LAWS(KER)-1990-3-33

ARIFA BEEVI Vs. GOPALAN RAMESAN

Decided On March 08, 1990
ARIFA BEEVI Appellant
V/S
GOPALAN RAMESAN Respondents

JUDGEMENT

(1.) ONE of the substantial questions of law formulated in the second appeal is the following: ". . . . . . . . . . Whether the provisions in Ext. A1 provide a clear contract to the contrary which will dispense with a notice as contemplated under S. 106 of the Transfer of Property Act to terminate the lease?. . . . . . . . . . . There is yet another question of law formulated to which I shall refer to, a little later.

(2.) THE brief facts necessary to decide the questions of law raised can be summarised thus: THE plaintiff issued the defendant for eviction of a shop room let out to him on the basis of Ext. Al rent deed, with arrears of rent. Before filing the suit the plaintiff issued Ext. Bl notice dated 23-4-1980 purporting to terminate the tenancy and claiming eviction on various grounds. THE postal acknowledgment evidencing the receipt of notice by the defendant is produced as Ext. A2. In the plaint, the plaintiff alleged that there is arrears of rent from March, 1980 onwards and that the shop room is an old one in a dilapidated condition and is required for the purpose of demolition and construction of new buildings in the property. Plaintiffs further alleged that as per the notice issued by him, the tenancy has been duly terminated.

(3.) IN this appeal, the learned counsel for the appellant has challenged the dismissal of the suit as illegal on two grounds. Firstly, the learned counsel has contended that Ext. Bl notice is sufficient in law to terminate the tenancy in accordance with the provisions contained in S. 106 of the T. P. Act and as such the dismissal of the suit as if Ext. Bl is insufficient in law to terminate the tenancy is illegal. Secondly, the learned counsel has argued that Ext. Al lease deed contains several recitals which operates as contract to the contrary sufficient to exclude the applicability of S. 106 of the T. P. Act, and as such the courts below have gone wrong in dismissing the suit on the ground that there is no valid termination of the tenancy as per Ext. Bl notice. According to the counsel, before going into the question of sufficiency or otherwise of Ext. Bl notice, the courts below ought to have gone into the question whether the lease in the instant case is one which is required to be terminated by a notice under S. 106 of the T. P. Act. IN the circumstances, it was argued that the plaintiffs are entitled to get a decree on the basis that the tenancy in question does not require to be terminated in accordance with the provisions contained in S. 106 of the T. P. Act.