SHRI MEHBOOB ALI AND ORS. versus SMT. HABIBAN

Citation: [2006] SUPP. 6 S.C.R. 173 · Decided: 14-09-2006 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Appeal(s) allowed
Open in Lexace · Ask the AI about this case
Judgment (excerpt)

-
SHRI MEHBOOB ALI AND ORS. 
A 
v. 
SMT. HABIBAN 
SEPTEMBER 14, 2006 
[ARIJIT PASAYAT AND LOKESHWAR SINGH PANTA, JJ.] 
B 
Transfer of Property Act, 1882-Section 106-Jnstitution of eviction 
· petition-Reqiiirement of notice-Decision by Single Judge of High Court 
relying on the decision of Division Bench of High Court-Legality of-Held: C 
In view of the principles laid down in Jaswant Raj Son i's case by Supreme 
Court, matter remitted back-Precedent. 
Appel!ant-tenants filed an application under Order VI Rule 17 CPC 
permitting them to take a plea on the basis of non~termination of tenancy 
by landlord by serving notke under section 106 of Transfer of Property D 
Act, 1882. Application was allowed relying on *Prakash Mal's case by 
Single Judge of High Court that if there is condition in the rent deed 
relating to service of notice, eviction can be maintained only after the 
service. Division Bench of High Court in °Fateh Lal Dak's case set aside 
Prakash Mal's case. Respondent-landlord filed an appeal. Following Fateh · 
Lal Dak 's case, Single Judge of High Court allowed the appeal. Hence the E 
present appeal. 
Allowing the appeal and remitting the matter to High Court, the 
Court 
HELD: High Court relied upon the decision in Fateh Lat's case to F 
allow the appeal filed by the respondents. It would be appropriate for the 
High Court to re-hear the matter keeping in view the principles set out in 
***Jaswant Raj Soni 's case that there is no legal requirement for issuance 
of notice before institution of eviction petition; and that the o'lly 
requirement regarding notice, if at all, arises from the condition printed G 
on the back of the rent receipt which cannot be said to be an agreement 
between the parties laying down requirement for issuance of a notice for 
institution of an eviction petition. Thus, the order of High Court is set aside 
and matter is remitted back to High Court for fresh consideration. 
[175-G-H; 176-A; 175-E-G) 
173 
H 
174 
SUPREME COUR f REPORTS [2006] SUPP. 6 S.C.R. 
A 
*Prakash Mal and Ors. v. Jaswant Raj Soni RLW, (2000) 2 Raj. 1227; 
**Fateh Lal Dak v. Sheshma/, (2002) 2 CDR 1686 (Raj.) and ***Jaswant 
Raj Soni v. Prakash Mal, 120051 8 SCC 38, referred to. 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4138 of 2006. 
B 
From the Judgment and Order dated 30.8.2005 of the High Court of 
Rajasthan at Jodhpur in S.B.C.M.A. No. 17/2004. 
B.D. Shanna and Deep Shikha Bharti for the Appellants. 
Rani Chhabra for the Respondent. 
c 
The Judgment of the Court was delivered by 
ARIJIT PASAYAT, J. Leave granted. 
Challenge in this appeal is to the legality of the judgment rendered by 
D a learned Single Judge of the Rajasthan High Court at Jodhpur allowing the 
Civil Misc. Appeal filed in terms of Order XLill Rule I (U) of the Code of 
Civil Procedure, 1908 (in short the 'C.P.C.'). The only controversy involved 
in this appeal is whether the first Appellate Court could have allowed the 
application filed under Order VI Rule 17 C.P.C. and permitted the defendants-
tenants to take a plea relating to non-termination of tenancy by the landlord 
E by serving notice under Section I 06 of the Transfer of Property Act (in short 
the 'T.P. Act'). The First Appellate Court allowed the amendment on the 
basis of the judgment of a learned Single Judge of the High Court in the case 
of Prakash Mal & Ors. v. Jaswant Raj Soni reported in (RLW 2000 (2) Raj. 
1227), wherein it was held that ifthere is a condition in the rent-deed relating 
F to service of notice, then the suit of eviction can be maintained only after 
service of notice under Section I 06 of the T.P. Act. 
The High Court in the impugned judgment noted that the judgment in 
Prakash Mal's case (supra) had been reversed by a Division Bench of the 
High Court in Fateh Lal Dak v. Sheshmal, (2002) 2 CDR 1686 (Raj.). 
G Following the Division Bench's judgment and order in Fateh La/'s case 
(supra) the appeal was allowed. 
In support of the appeal. learned counsel for the appellant submitted 
that the issue is no longer res integra in view of the judgment of this Court 
in the case of Jaswant Raj Soni v. Prakash Mal, (2005] 8 SCC 38. It was, 
H therefore, submitted that the High Court's view is clearly unsustainable. 
....
MEHBOOB ALI v. HABIBAN [PASAYA T, J.] 
175 
In response, learned counsel for the respondent submitted that though A 
Prakash Mal's case (supra) was subject matter of consideration of this Court 
in Jaswant Raj Soni 's case (supra), t
Excerpt shown. Read the full judgment & AI analysis in Lexace.