IMPORTANT POINT
Notice to quit must be construed broadly not with desire to find fault with it, which would render it defective, but it must be construed ut res magis valiat quam pereat, in manner that it may rather become operative than null.

D. Dash, J.—This appeal has been filed challenging the judgment and decree passed by the learned Addl. District Judge, Champua in RFA No. 15/53 of 2011-2009 allowing the appeal in part and also the counter claim in part and directing the appellant to vacate the tenanted premises within a year of passing of the decree with payment of arrear house rent till the date of disposal of the appeal in four equal quarterly instalments within that period.

2. For the sake of convenience, in order to bring clarity and avoid confusion, the parties hereinafter have been referred to as they have been arrayed in the court below.

3. The present appellant as the plaintiff filed the suit i.e. C.S. No. 44 of 2004 in the court of learned Civil judge (Sr.Divn.), Champua praying for issuance of permanent injunction against the defendantrespondent restraining him from disturbing in his possession in respect of the suit house and from evicting him without following due process of law.

The plaintiff admitted his status as a tenant under the original house owner one Debendra Prasad Pandiya. It is stated that after purchase of the house by the defendant, he continued to remain as such under the defendant so far as the tenanted premises is concerned. The original rent which was being paid to the erstwhile owner and with whom he had an agreement, was increased and the plaintiff has been paying rent to the defendant every month. In the month of April, 2004 when the rent offered by the plaintiff was not accepted by the defendant, he had sent it by money order which was accepted. Again the same got repeated and lastly the rent for the month of June and July was not accepted by the defendant even though sent by money order. It is further stated that there was an attempt to evict the plaintiff by force which was somehow thwarted. Therefore, the plaintiff had to approach the court with the suit claiming the relief as stated above.

The defendant-respondent filed the written statement admitting the relationship. It is stated in the written statement that on 2.10.2004 i.e. during pendency of the suit which was instituted on 30.8.2004, he had sent a notice to quit to the plaintiff terminating the tenancy and seeking vacant possession of the suit house with effect from 1.11.2004 and as the plaintiff did not vacate, in the said written statement filed by the defendant, he advanced a counter claim seeking relief of eviction of plaintiff from the suit house with prayer for realization of arrear house rent from June, 2004 onwards at the rate of Rs. 630/- per month till the end of October, 2004 and further claiming damage at the rate of Rs. 30/- per diem from the 1st day of November, 2004 till actual eviction.

The counter claim though was served upon the plaintiff, he preferred not to file any written statement.

4. The trial court dismissed the suit and decreed the counter claim directing the plaintiff to vacate the suit house and pay the arrear rent and damage.

5. The plaintiff being aggrieved by the said judgment and decree passed in the suit and counter claim preferred one appeal and sought for a decree to be passed in his suit praying further to dismiss the counter claim.

The lower appellate court so far as the principal relief in the suit and counter claim are concerned confirmed the judgment and decree passed by the trial court. However, those were modified so far as the claim of damage as advanced by the defendant.

6. The appeal has been admitted on the following substantial questions of law being certified to be answered:

“(i) Whether the lower appellate court is right in holding that the evidence on record is insufficient to prove due service of notice under Section 106 of the T.P.Act and thereby taking a contrary view to what had been held by the trial court?

(ii) Whether the lower appellate court having concluded that the evidence being insufficient to prove due service of notice under Section 106 of the T.P. Act is right in holding that the averment in the writt