CHHEDI LAL Vs. MUNNU SARDAR

JUDGEMENT

(1.) THIS revision under S. 25 of the Provincial Small Cause Courts Act has been filed against the decree dated 19th May, 1981, whereby a suit instituted by the opposite party for ejectment of the applicant from house No. B-5/34. Oudhgarbi, Varanasi City, and for arrears of rent etc. , has been decreed by 1st Additional District Judge Varanasi, acting as Judge. Small Causes. The case of the opposite party was that the applicant was his tenant in the aforesaid house, that he was in arrears of rent for not less than four months and had failed to pay the same to the plaintiff-opposite party within one month from the date of service upon him of a notice of demand as contemplated by S. 20 (2) (a) of U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act) and that a valid notice under S. 106. T. P. Act terminating the tenancy of the applicant had been served on him. The suit was contested by the applicant, inter alia, on the ground that no valid notice terminating his tenancy as contemplated by S. 106. T. P. Act, had been served on him. The defence of the applicant, however, did not find favour with the Judge Small Causes, and the suit was decreed as already pointed out above.

(2.) ONLY one point has been urged by counsel for the applicant in the present civil revision. It has been urged that no notice as contemplated by S. 106. T. P. Act, terminating his tenancy was served on the applicant and consequently the suit for the ejectment of the applicant could not be decreed. For the same reason the tenancy of the applicant continued and no decree for mesne profits could have been passed. In my opinion the submission made by counsel for the applicant is well founded. On the pleadings of the parties the Judge. Small Causes had framed six issues. Issue 5 was to the effect "has a valid notice of termination been served on the defendant?". While dealing with issue 5 the Judge, Small Causes, has pointed out that a notice of demand and ejectment was sent by the opposite party to the applicant on 17th Feb. , 1975, but it was not served on the applicant and was received back. A second notice of demand and ejectment was sent by registered post on 4th April, 1975. This notice was also received back. The Judge. Small Causes, has not recorded any finding that this notice had been sufficiently served on the applicant. Indeed he has not even pointed out as to what was the remark with which the second notice sent by registered post on 4th April, 1975, was received back. The Judge. Small Causes, however, took the view that a valid notice terminating the tenancy of the applicant had been served on him inasmuch as besides sending the notice by registered post another copy of the notice was affixed on the main gate of the house occupied by the applicant as a tenant and a photograph of the same had been obtained which had been duly proved. In other words the notice terminating the tenancy of the applicant under S. 106, T. P. Act. has been found to be sufficiently served by "affixation on the door of the house in question. Section 106,t. P. Act, inter alia provides: - "every notice under this section must be in writing, signed by or an behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property. " As seen above there is no finding that any notice sent by post was served on the applicant. Likewise there is no finding that any notice as contemplated by S. 106, T. P. Act had been tendered or delivered personally to the applicant or to one of his family or servants at his residence. The notice as seen above has been found to be validly served by affixation at the door of the house in question. So far as this made of service is concerned the words within brackets in S. 106, T. P. Act, namely, "if such tender or delivery is not practicable" are of significance. These words refer back to the words "or be tendered or delivered personally to such party, or to one of his family or servants at his residence". Service by affixation of a notice under S. 106, T. P. Act, to a conspicuous part of the property let out is permissible only if tender or delivery of such notice personally to the tenant or to one of his family or servants at his residence not practicable. No such finding has been recorded by the Judge, Small Causes, that tender or delivery of a notice under S. 106, T. P. Act, personally to the applicant or to one of his family or servants at his residence was not practicable. In view of the decision of a Division Bench of this Court in Laxmi Kishore v. H. P. Shukla (1979 All WC 746) it is not possible for this Court to record a finding of fact on this point and the case has to be sent back to the Judge, Small Causes.