Vivek Chaudhary, J. - Heard learned counsels for parties.
2. This is a SCC Revision filed by the tenant against the order dated 19.08.1992 passed by Vllth Additional District Judge, Lucknow in SCC Suit No.22 of 1976; Rajendra Prasad Rastogi vs. Hazi Mohd. Ismail and Others, whereby the Additional District Judge has directed for eviction of tenant.
3. First submission raised by the counsel for revisionist-tenant is that no notice was served upon the tenant under section 106 of the Transfer of Property Act, and in absence of service of such a notice, the suit itself was not maintainable. Learned counsel for revisionist has drawn attention of the Court to the finding given on issue no.6 by the Trial Court. The Trial Court has found that there were number of notices sent to the revisionist-tenant. First dated 12.05.1971, demanding rent from 05.01.1970 to 04.05.1971, was duly served. Another notice dated 05.02.1974, demanding rent from 05.11.1972 to 05.02.1974 and another notice dated 15.04.1974 was also sent demanding rent and terminating tenancy again.
4. So far as the first notice dated 12.05.1971 is concerned, there is no dispute that since later other notices were sent demanding rent as well as terminating the tenancy, the landlord had waived the said notice. So far as the notice dated 05.02.1974 is concerned, it is admitted that the same could not be served on the tenant, as it was returned with noting that tenant was out of station and it was not known as to when she would be returning. The same was found not to be sufficient service of notice. So far as the third notice dated 15.04.1974 is concerned, it was sent through three modes i.e. by registered post, certificate of posting and by telegram. There is nothing on record to prove the service of the said notices. Neither there is any signature on the Registered A.D of the tenant, nor there is any other document to show that notice sent by the registered post was served upon the tenant. Similarly with regard to the notice sent under certificate of posting there is no document filed to prove the service of the said notice also. Even the postman was not produced to prove the service of any of the said notices. So far as the third notice sent by the telegram is concerned, the said telegram contains only one line "Take notice and pay all rent arrears upto date in one week failing filing suit." The said notice is only a notice demanding rent within one week and indicating consequences of filing a suit. The same does not terminate the tenancy as per provisions of section 106 of Transfer of Property Act and, therefore, same cannot be said to be a notice sent under section 106 of the Transfer of Property Act.
5. Therefore, none of the notices is proved to be sent upon the tenant. The Court below, despite the said fact, has given a finding that the notice dated 12.05.1971 was duly served and, thus, has held that since the tenant was aware of the dispute and was aware that the case would be filed, therefore, the service should be deemed to be sufficient.
6. The said finding of the Court below is illegal inasmuch as the notice dated 12.05.1971 was waived by the landlord himself by sending repeated notices thereafter. Therefore, the service of notice dated 12.05.1971 lost its relevance and could not be relied upon by the Court below for decreeing the suit for eviction.
7. In view thereof, since the notice under section 106 of the Transfer of Property Act was not duly served upon the tenant, the suit itself was not maintainable and was liable to be dismissed
8. Hence, impugned order dated 19.08.1992 passed in Suit No.22 of 1976 is set aside, the civil revision is allowed and the suit is dismissed.