SUDHA AGARWAL Vs. VII ADDITIONAL DISTRICT JUDGE

JUDGEMENT

(1.) This is landlady's writ petition. Petitioner filed suit for eviction and for recovery of arrears of rent against tenant respondent No. 3 Narendra Kumar in the form of SCC Suit No. 26 of 1987. JSCC/ III Additional Civil Judge, Ghaziabad through judgment and decree dated 12.7.1989 decreed the suit for eviction and recovery of arrears of rent. Against the said judgment and decree tenant respondent No. 3 filed SCC Revision No. 96 of 1989. VII Additional District Judge, Ghaziabad through judgment and order dated 21.7.91 allowed the revision, set-aside the judgment and decree passed by the trial court and dismissed the suit hence this writ petition by the landlady.

(2.) Notice was served through refusal and Postman was also examined by the landlady. Carbon copy of the notice was proved by the landlady. The envelope containing the original notice, which had been refused by the tenant, was also filed. Revisional court only and only on the ground that the envelope containing the original notice was not opened held that notice had not been proved. I have dealt with this point in detail in writ petition No. 3455 of 1980, Taqdirunnisa v. A.D.J. decided on 30.1.2006. Facts of the said case were exactly similar as the facts of the instant case. After placing reliance upon several authorities of different High Courts and an authority of Supreme Court reported in R.V.E.V. Gounder v. A.V.V.P. Temple 2004(1) ARC 137 (S.C). I have held that if any party wants to raise the objection in respect of admissibility of secondary evidence then the said objection shall positively be raised at the trial stage so that the other side may have an opportunity of removing the deficiency. In the aforesaid 2004 authority, Supreme Court has held that where the objection is directed towards the mode of proof alleging the same to be irregular or insufficient, the same should be taken before the evidence is tendered and once the document has been admitted in evidence and marked as exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular can not be allowed to be raised at any stage, subsequent to the marking of the document as an exhibit (para 18). The original notice was very well in the file of the trial court. In case tenant had raised the objection, the landlady would have then and there requested the trial court to open the envelope and she would have proved the original notice. Copy of the notice was marked as exhibit 1 by the trial court. Accordingly I am of the opinion that the revisional court committed an error of law in holding that notice was not proved.

(3.) learned Counsel for the tenant has also argued that notice was defective. Annexure 5 is copy of the notice. I do not find any defect in the said notice. At the top of the notice, it is mentioned that it is from Sudha Agarwal through Sri Fateh Chand Goel, Advocate. In the notice, it is shown that it is to (Banam) Narendra owner of Narendra Photostat, 20 Navyug Market, Ghaziabad.