MAQBOOL AHMED Vs. MOHAMMAD IBRAHIM

JUDGEMENT

(1.) This execution second appeal under section 100 read with section 47 of the Code of Civil Procedure has been filed by the tenant who is the defendant-judgment-debtor and is directed against the appellate order of the learned Senior Subordinate Judge dated 20th February, 1968, by which he affirmed the order of the Court of first instance dated 27th December, 1967, thereby finally rejecting all the objections of the judgment debtor against execution of the decree passed against him,

(2.) The brief facts of the case are that on 10thApril. 1956, the decree-holder (respondent before me) filed a suit for eviction against the appellant before me in respect of a portion of house No. 2217 at Gali Qasim Jan, Delhi under the provisions of section 13 of the Delhi Rent Control Act of 1952, The suit was decreed on 30th April. 1957. The appellant before me filed an appeal against the said decree which was compromised and he was allowed 18 months' time to vacate the premises and the appeal was eventually dismissed as withdrawn. On the expiry of the said period, the appellant did not deliver possession of the premises in view of certain legal proceedings pending on the subject and eventually on 7th May, 1967, the decree-holder filed one application for execution of the decree by which he prayed for delivery of possession of the premises excepting one room in respect of which a temporary injunction .passed by another Court was operative. In reply to the execution application, the appellant before me filed objections on 27th September, 1967 against the execution which are specified in his objection petition. Later on the appellant filed another objection petition on 22nd October, 1967 in which the main plea taken up was that a notice of termination of the contractual tenancy had not been served on the tenant-appellant before the institution of the suit and the decree for eviction passed against him, was, therefore, a nullity and void and could not be executed. All the objections of the appellant failed before the Court of first instance which dismissed both the objection petitions by its order dated 27th December, 1967 and dissatisfied with the same, the appellant before me filed an appeal before the Senior Subordinate Judge. It appears that the objections mentioned in the previous petition dated 27th September, 1967 were not pressed before the lower appellate court and the Court recorded the following finding :-

(3.) The learned counsel for the appellant appearing before me desired to canvass the objections raised by him in the previous objection petition which had been given up before the lower appellate Court and I have not allowed him to raise the same. I fully endorse the observation of the lower appellate Court that even otherwise the said objections are wholly groundless. The learned counsel for the appellant has strongly submitted that as the original decree had been passed without service of a notice terminating the contractual tenancy, the decree was without jurisdiction and a nullity and so was not binding and, therefore, the executing Court ought to have ignored the decree and it had no jurisdiction to execute the same. The learned counsel for the appellant has strongly relied upon Bath Mat v. Rameshwar Nath in which Hardayal Hardy and Deshpande, JJ. have considered the entire authorities bearing on the subject and came to the conclusion that it was essential that a contractual tenancy must be terminated according to law before institution of a suit for eviction or other legal proceedings for the purpose before the Rent Controller. In this judgment their lordships not only considered all the judgments of the Supreme Court hearing on the subject but also relied upon the Full Bench decision of the High Court of Punjab and Haryana reported as Bhaiya Ram v. Mahabir Parshad. However, their lordships of this Court further observed that 'the requirement of notice under section 106 is essentially for the benefit of the parties. The requirement is not mandatory as section 106 itself shows that the tenancy may be terminated in some other way. This is why this statutory right of the tenant must be held to be capable of being waived by him. If the conduct of the tenant in not insisting upon the notice has been acted on by the landlord then the landlord would be altering his position by relying upon the conduct of the tenant and the tenant would be estopped at a latter stage from resiling from his onduct and raising the objection of want of notice to the suit of the landord'. Their lordships also observed that this was a mixed question of law and fact and as such question could not be allowed to be raised for the first time in the Court of appeal. The learned counsel also relied upon an auhority of the High Court of Orissa reported as AbaniKumar Goswami v. Ramgopal Patwari where their lordships held that as no notice to quit had been served under section 106 of the Transfer of Property Act, the order of eviction was ultra vires, without jurisdiction, nullity and inexecutable. With respect, I am unable to agree with the authority of the High Court of Orissa In Pritam S.ngh v. Suraj Pershad Chief Justice Dua (as his lordship then was) referring to the aforesaid authority observed that whether or not on the facts of the case the said decision was correctly given, his lordship was wholly unable to hold that the order made by the Rent Controller or the Appellate Authority under the Delhi Rent Control Act, directing eviction of a tenant in the absence of a notice under section 106 of the Transfer of Property Act would be ultra vires or without jurisdiction or a nullity or that the execution of it could be ignored and the legal existence of it could be challenged in collateral suits.