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Atul Kumar Gupta v. Emmaunvel Barwa - CIVIL REVISION No. - 474 of 2006 [2007] RD-AH 14495 (27 August 2007)

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Civil Revision No.474 of 2006

Atul Kumar Gupta Vs. Emmaunvel Barwa


Hon. Janardan Sahai,J

A suit for rent and ejectment was filed by the plaintiff respondent Emmaunvel Barwa through his attorney K.B.Jhamb against the defendant tenant applicant in this revision. The plaintiff respondent's case is that the house was constructed by the NOIDA in the year 1983 and was let out to the defendant applicant no. 1 on 1.8.84 on a monthly rent of Rs.800/-and that the provisions of U.P.Act No.13 of 1972 are not applicable to the building in dispute. According to the plaintiff the defendant defaulted in the payment of rent and his tenancy was terminated by a notice under Section 106 of the Transfer of Property Act dated 22.9.87. The rent claimed in the suit is from 1.10.86 to 24.10.87and the mesne profit @ Rs.1200/- p.m after the notice period was claimed. The suit was contested by the applicant. He admitted the service of notice under Section 106 of the Transfer of Property Act. He alleged that U.P.Act no.13 of 1972 is applicable to the building in dispute. He denied that the plaintiff was the sole landlord of the property in dispute. The defendant applicant also challenged the right of the attorney to file the suit on behalf of the plaintiff. It was alleged that the rate of rent was Rs.400/- per month. It was further alleged that a sum of Rs.16,000/- was paid by the applicant as security which was liable to be adjusted. In support of his case the plaintiff examined K.P.Jhamb as power of attorney holder. It appears that the defence of the applicant was struck of under Order 15, Rule 5 CPC. The trial court held that the plaintiff is the landlord of the property in dispute; that K.P.Jhamb had a right to institute the suit on behalf of the plaintiff as power of attorney holder; that the rate of rent was Rs.800/- per month; that the defendant applicant had committed default in payment of rent; that U.P. Act no.13 of 1072 is not applicable to the building in dispute and that the notice under Section 106 of the Transfer of Property Act was valid. With these findings the suit was decreed.

Sri Bala Krishna Narayana counsel for the defendant applicant has challenged only one finding i.e. the finding that the notice under Section 106 of the Transfer of Property Act was a valid one. A copy of the notice has been annexed along with the stay application. It has been given by Sri Om Prakash Mittal, Advocate. The notice bears a recital that it has been given under instructions on behalf of his client Emmaunvel Barwa through attorney K.P.Jhamb. The argument of the counsel for the applicant is that the power of attorney was executed in favour of K.P.Jhamb on 23.9.87 and on the date 22.9.87 on which the notice was sent K.P.Jhamb was not the attorney. It is however not disputed that the notice was served upon the applicant on 23.9.87 and on 23.9.87 the power of attorney had been executed. It thus appears that the notice became effective on the service and by that time the power of attorney was executed. That apart the evidence of K.P.Jhamb indicates that the house in dispute was let out to the applicant by K.P.Jhamb and that rent was also being paid by the applicant to him. The recital which the notice sent by the Advocate bears is that it is on behalf of Emmaunvel Barwa, the plaintiff himself. In these circumstances it cannot be said that the notice given by the plaintiff through the counsel was an invalid one. In Baru Singh( deceased by LR) & Others Vs. Babu Ram Sharma AIR 1997 All 185 it was held that in performance of legal work such as giving opinion, sending notices, drafting petitions or other documents signed vakalatnama is not required to be obtained. The notice therefore does not suffer from any invalidity.

No other finding has been challenged by counsel for the applicant. The revision therefore lacks merit. However counsel of the applicant prayed that some time may be given to the applicant to vacate the premises. In the circumstances, the applicant is given one month's time to vacate the premises. In case possession of the building in dispute is not handed over by the applicant tenant to the plaintiff landlord within this period of one month, it would be open to the respondent plaintiff to execute the decree.

With these directions, the revision is dismissed.


cr 474/06


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