N. D. Ojha, J. - (1.) THE petitioner is the landlord of an accommodation of which respondents 2 to 8 were the tenants. A suit was instituted by the petitioner against respondents 2 to 8 for their ejectment from the accommodation in question and for recovery of arrears of rent etc. on the ground inter alia that the said respondents had made material alteration in the accommodation let out to them and that their tenancy had been duly determined by serving a notice upon them under section 106 of the Transfer of Property Act. THE suit was contested by the tenant-respondents but was decreed by the Judge, Small Causes. It was held that the tenant-respondents had material alterations in the accommodation in question. In regard to the notice under section 106 of the Transfer of Property Act the Judge, Small Causes found that the receipt of that notice was admitted to the tenant respondents and they had failed to substantiate their plea that the said notice was invalid.
(2.) AGGRIEVED by the decree passed by the Judge, Small Causes the tenant-respondents preferred a revision before the District Judge under section 25 of the Provincial Small Cause Courts Act. This revision was allowed by the IVth Additional District Judge, Etah on 5th December, 1974. A copy of this order has been filed as Annexure-4 to the writ petition and its perusal indicates that the only point that was canvassed by the counsel for the tenant respondents before the Additional District Judge was that the petitioner had not proved that a valid notice under section 106 of the Transfer of Property Act had been served on the tenant-respondents. This plea found favour with the Additional District Judge and it is on this basis that the revision was allowed. The present writ petition has been filed with a prayer to quash the order dated 5th December, 1974 passed by the IVth Additional District Judge, respondent no. 1. It has been urged by counsel for the petitioner that the receipt of the notice under section 106 of the Transfer of Property Act having been admitted by the tenant respondents the burden of establishing the plea raised by them in their written statement that the said notice was invalid lay on them and they having failed to show anything indicating that the said notice was invalid the Judge, Small Causes was right in holding that a valid notice under section 106 of the Transfer of Property Act had been served by the petitioner on the tenant respondents and that the Additional District Judge committed a manifest error of law in taking a contrary view. Having heard counsel for the parties I am of opinion that there is substance in this submission. A copy of the plaint has been filed as Annexure-1 to the writ petition and that of the written statement of the tenant-respondents as annexure-2 thereof. In paragraph 5 of the plaint it was specifically asserted that a 30 days notice terminating the tanancy of the tenant respondents under section 106 of the Transfer of Property Act was served on them. The reply to paragraph 5 of the plaint in the written statement was that the receipt of the notice was admitted and so was admitted giving reply to that notice. Nowhere in the written statement any averment has been brought to my notice specifically denying this fact that the notice which was served on the tenant-respondents was a 30 days notice. A general allegation in paragraph 6 of the written statement was no doubt made that the notice which had been given by the petitioner was invalid and illegal. What was the invalidity or the illegality in the notice was not pleaded. It is true that neither the tenant respondents filed the original notice which was admittedly served on them nor did the petitioner filed a copy thereof or summon the original notice from the tenant respondents, but in my opinion this was of no consequence on the facts of the instant case. Rule 4 of Order 8 Code of Civil Procedure inter alia provides that where a defendant denies allegation of fact in the plaint he must not do so evasively but answer the point of substance. While dealing with the provisions of Rule 5 of Order 8 CPC a Division Bench of this Court in Misri Lal v. Bhagwati Prasad, 1955 ALJ 741 held that if the allegations of fact made in the plaint have not been specifically denied they should be deemed to have been admitted. As seen above the specific assertion in paragraph 5 of the plaint that the notice under section 106 of the Transfer of Property Act served on the tenant respondents was a 30 days notice has nowhere been specifically denied in the written statement. The general allegation in paragraph 6 of the plaint mentioned above was in this view of the matter hardly of any consequence. Section 106 of the Transfer of Property Act as amended by the State of Uttar Pradesh by U. P. Act 24 of 1954 provides that a lease of immovable property for any purpose other than for agricultural or manufacturing purposes shall be terminable by 30 days notice on the part of either the lessor or the lessee and that every notice under the said section must be in writing signed by or on behalf of the person giving it and tendered to the tenant in the manner specified therein. The notice under section 106 in the instant case was admittedly in writing and had been given by the petitioner and was a 30 days notice as asserted in paragraph 5 of the plaint which assertion, as already seen above, was not denied in the written statement. In this view of the matter it was clear that the petitioner had succeeded in establishing that a notice as required by section 106 of the Transfer of Property Act had been served on the tenant respondents. If it was the case of the tenant respondents that the said notice was in any way illegal or invalid it was for them to plead and prove the nature of the illegality or invalidity. This, as held by the Judge, Small Causes, they failed to do.
(3.) IN Mani Kant Tiwari v. Babu Ram Dixit, AIR 1978 All. 144 it was held that where the tenant admitted receipt of notice of termination of tenancy but alleged that the notice was bad in law, the burden lay on the tenant to prove the invalidity of the notice and it was for him to have filed the original notice which he had received to substantiate his point that the notice was bad in law. IN Hiralal v. Badkulal, AIR 1953 SC 225 it was held that a party who is in possession of relevant documents should produce them before the Court and he cannot be heard to say relying on the abstract doctrine of onus of proof that it was no part of his duty to produce them unless he was called upon to do so. In view of the foregoing discussion, I am of opinion that the finding recorded by the Judge, Small Causes that a valid notice under section 106 of the Transfer of Property Act had been served on the tenant respondents was a correct finding and the Additional District Judge commited a manifest error of law in taking a contrary view in the impugned order.;