RSA No. 5026 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CM No. 14807-C of 2010 and RSA No. 5026 of 2010 Date of decision: 18.10.2011 Prem Chand Khanna … Appellant Versus Pritam Kaur … Respondent Present: Mr. Anil Chawla, Advocate, for the appellant. … ARVIND KUMAR, J: CM No. 14807-C of 2010 : For the reasons mentioned in the application, the delay of 86 days in refiling the appeal is condoned. CM stands disposed of. RSA No. 5026 of 2010: The present second appeal has been filed by the defendant-appellant against the judgment and decrees passed by both the Courts below decreeing the suit of the plaintiff for his ejectment from the premises in dispute by way of ejectment and further entitling the plaintiff to recover the arrears of rent. Plaintiff Pritam Kaur had filed suit inter-alia on the ground that the shop in dispute had been rented out to the defendant- appellant 20 years back and at present, the fixed monthly rent was Rs.600/- to be paid between 1st to 5th day of every month but the defendant failed to pay the same. It was further pleaded that the shop in dispute was required by the plaintiff for her personal use also. Upon notice, defendant contested the suit alleging that he was paying the rent regularly from the date of creation of tenancy and the rent stood paid upto April, 2007, but no receipt was issued by the plaintiff. He further pleaded that the rent was never increased and he never refused to pay the rent. Defendant further pleaded in his written statement that he had paid Rs.20,000/- as advance. Trial Court RSA No. 5026 of 2010 2 on the basis of evidence adduced before it, held that the defendant had not paid the rent to the plaintiff from 1.11.2006 to 1.4.2007 and also came to the conclusion that no advance had been paid by the defendant to the plaintiff. It also held that the plaintiff had issued notice under Section 106 of the Transfer of Property Act for ejectment of the defendant from the shop in dispute. Trial Court also held that the plaintiff in addition to ejectment of the defendant from the property in dispute, was also entitled to recover an amount of Rs.3000/- as arrears of rent with effect from 1.11.2006 to 1.4.2007 and was also entitled to recover mesne profits for the illegal use and occupation of the shop, at the rate of Rs.1000/- per month with effect from 10.5.2007. Suit of the plaintiff was accordingly decreed. Feeling aggrieved of the judgment and decree of the trial Court, defendant filed an appeal which was partly allowed to the extent that the suit of the plaintiff- respondent was decreed to the extent that she was held entitled to possession of the shop in dispute but not entitled to recover arrears of rent. The amount of mesne profits per month was also reduced to Rs.600/- with effect from May, 2007. Hence, this second appeal by the defendant. Counsel appearing on behalf of the defendant-appellant has vehemently contended that ejectment of the appellant could not have been ordered on the basis of non-payment of rent because the lower appellate Court while reversing the finding of the trial Court on issue No.2 held that the defendant-appellant had paid rent upto April, 2007. Therefore, there was no occasion for the plaintiff to file suit on that cause of action. It is further contended that since the defendant-appellant had paid rent upto April, 2007, the suit was not maintainable. Counsel further contended that the provisions of Section 106 of the Transfer of Property Act were not complied with as mandatory notice had not been given before filing the suit. After hearing the counsel, I find no merit in the appeal. It is not in dispute that the lower appellate Court has held that the rent stood paid upto April 2007. Once the plaintiff-respondent had served notice under Section 106 of the Transfer of Property Act for terminating the tenancy, after service of that notice, in view of the settled law, the tenancy stood terminated. In this case, it is not in dispute that notice under Section 106 of the Transfer of Property Act was sent by the plaintiff through RSA No. 5026 of 2010 3 registered cover at the proper address though AD cover was not received back. So, there was a presumption that the defendant-appellant had been duly served with the notice. Moreover, the Hon’ble Apex Court in Jaswant Rai Soni v. Parkash Mal, Apex Court Judgments, 2005(2) 440(SC), has held that there is no legal requirement of issuance of any notice under Section 106 before institution of the eviction petition which has been adequately relied upon by the lower appellate Court. Therefore, the plea raised that mandatory notice as required under Section 106 of the Transfer of Property Act was not issued is of no consequence. Once the tenancy was terminated with effect from April, 2007, the possession of the defendant- appellant thereafter had become illegal for which he is liable to mesne profits. Both the Courts below have rightly returned a finding in this regard though the Lower Appellate Court has modified/reduced the amount from Rs.1000/- as granted by the trial Court, to Rs.600/- per month. No other argument has been raised. Consequently, the appeal being without any merit is hereby dismissed in limine. October 18, 2011 ( ARVIND KUMAR) JS JUDGE