- (1.) S. U. Khan, J. This writ petition was earlier allowed and matter was re manded to the Revisional Court through judgment and order dated 8. 12. 2004. Thereafter, the said order was set aside on the rehearing application filed by the respondents as it had been passed without hearing any one on behalf of re spondents.
(2.) HEARD learned Counsel for the parties. This is landlord's writ petition. Petitioner filed S. C. C. Suit No. 4 of 1976 against tenant-respondent No. 3-Raghuvardayal Geda for eviction on the ground of bona fide need and for recovery of arrears of rent. In the point it was stated that rate of rent was Rs. 50/- per month and rent had not been paid since 1. 1. 1971 in spite of notice dated 4. 8. 1975. Recovery of rent for three years before filing of the suit was also sought, apart from eviction. Judge Small Cause Courts, Jhansi decreed the suit through judgment and decree dated 14. 7. 1979. However, tenant had asserted that rate of rent was Rs. 5/- per month and J. S. C. C. , accepted the case of the tenant in respect of rate of rent. Against judg ment and decree passed by the Trial Court tenant-respondent No. 3-Raghuvardayal Geda filed S. C. C. Revision No. 122 of 1979. IVth Additional District Judge, Jhansi allowed the revision in part through judgment and order dated 22. 9. 1984. Suit for eviction was dismissed. The said judgment of the Revisional Court has been challenged through this writ petition. Trial Court held that plaintiff was a private trust hence it was ex pected to keep records of receipt of rent. In this view of the matter the Trial Court held that the assertion of the plaintiff that receipt of rent was noted by the plaintiff-landlord on a note book maintained by the tenant was not believ able. Trial Court concluded that counter foils of rent receipts must be available with the landlord however, they were not filed for the reason that they must be showing the rate of rent as Rs. 5/- per month. The Trial Court merely on the basis of written statement and reply notice held that there was variation in the two documents hence tenant must be assumed to have failed to prove that he had paid the rent. Annexure C. A. 1 to the supplementary counter-affidavit dated 27. 7. 2008 is copy of notice dated 4. 8. 1975. In the said notice it was men tioned that rent was due from 1. 1. 1971 to 31. 7. 1975. Written statement is Annexure-C. A. 2 to the same supplementary-counter-affidavit. In Para 8 of the written statement month was not mentioned. It was mentioned that when de fendant received notice of the plaintiff, defendant had paid the rent till 31.- 1975. Annexure C. A.-3 to the supplementary-counter-affidavit is oral state ment of the tenant in which he stated that at the time of receiving notice rent till 31. 7. 1975 had been paid. In the reply notice also tenant mentioned that he had paid the rent till 31. 7. 1975.
(3.) IT is mentioned in the judgment of the Trial Court that as in the written statement (Para 8) month was not mentioned hence tenant was defaulter. In the written statement it had further been stated that at the time of service of no tice rent for only one month i. e. , August, 1975 was due. Trial Court held that as notice was served on 6. 8. 1975 hence rent of August could not be due by that time. In my opinion Trial Court was not right in deciding question of default merely on the basis of written statement and reply notice. Omission of number of the month in Para 8 of the written statement can be described as merely an in advertent omission. The assertion in the written statement that at the time of service of notice only one month rent i. e. , of August, 1975 was due cannot be read against the tenant. Tenant received the notice in August, 1975. Even if rent of August, 1975 was payable in September, 1975 still the assertion in the written statement that rent for August, 1975 was due would not make any difference. More often the arrangement between landlord and tenant is to pay rent one month in advance. Lower Revisional Court held that plaintiff bitterly failed to establish that at the time of notice four months rent was due. However, Revisional Court did not say a single word regarding evidence of the parties in respect of payment of rent. The matter therefore, requires remand.;