UMESH CHANDRA SRIVASTAVA Vs. SHEELA SRIVASTAVA

JUDGEMENT

(1.) D. K. Seth, J. Mr. Salil Kumar Rai, learned Counsel for the revisionist in this revision under Section 25 of the Provincial Small Cause Courts Act has assailed the impugned order dated 30th August, 1999 passed by the learned Additional District Judge, Xth Court, Gorakhpur, in S. C. C. Suit No. 9 of 1998 on the ground that the plaintiff landlady having not appeared as a witness offering to be cross-examined, the notice terminating the tenancy cannot be said to be proved in her absence only on the basis that the said notice was sought to be proved by her father. He secondly con tends that the issue with regard to the validity of the notice under Section 106 of the Transfer of Property Act has not been considered in its proper perspective by the learned trial Court and the finding therein appears to be wholly perverse and is not a decision on a particular issue as is ap parent on the face of it. In support of his contention, he relied on the decision in the case of Sardar Gurbaksh Singh v. Gurdial Singh and another (AIR 1927 Privy Council 230); Iswar Bhai C. Patel alias Bachu Bhai Patel v. Harihar Behera and Another (1999 SC 1341); Vidhyadharv. Mandakraoand another (AIR 1999 SC 1441) and Rambaran Pas-wan v. Smt. Kalo Dei and another (AIR 1974 Patna 333 ).

(2.) LEARNED Counsel for the opposite party on the other hand contends that it is an admitted position that the plaintiff her self resides in Meghalaya, which fact was known to the defendant himself all through and that the property was being looked after on behalf of the plaintiff by her father. The rent was used to be col lected by the father and the father had proved the notice that it was issued at the instance of his daughter. He also contends that there was no specific issue framed with regard to the question as raised by Mr. Rai. Issue No. 5 which relates to the validity of the notice was decided rightly against the defendant by the learned trial Court. He then contends that this finding on the issue No. 5 is a finding of fact, which should not be gone into in exercise of revisional jurisdiction. He relies, on the decision in the case of Laxmi Kishore and Another v. Har Prasad Shukla (1981 ARC 545 ). He contends that only on the ground of notice, the finding cannot be set aside, which is purely a technical question. The suit being a suit within the scope and ambit of the Provincial Small Causes Courts' Act, it remains a summary trial, for which those questions cannot be gone into as elaborately as that by a Civil Court.

(3.) BE that as it may. We may refer to tins question at a later point of time if it is so necessary. In the present case a notice under Section 106 of the Transfer of Property Act was issued to the defendant. Section 106 of the said Act provides that every notice under the said Section must be in writing signed by or on behalf of a person giving it and either by sent by post to the parties who is intended to be bound by it or be tendered or delivered personally to the said party or one of the agents for service at his residence. In the present case, the service of the notice has not been dis puted. It is also not disputed that the notice was signed by the pleader on behalf of the landlady. It is also admitted that the notice was in writing and that the notice was given on behalf of the landlady. The only question that has been raised is that there was no proof that the notice was issued at the instance of the landlady, since the landlady did not appear and got herself examined whereas the plaintiff had ex amined her father as a witness on her be half.