JUDGMENT Shitla Prasad Srivastava, J.
1. This writ petition under Article 226 of the Constitution of India, has been filed by the petitioner for quashing the order dated 16.12.1994 passed by the IVth Additional District Judge, Allahabad in Civil Revision No. 198 of 1994 and further for a direction in the nature of mandamus commanding the respondents not to decide the revision finally without remanding back the same to the trial court. The petitioner has been filed by the tenant.
2. The brief facts as stated in the writ petition are that the landlord, namely, Smt. Ram Kumari, filed Suit No. 48 of 1990 against the petitioner. Ashok Kumar, for ejectment from a room of premises No. 27/1, Clive Road, Allahabad and for recovery of Rs. 6,200 as arrears of rent and Rs. 350 as damages. It was stated in the plaint filed by the respondent No. 3 that she purchased the premises in question from Chandra Kishore and Nand Kishore sons of late Ram Charan through a registered sale deed dated 1.6.1989 and got possession thereof. It was pleaded further in the plaint that there are three rooms and open land in the land out of which one room 14' x 10' was given on rent to the petitioner from the time of erstwhile owner, namely. Chandra Kishore and Nand Kishore. It was further stated in the plaint that at the time of purchasing the house, it was agreed between the petitioner and the respondent No. 3 (Smt. Ram Kumari) plaintiff of the suit that after two or three months, the petitioner shall vacate the room in her favour but as the petitioner did not do so. therefore. the rent was agreed to be enhanced from Rs. 250 to Rs. 350 per month. But when the plaintiff's husband demanded the rent, the petitioner refused to pay the same inspite of the notice of demand through registered post and is disfiguring the premises in dispute and has opened the door by demolishing the wall. Hence the suit was filed.
3. The suit was contested by the petitioner by filing written statement wherein he denied the title of Nand Kishore and Chandra Kishore, erstwhile owner and also relationship of Chandra Kishore and Nand Kishore as landlord and tenant. He pleaded that he is the tenant of Hari Shanker and Shiv Shanker on payment of Rs. 200 per month and he was continuously paying the rent. He had taken the electric connection by showing House No. 23/29. Clive Road, Allahabad and he is running Banti Steel Works. It Is further pleaded that the respondent has given Incorrect number of the premises as 27/1. Clive Road, Allahabad. Its real and correct number is 23/29, Clive Road, Allahabad, which belongs to Shiv Shanker and Hari Shanker, sons of Prithvi Pal as well as Raja Ram. The service of notice was specifically denied by the petitioner.
4. The trial court decreed the suit on 18.5.1994. The petitioner, aggrieved by the judgment of the trial court, preferred a revision under Section 25 of the Provincial Small Causes Court Act before the District Judge, Allahabad, which was heard by the revisional court. The revlslonal court remanded the case back to the trial court for fresh decision vide order dated 16.12.1994. The petitioner has challenged this order of remand by way of the present writ petition.
5. Learned counsel for the petitioner has urged that the case should not have been remanded and the matter should have been decided by the revisional court itself on the basis of the evidence available on record. The remand of the case to the trial court will necessarily delay the proceeding. His further contention is that the scope of Section 25 of the aforesaid Act is wider and larger than the revisional court power given under Section 115 of the Civil Procedure Code. Therefore, the revisional court has jurisdiction to decide the case Itself. Sri Radhey Shyam, appearing for the petitioner has vehemently argued that notice under Section 106 of the Transfer of Properties Act was also not properly served. Moreover, as the property was purchased by the plaintiff, then unless the notice under Section 20 of the Rent Control and Eviction Act was served after the expiry of three years from the date of the purchase of the property in dispute, no suit could be filed earlier to the expiry of three years and without giving composite notice under Section 20 (3) and Section 106 of the Transfer of Properties Act.
court it is apparent that notices were kept on the record in closed envelopes and they were not even opened during the deposition of the plaintiff's witnesses. Therefore. unless the notice is proved, no suit can proceed nor it can be decreed. His further submission is that as the scope of Section 25 of the Provincial Small Causes Court Act is very limited and it has no appellate jurisdiction therefore, if the question of fact that for proving of notice under Section 106 of Transfer of Properties Act, which is mandatory, has not been done by the trial court the revisional court could not permit the plaintiff to adduce evidence on the point of notice or its service when the notices were not opened by the Court and hence the order of remand is justified.
8. In reply, learned counsel for the petitioner has reiterated the same argument which he has advanced at initial stage.
9. I have heard learned counsel for the parties and perused the judgments of both the Courts below as well as other documents which the parties have filed along with the writ petition, counter and rejoinder-affidavits.
10. The trial court framed six issues for determination. Issue No. 3 was with regard to the notice. The trial court decided Issue Nos. 1,. 2, 3 and 4 together. Issue No. 1 relates on the point of relationship of the landlord and the tenant. Issue No. 2 was with regard to the rent and on the point of default in making the payment of the same. The fourth issue was with regard to the Identity of the disputed premises as to whether it was premises 23/29 or 27/1. From a perusal of the trial court judgment, specially the finding recorded regarding Issue Nos. 1 to 4, it is stated that the trial court has taken into consideration the notice filed by the plaintiff and has observed as under :
"The plaintiff has filed the documents paper No. 76-C the copy of notice, 77-C also the copy of notice, 78-C is the receipt and 79-C is the notice of Nagar Mahapalika of house No. 27/1-A which is in the name of Islam Ahmad son of Sultan Ahmad. The plaintiff also filed receipt of registered post paper No. 12-C/1, 12-C/2. 14-C/1 and 13-C/1 to 13-C/4 the return registered post and paper No. 14-C/2 receipt of the registered post."
11. The trial court held that the plaintiff is the owner of the premises in dispute No. 27/1. On the point of notice, the trial court has observed as under :
"As far as the notice is concerned the notice has been given to the defendant but the defendant has denied to receive any notice because the defendant has denied the title of the plaintiff. Thus, the question of notice become secondary and the plaintiff has proved the notice upon the defendant categorically. Thus, point In issue No. 2 may be decided in favour of the plaintiff."
12. It is clear from the judgment of the trial court that he has simply mentioned the number of notice but has not mentioned any where in the judgment as to which of the notice was proved to be the notice of determination of the notice under Section 106 of the Transfer of Properties Act. Therefore, the trial court committed error in law in decreeing the suit without seeing the relevant provisions of law. The revisional court has considered this aspect of the case In detail and has quoted the observations and findings made by the trial court and has also found that the documents which were filed by the parties were kept in closed cover and even not opened by the Court. The observations of the revisional court is as under :
"The learned trial court while dealing with the point regarding notice has not given any finding as to which notice was served on the defendant determining the tenancy of demanding arrears of rent. Notices alleged to have been given by the plaintiff have not been legally proved and the same has not been even exhibited by the trial court. It is material to point out that for proving any document, the writing and signature of such document has to be proved according to law. A perusal of the record further goes to show that certain notices are on record kept in closed envelopes and it appears that the envelopes were not even opened during the deposition of plaintiffs witnesses. In this view of the matter It cannot be said that notice or notices were legally proved by the plaintiff. The trial court while dealing with this material point has failed to exercise jurisdiction vested in it. Apart from this, there Is no finding with regard to date on which the tenancy was determined or about the date on which the notice was actually served or was presumed to be served. The trial court ought to have given finding on this important point specifically in accordance with law."
13. The revisional court also found that the trial court has not given any finding with regard to the relief sought for in the suit, therefore, the matter was remanded back to the trial court.
14. After hearing learned counsel for the parties, I am of the view that there is no substance in the argument advanced by the learned counsel for the petitioner that notice under Section 20 of the Rent Control and Eviction Act should have been given. Section 20 of the Rent Control and Eviction Act, on which the learned counsel for the petitioner wanted to place reliance is quoted herein below :
"20. Bar of suit for eviction of tenant except on specified grounds.--(1) Save as provided in sub-section (2). (* * *) no suit shall be instituted for the eviction of a tenant from a building, notwithstanding the determination of his tenancy by efflux of time or on the expiration of a notice to quit or in any other manner :
Provided that nothing in this sub-section shall bar a suit for the eviction of a tenant on the determination of his tenancy by efflux of time where the tenancy for a fixed term was entered into by or in pursuance of a compromise or adjustment arrived at with reference to a suit, appeal, revision or execution proceeding, which is either recorded in Court or otherwise reduced to writing and signed by the tenant.
(2) A suit for the eviction of a tenant from a building after the determination of his tenancy may be instituted on one or more of the following grounds, namely :
(a) that the tenant is in arrears of rent for not less than four months, and has failed to pay the same to the landlord within one month from the date of service upon him of a notice of demand :
Provided that in relation to a tenant who is a member of the armed forces of the Union and in whose favour the prescribed authority under the Indian Soldier (Litigation) Act. 1925 (Act No. IV of 1925), has issued a certificate that he is serving under special conditions within the meaning of Section 3 of that Act or where he has died by enemy action while so serving, then in relation to his heirs, the words "four months" in this clause shall be deemed to have been substituted by the words "one year".
(b) that the tenant has wilfully caused or permitted to be caused substantial damage to the building ;
(c) that the tenant has without the permission in writing of the landlord made or permitted to be made any such construction or structural alteration in the building as is likely to diminish its value or utility or to disfigure it ;
(d) that the tenant (has without the consent in writing of the landlord used it for a purpose other than the purpose for which he was admitted to the tenancy of the building or otherwise done any act whfch is inconsistent with such use) or has been convicted under any law for the time being in force of an offence of using the building or allowing it to be used for illegal or immoral purposes ;
(e) that the tenant has sub-let, in contravention of the provisions of Section 25, or, as the case may be, of the old Act the whole or any part of the building ;
(f) that the tenant has renounced his character as such or denied the title of the landlord, and the latter has not waived his right of re-entry or condoned the conduct of the tenant ;
(g) that the tenant was allowed to occupy the building as part of his contract of employment under the landlord and his employment has ceased ;
[***] (4) In any suit for eviction on the grounds mentioned in clause fa) of sub-section 12), if at the first hearing of the suit the tenant unconditionally pays or (tenders to the landlord or deposits in court) the entire amount of rent and damages for use and occupation of the building due from him (such damages for use and occupation being calculated as the same rate as rent) together with interest thereon at the rate of nine per cent per annum and the landlord's costs of the suit in respect thereof, after deducting therefrom any amount already deposited by the tenant under sub-section (1) of Section 30, the Court may, in lieu of passing a decree for eviction on that ground, pass an order relieving the tenant against his liability for eviction on that ground :
(6) Any amount deposited by the tenant under sub-section (4) or under Rule 5 or Order XV of the First Schedule to the Code of Civil Procedure, 1908 shall be paid to the landlord forthwith on his application without prejudice to the parties' pleadings and subject to the ultimate decision in the suit."
15. A bare perusal of this Section 20 of the aforesaid Act would show that provisions for notice was deleted in the year 1972 and the suit of the plaintiff was filed in the year 1990 as Original Suit No. 48 of 1990. Therefore, that provision of giving notice was deleted, therefore, there is no substance in the argument of the learned counsel for the petitioner. So far as the service of notice and termination of tenancy are concerned, from the Judgment of the trial court, it is apparent that no finding has been given as it ought to have been given according to law. Therefore. I am of the view that the case has rightly been remanded back by the revisional court to the trial court to decide afresh in accordance with law as the revisional court has no jurisdiction to permit the parties to produce evidence.
16. I, accordingly, dismiss the writ petition but there shall be no order as to cost.
Before parting the judgment. I must observe that the matter is already lingering and nine years have passed. I direct the trial court to decide the case expeditiously.