by which the learned trial court has partly decreed the plaintiffs' suit in favour of plaintiffs holding them entitled to receive the outstanding rent @ Rs.200/- per month, however, the eviction decree has been refused.
(2.) ON 09.07.2004, the appellants-plaintiffs filed suit eviction of the suit premises, a residential house on first floor (comprising of two rooms, latrine and bathroom), situated at Sadar Bazar, Abu Road, which initially was let out to the defendants' father, namely, Sh. Lekhraj Sindhi (original tenant) at a monthly rent of Rs.200/-. The eviction suit was filed by the plaintiffs on the ground of default in payment of rent from 01.01.2000 by the defendants-tenants despite demand having been made by the plaintiffs. The plaintiffs-appellants, thereafter, served a notice under Section 106 of T.P. Act terminating the lease vide Ex.2 dated 31.05.2004 on the tenants-lessee/s, namely, Bhagwandas, Ram Chand (sons of original tenant-Lekharaj Sindhji) and Baby @ Vimla (daughter of original tenant- Lekhraj Sindhi). The said notice was sent through UPC post (Ex.3 to 5) vide UPC receipt Ex.6. The said notice u/s 106 of the T.P. Act vide Ex.2 dated 31.05.2004, however, returned back as undelivered (Envelope Ex.7 dated 08.06.2004) with the postal remark/note that 'refused to accept'. Upon receipt of the summons, the defendants No.1 and 2, namely, Bhagwandas and Ram Chand filed their written statement, however, on behalf of defendant No.3- Smt. Baby @ Vimla (daughter of original tenant- Lekhraj Sindhi) despite serve, no written statement was filed and, exparte proceedings were drawn against her. Here in the present appeal also, none has appeared on behalf of respondent No.3-defendant (Smt. Baby @ Vimla) but she has common interest with the defendants No.1 and 2 (legal representatives of original tenant, Lekh Raj Sindhi). The learned trial court while deciding the Issue No.3 about the validity of the notice Ex.2 dated 31.05.2004 terminating the lease, in ignorance of amended provisions of Section 106 of the T.P. Act, which were substituted w.e.f. 31.12.2002 by the Act No. 3 of 2003 Amendment Act, held that since the valid notice of one month was not given as per condition stipulated in the rent receipt, and only 15 days' notice given by the plaintiffs, which was not valid and consequently lease could not be treated as 'terminated', and resultantly, the eviction decree has been refused by the learned court below Being aggrieved by the same, the appellants-plaintiffs have approached this Court by way of present first appeal. The learned counsel for the appellants-plaintiffs, Mr. Suresh Shrimali, however, does press upon the finding given by the learned court below with respect of Issue No.2 regarding damages for alleged loss occurred to the suit property and presses only Issue No.1 rejecting the validity of the notice Ex.2 under Section 106 of the T.P. Act. Both the learned counsels for the parties fairly agreed that the amended provisions of Section 106 of the Transfer of Property of Act, 1882, have not been noticed by the learned court below. The provision of Section 106 (Amended by the Act 3 2003 w.e.f. 31.12.2002) reads as under: - "106. Duration of certain leases in absence of written contract or local usage- (1) In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months' notice; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days' notice. (2) Notwithstanding anything contained in any other law for the time being in force, the period mentioned in sub- section (1) shall commence from the date of receipt of notice. (3) A notice under sub-section (1) shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under that sub- section, where as suit or proceedings is filed after the expiry of the period mentioned in that sub-section. (4) Every notice under sub-section (1) must be in writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property."
(3.) AS per the clear provisions under sub-Section (3) of Section 106 of the T.P. Act, 1882, after its amendment, the question of validity cannot be raised and such notice shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under that sub-section (1) of Section 106 of the T.P. Act, where a suit or proceedings is filed after the expiry of the period mentioned in sub-section (1). Since, in the present case, the suit was filed on 09.07.2004, after one month of the notice dated 31.05.2004, which notice, however, same was received back on 2004 with the postal remark that 'refused to accept', the question of validity could not have been decided against the plaintiffs-appellants in the present case. 8. Consequently, on this short question alone, the present first appeal of the plaintiffs is liable to be allowed and the same is accordingly allowed and the impugned judgment and decree of the learned court below dated 08.12.2006 is set aside and the defendants-tenants are directed to hand over the peaceful and vacant possession of the suit premises within six months from today. The respondents-defendants-tenants shall hand over the peaceful and vacant possession of the suit premises to the appellants-plaintiffs (landlord) within a period of six months from today i.e. on or before 28.02.2013 and shall pay rent/mesne profit @ Rs.1,000/- per month commencing from September, 2012 and will further continue to pay the mesne profits each month by 15th day of the next succeeding month or in advance to the appellants- plaintiffs till the vacant possession is handed over to the plaintiffs- appellants and in case there is any default in payment of mesne profit, the period of six months for eviction shall stand reduced and the decree of eviction would become executable forthwith. The respondents-defendants-tenants shall also clear all the arrears of the rent or mesne within three months from today, otherwise the amount shall bear interest @ 9% and executing Court may quantify such amount and recover the same as a money decree. The respondents-defendants-tenants shall also not sub-let, assign or part with the possession of the suit premises or any part thereof in favour of any one else and would not create any third party interest in the same during the aforesaid period and the same would be treated as void. The respondents-defendants shall furnish a written undertaking incorporating the aforesaid conditions in the trial court within one month and one copy thereof along with affidavit, in this Court. It is made clear that if the peaceful and vacant possession of the suit premises is not handed over or rent or mesne profits are not paid to the appellants-plaintiffs-landlord within a period of six months from today, besides expeditious execution of the decree in normal course, the appellants-plaintiffs shall also be entitled to invoke the contempt jurisdiction of this Court. Copy of this judgment be sent to the courts below and parties concerned forthwith. ;