YAMIN, J. - (1.) A common and very short point of law is involved, therefore, both these revisions were heard together. The point is whether despite a contract regarding notice between the parties, a suit can be maintainable under the Rajasthan Rent Control Act without serving such a notice? In both the cases the tenants raised objection, regarding notice by way of amendment in the written statement and additional issues were framed. The issues were decided in favour of the plaintiffs and suits were allowed to proceed.
(2.) LEARNED counsel for the tenants petitioners submitted that the suits were not maintainable as no notice was served by the landlords though in both the cases there are contracts that the landlord will have to give one month's notice before getting the premises evicted as mentioned in receipts. But the learned counsel for the landlords respondents submitted that it was not necessary to issue a notice because the agreement about the notice has no force of law. They contended that Hon'ble Supreme Court in V. Dhanapal Chettiar vs. Yesodai Ammal (AIR 1979 SC page 1745), has held 1228 that no notice under Section 106 of the Transfer of Property Act is required to be given before filing a suit under various Rent Control Acts in various States of India. They also relied on Girraj Kishore Sharma vs. Tejmal Gupta & Ors. (RLR 1990 (2) page 321), in which it has been held that it is not necessary for landlord to serve notice to quite before filing of suit for eviction against tenant and, therefore, no issue need be framed on this point in a suit for eviction. Reliance has also been placed on Kesardeo vs. Smt. Bhooridevi & Ors. (1980 WLN (UC) page 171), wherein it was held that in a suit for eviction under Rent Control Act notice determining tenancy under Section 106 of Transfer of Property Act before filing a suit for eviction by the landlord against the tenant was not necessary. Admittedly, tenancies are based on contract. There is no provision under the Rent Control Act of Rajasthan to give notice before filing of the suit. But when there is contract between the parties to the effect that the notice will be mandatory before getting the premises vacated, the clause cannot be said to be illegal as the parties to the contract with open eyes agreed as in the present cases they agreed that the landlords will be entitled for eviction only after giving a notice for the period mentioned in contract, Such a situation came before Sikkim High Court in Jiwan Ram vs. Tobgyal Wangehuk Tenzin and others (AIR 1985 Sikkim page 10), and after considering the supreme Court Judgment rendered in V. Dhanapal Chettiar's case (supra) it was held that no notice under Section 111 read with Section 106 of the Transfer of Property Act or any other law is necessary as a condition precedent to a suit for eviction, unless the relevant Rent Control Act mandates, or the agreement governing the tenancy requires such a notice. It was found that Gangtok Rent Control and Eviction Act also did not provide for and did not require any notice terminating the tenancy, yet it was held that if under an agreement between the landlord and the tenant, the latter is entitled to a notice of certain period before he can be asked to vacate the premises or sued for eviction, such a notice must be served on the tenant before he can be proceeded against by a suit for eviction and the right of the tenant to receive such a notice is in no way affected by the Gangtok Rent Control and Eviction Act. Admittedly, the Rajasthan Rent Control Act does not mandate a condition precedent to a suit for eviction regarding issuance of notice, but that does not mean that if the parties agree to such a notice, the contract will be illegal or the suit can be proceeded without issuance of a notice. These cases are like the case before the Sikkim High Court in Jiwan Ram's case (supra ). It may also be stated that this aspect was not considered by the Rajasthan High Court either in Girraj Kishore Sharma's case (supra) or in Kesardeo's case (supra ). Therefore they are distinguishable. When the parties have with open eyes entered into a contract that though no notice was necessary under Section 106 of the Transfer of Property Act yet a notice will be necessary. This condition should prevail. The Sikkim High Court in Jiwan Ram's case (supra) did consider the Supreme Court judgment in V. Dhanapal Chettiar's case (supra) and found that such an agreement which mentioned about notice was binding. Therefore, when it was a condition precedent to issue notice as per the agreement in both the cases, the suits have been filed without giving notices to the tenants petitioners, shall not be maintainable. . Consequently, both these revision petitions are allowed and it is directed that the suits shall not proceed in absence of the notice in view of the agreement between the parties. No orders as to costs. . ;