MEHBOOB ALI Vs. HABIBAN

JUDGEMENT

(1.) Leave granted.

(2.) 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.

(3.) 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.