Hon’ble Surya Prakash Kesarwani, J.—Heard Sri Anil Tiwari, learned counsel for the defendant-revisionist and Sri Rahul Jain, holding brief of Sri Kunal Ravi Singh, learned counsel for the plaintiffs-respondents.

2. This revision under Section 25 of the Provincial Small Cause Courts Act, 1887, has been filed praying to set aside the judgment and decree dated 31.8.2016, in SCC Case No. 19 of 2008 (O.P. Shah and another v. Alok Kumar Kaushik), passed by the Special Judge (E.C. Act)/Additional District Judge, Ghaziabad.

Facts

3. Undisputedly, the plaintiffs-respondents are the owner and landlord of the House No. 2/416, Chiranjeev Vihar, Ghaziabad, in which the defendant-revisionist was inducted as tenant w.e.f. 10.10.2004. According to the defendant-revisionist, the tenancy was orally made for a period of eight years on a monthly rent of Rs. 2500/- for one year and thereafter Rs. 2600/- per month. According to the plaintiffs-respondents, the tenancy was only for ten months. It was alleged by the plaintiffs-respondents that the defendant-revisionist has a residential plot in the vicinity of the disputed house and he took the disputed house on rent on the undertaking that he shall get his house constructed over his plot and shall vacate the disputed house within ten months. On the allegation that despite service of notice, the house, was not vacated and the defendant-revisionist defaulted in payment of rent, a SCC case No. 19 of 2008 (O.P. Shah and another v. Alok Kumar Kaushik) was filed by the plaintiffs-respondents on 27.5.2008. The defendant-revisionist filed the written statement. Parties led their evidences and thereafter the aforesaid SCC case was decided on merit by the impugned judgment dated 31.8.2016 whereby the defendant-revisionist has been directed to vacate the disputed house within two months and to handover its vacant and peaceful possession to the plaintiffs-respondents and also to pay arrears of rent amounting to Rs. 54000/-.

4. Aggrieved with this judgment, the defendant-revisionist has filed the present revision.

Submissions:

5. Sri Anil Tiwari, learned counsel for the defendant-revisionist submits as under:

(i) In the notice dated 2.11.2007, the plaintiffs-respondents have alleged receipt of rent from the defendant-revisionist only for 18 months out of 42 months since October 2004, whereas in the second notice dated 6.2.2008 they alleged receipt of rent for 21 months out of 36 months, and, claimed the arrears till January 2008 to be Rs. 54,600/- while in the plaint he alleged the arrears to be of 21 months. Thus, the plaintiffs-respondents himself was not certain about the alleged period of arrears of rent.

(ii) The plaintiffs-respondents have admitted the payment of arrears of rent in cash for the month of January, February, and March 2008 and also admitted payment of rent through a money order for the period of 10.4.2010 to 10.5.2010. Thus, the receipt of rent in cash and even the receipt of rent subsequent to the notice or filing of the suit has been admitted by the plaintiffs-respondents and, therefore, the continuation of tenancy cannot be questioned as the notice to quit stood waived.

(iii) The determination of rent in the impugned judgment @ Rs. 2600/- per month and arrears accordingly, is perverse inasmuch as the defendant-revisionist has proved the fact that for one year the rent was Rs. 2500/- per month. This fact has been proved by paper No. 126 C i.e. the bank pass book which shows that for certain months payments of rent were made by Cheque of Rs. 2500/- each.

(iv) There was no valid service of notice inasmuch as according to their own case of the plaintiffs-respondents the first notice dated 2.11.2007 was returned unserved. The second notice dated 6.2.2008 sent by registered post was also returned unserved. The alleged acknowledgement filed by the plaintiffs-respondents was a manipulated paper which could not be proved by them. The service of notice dated 6.2.2008 by U.P.C. (Under Postal C