Heard Sri Swapnil Kumar, learned counsel for the petitioner and Sri B.R.Singh, learned counsel for the respondent.
The plaintiff/respondent instituted SCC Suit No.3 of 1995 against defendant/petitioner for arrears of rent and eviction on the basis of notice dated 1.12.1994 by which the tenancy was said to have been terminated. The suit was decreed by the court of first instance vide judgment and order dated 29.2.2000 and the revision of the defendant/petitioner against the same was dismissed vide judgment and order dated 31.3.2008. The above two judgments and orders have been assailed by the defendant/petitioner in the above petition.
The only ground for attacking the impugned judgments is that the plaintiff/respondent had not proved the notice terminating the tenancy and, as such, the suit could not have been decreed.
The defendant/petitioner in paragraph 9 of the petition has clearly stated that during the trial the plaintiff/respondent has appeared in the witness box as P.W. 3 but he failed to prove the notice, inasmuch as the envelope containing the notice was not opened and the notice was not proved by the witness.
In reply to the averments made in paragraph 9 of the writ petition the plaintiff/respondent in paragraph 10 of the counter affidavit has stated that the notice which was refused by the petitioner was on record but on account of mistake of the counsel the same was not opened; meaning thereby it was not proved. It was not proved that the envelope contained the same notice which was sent. Its contents were also not proved to establish that it terminates the tenancy.
Learned counsel for the defendant/petitioner has drawn the attention of the court to the order of the court of first instance dated 10.4.1997. The said order reveals that the plaintiff/respondent had filed an application, paper No.54 Ga along the carbon copy of the notice dated 1.12.1994, paper No.55 Ga and had made a prayer for taking the same on record but the said application was got dismissed as not pressed. It means that the carbon copy of the notice was not brought on record. Thus, only the envelope containing the notice which was sent to the petitioner was on record with the endorsement of refusal. The production of the post receipt of sending the notice and the envelope containing endorsement of refusal only proves that an envelope with the alleged notice was sent to the petitioner which was not accepted but it does not prove the notice or the contents of the notice to show that the notice actually terminated the tenancy of the petitioner.
Learned counsel for the defendant/petitioner has placed the application of the plaintiff/respondent dated 23.4.1997 by which he wanted that he may be recalled as witness to prove the notice inasmuch as the envelope containing the notice was not opened and proved earlier. The application was allowed vide order dated 23.4.1997 but the order was set aside by the revisional court on 26.11.1999. Thus, the plaintiff/respondent was not recalled as witness to prove the notice.
It is not disputed that the suit was filed by the plaintiff/respondent on the basis of the above notice dated 1.12.1994 by which the tenancy was said to have been terminated but the carbon copy of the notice was not produced and the envelope 8 Ga was not opened to prove it. The courts below simply for the reason that the plaintiff/respondent had produced the receipt by which the registered notice was sent and the envelope containing the endorsement of refusal held that the notice has been proved. The above two documents prove sending of notice and its service by refusal but not the validity of the notice or that said notice terminates tenancy.
In view of the aforesaid facts and circumstances, the courts below have manifestly erred in law by holding that the notice has been proved though actually there is nothing on record to prove the notice terminating the tenancy.
In view of the above, the impugned orders dated 29.2.2000 and dated 31.3.2008 are quashed and the writ petition is allowed.
Order Date :- 3.7.2014 Brijesh