RAM SHANKAR Vs. DISTRICT JUDGE

JUDGEMENT

(1.) THIS writ petition has been filed against the order of the District Judge, Kanpur dated 7.10.1983 allowing the revision filed by the respondent-landlord against the order of the Judge Small Cause Court, Kanpur rejecting an application under Order 21II, Rule 1, CPC.

(2.) IT may be noticed that at the admission stage the contesting respondents were served and they are represented by their counsel. A counter-affidavit has been filed by the contesting respondents to which a rejoinder-affidavit has been filed by the petitioner. The writ petition has, thus, been heard finally in accordance with the provisions of the Rules of the Court.

(3.) THE learned Counsel for the petitioner in this writ petition has urged two points. It has been firstly urged that the defect in the notice being not of a technical nature but being a material defect, the revisional Court erred in allowing the application moved by the plaintiff's under Order 21II, Rule 1, CPC. I am not inclined to accept the argument raised by the learned Counsel for the petitioner specially because the petitioner has invoked jurisdiction under Article 226 of the Constitution. According to the own showing of the plaintiff's the notice on the basis of which the suit was filed was a defective notice. The point which the plaintiff's next urged was that they intend to file another suit by giving a valid notice of termination of the tenancy under Section 106 of the Transfer of Property Act. The plaintiff's after they would give the second notice will have different cause of action than what exists in the suit out of which the present proceedings arise. It is, therefore, clear that the plaintiff's cause of action would be different on the basis of giving a second notice of termination of tenancy under Section 106 of the Act and thus the subsequent suit will be maintainable because of fresh cause of action. It is therefore, not a fit case for interference under Article 226 of the Constitution is so far as the merits are concerned.