1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE NAGPUR BENCH, NAGPUR WRIT PETITION NO. 4047/2008 (Uttamrao s/o Harishchandra Ambulkar through L.Rs. Vs. Smt. Sugandhabai wd/o Champalal Jain & ors.) Appeal District : Application No. of 200 Writ petition Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders and Registrar's orders. Shri Joshi, Adv. for the petitioner . Shri Shareef, Adv. for the respondents. CORAM : Smt. Vasanti A. Naik, J. DATED : 6 th OCTOBER, 2008. The petitioner is the original defendant. A suit was instituted by the respondent for a decree of ejectment, possession and damages against the petitioner in the Court of Small Causes, after seeking the necessary permission from the Rent Control authorities. It was pleaded by the petitioner that the notice issued by the respondent under Section 106 of the Transfer of Property Act was not valid as it was received by the petitioner on 10/4/1989 and the petitioner was called upon by the notice to vacate the suit premises on or before 25/4/1989. According to the petitioner, since the notice was not a fifteen days' clear notice, the termination of the tenancy was not proper. The Small Causes Court, by the judgment dated 28/9/1999, decreed the suit of the respondent 2 and directed the petitioner to hand over the vacant possession of the suit premises to the respondents. The judgment passed by the Small Causes Court was upheld by the appellate Court by the judgment dated 19/7/2008. The Courts relied on the amended provisions of Section 106 of the Transfer of Property Act to hold that the notice issued by the respondent was valid. Shri Joshi, the learned counsel for the petitioner, submitted that the Courts were not justified in holding that the notice under Section 106 of the Transfer of Property Act was valid as the amended provisions of Section 106 (3) of the Act of 1882, are in the nature of an explanation and since sub-section (1) of Section 106 of the Act contemplates clear fifteen days' notice, the provisions of sub-section (3) of Section 106 of the Act, cannot enlarge or narrow down the scope of the provisions of sub-section (1) of Section 106 of the Act. The counsel for the petitioner relied on the decision of the Hon'ble Supreme Court reported in AIR 1985 Supreme Court 582 to substantiate his submission. The counsel for the petitioner also relied on a decision of the Supreme Court reported in AIR 1965 Supreme Court 101 to canvass that it was necessary for the landlord to give a notice of minimum period of fifteen days. 3 Shri Shareef, the learned counsel for the respondents, supported the judgments passed by both the Courts and submitted that both the Courts rightly appreciated that the Hon'ble Supreme Court was considering the unamended provisions of Section 106 of the Act of 1882, while rendering the decision in the case reported in AIR 1965 Supreme Court 101. It is further submitted on behalf of the respondents that both the Courts have rightly considered the provisions of sub-section (3) of Section 106 of the Act of 1882, to hold that the notice under Section 106 of the Act was valid. I have considered the submissions made on behalf of the parties and have also perused the provisions of Section 106 of the Act. Though the provisions of sub-section (1) of Section 106 provide that a lease would be terminable on the part of either a lessor or lessee, by fifteen days' notice, the provisions of sub-section (3) of section 106 of the Act, clearly stipulate that the notice under sub- section (1) of Section 106 of the Act, shall not be deemed to be invalid merely because the period mentioned therein falls short of the period of 15 days, where the suit or proceeding is filed after the expiry of the period mentioned in sub-section (1) of Section 106 of the Act. Prior to the amendment, the dismissal of the suits in view of the technical flaw of 4 notice period, had caused serious injustice and had resulted in multiplicity of litigation, despite the fact that the tenant had more time available to him than the prescribed period of notice, by the time the suit to evict him was filed. The object of providing for notice of fifteen days for termination of the tenancy either by lessor or lessee is, in effect, achieved in a case where the suit or proceeding is filed after the expiry of period of fifteen days. Though the judgment reported in 2004(1) MhLJ 363 does not directly consider this issue, it renders some assistance to the case of the respondent, as rightly submitted on behalf of the respondent. Since the Hon'ble Supreme Court was considering the unamended provisions of the Transfer of Property Act while dealing with the case reported in AIR 1965 Supreme Court 101, no fault can be found with the approach of the Courts in not following the same. For the reasons aforesaid, the writ petition is dismissed with no order as to costs. JUDGE RMP