Holding

There is no legal or statutory requirement to serve a notice under Section 106 of the Transfer of Property Act before instituting an eviction petition; a rent‑receipt condition does not create a binding notice obligation.

Summary

The tenants sought relief under Order VI Rule 17 of the CPC, arguing that the landlord had not served a notice under Section 106 of the Transfer of Property Act before filing an eviction suit. A single judge of the Rajasthan High Court allowed the plea, relying on Prakash Mal v. Jaswant Raj Soni, which held that a notice condition in the rent deed made such notice mandatory. This decision was later set aside by a division bench in Fateh Lal Dak v. Sheshmal, and the High Court allowed the landlord’s appeal based on that reversal. On appeal, the Supreme Court observed that, per Jaswant Raj Soni v. Prakash Mal, there is no statutory requirement to serve a notice before instituting an eviction petition; any notice requirement arising from a rent receipt condition does not constitute a binding agreement. Consequently, the Supreme Court set aside the High Court’s order and remitted the matter for fresh consideration, directing an early disposal.

Issues considered

Whether a notice under Section 106 of the Transfer of Property Act is a legal prerequisite for filing an eviction suit when the rent deed contains a notice condition.
Whether a condition printed on the back of a rent receipt can be treated as an enforceable agreement obligating the landlord to serve notice before eviction.

Legislation cited

Code of Civil Procedure, 1908s. Order VI Rule 17
Transfer of Property Act, 1882s. 106

Subjects

evictionnotice requirementSection 106 TPArent deed conditionCivil ProceduretenancySupreme Court precedent

Judgment

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 [PASAYAT, 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), the factual scenario is different here.

Paras 5 and 6 in Jaswant Raj Soni's case (supra) read as follows :

"5. In the second case the requirement as per the rent notice is: "on B
being asked to vacate and ... on being told to do so" thus, there is no
requirement of a written notice before institution cif an eviction petition.
The case of the landlord in the plaint is that he had intimated to the
tenant to vacate the premises before institution of the eviction petition.
Of course, the tenant denied the same in the written statement. Whether
this condition was actually fulfilled or not is a question of fact to be c
decided by the trial court. The counsel for the parties informed that
the case has not gone for trial. Therefore, so far as the second case
is concerned, the trial Court will decide the issue after allowing the
parties to lead evidence with respect thereto. Therefore, the eviction
suit must proceed to trial and final decision. D
6. The learned counsel for the respondents-tenants tried to argue that
in view of Section 28 of the Rajasthan Premises (Control of Rent &
Eviction) Act, 1950, the provisions of Section I 06 of the Transfer of
. Property Act will apply to the facts of the present case and a notice
to quit in terms of the said provision was required to be given. In E
view of V. Dhanpal's case (supra) we. are unable to accept this
argument. There is no legal or statutory requirement for a notice
being given in the facts of the present case. The only requirement
regarding notice, if at all, arises from the condition printed on the
back of the rent receipt which in our view cannot be said to be an
agreement between the parties laying down requirement for issuance F
of a notice for institution of an eviction petition. In any case as
noticed above, the landlords have tried to meet that requirement. In
Jaswant Raj Soni's case the requirement of notice has been me~, as
observed by us above, while in Jabar Lal case the trial Court will
consider whether the requirement has been met on basis of evidence G
led by the parties."

It appears that the High Court relied upon the decision in Fateh Lat's
case (supra) to allow the appeal filed by the respondents. In our view, it
would be appropriate for the High Court to re-hear the matter keeping in
view the principles set out in paragraphs 5 and 6 of Jaswant Raj Soni 's case H
176 SUPREME COURT REPORTS [2006] SUPP. 6 S.C.R.

A (supra). as quoted above.
Accordingly. we set aside the impugned judgment and order of the
High Court and remit the matter to the High Court for fresh consideration.
Since the matter is pending since long, we request the High Court to explore
the possibility of disposal of the matter as early as practicable and preferably
...
B by the end of March, 2007.

The appeal is allowed to the aforesaid extent. No costs.

N.J. Appeal allowed.