The validity of the notice determining tenancy and its service is crucial in determining the outcome of a suit for eviction and arrears of rent.

Pankaj Mithal, J. –

Heard Sri P.K. Sinha, learned counsel for the defendant revisionist and Sri B.N. Rai, learned counsel for the plaintiff respondent.

2. The plaintiff respondent is the owner and landlord of house No.111/395, Ashok Nagar, Kanpur Nagar wherein defendant revisionist is said to be a tenant.

3. The plaintiff respondent filed S.C.C. Suit No.23 of 2009 for arrears of rent and eviction of the defendant revisionist from the aforesaid house. The suit has been decreed by the judgement and order dated 21.08.2015 passed by the Additional District Judge exercising powers of the Small Causes Court.

4. The defendant revisionist aggrieved by the aforesaid judgement and order of the court below has preferred this revision under Section 25 of the Provincial Small Causes Court Act, 1887.

5. One of the arguments of Sri P.K. Sinha, learned counsel for the defendant revisionist is that the suit for eviction could not have been decreed without a valid notice determining the tenancy and its service. Secondly, there is no evidence to establish the rate of rent and only on the basis of the sale deed alleged to have been executed in favour of plaintiff respondent by none-else then his wife as power of attorney holder of the previous owner that the court below has determined the rate of the rent.

6. The basic question which arises for consideration is the validity of the notice determining tenancy and its services in the absence of which the suit could not have decreed.

7. The tenancy of the defendant revisionist is said to have been determined vide notice dated 02.01.2009 which was brought on record. The trial court while deciding the issues No. 3 and 4 regarding the validity of the notice and if the defendant revisionist is liable to be evicted on its basis has recorded a finding that since the notice dated 02.01.2009 (Paper No.7Ga) has been filed in evidence it clearly shows that the tenancy of the defendant revisionist has been determined.

8. In the later part of the finding, the court below poses a question as to whether the notice was served upon the defendant revisionist but solely on the reasoning that the copy of the notice is on record held that the tenancy has been determined without recording any specific finding with regard to the service of the notice.

9. In view of above, there is no finding by the court below regarding the service of notice dated 02.01.2009 upon the defendant revisionist.

10. Sri B.N. Rai, learned counsel appearing for the plaintiff respondent has pointed out that the notice dated 02.01.2009 was sent to the defendant revisionist by registered post and it was served upon him on 04.01.2009. The copy of the notice, its dispatched receipt dated 03.01.2009 and acknowledgement (Paper No. 9 Ga) were filed in evidence and therefore, it is clear that the notice determining tenancy was duly served upon the defendant revisionist.

11. It is true that the plaintiff respondent pleaded issuance of the aforesaid notice and its service but the service was denied by the defendant revisionist in the written statement. The mere filing of the copy of the notice, its receipt of dispatched and acknowledgement is not sufficient to prove that the notice was served upon the defendant revisionist.

12. The court below has not recorded any finding regarding the service of notice. The tenancy will not stand determined unless the notice determining tenancy is reported to be served upon the tenant.

13. In the absence of any finding in this regard the court below committed jurisdictional error in decreeing the suit by holding that the tenancy of the defendant revisionist stood determined by the said notice.

14. In view of the aforesaid facts and circumstances, the impugned order dated 21.08.2015 is hereby set aside and the matter is remanded to the court below for decision afresh in the light of the entire evidence on record. It is expected that the court below will proceed and decide the matter expeditiously if possible within a period of t