Jagdish Chandra Gupta, J. - (1.) THIS is tenant's writ petition for quashing the judgment and orders dated 29.1.1986 and 25.1.1985 passed by respondent Nos. 1 and 2 respectively. A suit for rent and ejectment was filed against the petitioners on the ground of default in payment of rent after serving notice on 28.6.1976 which was duly served upon Jhataku petitioner No. 2, who alone contested the suit. Second notice was sent on 17.8.76 to all the defendants which was served upon them by refusal. Rent was claimed from 1.12.1966 to 15.7.1972 at the rate of Rs. 3/ - per month and from 16.7.72 upto the date of expiry of notice period at the rate of Rs. 3.75 per month. The suit was contested by Jhataku, petitioner No. 2 on the ground that no rent was due. The trial court decreed the suit holding that the defendants were in arrears of rent and they committed default in payment thereof. It also came to the conclusion that the defendants were not entitled to the benefit of Section 20(4) of the U.P. Act No. XIII of 1972, hereinafter referred to as the 'Act' as the requisite deposit was not made on the date of first hearing. In the revision filed against the decree of the trial court, the revisional court modified the decree only to the extent that suit for arrears of rent was decreed only for a sum of Rs. 135/ - and for mesne profits at the rate of Rs. 3.75 per month and the decree for eviction was upheld.
(2.) BEFORE this Court Dr. R.G. Padia learned counsel for the petitioners attacked the impugned judgments only on two grounds firstly, that it has not been proved that notice had been duly served upon all the petitioners, and secondly, that the notice in question was invalid. From the side of the respondents it was however pointed out by the learned counsel that none of the aforesaid grounds were raised either before the trial court or the revisional court. He pointed out that only a vague allegation was made in the written statement that notice sent by the landlord was wrong. It's service was neither disputed in the pleadings nor any evidence was adduced in that behalf. Dr. R.G. Padia argued that service of a valid notice under Section 106 of the Transfer of Property Act (to be referred to as the 'T.P. Act') and a notice under Section 20(2)(a) of the Act are conditions precedent to the institution of suit for eviction on the ground of default in payment of rent. Since in the judgment impugned no finding has been recorded with regard to the service of such notices, the impugned decree is not sustainable in law. In support of his argument reliance was placed on the case of Samiullah v. 1st Addl. District Judge Ballia and others, 1984 ARC 70, wherein it was held that no decree for ejectment can be passed without recording a finding that a notice of demand as contemplated by Section 20(2)(a) of the Act had been served on the tenant and that within one month from the date of its receipt he failed to pay the arrears of rent and further that the (tenancy was duly determined by a valid notice under Section 106 of T.P. Act. It is noteworthy that in that case the defence of the defendants had been struck off by the order of the court and it was in this context that the learned Judge who decided the aforesaid case, took the aforesaid view. The facts of the present case are however different. Here the petitioners contested the suit, filed their written statement and also adduced evidence. Neither in the pleadings nor in the evidence there was any denial with regard to the service of notice. On the other hand Jhataku, petitioner No. 2 admitted the receipt of notice. It is also noteworthy that no such point was raised even in the grounds of revision filed against the decree of the trial court. I thus follows that the fact of service of notice was not challenged before the courts below. Even in the present writ petition, no ground challenging the service of notice has been taken specifically. It may be relevant to mention here that while dealing with the issue regarding the tenant's allegation of payment of rent, the trial court found specifically that the allegation of the defendant that he had paid two months rent to Shiv Nath after service of notice upon him was totally false. It therefore, cannot be said that the trial court did not apply its mind whether or not notice had been served upon the tenant -petitioners. Accordingly petitioners cannot be permitted to raise the aforesaid point for the first time in this writ petition. At any rate it is not disputed that notice was served upon petitioner No. 2, one of the joint tenants and in law service on one of the joint tenant is sufficient to bind other joint tenants.
(3.) THE main thrust of the argument of the learned counsel for the petitioners is that the notice in question is bad in law in as much as it is not in conformity with the requirement of Section 106 of T.P. Act. It was submitted that the notice in question terminated the tenancy of the petitioners in presenti and therefore, the same was wholly illegal and invalid and could not be made the basis of suit for ejectment. According to the learned counsel for the petitioners, the notice in question simply called upon the petitioners to pay entire arrears of rent within a period of one month from the date of receipt of notice and to vacate the accommodation in question within the said period and it did not indicate that the tenancy of the petitioner was to determine on the expiry of thirty days period. Learned counsel for the petitioners placed reliance upon a number of decisions which may be referred to hereunder.;