SADASHIV RAO Vs. GHASITHI BAI

JUDGEMENT

(1.) 1. This appeal arises out of a suit for ejectment and the question is whether a valid notice to vacate was served on the defendant. In my order of 12th September 1932 I framed the following issues: (1) Did the plaintiff serve a notice dated 8th April 1926 on the defendant calling upon him to vacate the house by 30th April 1926 ? (2) When was this notice served on the defendant ? The trial Court recorded pleadings and evidence on these issues and has now returned a finding that the notice above mentioned was served on the defendant on 9th April 1926. 2. Apart from objecting to this finding on merits the appellant contends that the remand in my order of 12th September 1932 was and could only be to the lower Court and that the trial Court had no jurisdiction to record evidence or a finding. Under Rule 25 of Order 41 which deals with the appeals from original decrees, the appellate Court has power to frame issues and to refer them for trial to the Court from whose decree the appeal has been preferred. Under Order 42, Rule 1 the rules of Order 41 apply, so far as may be, to appeals from appellate decrees. This is a little vague, but I am of opinion that it gives this Court power in second appeals to frame issues and refer them for trial to the first Court. My order did not specify the Court that was to try these issues, but it may reasonably be read as-referring them to the first Court. This-is, I understand, the usual practice in this Court and it will often be more convenient to the parties that the trial should be in the first Court, while-it is ordinarily desirable that the more ' expensive agency of the lower Court should not be employed in this work. I accordingly hold that the first Court, had jurisdiction to try these issues and record a finding, and that a second finding by the lower appellate Court is not necessary. 3. On the merits the finding of the first Court is clearly correct. There is evidence to show that the-notice dated 8th April 1926 was written by the plaintiff's agent and there is the evidence of a postman to show that a registered letter was served on the defendant on 9th April 1926. The receipt purporting to be signed by the-defendant has not been put in evidence.

(2.) THE defendant at a very late stage denied the genuineness of his signature, but I see no reason to disagree with the first Court's finding that it is genuine, As the defendant has not suggested that he received any other registered letter on 9th April 1926, it may be presumed; that the registered letter which he received contained-the notice of 8th April 1926. The plaintiff's suit must therefore succeed and the appeal is dismissed. The defendant must pay all costs in., this Court.