Sh. Rabinder Nath Saha vs Smt. Sushma Jain
2011 Latest Caselaw 4149 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          RSA No.10/2011

%                                                26th August, 2011
SH. RABINDER NATH SAHA                                 ...... Appellant
                    Through:          Mr. R.N.Singh, Adv.

                           VERSUS

SMT. SUSHMA JAIN                                        ...... Respondent
                           Through:   Mr. G.P.Thareja with
                                      Mr. Arun Sukhija, Advs.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

    1.   Whether the Reporters of local papers may be
         allowed to see the judgment?

    2.   To be referred to the Reporter or not?

    3.   Whether the judgment should be reported in the Digest?

VALMIKI J. MEHTA, J (ORAL)

1.            The challenge by means of this Regular Second Appeal is to

the two concurrent judgments of the Courts below, the first being of the

Original Court dated 26.5.2010, and second being of the second

Court/Appellate Court dated 14.12.2010, and by which judgments, the

Courts      below   have    decreed   the   suit   for   possession   of    the

landlord/respondent against the tenant/appellant. The only issue which is

argued and urged before me is that the suit should not have been decided

under Order 12 Rule 6 CPC inasmuch as the appellant had disputed

receipt of the notice terminating tenancy sent under Section 106 of the

Transfer of Property Act, 1882. This legal notice is dated 30.5.2007. It is

argued that since there was no service of this notice, the tenancy cannot



RSA No.10/2011                                                    Page 1 of 3
 be said to have been terminated and therefore the suit for possession did

not lie.

2.         The Appellate Court has dealt with this aspect in the following

terms:

           "The only dispute which the appellant has been raising in
           the appeal is that he has never admitted in the written
           statement with respect to service of notice upon him u/s
           106T.P. Act and the order of the Ld. Trial Court thereby
           presuming the service upon the appellant is bad in law.
           The Ld. Trial Court while appreciating that part has relied
           upon 1973 RLR 17 and 1997 III AD 989 coupled with
           presumption on the basis of UPC as well as affixation done
           on the suit property. A perusal of the report shows that
           the notice through registered post was sent by the
           respondent at the tenanted premises which is received
           back with the report of refusal. Legal notice issued to the
           appellant by UPC is not received back and there is no reply
           by the appellant with respect to the service of notice by
           way of affixation. In corresponding para i.e. para no. 10 of
           the plaint, the appellant ahs simply denied the service of
           notice. He has also submitted that he was out of station
           during this period. The assertion of the appellant is too
           vague to be appreciated as the appellant has not
           mentioned anywhere as to where he has gone and when
           he came back and whether he observed any notice affixed
           on his premises or not. The Ld. Trial Court has relied upon
           judgment titled as Nopany Investment(P) Ltd. V
           Santokh Singh(HUF) (2008) 2 SCC 728 wherein the
           Hon'ble Supreme Court has inter-alia held that
           "22. In any view of the matter, it is well settled that filing
           of an eviction suit under the general law itself is a notice to
           quit on the tenant. Therefore, we have no hesitation to
           hold that no notice to quit was necessary under Section
           106 of the Transfer of Property Act in order to enable the
           respondent to get a decree of eviction against the
           appellant".
           The Court is of the considered opinion that law as relied
           upon by the Ld. Trial Court with respect to presuming the
           service upon the appellant, does not suffer from any legal
           infirmity or illegality."




RSA No.10/2011                                                   Page 2 of 3
 3.            I do not find any error in the reasoning of the Courts below in

holding that the notice terminating tenancy can be said to have been

served upon the appellant.

4.            In any case, the arguments as raised by learned counsel for

the appellant has been dealt with by me and negated in the case of M/S.

Jeevan Diesels & Electricals Ltd. Vs. M/S. Jasbir Singh Chadha

(HUF) & Anr., RFA 179/2011 decided on 25.3.2011 in which I have held

that the summons of the suit with which the plaint is accompanied, can

also be treated as a notice under Section 106 of the Transfer of Property

Act, 1882 read with Order 7 Rule 7 CPC considering the intendment of Act

3 of 2003 by which Section 106 of the Transfer of Property Act, 1882 was

amended to do away with the defence of the inadequacies in termination

of tenancy, once otherwise a period of 15 days expires prior to filing of the

suit. In the case of M/S. Jeevan Diesels & Electricals Ltd. (supra), I

have also held that along with the suit for possession, the copy of the

notice terminating tenancy is filed and is also served upon the

defendant/tenant/appellant and again the same can be said to be service

under Section 106 of the Transfer of Property Act, 1882 read with Order 7

Rule 7 CPC.     An SLP against the said judgment being SLP No.15740/2011

has been dismissed by the Supreme Court on 7.7.2011.

5.            No other issue is pressed or argued before me.

6.            In view of the above, no substantial question of law arises.

Dismissed.

AUGUST 26, 2011                                  VALMIKI J. MEHTA, J.

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