Hon’ble Pankaj Mithal, J.—Heard Sri K.K. Dubey, learned counsel for the petitioner and Sri B.N. Agarwal, learned counsel for the contesting respondent No. 1.

2. Petitioner is the owner and landlord of house No. 1167/16A (Old) present No. 1244/3, situate in Gondu Ka Hata, Civil Line, Sipri Bazar, Jhansi.

3. Petitioner has purchased the aforesaid house vide sale-deed dated 22.4.1992 and had given information of the said purchase to the sitting tenant respondent No. 1 vide notice dated 28.5.1992 which was replied on 2.6.1992. Despite the above, respondent No. 1 started depositing rent under Section 30 of U.P. Act No. 13 of 1972 (hereinafter referred to as the Act) on the ground that there is a bona fide doubt as to the person entitle to receive rent.

4. Petitioner vide notice dated 22.1.01 demanded the arrears of rent and determined the tenancy of the respondent No. 1. When the respondent No. 1 failed to tender rent despite notice, petitioner instituted a suit in the small causes Court for arrears of rent and eviction of respondent No. 1on the basis of the aforesaid notice. The suit has been dismissed on the ground that the petitioner herself has not entered the witness box either to prove the notice or the service of the notice.

5. The above finding has been affirmed by the revisional Court.

6. The judgment and order of the Court of first instance dated 22.8.2005 and that of the revisional Court dated 27.9.2008 have been impugned by the petitioner by means of this writ petition.

7. The submission of Sri K.K. Dubey, learned counsel for the petitioner is that the notice and the service of the notice was duly proved by the oral evidence of the husband of the petitioner. The Courts below are not justified in discarding the evidence of the husband on the basis of the decision of the Supreme Court Janki Vasdev Bhojwani v. Indu Sindh Bank Ltd., AIR 2005 SC 439 : 2005(2) SCC 217, inasmuch as Section 120 of the Indian Evidence Act, 1872 permits the husband to depose on behalf of wife.

8. Shri B.N. Agarwal defends the orders of the Courts below contending that the husband was only the power of attorney holder of the petitioner who is not entitle to appear as witness for the principal.

9. The petitioner in paragraph 4 of the plaint has clearly stated that he had issued and sent a notice dated 22.1.01 to the respondent No. 1 which was got prepared by the Advocate Abhay Kumar Bhartiya and the said notice was served upon the respondent No. 1 on 24.1.01 by refusal.

10. The respondent No. 1 in reply to paragraph 4 of the plaint vide paragraph 4 of the written statement has stated that he had not received any notice and that he has not refused to accept any notice. The service by refusal has been manipulated by the petitioner in connivance with the postal authorities.

11. A plain reading of the above averments of the plaint and the written statement demonstrates that the respondent No. 1 only denied the service of the notice and has not set up invalidity of the notice as a defence.

12. It has been settled in D.N. Mushi v. Gayatri Devi, 1961 ALJ 353, that the Courts can legitimately draw an inference that a notice purported to have been given by an Advocate on behalf of a party was so given unless the contrary is pleaded and proved. Therefore, there is presumption of a valid notice unless contrary is pleaded and proved.

13. The pleadings demonstrate that the respondent No. 1 had not questioned the notice. He only disputed its service. Therefore, the giving of notice and its validity was accepted/admitted which required no evidence to prove it.

14. This apart the husband of the petitioner who has entered the witness box as PW1 clearly stated that the notice was got drafted by Abhay Kumar Bhartiya Advocate. It was signed by him in his presence. The carbon copy of said notice is paper No. 7C. His wife ie the petitioner has accompanied him to the office of the Advocate for getting the notice dated 22.1.01 prepared and drafted. His wife instea