TIRATHDAS POKHARDAS KALDA Vs. SURIBAI ASSUMAL MOOLCHANDANI

JUDGEMENT

(1.) BY this petition filed under Article 227 of Constitution of India, the petitioner/landlord who is original plaintiff has challenged the reversing judgment of Appellate Court whereby decree of eviction of present respondents/ defendants/original tenants by trial Court has been set aside and his suit came to be dismissed. The petitioner landlord is aged about 83 years and he filed in the suit after obtaining permission from Rent Controller on the ground of bona fide need in proceedings instituted in 1988/89. Hence by consent of parties petition has been heard finally at the stage of admission itself. Rule is accordingly made returnable forthwith and case is heard finally.

(2.) PETITIONER is owner of house Number 107-A situated at Teen Nal square (a commercial locality) at Nagpur. One shop block consisting of two rooms about 500 square feet in area was initially let out by him to two brothers by name Assumal and Lalumal for rent of Rs. 500/- per month and these brothers were running a hotel in it. In 1988, for his bona fide need, petitioner filed proceedings before Rent Controller Nagpur under clause 13 (3) (vi) of C. P. and Berar Rent Control Order, 1949 (hereinafter referred to as rent Control Order ). Lalumal had expired in the 1981 and his widow by name Shantidevi i. e. present respondent No. 4 was joined as party along with Assumal. It is the case of petitioner that surviving brother became sole tenant and as no reply was given to legal notice dated 10-1-1989, he joined said widow also as party to avoid any controversy. During pendency of case before Rent Controller, assumal also expired and shop block came in possession of his son Satish who is running hotel. Legal heirs of Assumal along with satish were also made parties before Rent controller. The requisite permission has been given by Rent Controller to petitioner on 13-4-2001 (11-4-2001-?) and thereafter he issued quit notice i. e. notice determining tenancy of respondents under section 106 of transfer of Property Act. By said notice he called upon respondents to vacate tenanted premises and to hand over possession to him by midnight of 31st July, 2001. Said notice has been duly served on respondent No. 3 and respondent No. 4 on 21-6-2001 and 1-6-2001 respectively. However, envelopes with notice addressed to respondent Nos. 1 and 2 were received back by petitioner with postal endorsement of "not claimed". The respondents filed common written statement and denied all allegations of petitioner including due service on respondent Nos. 3 and 4 or the other envelopes being received back by petitioner with remark of "not claimed". They contended that said quit notice or its alleged service is improper and insufficient and respondent Nos. 1 and 2 had no occasion or no reason not to claim any notice. They further stated that tenancy was for manufacturing purpose and hence notice to quit of six months duration was essential. They further contended that permission granted by rent Controller had not become final or conclusive, and suit was bad for non-joinder of necessary parties as all tenants were not before trial Court. No quit notice was served upon all such tenants. They therefore prayed for dismissal of suit.

(3.) SUIT was tried by Small Causes Court, nagpur. Petitioner examined himself in support of his case while respondent Nos. 1 and 2 (original defendant Nos. 1 and 2) did not enter witness box though they filed affidavit of their examination-in-chief under Order 18, rule 4 C. P. C. trial Court held that quit notice was validly served upon all defendants and the tenancy has been validly terminated. It further held that plaintiff before it is entitled to decree for ejectment and vacant possession of tenanted premises as also to inquiry for future mesne profits. It relied upon judgment of Hon'ble Apex Court in case of (Samir Mukherjee Vs. Davinder K. Bajaj), reported at A. I. R. 2001 S. C. 1696, to hold that termination of tenancy with 15 days notice was not illegal in the facts of case. It therefore, decreed the suit. Present respondent nos. 1 and 2 i. e. original defendant Nos. 1 and 2 alone filed appeal under section 26 of provincial Small Causes Court Act before district Court vide Regular Civil Appeal No. 630 of 2004 and the same has been decided in favour of the respondents and against present petitioner on 3-12-2005. The 11th ad hoc Additional District Judge who decided the appeal found that the permission granted by Rent Controller on 11-4-2001 has not become final as the matter was/is pending before Additional Collector, Nagpur who is appellate Authority under Rent Control Order. It further found that return of envelops with endorsement "not claimed" could not have been accepted to constitute valid service of quit notice. It therefore, allowed the appeal holding that suit instituted by present petitioner was premature. It is this judgment of Appellate Court which is questioned in this petition.