HABIBAN Vs. MEHBOOB ALI AND ORS.

JUDGEMENT

(1.) THE matter has come up for hearing before this Court in view of the directions issued by the Hon ble Apex Court in Civil Appeal No. 4138/2006 arising out of S.L.P. (C.) No. 21215/2005 decided on 14.09.2006 by which the Hon ble Apex Court directed this Court to rehear the present Misc. Appeal and decide the issue whether the first Appellate Court could have allowed the application filed under Order VI R.17 C.P.C. and permitted the defendants -tenants to take a plea relating to non -termination of tenancy by the landlord by serving notice under Section 106 of the Transfer of Property Act in the light of the decision of the Hon ble Apex Court in the case of Jaswant Raj Soni v. : (2005)8SCC38 by keeping in view the principles set out in paragraphs 5 and 6 of the aforesaid judgment of Jaswant Raj Soni s case.

(2.) BRIEF facts of the case are that the plaintiff -appellant Habiban filed suit for eviction of the tenants -respondents in the trial Court on 24.09.1996. The plaintiff sought eviction of the defendants -tenants from the suit premises on the grounds of default in payment of rent, personal bona fide necessity of the suit premises for the landlord s son, on the ground of alteration in the suit premises by the tenants and further for causing nuisance by the tenants in the suit premises. Before the trial Court, the defendants contested the suit but did not take plea of non -maintainability of the suit on the ground of want of notice either under Section 106 of the Transfer of Property Act or as per the condition of tenancy incorporated in the rent deed which provided for a notice by the landlord to the tenant of one month before he could ask the tenant to vacate the suit premises. Since there was no defence of the defendants before the trial Court, therefore, no issue was framed about necessity of notice by the landlord to the tenants and consequently there is no decision on question of fact whether any notice was necessary for maintaining the suit for eviction of the tenants.

(3.) THE tenants preferred appeal against the judgment and decree dt. 22.04.2003. Before the Appellate Court, the tenants submitted an application under Order VI R.17, C.P.C. and stated that since the copy of the rent deed dt. 01.12.1993 submitted by the plaintiff along with the plaint was not legible, therefore, they could not take a defence on the ground of condition mentioned in the rent deed which provides that the tenants shall be entitled to notice of one month before they may be evicted from the rented premises. The landlord submitted that the condition in the lease deed of notice relied upon by the tenants was in the knowledge of the tenants before they filed the written statement and, therefore, after such inordinate delay, the tenants cannot be permitted to take such a plea. It was also contended that in view of the law laid down by the Hon ble Apex Court in the case of V. Dhanpal Chettiar v. : [1980]1SCR334 , the plea taken by the defendants tenants is legally not sustainable, as notice is not required.