IMPORTANT POINT
A notice is essential for terminating tenancy under Section 106 of the Transfer of Property Act, and default in rent payment is irrelevant if the Rent Control Act does not apply.

JUDGMENT :

Hon'ble Ajit Kumar,J.

1. Heard Sri Arvind Srivastava, learned counsel for the petitioner and Sri Rahul Malviya, learned Standing Counsel for the State-respondent.

2. This revision application has been directed against the judgment and decree dated 16.12.2022 dismissing the suit of the plaintiff.

3. As many as five issues were framed. While the issue no.1 is qua damage caused to the property by the tenant, issue no.2 is qua non-application of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (Act No.13 of 1972). The most crucial issue is the third issue as to whether the plaintiff has been able to determine the tenancy by issuance of notice. The entitlement of the plaintiff for damages @ Rs.600/- per day as issue no.4 and default in payment of rent by the defendant-respondent being issue no.5 have all been decided against the plaintiff.

4. The submission advanced by learned counsel for the revision-applicant is, when the trial court had determined issue no.2 against the defendant-respondent holding that Act No.13 of 1972 did not apply, the Court was neither to see the default in payment of arrears of rent, nor could have seen into the niceties with which the notice as was claimed to have been issued and served. He submits that as per Section 106 of the Transfer of Property Act, the lease of any immovable property except for agricultural or manufacturing purposes, in the absence of any contract or local law, usage to the contrary, shall be deemed to be on month to month basis and is liable to be terminated with 30 days' of notice in advance.

5. None of the other sub-sections 2, 3 and 4 according to learned Advocate, provides for any format of notice making it compulsory for the landlord to describe the period of default and the amount due to be paid by the tenant. Thus according to him trial court manifestly erred in holding that the notice terminating the tenancy of the defendant-respondent was not valid and non suited the plaintiff. Regarding issue nos.4 and 5 learned counsel argues that Act No.13 of 1972 was not applicable and was rightly so held, the trial court could not have gone into the question of default in payment of arrears of rent. In support of his submission, learned counsel has placed reliance upon paragraph no.19 of the judgment of coordinate Bench of this Court in the matter of Smt. Anju Srivastava v. Saurabh Birla and another:2020(140) ALR 576.

6. Countering the submission, Sri Malviya, learned Standing Counsel for the State-respondents has sought to defend the judgment and order for the reasons assigned in determining the issue nos.3, 4 and 5.

7. Having heard learned counsel for the respective parties and having perused the record and the judgment passed by the Judge, Small Cause dated 16.12.2022, I find there to be the only issue no.3 which if is determined in favour of the plaintiff, petitioner would deserve remand order by this Court for the suit to be decided afresh.

8. For better appreciation of the point raised before the Court to question the finding on issue no.3, I find it appropriate to reproduce Section 106 of Transfer of Property Act, 1882 which runs as under:

"106. Duration of certain leases in absence of written contract or local usage.—

(1) In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months' notice; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days' notice.

(2) Notwithstanding anything contained in any other law for the time being in force, the period mentioned in sub-section (1) shall commence from the date of receipt of notice.

(3) A notice under sub-section (1) shall not be deemed to be invalid merely because the period mentioned therein fall