ORDER

1. IAs Nos. 2 and 3 are allowed. Index to be corrected within two weeks.

2. Leave granted.

3. A suit for eviction based on landlord-tenant relationship has been directed to be decreed by the High Court upholding the decree passed by the two courts below. The tenant has filed this appeal by special leave on 28-3-2003. On 2-5-2003 a limited notice was directed to be issued to the respondent on the question: Whether the notice under Section 106 of the Transfer of Property Act, 1882 being invalid, the decree for eviction could not have been passed?

4. The relevant part of the notice dated 14-5-1997 issued by the respondent landlord to the appellant tenant states:

"That now my client does not want to keep you as a tenant qua the shop under reference and through this notice your tenancy is terminated from the date of issue of notice.

. .. through this notice you are called upon to ... and vacate the premises in dispute within 15 days from the date of receipt of this notice.. .,"

(emphasis supplied)

5. It is submitted by the learned counsel for the appellant that both the recitals contained in the notice do not have the effect of terminating the tenancy in consonance with the provisions contained in Section 106 of the Transfer of Property Act [as it stood prior to the amendment effected by the Transfer of Property (Amendment) Act, 2002 w.e.f. 13-1-2002]:

6. The twin requirements of a valid notice insofar as the case at hand is concerned are (i) it should be a 15-day notice i.e. it must give clear 15 days time for the tenant to vacate; and (ii) the notice must expire with the end of the month of the tenancy.

7. Learned counsel for the appellant submits that none of the two recitals contained in the notice can fulfil the requirement of Section 106 of the Transfer of Property Act. One recital in the notice terminates the tenancy from the date of issue of notice. The other one requires the tenant to vacate the premises within 15 days from the date of the receipt of the notice. Both are bad in the light of the requirements spelled out by Section 106 of the Transfer of Property Act. The learned counsel seems to be right in urging the pleas. However, still we feel that the appellant cannot be allowed relief. Law is well settled that an objection as to the invalidity or insufficiency of notice under Section 106 of the Transfer of Property Act should be specifically raised in the written statement failing which it will be deemed to have been waived. In the present case, the only objection taken in the written statement is that the notice issued• by the plaintiff was "illegal, null and void and ineffective upon the right of the defendant". The thrust of the plea raised by the defendant-appellant in his written statement was that the notice was issued by the person who did not have the authority from the landlord to give the notice. The plea so taken has been found devoid of merit by the High Court and the courts below. The plea that the notice was insufficient in the sense that it did not give 15 clear days to the tenant to vacate or that the notice did not terminate the tenancy with the expiry of the month of the tenancy, has not been taken in the written statement.

8. Obviously for want of specific plea in the written statement, the trial court has not framed any issue reflecting an objection to the validity or sufficiency of notice, the plea in the manner in which it is sought to be urged before us. The plea as to insufficiency of notice should be deemed to have been waived by the appellant and cannot be allowed to be urged at this stage. No fault can be found with the judgment and decree of the High Court as also of the two courts below upholding the termination of tenancy and the plaintiff-respondent's entitlement to evict the tenant.

9. The appeal is devoid of any merit and liable to be dismissed. It is dismissed with costs throughout. However, to save the appellant tenant from the peril of sudden eviction as the suit premises is a shop a