S.U.KHAN,J. - (1.) THIS is tenant's writ petition arising out of SCC Suit No. 135 of 1980 on the file of JSCC, Muzaffarnagar filed by landlady respondent No. 3 Smt. Anwari against tenant petitioner Nisar. JSCC Muzaffarnagar on 21 -1 -1985 decreed the suit for eviction and recovery of arrears of rent and damages for use and occupation pendentelite and future. However, the trial Court decided the question of rate of rent in favour of the tenant. Landlady had asserted that the rate of rent was Rs. 75/ - per month while tenant asserted that it was only Rs. 5/ - per month. Against judgment and decree passed by the trial Court two revisions were filed one by the tenant petitioner being SCC revision No. 15 of 1985 and the other by landlady respondent No. 3 being SCC Revision No. 70 of 1985. In the revision filed by landlady grievance was made against that finding of the trial Court through which instead of Rs. 75/ - per month rent had been determined to be Rs. 5/ - per month. Revisional Court/Vth ADJ Muzaffarnagar on 14 -1 -1988 dismissed both the revisions. This writ petition has been filed by the tenant against the aforesaid judgments, decree and order.
(2.) THE first argument placed by leaned Counsel for the petitioner is that notice of termination of the tenancy was not valid. On 4 - 7 -2005 as well as 25 -7 -2005, learned Counsel for the petitioner was directed to file copy of the notice. However, learned Counsel for the petitioner states that his client could not get copy of the notice. Learned Court for the petitioner has argued that ground No. 1 and 2 of the writ petition relate to invalidity of the notice and as no counter -affidavit has been filed hence said ground must be taken to be correct. Firstly it is only a question of fact which under certain circumstances can be taken to be correct in the absence of denial through counter -affidavit and not question of law. Whether notice is valid or not can be decided only after perusing the notice. The party which asserts in validity of the notice is duty bound to file copy of the notice. Validity of the notice cannot been decided on the basis of allegation in writ petition. Secondly counter -affidavit, in the writ petition is filed rebutting or admittedly points of fact stated in the writ petition and no denial or admission is ever made in respect of ground of writ petition in the counter -affidavit. It is also important to note that the trial Court framed five issues none of which related to validity of the notice meaning thereby that this question was not raised before the Courts below.
(3.) THE next argument of learned Counsel for the petitioner is that landlady did not examine herself, hence allegation of petitioner that he had paid rent till July 1981 shall be taken to be correct. There is no requirement of law that plaintiff landlord or landlady shall necessarily examine himself or herself to prove his or her case. (vide AIR 1999 SC 3089, Ram Kubai v. H.D. Chandak). Both the Courts below recorded a finding of fact that rent had not been paid since August, 1979. There is no such error in the said finding which can warrant interference in exercise of writ jurisdiction.;