9911796707
TMI Blog1981 (3) TMI 264X X X X Extracts X X X X X X X X Extracts X X X X ..... issued a notice terminating the tenancy calling upon the petitioner to quit and deliver vacant possession of the portion under his occupation, but since the Petitioner did not do so the respondent initiated proceeding for an order of eviction against the petitioner as aforesaid, 2. That application was resisted by the Petitioner herein on the ground that the respondent owed a sum of ₹ 11,200/- as on 27-2-1977 to the petitioner and his wife on two promissory notes of ₹ 5600/- each and that at the time of the execution of the promissory notes, it was agreed that out of the interest payable in respect of the promissory note in favour of the petitioner's wife, the monthly rental of ₹ 60/- and the actual electricity charges payable for every month should be adjusted and the respondent should pay the petitioner and his wife the balance of interest due under the said promissory note and the entire interest in respect of the promissory note in favour of the petitioner. The further case of the Petitioner was that every month, letters. had been written by his wife under certificate of posting about the adjustment of rent and electricity charges as well as the balanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... el for the petitioner is that the execution of the two promissory notes by the respondent, one in favour of the wife of the petitioner and another in favour of the petitioner, and the adjustment of the interest thereon by the respondent towards rent and electricity charges payable by the petitioner not having been disputed till the end of February, 1977, the same agreement continued to remain in force as before even for the -period between March, 1977 to March 1978. And therefore, there is no question of any willful default as such in the payment of rent by the petitioner. On the other hand, the learned counsel for the respondent would strenuously contend that the petitioner has failed to establish the agreement with reference to the adjustment of the interest payable by the respondent to the petitioner and his wife and therefore, there being no other explanation for the non-payment of the rent for the period in question, the default in such non-payment should be considered only as wilful and therefore, eviction was rightly ordered 5. That there was such an agreement between the petitioner, his wife and the respondent at least upto the end of February, 1977, has been more than e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R. 3 is a notice dated 13-7-1977 the receipt of which has been accepted by the respondent herein in the course of his evidence. In paragraph 4 thereof, the petitioner, while denying the commission of wilful default in the payment of rents from March, 1977 to May, 1977, has also referred to the agreement for the adjustment of the rents as well as electricity charges from out of the amounts payable by way of interest by the respondent to the wife of the petitioner. P. W. I has admitted the receipt of Ex. R. 3; but he would add that lie did not demur to the same. In addition the petitioner's wife has also written letters Ex. R. 8 dated 7-12-1977, Ex. R. 4 dated 6-2-1978, Ex. R. 6 dated 17-3-1978 Ex. R. 10 dated 3-5-1978 and Ex. R. 12 dated 12-7-1978 under certificates of posting Ex. R. 9, R. 5, R. 7, R. 11 and R. 13. In Ex. R. 8. the wife of the petitioner has claimed a sum of ₹ 5,600/- towards principal and ₹ 359-80, towards accrued interest after adjustment of the rent, water charges as well as electricity charges for the months of October and November, 1977. In Ex. R. 4, dated 6-2-1978, the wife of the petitioner rejects to the writing of Ex. R. 8, dated 742-1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laiming the balance of the interest as well as principal sum of ₹ 5600/-. The respondent would conveniently state that none of these letters had been received by him and therefore the contents of the letters cannot be relied upon to prove the agreement setup by the petitioner. As stated earlier, all these letters had been sent under certificates of posting. Under S. 114(f) of the Indian Evidence Act, the Court may presume that the common course of business has been followed in particular cases and that letters containing the correct address of the respondent posted should have normally reached him. It is significant I that the respondent has not questioned - the correctness of the address. given in all these letters and the certificates of posting. Under these circumstances, the petitioner can invoke the Presumption that letters which has been Proved to have been posted and posted to the right, address have, in fact , been received by the addressee. In Aburubammal v. Official Assignee, Madras ILR 47 Mad 215: 45 MLJ 817: AIR 1924 Mad 214 a Division Bench consisting of Schewab C. J. and Krishnan J. laid the principle in such cases in the following terms: - The evidence i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ption is rebutted by cogent proof and that the contents of the certificates must be presumed to be true, unless they were proved to be false, and therefore the letters duly established to have been posted according to the tenor of certificates must be presumed to have been received by the addressee. It as also been further pointed out there in that though the recipient might have denied the receipt of the letters, yet such a denial is insufficient to rebut the presumption, particularly in the light of all other facts as well as the conduct of the parties. In the present case, the respondent has no doubt stated that he did not receive the letters sent by the wife of the petitioner to him. But the respondent certainly cannot be expected to admit the receipt of these letters as such an admission would be against his interest and naturally, therefore, he denies the receipt of these letters. The conduct of the respondent in having accepted the existence of the agreement up to 1977 and his total inaction on receipt of Ex, R. 3, where the adjustment of the rent and the electricity charges from out of the interest payable by the respondent has also been set out. Clearly establish that t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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