A person who is blind can be represented by a next friend in legal proceedings, and a full-fledged inquiry into the plaintiff's incapacity is not required.

Devendra Kumar Upadhyaya, J.

1. Heard Sri Arun Saxena, learned counsel for the revision applicant and Sri Aslam Khan, learned counsel for the opposite party.

2. This revision petition has been filed under Section 25 of the Provincial Small Causes Courts Act challenging the judgment and order dated 25.09.2013 whereby SCC Suit preferred by the opposite party for eviction, recovery of rent and damages for use and occupation of the shop in question has been decreed.

3. The opposite party filed a suit for recovery of rent, eviction and payment of damages for use and occupation of shop no. 9, situate in Nagar Palika market, old Galla Mandi, city of Lakhimpur which is bounded on the east by shop of Nagar Palika, on the west by a lane, on the north by shops of Nagar Palika and on the south by a road. The suit was filed with the plaint allegations that the revision applicant-defendant has not made payment of rent of the shop from the month of January, 2008 till August, 2008 and accordingly, a notice on 06.09.2008 was sent to him demanding the rent, however, even after receipt of notice, the defendant did not make the payment of rent and since the notice period expired on 07.10.2008, the tenancy stood terminated and since then occupation of the shop in question is unlawful and hence, the plaintiff is entitled to be paid the amount not only of the rent which is due but also the damages for illegal use and occupation of the shop in question and further he is also entitled to get the defendant evicted.

4. A written statement was filed by the defendant stating therein that the plaintiff did not have right to sue through his guardian and hence, since the suit has been filed by the unauthorized person, as such it is not maintainable. It was also stated that the plaintiff is not the owner of shop in question, hence, he cannot institute the suit in his capacity as landlord and further that the plaintiff, who is not allottee of the shop, does not have right to institute the suit. It was further stated that the shop in question is in the ownership of the Nagar Palika Parishad, Lakhimpur and further that the plaintiff did not do any business in the shop and also that the plaintiff is blind . The defendant also stated in the written statement that the plaintiff has been living in Kanpur along with his father and still lives there. It was also stated that by an oral agreement it was agreed between the parties that the defendant shall pay a sum of Rs. 1,50,000/- as consideration and in lieu thereof the shop in question will be got transferred in favour of the defendant. It was also stated that the occupation of the defendant is as per the said oral agreement.

5. On the basis of pleadings submitted by the parties, learned trial court framed four issues, namely, (1) as to whether the defendant had defaulted in making the payment of rent, (2) as to whether the provisions of U.P. Act No. 13 of 1972 are applicable on the shop in question, if yes, as to whether the defendant is entitled to seek the benefit of provisions of Section 20(4) of the said Act, (3) as to whether the notice given by the plaintiff to the defendant is unlawful and hence, the same did not terminate the tenancy and (4) as to what relief the plaintiff is entitled to.

6. Discussing the evidence led by the parties, an unambiguous finding has been recorded by the learned trial court to the effect that the evidence on record shows that the defendant has not paid any amount to the plaintiff since January, 2008 and further that there was no agreement between the parties for transferring the shop in question for a consideration of Rs. 1,50,000/-. The court below, thus, decided the issue no. 1 and held that the defendant had defaulted in making the payment of rent. As regards the issue no. 2, a finding by the court below has been recorded that since the shop is newly constructed, the provisions of U.P. Act No. 13 of 1972 are applicable, thus, the benefit of provision of Section 20(4) of U.P.