# Shri Subodh Kumar Plaintiff v. The Zila Parishad, Bulandshahr and others

- **Citation:** (2003) 3 ILRA 766
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-05-14
- **Case number:** Second Appeal No. 1619 of 1980
- **Bench:** B.K. Rathi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shri-subodh-kumar-plaintiff-v-the-zila-parishad-bulandshahr-and-others-38984
- **Pages:** 4

## Headnote

Code of Civil Procedure-Section 80-
readwith Transfer of the Property ActSection
106-
Lease
granted
for
construction
of
woman
Hospitalsubsequently
shifted
another
placeNotice providing 2 month for termination
of tenancy whether more period than the
statutory period in notice is bad in law?
Held- 'No' notice can not be said to be
invalid.

Held: Para 11
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3 All] Shri Subodh Kumar V. The Zila Parishad, Bulandshar and others
767
I have carefully gone through the notice
(Ex. 4). An unequivocal intention to
terminate
the
tenancy
has
been
expressed. However, in place of one
month two months time has been given.
Therefore, more time was given than
required under the law. Therefore, no
prejudice
has
been
caused
to
the
defendant. Under the circumstances, the
notice cannot be said to be invalid.

## Text

http:\\allahabadhighcourt.nic.in
766 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
petitioner arrested and detained in the
prison. Though we are not dealing with
the question of legality and constitutional
validity of Section 281 of the Act,
however,
keeping
in
mind
the
International Covenant to which India is a
signatory coupled with Article 21 of the
Constitution, we are of the opinion that
merely on failure of the defaulter to
discharge his liability upon receipt of
demand notice, harsh method of arrest
and detention to coerce him to make the
payment should not be resorted. When
arrest and detention affects personal
liberty of a person, the authority before
taking recourse to such method must be
satisfied that the defaulter in spite of
having sufficient means, has willfully and
with mala fide intention refused to pay.
This satisfaction must be evident from the
order passed by the recovery authority for
arrest and detention of the defaulter.

10. So far as the present case is
concerned since the petition through his
father has deposited a sum of Rs. 34,100/-
we direct that on his depositing a further
sum of Rs.10,000/- within ten days from
today the Tehsildar Sadar, respondent no.
2, shall release him from prison. For
payment of the remaining amount liberty
is given to the petitioner to move an
application for grant of instalments to the
Tehsildar.
In
the
event,
such
an
application is moved the same shall be
decided keeping in mind his financial
position coupled with the fact that he has
already paid certain amount.

11. Since this order is dictated in
open Court we direct learned Standing
Counsel to communicate operative part of
the order to the Tahsildar Sadar, district
Gorakhpur for compliance.

12. Registry is directed to send a
copy of this order to the Chief Secretary,
U.P. Lucknow, who in turn shall
communicate
to
all
the
District
Magistrates for guidance and compliance.

13. A copy of the order be supplied
to the learned counsel for the petitioner on
payment of usual charges.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD MAY 14, 2003

BEFORE
THE HON'BLE B.K. RATHI, J.

Second Appeal No. 1619 of 1980

Shri Subodh Kumar ...Plaintiff-Appellant
Versus
The Zila Parishad, Bulandshahr and
others

...Respondents

Counsel for the Appellant:
Sri Arun Tandon
Sri R.K. Sharma
Sri Anurag Khanna
Sri R.B. Singhal
Sri Ramendra Asthana

Counsel for the Respondents:
Sri J.N. Chaturvedi
Sri S.C. Dwivedi

Code of Civil Procedure-Section 80-
readwith Transfer of the Property ActSection
106-
Lease
granted
for
construction
of
woman
Hospitalsubsequently
shifted
another
placeNotice providing 2 month for termination
of tenancy whether more period than the
statutory period in notice is bad in law?
Held- 'No' notice can not be said to be
invalid.

Held: Para 11
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3 All] Shri Subodh Kumar V. The Zila Parishad, Bulandshar and others
767
I have carefully gone through the notice
(Ex. 4). An unequivocal intention to
terminate
the
tenancy
has
been
expressed. However, in place of one
month two months time has been given.
Therefore, more time was given than
required under the law. Therefore, no
prejudice
has
been
caused
to
the
defendant. Under the circumstances, the
notice cannot be said to be invalid.

(Delivered by Hon'ble B.K. Rathi, J.)

1. This is an appeal against the
judgment and decree dated 8.2.1980
passed by Additional District Judge,
Bulandshahr in Civil Appeal No. 341 of
1970 arising out of a judgment and decree
of Suit No. 115 of 1975.

2. The above suit was filed by the
present appellant for eviction of the
respondents from the disputed land area
802 Sq. yard situated in plot no.1345. It is
admitted that Lala Jamuna Prasad and
Ganga Sahai predecessors in title of the
appellant were Zamindars of the said plot.
In the year 1882 it was let out to the
Crown. The Civil Surgeon, Bulandshahr
A.G. Bilcock executed a registered lease
deed in their favour agreeing to pay
Rs.12/- per year as rent and that the land
shall be used only for women's hospital
only.

3. It is alleged by the plaintiff that
the women's hospital has been shifted to
another building. That in the building
constructed in the disputed land there is
Veterinary hospital, library and few
residences. It is also alleged that the rent
had not been paid since 31.3.1952 hence
the suit was filed.

4. The respondent contested the suit.
However the fact that the defendant is the
tenant of the land and the ownership of
the same of the appellant has not been
denied. It has been pleaded that tenancy
has not been for-feited as there was no
clause for for-feiture. That the notice is
not valid. That the suit is bad for want of
notice under Sections 106,111 and 114 A
of Transfer of property Act (hereinafter
referred to as the T.P. Act) and that the
suit is also barred by time. The trial court
framed necessary issues and decreed the
suit with costs for eviction as well as for
recovery of rent. Aggrieved by it the
defendant-respondent
preferred
civil
appeal no. 341 of 1978 which has been
allowed solely on the ground that the
notice of termination of tenancy is invalid
and tenancy has not been terminated in
accordance with law and provisions of
Sections 111 (g) and 114 A of the T.P.
Act have not been complied with.
Therefore this second appeal was filed by
the plaintiff.

5. This second appeal was admitted
on 10.3.1981 on the substantial questions
of law firstly whether the respondent was
a lessee or a licensee of the disputed land
and secondly whether the defendant has
done any thing on the land such as to
enable the plaintiff to determine the
licensee or the lessee as the case may be.

6. I have heard Shri R.B. Singhal,
learned for the appellant. None appeared
for the respondent and therefore could not
be heard. However, I have gone through
the record.

7. Regarding the first question
framed at the time of admission of appeal
it is not disputed that the respondent was a
lessee of the disputed premises and the
registered lease deed was executed on
behalf of the crown by the civil surgeon.
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768 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
The said deed is (Ex.1). The lease is not
for any fixed period nor it is perpetual
lease. Therefore, the lease could be
terminated at any time by a notice under
Section 106 of the T.P. Act. This lease is
only regarding the open land, therefore
the question whether the lease is stood
for-feited or not is not very material. The
lease has been terminated by the notice as
it was not perpetual lease.

8. It may also be mentioned that the
lease was executed by the Civil Surgeon
and it is specifically mentioned that the
land has been taken only for the women's
hospital. Now the property is not being
used for the women's hospital and
therefore, the lease also stood for-feited.

9. The next and the main question
that arise for decision is whether the
notice of termination of lease deed is
invalid. The notice is (Ex.-4). It is clearly
mentioned in the notice that the defendant
was lessee at the rate of Rs.12/- per year.
The intention to terminate the lease and to
get the vacant possession of the land has
been clearly expressed. However, the
appellate court has held that the notice is
invalid because two months time have
been given to vacate the premises.

10. According to Section 106 T.P.
Act one month's notice only is required as
a lease was not for agricultural or
manufacturing purposes. The question is
whether the notice is invalid because two
month's time has been granted. The
learned counsel for the appellant has
referred to two decisions on this point; the
first is of the case between Rama Kant
Gupta Vs. State of U.P. and another
reported in 1983 (2) Allahabad Rent
Cases Page 158. In this case a combined
notice under Section 80 C.P.C. and 106
T.P. Act was served and two month's time
was given to vacate the premises. The
notice was held to be valid. It has been
argued by Shri R.B. Singhal that in the
present case two month's notice was also
required to the Zila Parishad and
therefore, two months' time was given to
vacate the premises. The other case
referred to by the learned counsel for the
appellant is the decision of this court in
Sylvania & Luxman Vs. Raminder Singh
and another 1997 (2), Allahabad Rent
Cases Page 656. In this case it was
observed by the Court that the Court
should be liberal in the interpretation of
the notice.

11. I have carefully gone through the
notice (Ex. 4). An unequivocal intention
to terminate the tenancy has been
expressed. However, in place of one
month two months time has been given.
Therefore, more time was given than
required under the law. Therefore, no
prejudice
has
been
caused
to
the
defendant. Under the circumstances, the
notice cannot be said to be invalid.

12. Accordingly, I find that the first
appellate court has erred in finding that
the notice is invalid. The appeal is
therefore, fit to be allowed.

13. The appeal is allowed with costs
and the judgment and decree of the
appellate court are quashed and that of the
trial court are restored.
---------
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3 All] Virendra Singh and others V. Addl. Sessions Judge, Ballia and others
769
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.5.2003

BEFORE
THE HON'BLE K.N. SINHA, J.

Criminal Misc. Application No.3011 of 2003

Virendra Singh and others
...Applicants
Versus
Addl. Sessions Judge, Ballia and others

 ...Respondents

Counsel for the Applicants:
Sri G.K. Singh
Sri S.P. Uppaddya

Counsel for the Opposite Parties:
A.G.A.

Criminal Procedure Code 1808 Sec-482
Application against the revisional orderonce Revision of a party dismissed by
Session Judge under sec. 397 (3)-
application can not entertained under
sec. 482 Cr.P.C.-unless great miscarriage
of justice or abuse of process is there.

Held- Para 8 and 10

Thus, the conclusion which can be
drawn,
by
going
through
above
authorities is that once the revision of a
party has been dismissed, if the revision
by him is barred under Section 397 (3)
Cr.P.C. he can not take recourse to the
inherent powers of this Court but in rare
cases where there is great miscarriage of
justice or abuse of the process of the
court,
the
inherent
power
can
be
invoked.

The revisional court considered the
matter in the right perspective. The
impugned order does not show any
abuse of the process of the Court hence
power under Section 482 Cr.P.C. can not
be invoked.
Case law discussed:
1989 JIC 540
(2002) 9 SCC 630
2002 (44) A.C.C. 1102 S.C.

(Delivered by Hon'ble K.N. Sinha, J.)

1. The present application under
Section 482 Cr.P.C. has been filed against
the order dated 28.2.2003 (Annexure 7 to
the application) passed by the Additional
Sessions Judge, Fast Track Court No. 3,
Ballia, in Revision No.378 of 2002
Virendra Singh and others Vs. State of
U.P. and others.

2. The brief facts giving rise to this
application are that opposite party no. 3
filed a complaint in the court of
respondent no. 2. The statements of
complainant and witnesses were recorded.
The Magistrate took the cognizance and
summoned the applicants as accused by
order dated 20.8.2001. The applicants
filed
objection
against
the
said
summoning order, which was rejected by
order dated 15.4.2002. The applicants
then filed a revision against the said order
which
was
registered
as
Criminal
Revision No. 378 of 2003 and the said
revision was also dismissed on 28.2.2003.
Now the applicants have come up against
the said orders.

3. I have heard learned counsel for
the applicants and the learned A.G.A.

4. Learned AGA raised a preliminary
point that once the revision has been
dismissed by the Sessions Judge the
application under Section 482 Cr.P.C. can
not be entertained. Learned counsel for
the applicants objected to it and submitted
that there are a number of authorities
which lay down that even in such
circumstances
the
application
under
Section 482 Cr.P.C. is maintainable. In