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2008 DIGILAW 460 (ALL)

SABHA JEET SINGH v. ADDL DISTRICT JUDGE VARANASI

2008-02-27

DILIP GUPTA

body2008
DILIP GUPTA, J. ( 1 ) THE landlord has filed this petition under Article 226 of the Constitution to assail the judgment and order dated 29th May, 2007 passed by the learned Additional District Judge, Varanasi. ( 2 ) THE landlord filed SCC Suit No. 52 of 2000 before the learned Judge, small Cause Courts against the tenant for eviction and recovery of arrears of rent and damages. It was inter alia stated that the defendant was the tenant of two shops on monthly rent of Rs. 600/ -. A notice dated 18th January, 2000 was sent to the tenant by registered post under section 106 of the Transfer of Property act (hereinafter referred to as the "act ). This notice was duly served upon the tenant. However, even though the tenancy was terminated after a period of thirty days in accordance with the provisions of section 106 of the Act, the tenant did not vacate the premises and nor did he pay the arrears of rent. The suit was accordingly filed. The Trial Court decreed the suit by the judgment and order dated 27th November, 2004. The tenant filed a Revision under section 25 of the Small Cause Courts Act, 1887. The Revisional Court has remanded the matter to the Trial Court to decide whether the notice sent under section 106 of the act was actually served upon the tenant and whether it was a tenancy from month to month. ( 3 ) SRI Sanjeev Singh, learned Counsel appearing for the petitioner submitted that the tenant in paragraph "6 of the Written Statement clearly admitted that it was a month to month tenancy and, therefore, the Revisional Court committed an illegality in remanding the matter to the Trial Court. He further submitted that in this connection the Revisional Court has relied upon the evidence of the power of attorney holder but such evidence could not have been taken into consideration in view of the decision of the Supreme Court in janki vashdeo Bhojwani and others v. Indusind Bank Ltd. and others, 2005 58 ALR (SC) 440. He also submitted that the notice under section 106 of the Act had been duly served upon the tenant and evidence in this regard had been filed and, therefore, there was no occasion for remanding the matter to the Trial Court. He also submitted that the notice under section 106 of the Act had been duly served upon the tenant and evidence in this regard had been filed and, therefore, there was no occasion for remanding the matter to the Trial Court. ( 4 ) NOTICE of this petition was issued to the respondent twice. However, each time the undelivered envelope was returned back with the endorsement of the postman that on repeated visits the addressee was not available. In such circumstances, the Court on 10th December, 2007 directed that publication be made in the daily newspaper amar Ujala published from Varanasi. The petitioner was also directed to personally serve the respondent. The matter was next taken up by the Court on 28th January, 2008 on which date the service upon respondent No. 2 was deemed sufficient in view of the fact that the summons were published in the newspaper on 25th December, 2007 and affidavit of service was also filed mentioning therein that the said respondent after going through the notice refused to accept the same in front of two witnesses. ( 5 ) IN paragraph 6 of the Written Statement, the tenant clearly admitted that it was month to month tenancy. There was, therefore, no occasion for the revisional Court to remand the matter to the Trial Court to decide this issue. This apart, a perusal of the order of the Revisional Court indicates that the court has taken into consideration the evidence of the power of attorney holder. The Supreme Court in Janki Vashdeo Bhojwani (supra) has clearly observed that the power of attorney holder can only make deposition on behalf of the principal in relation to the acts done by him and not in respect of the acts done by the principal. In such circumstances, the evidence about the service of notice of the power of attorney holder could not have been taken into consideration. The Revisional Court has not decided the case on merits. ( 6 ) IN view of the above, the judgment and order dated 29th May, 2007 is set aside. The Revisional Court shall decide the matter on merits in the light of the observations made above, expeditiously, preferably within a period of six months from the date a certified copy of this order is placed before it. ( 7 ) THE writ petition succeeds and is allowed to the extent indicated above. The Revisional Court shall decide the matter on merits in the light of the observations made above, expeditiously, preferably within a period of six months from the date a certified copy of this order is placed before it. ( 7 ) THE writ petition succeeds and is allowed to the extent indicated above. Petition Allowed. .