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2026 Supreme(Online)(HP) 1895

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Rakesh Kainthla, J
Lekh Raj – Appellant
Versus
Kamal Kumar – Respondent
RSA No. 29 of 2013

Advocates:
For the Appellants/Petitioners: Mohinder Verma
For the Respondents: N.K. Thakur, Divya Raj Singh

A notice for termination of tenancy under Section 106 of the Transfer of Property Act is not invalid if it provides less than 15 days, provided the suit is filed after the 15-day period expires. Additionally, objections to notice validity are waived if not raised in pleadings.

Headnote:(A) Transfer of Property Act, 1882 - Section 106 - Notice to quit - Validity - If a notice regarding termination of tenancy provides a period shorter than 15 days, it is not rendered invalid if the suit is filed after the expiry of the mandatory 15-day period under Section 106(3) - Validity of notice must be construed in a common-sense way, not hyper-technically or with a desire to find faults. (Paras 10, 13, 14)

(B) Civil Procedure - Appeal - Pleadings - Objection to the validity or insufficiency of a notice under Section 106 must be raised specifically in the written statement at the earliest opportunity - Failure to raise such an objection in the trial court constitutes a waiver and the point cannot be raised for the first time in the appellate court. (Paras 17, 18, 19)

Facts of the case:
Parties were involved in a dispute over a shop premises. The landlord (appellant) sought ejectment and recovery of arrears of rent. The defendant claimed the notice to vacate was invalid. While the trial court decreed the possession, the appellate court set aside the ejectment order, holding the notice period was less than 15 days, violating Section 106 of the Transfer of Property Act.

Findings of Court:
The High Court held the appellate court erred because under Section 106(3), a notice providing a short period is not invalid if the suit is filed after the statutory time has elapsed. Furthermore, since the tenant failed to raise the specific plea of insufficient notice in the written statement, the objection was waived.

Issues: Whether the notice under Section 106 was lawful and whether the respondent waived the objection to its validity by failing to raise it in the trial court.

Ratio Decidendi: Amended provisions of the Transfer of Property Act validate short notices if the suit for possession is filed after the expiry of the mandatory period prescribed by law; procedural defects in notice must be raised at the earliest or they are deemed waived.

Result: Appeal allowed; trial court decree restored.

Table of Content
1. principle of waiver regarding technical objections to notices not raised in pleadings. (Para 18)

Rakesh Kainthla, Judge

The present appeal is directed against the judgment and decree dated 27.11.2012, passed by the learned Additional District Judge, Una, H.P. (learned Appellate Court), vide which the judgment and decree passed by the learned Civil Judge (Senior Division), Court No.1, Una, H.P. (learned Trial Court), were partly set aside. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience.

Briefly stated, the facts giving rise to the present appeal are that the plaintiff filed a civil suit before the learned Trial Court for recovery of arrears of rent of ₹21,000/- and ejectment of the defendant from the shop denoted by letter ABCD shown in the site plan (Ex.PW5/A) located in Khewat No. 98 (min), Khatauni No. 158 (min), Khasra No. 300 and Khewat No. 99 (min), Khatuani No. 159 (min) and Khasra No. 299 in Village Bout, Tehsil Bangana District Una, H.P., (hereinafter referred to as the suit premises). It was asserted that the plaintiff is the owner of the suit premises, which was rented by him to the defendant at the rate of ₹800/- per month for 11 months, vide an agreement dated 1.1.2000. The defendant started running a shop in the name and style of Indian Garments Gift Centre. The rent of the shop was increased to ₹1,000/- w.e.f. 1.1.2003. The defendant failed to pay the rent w.e.f. 1.5.2003 till 31.1.2005, and he was in arrears of rent of ₹21,000/-. The plaintiff required the shop to establish the business for his son. He served a notice (Ex. P3) upon the defendant asking him to hand over the vacant possession of the shop by the end of January, 2005 and pay the arrears of rent of ₹21,000/-. The notice was duly served upon the defendant, but he failed to hand over the possession or pay the arrears. Hence, the suit was filed to seek the relief mentioned above.

The suit was opposed by filing a written statement denying the existence of the agreement. It was asserted that the rent of the suit premises was fixed at ₹300/- per month. The defendant had invested a huge amount in his business. The notice was vague, and a proper reply was sent to it. The plaintiff tried to take forcible possession of the defendant's property, and the defendant filed a civil suit for restraining the plaintiff from interfering with his possession. The plaintiff filed the present suit as a counterblast to the suit filed by the defendant. Hence, it was prayed that the suit be dismissed.

A replication denying the contents of the written statement and affirming those of the plaint was filed.

Learned Trial Court framed the following issues on 27.10.2005: -

1. Whether the plaintiff is entitled for arrears of rent to the tune of ₹21,000/- as prayed for? OPP.

2. Whether the respondent is liable to be ejected from the shop in question as prayed? OPP.

3. Whether the plaintiff is entitled to all the profits for the use of occupation of shop in question during the pendency of suit, as prayed for? OPP.

4. Whether the suit is not maintainable, as alleged? OPD.

5. Relief.

The parties were called upon to produce the evidence, and plaintiff examined Suresh Kumar (PW1), Sanjeev Kumar (PW2), Charan Singh (PW3), Balbir Singh (PW4) and P.L. Bains (PW5). The defendant examined himself (DW1).

The learned Trial Court held that the rent of the suit premises was ₹800/- per month. The plaintiff had served a notice upon the defendant, which was duly received by him on 18.1.2005. He sent a reply to the notice. It was doubtful that the defendant was running the business in the suit premises. The defendant was in arrears of rent w.e.f. 1.5.2003 and was liable to pay the simple interest on the arrears at the rate of 6% per annum. Hence, the learned Trial Court decreed the suit of the plaintiff for the recovery of ₹79,712/- at the rate of 6% per annum till the realis

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2026 Supreme(Online)(HP) 1895

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLARakesh Kainthla, JLekh Raj – AppellantVersusKamal Kumar – RespondentRSA No. 29 of 2013

A notice for termination of tenancy under Section 106 of the Transfer of Property Act is not invalid if it provides less than 15 days, provided the suit is filed after the 15-day period expires. Additionally, objections to notice validity are waived if not raised in pleadings.

Cases Referred (3)

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Rakesh Kainthla, J
Lekh Raj – Appellant
Versus
Kamal Kumar – Respondent
RSA No. 29 of 2013