MANSA RAM Vs. VIJAY KUMAR

JUDGEMENT

(1.) THIS revision petition is directed against the order of learned District Judge, Jammu dated 2 -11 -1982 whereby he has rejected the application of the defendant for leave to amend his written statement. The defendant had prayed that leave be granted to him for amendment so as to raise a plea regarding non -service of notice u/s 106 of the transfer of property Act by the plaintiff on him before the institution of the suit. According to the defendant, petitioner herein, it was imperative for the plaintiff to have served a notice on the defendant in terms of Sec. 106 of the Transfer of property Act and in the absence of such a notice the defendant could not be ejected from the suit premises. The learned District Judge in appeal has rejected the defendants prayer and has not allowed him to amend the written statement mainly on the ground that the suit was instituted in Nov: 1975 and the application was belated and has held that the proposed amendment will change the nature of the suit and protract the litigation. This order of the District Judge is seriously assailed by the learned counsel for the petitioner.

(2.) ACCORDING to him he is holding the premises for manufacturing purpose and therefore, six months notice u/s 106 of the T. P. Act was required to be served by the land -lord on him prior to the institution of the suit. At the same time he has conceded that the suit is governed by Sec. 11 of the J&K Houses and Shops rent Control Act. His contention is that non -service of notice u/s 106 of the T. P. Act is fatal to the maintainability of the suit, and wants to raise it as a defence and can do so at the blated stage. I am afraid that I cannot agree with him. This is one aspect of the matter.

(3.) THE other aspect of the matter which is more important is as to whether notice u/s 106 T. P. Act was required to be served by the landlord upon his tenant when the case is covered by the J&K Houses an Shops Rent Control Act. The question has finally been decided by the Constitution Bench of the Supreme Court in Civil Appeal No: 1903 of 1977 decided on 23 -5 -1979 titled V. Dhanapal Chettiar Vs. Yesedai Ammal reported as AIR 1979 SC 1745 The Supreme Court after considering the J&K law also and the law prevalent in other States in India has held as under: "In order to get a decree or order for eviction against a tenant under any state Rent Control Act it is not necessary to give notice u/s 106 T.P. Act. Determination of a lease in accordance With the Transfer of Property Act is unnecessary and a mere supplusage because the landlord cannot get eviction of the tenant even after such determination. The tenant continues to be so even thereafter That being so, making out case under the Rent Act for eviction of the tenant by itself is sufficient and it is not obligatory to found the proceedings on the basis of the determination of the lease by issue of notice in accordance with Sec. 106 of the T. P. Act On the question of requirement of such a notice under S. 106. T. P. Act the difference in the language of various State Rent Acts does not bring about any distinction. It is not correct to say that S. 106 of the T. P. Act merely providing for termination of a lease either by giving the requisite notice is an extra protection against eviction The purpose of this provision is merely to terminate the contract which the overriding Rent Acts donot permit to be terminated. Even if the lease is determined by forfeiture under the Transfer of property Act the tenant continues to be a tenant, that is to say, there is no forfeiture in the eye of law, The tenant becomes liable to be evicted and forfeiture comes in to play only if he has incurred the liability to be evicted under the State Rent Act not otherwise.