GOPAL Vs. BASO MAI JAGAT NARAIN

JUDGEMENT

(1.) This second appeal under Section 100 of the Code of Civil Procedure is directed against the judgment and decree of the Additional District Judge dated October 17, 1980 confirming the judgment and decree of the commercial Sub Judge, Delhi dated September II, 1978, holding that the tenancy of Radhey Shyam Gupta was validly terminated during his life time. Briefly the facts arc that Radhey Shyam Gupta predecessor of the appellant and respondents Nos. 2 and 6 was inducted by respondent No. I as a tenant at Rs. 66.00 per month in a portion of property No. 648, Gali Sethan, Katra Neel, Delhi for period of eleven months with effect from lit November, 1953 in terms of the rent note dated October 29, 1953 executed by the deceased Radhey Shyam Gupta. After the expiry of fixed period of tenancy the deceased tenant continued to reside by virtue of the protection against eviction available to him under Delhi and Ajmer Rent Control Act, 1952. The plaintiff-respondent No. I on March 14, 1970 served a notice terminating the tenancy of the deceased tenant Radhey Shyam Gupta requiring him to vacate the premises by 30th April, 1970 which notice was served on March 17, 1970. Radhey Shyam Gupta died as statutory tenant on January 20, 1971. On November 30, 1971 the plaintiff-respondent No. I filed a suit for possession and recovery of Rs. 616.00 on account of damages for use and occupation against the defendants heirs of the deceased tenant. The defendants pleaded that Radhey Shyam Gupta was a contractual tenant and therefore they inherited the tenancy rights. During the pendency of the suit the definitition of the word 'tenant' under the Delhi Rent Control Act, 1958 (for ihort 'the Act') was amended and therefore after determination of tenancy the tenant rights were made heritable by certain heirs of the tenant as detailed in Section 2(1) which reads as under :-

(2.) The trial court held that the notice of termination dated March 14, 1970 wai valid and duly servcd. It was further held that Smt. Krishna Devi widow of the deceased tenant was entitled to remain in possession of the premises daring her life time as a tenant of the plaintiff at Rs. 66.00 per month in view of amended definition of the word 'tenant'. An appeal filed by some of the defendants was dismissed confirming the judgment and decree of the trial court by the Additional District Judge on October 17, 1980. It was held by the Additional District Judge that a valid notice terminating contractual tenancy was served upon the deceased tenant during his life time. In this second appeal the appellant has challenged the validity and service of the notice dated March 14, 197U. This appeal was admitted and the following three substantial questions of law as contained in the memorandum of appeal were formulated; (1) whether the notice dated March 14, 1970 by which the tenancy of Radhey Shyam Gupta was allegedly terminated is illegal ? (2) whether in the present circumstances of the case the provision of Section 1 10 of the Transfer of Property Act, shall apply or not ? (3) Whether the documents merely exhibited but not proved according to law could be read in evidence and whether judgment could be based on the reliance of such documents ?

(3.) The learned counsel for respondent No. I has raised a preliminary objection that questions arc not substantial questions of law and therefore the second appeal be dismissed. His argument is that both the courts have concurrently held that the eviction notice dated March 14, 1970 was vaild and duly served. He further submits that before the first appellate court only question was about the validity and service of the notice and no argument were advanced by the appellant on question No. 3 as above. He submits that the third question formulated above does not arise out of the judgment of the first appellate court and the eviction notice dated March 14, 1970 was duly proved and exhibited.