VIPIN JAIN Vs. BHAGWANDAS

JUDGEMENT

(1.) THE appellants-plaintiffs, Vipin Jain S/o Atarsen and Kanwarsen S/o late Banarasidas Jain, have preferred this first appeal under Section 96 of the Code of Civil Procedure, 1908, against the judgment and decree dated 08.12.2006 passed by learned Additional District Judge, Abu Road, District Sirohi in Civil Original Suit No.51/04- Vipin Jain & Anr. Vs. Bhagwandas & Ors., by which the learned trial court has partly decreed the plaintiffs' suit in favour of plaintiffs holding them entitled to receive the outstanding rent @ Rs.200/- per month, however, the eviction decree has been refused.

(2.) ON 09.07.2004, the appellants-plaintiffs filed suit eviction of the suit premises, a residential house on first floor (comprising of two rooms, latrine and bathroom), situated at Sadar Bazar, Abu Road, which initially was let out to the defendants' father, namely, Sh. Lekhraj Sindhi (original tenant) at a monthly rent of Rs.200/-. The eviction suit was filed by the plaintiffs on the ground of default in payment of rent from 01.01.2000 by the defendants-tenants despite demand having been made by the plaintiffs. The plaintiffs-appellants, thereafter, served a notice under Section 106 of T.P. Act terminating the lease vide Ex.2 dated 31.05.2004 on the tenants-lessee/s, namely, Bhagwandas, Ram Chand (sons of original tenant-Lekharaj Sindhji) and Baby @ Vimla (daughter of original tenant- Lekhraj Sindhi). The said notice was sent through UPC post (Ex.3 to 5) vide UPC receipt Ex.6. The said notice u/s 106 of the T.P. Act vide Ex.2 dated 31.05.2004, however, returned back as undelivered (Envelope Ex.7 dated 08.06.2004) with the postal remark/note that 'refused to accept'.

(3.) AS per the clear provisions under sub-Section (3) of Section 106 of the T.P. Act, 1882, after its amendment, the question of validity cannot be raised and such notice shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under that sub-section (1) of Section 106 of the T.P. Act, where a suit or proceedings is filed after the expiry of the period mentioned in sub-section (1). Since, in the present case, the suit was filed on 09.07.2004, after one month of the notice dated 31.05.2004, which notice, however, same was received back on