S N BHATIA Vs. SITA BIJAI SINGH

JUDGEMENT

(1.) Determination of a lease in accordance with theTransfer of Property Act (hereinafter called the T.P. Act) is a mere surplusageand unnecessary in order ro seek eviction of a tenant under the Rent ControlAct." But an interesting question has arisen as to whether in an evictionpetition a tenant would be entitled to a notice in terms of the agreement oftenancy as a double protection, even though no notice under Section 106 ofthe T.P. Act is required.

(2.) In order to determine the same, the relevant facts are that therespondent No. 1 herein filed a petition for eviction being a widow underSection 14-D read with Section 25-D of the Delhi Rent Control Act (hereinafter called as the 'D.R.C. Act') against the present petitioners. RespondentNo. 2 was also impleaded as respondent in the said eviction petition. Thepetitioner/tenants filed the leave to defend application seeking leave onvarious grounds. One of the ground was that a notice under Section 106 ofthe Transfer of Property Act had not been served before filing of the evictionpetition and that the landlady had agreed to give a notice of termination forone month before filing the eviction petition. In the absence of the same thepetition was not maintainable. Other grounds taken were that the premisesin question was meant for commercial purposes and not for residential andthat she does not require the premises for bona fide use as she was not theowner of the premises. She is only a co-owner. The premises were let out forcommercial purposes. That the earlier petition filed under Sec. 14(1)(j) and(k) of the DRC Act was dismissed for want of notice and that judgment is ares judicata between the parties. That the petitioner has also filed an eviction petition under Sections 14(1)(e)(g)(h)(j)& (k) of the Act. During thependency of the said petition, the present petition is barred. The Additional RentController dismissed the leave to defend application finding that no triableissue has been raised. It is against the impugned order that the presentrevision has been filed.

(3.) Mr. Mukul Rohtagi appearing for the petitioner conceded at thebar that the petitioner was not pressing the service of a notice under Section 106 of the T.P. Act. His argument is that under the tenancy agreementthe respondent was to serve a month's notice. The fact that one monthnotice was required to be served before filing eviction petition had beenadmitted by the landlady when she appeared in the witness box in an earliereviction petition. As per her own admission the agreement required onemonth's notice to be given at the time of terminating the tenancy. In theabsence of the notice her earlier petition filed under Section 14(1)(k) & (j) ofthe D.R.C. Act was dismissed. Appeal against that order was also dismissedby Shri V.S. Aggarwal. Rent Control Tribunal vide order dated 24/05/1983. The second appeal to the High Court was also dismissed and so wasthe Special Leave Petition. That judgment will prevail as res judicata between the parties. Even now one month's notice has not been served beforeinstituting this petition. Hence the Trial Court ought to have allowedthe leave to defend application because it raises triable issue as towhether previous judgment inter se the parties regarding non issuance ofone month's notice would operate as res judicata. He then contendedthat even though the Supreme Court has set at rest the controversy thatnotice under the T.P. Act is unnecessary in a petition filed under the RentControl Act, yet protection given to a tenant under the rent agreement willprevail, it being a double protection to the tenant. The notice required to beserved per the rent agreement, has not been effected because of SupremeCourt holding that notice under Section 106 of the T.P. Act is not necessaryin rent matters. Notice as per agreement is an added protection given to thetenant by the law. It is so held by the Supreme Court in the case ofManujendra Dutt v. Purnedu Prosad Roy Chowdhury and Ors., reported inA.I.R. 1967, Supreme Court, page 1419. In the absence of notice as per theterm of rent deed and there being a judgment operating between the partiesholding that one month's notice is necessary, the Court below erroneouslydismissed petitioner's application seeking leave to defend.