Vishnu Chandra Gupta,J.
Heard Shri R.C.Sigh, learned counsel for the tenant- revisionist and Shri Ramesh Singh, learned counsel for the land lord-respondent.
2. Short question for consideration before this Court in this case whether without recording finding of service of notice under section 106 of Transfer of Property Act (Hereinafter referred to as the Act) the tenancy of tenant can be determined and the suit can be decreed for ejectment of tenant?
3. By means of the present civil revision the revisionist has sought relief for setting aside the judgment and decree dated 29.02.2012 passed by the Judge, Small Cause Court/Additional District Judge, Court No. 1 Saharanpur in Small Cause Suit No. 3 of 2007 on the ground that trial court has neither framed the points for determination nor recorded any finding as to whether notice under section 106 of the Act given by the plaintiff-respondent was served upon defendant revisionist.
4. The relevant facts for deciding this revision are that respondent Raees Ahmad being the land lord filed aforesaid suit for ejectment, recovery of rent and damages for use and occupation of the premises in question (shop) in the court of Judge, Small Causes Court, Saharanpur. The suit was contested by the tenant-revisionist Tahir Hasan. Tenant revisionist absented when the suit was listed for final hearing after recording evidence of parties.
5. It is not in dispute that evidences of both the parties were recorded during the course of proceedings pending in the trial court. After hearing the plaintiff alone the suit was decided ex parte on the basis of evidence available on record. The suit was decreed as prayed by the plaintiff for ejectment, recovery of rent and damages for use and occupation.
6. Admittedly, the rate of rent of the shop in question is not in dispute. The trial court has decided that provisions of Uttar pradesh Urban Building (Regulation of Letting, Rent and Eviction) Act,1972 (Herein after referred to as "Act No. 13 of 1972") are not applicable as the shop in question was newly constructed in the year 1996. The tenant defendant committed default in making payment of rent. Consequently the suit is liable to be decreed. However, while decreeing the suit no finding has been recorded regarding sufficiency of service of notice terminating the tenancy of the tenant. Unless finding is recorded by the trial court regarding sufficiency of service of notice terminating the tenancy of tenant, the court cannot proceed to pass decree for ejectment.
7. It is not in dispute that parties have adduced their evidence and the same are already on record.
8. The tenant revisionist has not admitted the service of notice . Hence in absence of finding recorded by the trial court that tenancy has been validity determined by a valid notice under section 106 of the Act, the decree of ejectment/eviction cannot be allowed to sustain.
9. Hence in these circumstances, this Court has no option except to proceed to allow this revision remit the matter to trial court and issue direction to decide the matter within stipulated period fixed by this Court.
10. In view of the above, the judgment and decree dated 29.02.2012 passed by the Judge, Small Cause Court/Additional District Judge, Court No. 1 Saharanpur in small Cause Suit No. 3 of 2007 is set aside.
11. Accordingly the revision is allowed. The matter is sent back to the court below with direction to decide the case on the basis of evidence already adduced by the parties within a period of three months from the date of production of certified copy of this order.
12. The parties are directed to appear before the court below on 9.12.2013.
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