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CASE NO.: Appeal (civil)  4138 of 2006

PETITIONER: Shri Mehboob Ali & Ors.                                  

RESPONDENT: Smt. Habiban                                                     

DATE OF JUDGMENT: 14/09/2006

BENCH: ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T (Arising out of S.L.P. (C) No. 21215 of 2005

ARIJIT PASAYAT, J.

       Leave granted.

Challenge in this appeal is to the legality of the judgment  rendered by a learned Single Judge of the Rajasthan High  Court at Jodhpur allowing the Civil Misc. Appeal filed in terms  of Order XLIII Rule 1(U) of the Code of Civil Procedure, 1908  (in short the ’C.P.C.’).  The only controversy involved in this  appeal is whether the first Appellate Court could have allowed  the application filed under Order VI Rule 17 C.P.C. and  permitted the defendants-tenants to take a plea relating to  non-termination of tenancy by the landlord by serving notice  under Section 106 of the Transfer of Property Act (in short the  ’T.P. Act’). The First Appellate Court allowed the amendment  on the basis of the judgment of a learned Single Judge of the  High Court in the case of Prakash Mal & Ors. v. Jaswant Raj  Soni reported in (RLW 2000 (2) Raj. 1227), wherein it was held  that if there is a condition in the rent-deed relating to service  of notice, then the suit of eviction can be maintained only after  service of notice under Section 106 of the T.P. Act.

The High Court in the impugned judgment noted that the  judgment in Prakash Mal’s case (supra) had been reversed by  a Division Bench of the High Court in Fateh Lal Dak v.  Sheshmal (2002 (2) CDR 1686 (Raj.). Following the Division  Bench’s judgment and order in Fateh Lal’s case (supra) the  appeal was allowed.   

In support of the appeal, learned counsel for the  appellant submitted that the issue is no longer res integra in  view of the judgment of this Court in the case of Jaswant Raj  Soni v. Prakash Mal (2005 (8) SCC 38). It was, therefore,  submitted that the High Court’s view is clearly unsustainable.  

In response, learned counsel for the respondent  submitted that though Prakash Mal’s case (supra) was subject  matter of consideration of this Court in Jaswant Raj Soni’s  case (supra), the factual scenario is different here.

Paras 5 and 6 in Jaswant Raj Soni’s case (supra) reads  as follows : \027 "5. In the second case the requirement as per

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the rent notice is: "on being asked to vacate  and ... on being told to do so" thus, there is no  requirement of a written notice before  institution of an eviction petition. The case of  the landlord in the plaint is that he had  intimated to the tenant to vacate the premises  before institution of the eviction petition. Of  course, the tenant denied the same in the  written statement. Whether this condition was  actually fulfilled or not is a question of fact to  be decided by the trial court. The counsel for  the parties informed that the case has not gone  for trial. Therefore, so far as the second case is  concerned, the trial Court will decide the issue  after allowing the parties to lead evidence with  respect thereto. Therefore, the eviction suit  must proceed to trial and final decision. 6. The learned counsel for the respondents- tenants tried to argue that in view of Section 28  of the Rajasthan Premises (Control of Rent &  Eviction) Act, 1950, the provisions of Section  106 of the Transfer of Property Act will apply to  the facts of the present case and a notice to  quit in terms of the said provision was required  to be given. In view of V. Dhanpal’s case (supra)  we are unable to accept this argument. There is  no legal or statutory requirement for a notice  being given in the facts of the present case. The  only requirement regarding notice, if at all,  arises from the condition printed on the back of  the rent receipt which in our view cannot be  said to be an agreement between the parties  laying down requirement for issuance of a  notice for institution of an eviction petition. In  any case as noticed above, the landlords have  tried to meet that requirement. In Jaswant Raj  Soni’s case the requirement of notice has been  met, as observed by us above, while in Jabar  Lal case the trial Court will consider whether  the requirement has been met on basis of  evidence led by the parties."

It appears that the High Court relied upon the decision  in Fateh Lal’s case (supra) to allow the appeal filed by the  respondents. In our view, it would be appropriate for the High  Court to re-hear the matter keeping in view the principles set  out in paragraphs 5 and 6 of Jaswant Raj Soni’s case (supra),  as quoted above.

Accordingly, we set aside the impugned judgment and  order of the High Court and remit the matter to the High  Court for fresh consideration. Since the matter is pending  since long, we request the High Court to explore the possibility  of disposal of the matter as early as practicable and preferably  by the end of March, 2007.

The appeal is allowed to the aforesaid extent. No costs.