R.S.A No. 2400 of 2009 ::1::
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
R.S.A No. 2400 of 2009
Date of decision : July 03, 2009
Baldev Singh,
...... Appellant (s)
v.
Smt Darshan Kaur
...... Respondent(s)
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CORAM : HON’BLE MR.JUSTICE AJAY TEWARI
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Present : Mr. Mahesh Gupta, Advocate
for the appellant.
Mr. Pankaj Sharma, Advocate
for the Caveator/respondent.
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1. Whether Reporters of Local Newspapers may be allowed to see the
judgment ?
2. To be referred to the Reporters or not ?
3. Whether the judgment should be reported in the Digest ?
***
AJAY TEWARI, J (Oral)
This appeal has been filed against the concurrent judgments of
the Courts below decreeing the suit for eviction filed by the respondent.
Learned counsel for the appellant has framed the following
substantial questions of law :-
” i) Whether the plaintiff-respondent is required to
mention in the notice under section 106 of Transfer of
Property Act and the plaint about the type of tenancy
either it is monthly or yearly ?
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ii) Whether the tenancy of the appellant can be
terminated before the end of the month if the tenancy is
monthly or before the end of the year if the tenancy is
yearly, as mentioned in Section 106 of the Transfer of
Property Act and laid by the Hon’ble Supreme Court of
India in Duttonpant’s case, AIR 1975 SC 1111 ?
iii) Whether can the ld. Courts below put their own
version that the tenancy is monthly without pleadings
and evidence to this effect ?
iv) Whether notice u/s 106 is valid, when the plaintiff-
respondent serves the notice on 1.6.2006 of 15 days,
which expires before the end of the month, which is
30.6.05, in the present case as evident from the vague
pleadings of the plaintiff-respondent tenancy month
starts from Ist and ends with last day of each calendar
month ?
v) Whether the ld. Courts below are required to
examine the validity of notice allegedly served upon the
defendant-appellant particularly when the issue no.1 has
been framed to this effect ?
vi) Whether the suit is bad in law, when the notice of
section 106 of Transfer of Property Act is invalid, as laid
down by the Supreme Court in Duttonpant’s case AIR
1975 SC 1111 ?
vii) Whether the description of the property should be
same in the power of attorney and the plaint, particularly
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when the respondent-plaintiff appears through the
attorney holder as witness for the principal ?
Viii) Whether the attorney holder is required to depose
that the property described in the attorney and the plaint
is the same ?
ix) Whether in view of questions (vii) and (viii),
whether the attorney can appear as witness for the party
to depose about the fact which is in the personal
knowledge of the party regarding description of property
in the power of attorney and the suit is the same, as laid
down in 2005(1) RCR (Civil) 240 by the Supreme
Court ?”
Learned counsel for the appellant has, however, fairly stated
that questions No. (i), (ii), (iv), (v) and (vi) do not arise in view of the
amendment of Section 106 of the Transfer of Property Act. With regard to
questions No.(iii), (vii), (viii) and (ix), counsel for the appellant has argued
that after the filing of the suit for eviction, the respondent appointed a
general power of attorney to manage her property. In that attorney, the shop
in dispute was not mentioned but the property was mentioned by way of
khasra numbers. He has further argued that the general power of attorney
(who incidentally is the husband of the respondent) no where deposed that
the shop in dispute is comprised in khasra numbers mentioned in the power
of attorney and that in the absence thereof it can not be held that the suit
was not being prosecuted by a duly authorized person.
I find that neither any case was set up by the appellant that the
property was in fact not situated in the khasra numbers mentioned in the
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power of attorney nor was any suggestion of this nature was put to the
general power of attorney when he appeared as a witness. In the
circumstances, I hold the said questions of law against the appellant and in
favour of the respondent.
Learned counsel for the respondent has argued that the
appellant is liable to pay rent w.e.f November 2008 and that the respondent
is ready to waive the same in case the appellant vacates the disputed
property within a period of one month from today. The appellant, who is
present in Court, has agreed to this proposal.
In the circumstances, the claim of the respondent towards
arrears of rent would be extinguished in case the appellant vacates the
disputed premises by 3.8.2009 and furnishes the usual undertaking in this
regard within one week from today. With these observations, this appeal is
dismissed with no order as to costs.
( AJAY TEWARI ) July 03, 2009. JUDGE `kk'