RAJA RAM SONAR Vs. SMT. DURGA DEVI AGARWAL

JUDGEMENT

(1.) This Judgment shall govern second appeals Nos. 478 of 1968, 286 of 1969 and 349 of 1969 which were connected and heard together. Each of these cases arises out of the suit for ejectment and arrears of rent filed by the landlord. In each case a decree for ejectment and arrears of rent was passed in favour of the landlord against the tenant. An appeal filed by the tenant against that decree passed by the trial Court in each case was dismissed by the lower appellate Court. Hence the tenants have now approached this Court by filing the second appeals.

(2.) I heard the learned counsel for the parties. The common question of law that was raised on behalf of the appellants in all the three appeals was that the notice of termination of tenancy under Sec. 106 of the Transfer of Property Act was pre -mature in view of the provisions contained in tine U. P. (Temporary) Control of Rent and Eviction Act. At this place it may be pointed out that the landlord in the suit out of which second appeal No. 478 of 1968 has arisen had sought the ejectment of the tenant on the basis of permission prayed for from the District Magistrate and which was ultimately granted by the Commissioner in revision filed before him though the District Magistrate had originally refused to grant the permission. In the other two suits out of which second appeals Nos. 286 and 349 of 1969 have arisen the landlord had sought ejectment of the defendant on the ground that he made default in payment of arrears of rent due for more than three months in spite of a notice being served on him under Sec. 3 (1) (a) of the said Act. In these two cases the notice of termination of tenancy under Sec. 106, Transfer of Property Act was combined with the notice under Sec. 3 (1) (a) of the Rent Control Act while in the third case the landlord had served the notice under Sec. 106 prior to obtaining the permission from the Commissioner for filing the suit for ejectment against the tenant

(3.) The contention of the learned counsel for the appellant is that the cause of action to terminate the tenancy arises only after the bar placed by the Rent Control Act is removed on account of the failure of the tenants to pay the arrears of rent within the prescribed period after service of notice on him under Sec. 3 (1) (a) or after obtaining permission from the District Magistrate for filing a suit for ejectment A notice under Sec. 106 purporting to terminate the tenancy even, prior to that It is contended on behalf of the appellants, is pre -mature and as such, invalid. In my opinion, this argument is without any substance. The bar that has been placed by the Kent Control Act is in the way of filing a suit and not in the way of terminating tenancy. A tenancy by notice under Sec. 106 can be terminated either by the landlord or by the tenant. For terminating such tenancy the Bent Control and Eviction Act does not place any bar. What has been barred by Sec. 3 of that Act is that no suit for ejectment shall be filed unless one or more of the conditions prescribed therein have been fulfilled. That being so a landlord is at liberty to give a notice to his tenant under Sec. 106, Transfer of Property Act requiring him to vacate the premises within one month from the date of receipt of that notice. If the tenant wants to vacate the house within this period he is at liberty to do so. He need not himself give a notice to the landlord about his intention to vacate the house in such circumstances and he can simply comply with the notice of the landlord. If. however, the tenant does not want to vacate the house, the landlord will not be competent to file a suit for ejectment against him unless he is able to fulfil one or the other of the requirements laid down in Sec. 3. If none of those requirements is fulfilled the notice of termination of tenancy would remain infructuous and on its basis the landlord would not be able to elect the tenant so long as the Temporary Rent Control Act remained in force.