Dismissed

Baldev Singh v. Darshan Kaur

Punjab & Haryana HC3 Jul 2009RSA/2400/2009

Case brief

AI extract

What is this about?

An appeal against concurrent judgments decreeing a suit for eviction. The appellant raised questions regarding notice validity under Section 106 Transfer of Property Act and attorney evidence. The court rejected the appeal, noting lack of evidence against the premises and agreeing to a compromise where eviction eliminates rent arrears.

What did the court decide?

The appeal is dismissed. The respondent's claim for arrears is extinguished conditional upon the appellant vacating the premises by 3.8.2009.

Baldev Singh Vs Darshan Kaur — Landlord and Tenant | Punjab & Haryana HC (2009)

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R.S.A No. 2400 of 2009

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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R.S.A No. 2400 of 2009 Date of decision : July 03, 2009

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Baldev Singh,

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...... Appellant (s)

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Smt Darshan Kaur

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...... 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.

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Mr. Pankaj Sharma, Advocate for the Caveator/respondent.

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*******

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1. Whether Reporters of Local Newspapers may be allowed to see the judgment ?

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2. To be referred to the Reporters or not ?

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3. Whether the judgment should be reported in the Digest ?

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*******

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AJAY TEWARI, J (Oral)

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This appeal has been filed against the concurrent judgments of the Courts below decreeing the suit for eviction filed by the respondent.

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Learned counsel for the appellant has framed the following substantial questions of law :-

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“ 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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R.S.A No. 2400 of 2009

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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 ?

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iii) Whether can the ld. Courts below put their own version that the tenancy is monthly without pleadings and evidence to this effect ?

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iv) Whether notice u/s 106 is valid, when the plaintiffrespondent 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 ?

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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 ?

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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 ?

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vii) Whether the description of the property should be same in the power of attorney and the plaint, particularly

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R.S.A No. 2400 of 2009

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when the respondent-plaintiff appears through the attorney holder as witness for the principal ?

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Viii) Whether the attorney holder is required to depose that the property described in the attorney and the plaint is the same ?

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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 ?”

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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.

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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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R.S.A No. 2400 of 2009

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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.

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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.

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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.

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( AJAY TEWARI ) July 03, 2009. JUDGE `kk'

Baldev Singh v. Darshan Kaur

Case brief

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Baldev Singh v. Darshan Kaur

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