JUDGMENT Hon’ble Mrs. Poonam Srivastava, J.—Heard Sri Atul Dayal, counsel for landlord/petitioner and Sri H.P. Dube and Sri R.C. Singh, counsels for tenant/respondents. 2. Petitioner is owner and landlord of premises No. 359, Bara Bazar, Thakurdwara, Moradabad, which consists of four rooms Varandah, two stores, kitchen and toilet. The accommodation in question was let out to tenant/Power Corporation at the rate of Rs. 900/- per month w.e.f. 15.6.1995 besides taxes and electrical charges. Initially, premises was let out for a period of three years. Formal lease deed was stipulated to be executed in near future. However, no lease deed was ever executed. 3. Landlord claims that he had repeatedly requested Power Corporation for execution of the lease deed but there was no out come of his request. Power Corporation continued in occupation at the same rate and was also defaulter inasmuch as entire rent was not paid nor the municipal taxes. Landlord having no option, terminated tenancy vide registered notice dated 13.3.2000 wherein demand of arrears of rent was also made. Tenant/Power Corporation failed to pay arrears of rent and did not vacate accommodation in question. 4. Subsequently, S.C.C. Suit No. 1 of 2000 was instituted in the Court of Judge Small Causes. Written statement was filed but still no rent was paid. Evidence was led by both the parties. The Judge Small Causes Court, vide judgment and order dated 7.8.2003 decreed the suit for arrears of rent but dismissed claim of petitioner for eviction. Copy of the said judgment is annexed as Annexure 4 to the writ petition. S.C.C. Revision No. 28 of 2003 was preferred before the District Judge, Moradabad, which stood transferred to Additional District Judge, Court No. 3, Moradabad. S.C.C. Revision was also dismissed by Additional District Judge, Court No. 3 vide judgment and order dated 7.1.2006. Both the judgments are impugned in the instant writ petition. The judgments are challenged on following counts : “(a) Both the judgment and orders of the Courts below are arbitrary, absolutely illegal and perverse. (b) The Courts below ignored that no formal lease deed was ever executed between the parties and as such there was no question of three months’ notice as a condition precedent for instituting the suit and, therefore, the notice of 30 days was valid and legal and sufficient to terminate the tenancy. (b) The Courts below ignored that no formal lease deed was ever executed between the parties and as such there was no question of three months’ notice as a condition precedent for instituting the suit and, therefore, the notice of 30 days was valid and legal and sufficient to terminate the tenancy. (c) The Judge Small Causes Court did not give any finding on the question of validity of notice, this point was never taken in written statement by the defendant or was argued before Court of Small Causes and, therefore, the revisional Court has committed gross illegality in holding that notice was not duly proved or invalid. (d) Any point which is beyond pleading cannot be raised or considered by the Courts. (e) Findings on the question of admissibility of secondary evidence could not be raised at the revisional stage if tenant had failed to put forth such an objection at the earliest possible opportunity i.e. at stage of evidence or arguments. (f) The Courts below illegally held that tenant was entitled for the benefit of Order XV Rule 5, C.P.C. unless finding on question of entire deposit on the first date of hearing has been arrived, no benefit of Order XV Rule 5, C.P.C. can be given. (g) The Courts below also confused between Section 20 and Section 21 and illegally held that plaintiff has failed to show his bonafide needs, this finding is totally perverse and against evidence on record. (h) Findings of Courts below are perverse holding notice to be illegal and invalid for want of original notice. Admittedly, original notice was with tenant and photostat copy or carbon copy was in possession of plaintiff, same was duly proved by means of an affidavit, therefore, any finding to the contrary for want of original notice stands vitiated in law. (i) The Courts below illegally held that since landlord did not produce bill of demand, tenant was justified in not paying the rent, it appears that Courts below failed to apply its judicial mind in accordance with law. Production of bill is not a condition precedent which might come to the rescue of tenant in case of default. (i) The Courts below illegally held that since landlord did not produce bill of demand, tenant was justified in not paying the rent, it appears that Courts below failed to apply its judicial mind in accordance with law. Production of bill is not a condition precedent which might come to the rescue of tenant in case of default. (j) The Courts below ignored that it was a case of fixed terms tenancy and even notice was not required before filing of the suit, therefore, assuming though not admitting that notice was invalid this could not be a ground for dismissal of the suit. (k) In any case, it is settled that taxes are part of rent and non-payment of the same would amount to default and in the present case, it was admitted case of the defendant that he had never paid any taxes. (l) The Courts below ignored cardinal principle of law that litigant could not suffer due to mistake of counsel, mistake of pleading etc., and prime consideration of the Court is to do substantial justice between the parties and not to deny relief on mere technicalities”. 5. Learned counsel appearing for Power Corporation has admitted arrears of rent and at the very outset of his argument offered to pay every penny due. Besides, it is asserted in paragraph 9 of counter affidavit that petitioner had been regularly giving bills for rent, same was paid by Officers of Power Corporation without any default. The subsequent rent was not paid for want of issuance of bills by landlord/petitioner. 6. Learned counsel has also pointed out certain treasury Challan numbers to substantiate that rent was paid in respect of bills issued by landlord up till September 1999 but since petitioner failed to demand rent, therefore, rent was not paid. Contention of tenant is that in view of peculiar set of facts, institution of suit on the basis of notice dated 13.3.2000 for arrears of rent and ejectment is not permissible in law. Besides, he tried to support the two judgments of the Courts below. However, there is a clear admission that there was no formal execution of lease deed but since there was an understanding that three months notice will be given prior to termination of tenancy, therefore, assertion on the part of landlord, to the contrary has no force. 7. Besides, he tried to support the two judgments of the Courts below. However, there is a clear admission that there was no formal execution of lease deed but since there was an understanding that three months notice will be given prior to termination of tenancy, therefore, assertion on the part of landlord, to the contrary has no force. 7. I have given a careful consideration to the submissions made by counsels for respective parties and gone through entire record. First question to be decided is question of notice under Section 106 Transfer of Property Act. Service of notice is not disputed by tenant. Rate of rent as well as arrears of rent subsequent to September, 1999 is also not disputed. Only question raised in respect of notice is that it could not be read in evidence as original was not adduced in evidence, therefore, it has no evidentiary value. Written statement is annexed as Annexure 2 to the writ petition. On a close scrutiny of the said objection/written statement filed by tenant, I do not find any objection regarding validity of notice as well as period of notice. It is admitted fact in the written statement that despite repeated request, lease deed was not executed, therefore, tenant should not suffer and requirement of three months notice, which was one of the ingredients of lease deed was essential to be completed. This is a far-fetched argument and without laying any foundation. In fact, notice was not challenged in the written statement nor at any other point whatsoever. Besides, there is a clear admission in para 6 of the written statement that there is a lot of arrears municipal taxes which he is ready to deposit. The taxes are admittedly a part of rent, besides Shree Dube appearing on behalf of Power Corporation admitted in Court and expressed his willingness to deposit the entire amount. 8. The Apex Court in the case of Abdul Kader v. G.D. Govindaraj (D) by LRs., 2003 SC & Full Bench Rent Cases, page 80, held that rent includes all payments agreed by tenant to be paid to landlord for use and occupation not only of building but also its appurtenancies and it includes taxes also. The Apex Court while holding this, placed reliance on a decision in the case of Karani Properties Ltd. v. Miss Augustin and others, AIR 1957 SC 309 . The Apex Court while holding this, placed reliance on a decision in the case of Karani Properties Ltd. v. Miss Augustin and others, AIR 1957 SC 309 . For ready perusal, paragraph 5 is quoted below : “5. The term ‘rent’ not been defined in the Act and, therefore, we shall have to go by the ordinary dictionary meaning of the term ‘rent’. As held in Karani Properties Ltd. v. Miss Augustin and others, AIR 1957 SC 309 , the term ‘rent’ is comprehensive enough to include all payments agreed by the tenant to be paid to his landlord for the use and occupation not only of the building and its appurtenancies but also furnishing, electric installations and other amenities agreed between the parties to be provided by and at the cost of the landlord. It was very fairly conceded by learned Counsel for the appellant that ever since the decision of this Court in the case of Karani Properties Ltd. the view of being taken consistently by the High Court of Madras is that in the event of taxes having been agreed to be paid by the tenant the same from part of the rent. [To wit, See Messrs. Raval and Company v. K.G. Ramachandran (minor) and others, 1968 (2) MLJ (sic)]. Thus, there is no doubt that the amount of taxes which was agreed to by the tenant to be paid to the landlord was a part of the rent and word rent in Section 10 (2)(i) of the Act has to be constructed accordingly”. 9. In the circumstances, I come to a conclusion that objection regarding three months notice is not sustainable as no lease deed was ever executed. Besides, admitted arrears of rent by Power Corporation and non-deposit of same is sufficient for decree of eviction. Mere offer by Power Corporation and willingness to pay entire arrears will not absolve contesting respondent from his responsibility and its consequences, which is its eviction especially after tenancy stood determined by means of valid notice. 10. The Apex Court in the case of Parwati Bai v. Radhika, 2003 (3) AWC 2394 (SC), ruled that in the event receipt of notice by defendant is admitted in the written statement and he has not raised any specific objection as to validity of notice, therefore, he is not entitled to raise for the first time before this Court. 10. The Apex Court in the case of Parwati Bai v. Radhika, 2003 (3) AWC 2394 (SC), ruled that in the event receipt of notice by defendant is admitted in the written statement and he has not raised any specific objection as to validity of notice, therefore, he is not entitled to raise for the first time before this Court. An objection as to invalidity and infirmity of notice should be raised specifically and at the earliest; else it will be deemed to have been waived even if there exists one. It cannot, therefore, be said that notice under Section 106 Transfer of Property Act is by any means not sufficient for decree of eviction. There is yet another case of the Apex Court, Dharam Pal v. Harbans Singh, (2006) 9 SCC 216 , paragraph 8 of which is quoted below : “8. Obviously for want of specific plea in the written statement, the trial Court has not framed any issue reflecting an objection to the validity or sufficiency of notice, the plea in the manner in which it is sought to be urged before us. The plea as to insufficiency of notice should be deemed to have been waived by the appellant and cannot be allowed to be urged at this stage. No fault can be found with the judgment and decree of the High Court as also of the two Courts below upholding the termination of tenancy and the plaintiff-respondent’s entitlement to evict the tenant”. 11. So far objection regarding photostat copy of notice not admissible in evidence for want of original, I do not think that this argument is also worth consideration. Original notice was obviously sent to the tenant determining tenancy and photostat adduced in evidence was specifically proved by plaintiff in his affidavit. The said affidavit is annexed as Annexure 3 to the writ petition. On reading of paragraph 7 of the affidavit, it is clear that there is a specific assertion to the effect that when defendant/tenant failed to pay rent, plaintiff sent a notice through his counsel, Sri Jitendra Kumar Sharma, which is on record and bears signature of his counsel, Sri Jitendra Kumar Sharma. His signature was specifically identified. Besides, averments of paragraph 1 to 5 of the said notice were admitted to be correct. His signature was specifically identified. Besides, averments of paragraph 1 to 5 of the said notice were admitted to be correct. In view of this assertion on oath, notice was duly proved and any objection in its admissibility as secondary evidence cannot be accepted. This was precisely held by this Court in the case of Taqdirunnisa (Smt.) and others v. 1st Additional District Judge, Allahabad and others, 2005 (1) ARC 34. Paragraph 6, 7 and 8 of which are quoted below : “6. An objection regarding inadmissibility of secondary evidence shall be taken at earliest opportunity before the trial Court. If it is not done, then such objection cannot be taken before Appellate or Revisional Court. This has been held by various High Courts, Privy Council and Supreme Court. Some of that authorities are given below : (1) AIR 1936 Cal 164. (2) AIR 1980 (NOC) 7 (All). (3) AIR 1955 HP 37. (4) AIR 1953 Assam 80 (DB). (5) AIR 1951 Punj 223. (6) AIR 1946 Bom 193. (7) AIR 1917 Mad 671 (DB). (8) AIR 1924 Lahore 273 (DB) (9) AIR 1925 Lahore 347. (10) AIR 1933 Lahore 601 (DB). (11) AIR 1972 Ori 200 . (12) AIR 1953 Mys 49. (13) AIR 1922 Pat 565 (DB). (14) AIR 1990 Raj 90 . (15) AIR 1991 AP 31 (FB). (16) AIR 1964 AP 53 . (17) (1907) 34 Cal 1059 (PC) (18) AIR 1915 PC 111. (19) AIR 1954 SC 139 . 7. The reason for the above proposition is that in case objection is taken before the trial Court at the first opportunity, then other side may with the permission of the Court, if necessary, adduce or formally prove the original document. 8. In the instant case absolutely, no objection was taken by the defendant petitioner regarding admissibility of secondary evidence (copy of notice) either at the stage of evidence or even during argument before the trial Court. In fact even in grounds of revision, no such point was raised”. 12. Reliance is placed by petitioner’s counsel in another case of this Court, Smt. Sudha Agarwal v. VlIth Additional District Judge, Ghaziabad and others, 2006 (2) AWC 1965 . Paragraph 2 of which is quoted below : “2. In fact even in grounds of revision, no such point was raised”. 12. Reliance is placed by petitioner’s counsel in another case of this Court, Smt. Sudha Agarwal v. VlIth Additional District Judge, Ghaziabad and others, 2006 (2) AWC 1965 . Paragraph 2 of which is quoted below : “2. Where the objection is directed towards the mode of proof alleging the same to be irregular or insufficient, the same should be taken before the evidence is tendered and once the document has been admitted in evidence and marked as exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage, subsequent to the marking of the document as an exhibit." 13. On the basis of the facts and circumstances discussed above, I am satisfied that landlord is entitled for decree in his favour for eviction of tenant. Sri R.C. Singh and Sri H.P. Dube, Advocates, appearing for Power Corporation, raised an objection submitting that since the two Courts have refused to decree the suit, it will be in the circumstances that matter may be remanded for afresh decision. I do not agree with this contention as well. It is not necessary that in every case where there is a concurrent finding against petitioner should essentially be remanded. Question of notice as well as admissibility of photostat copy of notice in evidence and on the face of admission by Power Corporation, regarding arrears of rent and taxes, there is no factual aspect which has to be elucidated. It is all legal questions and can very well be decided in exercise of writ jurisdiction. The hands of this Court are not bound to decide these legal questions. Similar view was taken by this Court in the case of Kalawati (Smt.) v. Additional District Judge/Special Judge and others, 2006 (2) ARC 129 and Mohd. Arif v. A.D.J., 2005 (2) ARC 793 . 14. The Apex Court, in the case of G.C. Kapoor v. N.K. Bhasin, AIR 2002 SC 200 , was of the view that where release application was rejected by all the three Courts including High Court, still Supreme Court outrightly allowed the release application without remanding the matter. 15. This Court in the case of Mohd. 14. The Apex Court, in the case of G.C. Kapoor v. N.K. Bhasin, AIR 2002 SC 200 , was of the view that where release application was rejected by all the three Courts including High Court, still Supreme Court outrightly allowed the release application without remanding the matter. 15. This Court in the case of Mohd. Arif (supra) held that when both the Courts below rejected the release application and writ Court finds judgments to be erroneous in law, it is not always necessary to remand the matter to Court below. In suitable cases particularly when matter is pending for long, final relief may be granted to the landlord in writ petition itself. Similar view adopted by this Court in the case of Nand Kishor v. Prescribed Authority, Baraut, Meerut and others. 16. For the reasons detailed hereinabove, the judgment and orders dated 7.8.2003 passed by Judge Small Cause/Civil Judge (Junior Division) Thakurdwara Moradabad and 7.1.2006 passed by Additional District Judge, Court No. 3, Moradabad, are quashed. The writ petition is allowed. Suit is decreed for the amount of arrears of rent as well as damages @ Rs. 5,000/- per month from the date of judgment of the revisional Court i.e. 7.1.2006. 17. Petitioners’ counsel made a request that Power Corporation may be directed to vacate premises in question at the earliest. 18. Power Corporation is allowed six months’ time to vacate premises in question subject to filing an undertaking within three weeks from today before the trial Court by competent authority of the Power Corporation stating unequivocally that vacant possession of premises in question shall be handed over to landlord/petitioner on expiry of six months. The date for handing over possession shall be given in the undertaking in form of an affidavit as 26.2.2010. The tenant shall deposit entire decreetal amount along with interest and he shall also continue to deposit arrears @ Rs. 5,000/- per month w.e.f. 7.1.2006 up till July, 2009 and for month of August, 2009 onwards, till the date of handing over possession, damages @ Rs. 5,000/- shall be deposited by 10th day of every month. 19. If tenant/respondents fail to file an undertaking within a period of three weeks from today before the trial Court and pay the entire amount, liberty of six months shall automatically come to an end. Landlord will be at liberty to get accommodation vacated forthwith. ———