9911796707
TMI Blog2019 (6) TMI 118X X X X Extracts X X X X X X X X Extracts X X X X ..... i H.N. Singh, learned Senior Counsel assisted by Sri Rishabh Srivastava, learned counsel appearing for the respondent. 2. The present revision has been filed with a prayer to set aside the order dated 13.11.2014 passed by the Additional District Judge, Court No.3/Judge Small Causes Court, Gorakhpur in SCC Suit No.14 of 2002 whereby the suit for eviction and arrears of rent has been decreed. 3. Briefly stated the facts of the case are that the plaintifflandlord filed SCC Suit No.14 of 2002 before the Judge, Small Causes Court, Gorakhpur on 31.05.2002 asserting that the defendant was a tenant in the shop in question. It was pleaded that the tenancy started from 01.03.2000 and was for eleven months only, and the rate of rent was agreed at ₹ 3000/per month excluding the amount due towards house tax and water tax, and the tenant had defaulted in payment of rent from March 2000 to January 2001, hence the landlord had served a notice dated 06.03.2002 demanding arrears of rent and also terminating tenancy which was served on the tenant on 08.03.2002, and upon expiry of the notice period of thirty days a suit for eviction and arrears of rent was filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecember 2000 as asserted by the tenant and not since 01.03.2000 which was the plaint case. 7. Learned Senior Counsel appearing for the respondentlandlord has very fairly submitted that he does not dispute the aforementioned findings which have been returned by the revisional court, and that the parties are ad idem in so far as the determination made by the trial court on issue nos.1, 2 and 5 is concerned. 8. On the point of default, the trial court has taken note of the fact that since it was the case of the tenant was that he had paid an advance of ₹ 1,00,000/at the time when the shop was being constructed which according to him was agreed between the parties to be adjusted from the rent on monthly basis, the burden to prove this fact was on the tenant. It has also been taken note of that there was neither any agreement in writing with regard to payment of the advance amount nor that the said advance would be adjusted on a monthly basis from the rent, and also there was no witness to the payment or to any agreement regarding adjustment of advance. The solitary evidence of the tenant (DW1) has not been held to be reliable, and the assertion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12. This argument was contested by the plaintifflandlord by submitting that the notice having been sent by registered post there was a presumption that it was served, and also that the burden was on the tenant addressee to prove that the acknowledgment receipt did not bear his signature. It was contended that mere denial is not sufficient to rebut the presumption. 13. The trial court following the judgment in the case of Ganga Ram Vs. Smt. Phulwati AIR 1970 ALL 446 (FB) for the proposition that mere denial was not sufficient to rebut the presumption of service of notice, has held that the notice demanding arrears of rent and terminating tenancy was proved to have been served upon the tenant. The notice terminating the tenancy having been held to be proved and the defendanttenant having been held to be in arrears of rent for more than four months for which he had defaulted, and also the fact that he did not tender the rent or make the deposit as required under Section 20(4) of the U.P. Act No.13 of 1972 the trial court has recorded a finding that the notice in question had legally terminated the tenancy. 14. On the issue of the relief whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nant having not been able to prove the assertion with regard to the advance amount having been paid and also not being able to prove that there was any agreement with regard to adjustment of the alleged advance amount from the monthly rent coupled with the fact that no rent receipt for the period of December 2000 upto the date of the notice terminating his tenancy having been filed by the defendanttenant nor any statement on oath having been made that the rent alongwith taxes were tendered by him to the landlord or was deposited under Section 20(4), the finding returned by the trial court that the tenant was in arrears of rent from December 2000 till the date of notice and that he had defaulted in making payment of rent cannot be said to be contrary to the evidence on record. 20. As regards the service of notice, the plaintifflandlord had filed the acknowledgment receipt bearing the signature of the tenant and the husband of the landlord (PW1) had appeared as witness and had proved the notice and also stated on oath that the notice was sent by registered post on the house and the shop address of the tenant. The notice sent on the house address was returned unserved ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such letter. If the acknowledgement due receipt contains the signatures of the addressee himself and the addressee as a witness states that he never received such letter and the acknowledgement due does not bear his signature and such statement of the addressee is believed then it would be a sufficient rebuttal of the presumption drawn against him. The burden would then shift on the plaintiff who wants to rely on such presumption to satisfy the court by leading oral or documentary evidence to prove the service of such letter on the addressee. This rebuttal by the defendant of the presumption drawn against him would of course depend on the veracity of his statement. The court in the facts and circumstances of a case may not consider such denial by the defendant as truthful and in that case such denial alone would not be sufficient. But if there is nothing to disbelieve the statement of the defendant then it would be sufficient rebuttal of the presumption of service of such letter or notice sent to him by registered post. 24. This Court, in the case of Brij Nandan Gupta Vs. III Additional District Judge, Rampur Anr. 2012 (3) ARC 468 placing reliance upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Illustration (f) thereunder, when it appears to the court that the common course of business renders it probable that a thing would happen, the court may draw presumption that the thing would have happened, unless there are circumstances in a particular case to show that the common course of business was not followed. Thus, Section 114 enables the court to presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business in their relation to the facts of the particular case. Consequently, the court can presume that the common course of business has been followed in particular cases. When applied to communications sent by post, Section 114 enables the court to presume that in the common course of natural events, the communication would have been delivered at the address of the addressee. But the presumption that is raised under Section 27 of the GC Act is a far stronger presumption. Further, while Section 114 of the Evidence Act refers to a general presumption, Section 27 refers to a specific presumption. For the sake of ready reference, Section 27 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt's refusal to accept it would imply his knowledge of its contents. The observations made in this regard are as follows: 7. Section 27 of the General Clauses Act, 1897 deals with the topic-- Meaning of service by post and says that where any Central Act or Regulation authorises or requires any document to be served by post, then unless a different intention appears, the service shall be deemed to be effected by properly addressing, prepaying and posting it by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post. The section thus raises a presumption of due service or proper service if the document sought to be served is sent by properly addressing, prepaying and posting by registered post to the addressee and such presumption is raised irrespective of whether any acknowledgment due is received from the addressee or not. It is obvious that when the section raises the presumption that the service shall be deemed to have been effected it means the addressee to whom the communication is sent must be taken to have known the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Section 114 of the Indian Evidence Act. 28. The burden to rebut the presumption of service of notice sent under registered cover, is on the the party who seeks to challenge the factum of service. In this regard reference may be held to the judgment in the case of Gujrat Electricity Board Anr. Vs. Atmaram Sungomal Poshani (1989) 2 SCC 602 : 8. There is presumption of service of a letter sent under registered cover, if the same is returned back with a postal endorsement that the addressee refused to accept the same. No doubt the presumption is rebuttable and it is open to the party concerned to place evidence before the court to rebut the presumption by showing that the address mentioned on the cover was incorrect or that the postal authorities never tendered the registered letter to him or that there was no occasion for him to refuse the same. The burden to rebut the presumption lies on the party, challenging the factum of service. In the instant case the respondent failed to discharge this burden as he failed to place material before the court to show that the endorsement made by the postal authorities was wrong and incorrect. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rong and incorrect. Mere denial made by the respondent in the circumstances of the case was not sufficient to rebut the presumption relating to service of the registered cover. 9. Bald denial of the petitioner could not absolve him from the burden of rebutting the presumption of service of notice arising from the endorsement by the postal authorities on the registered cover containing the notice. The courts below did not commit any error, muchless an error apparent on the face of record, in holding that the notice in question was duly served on the petitioner. 31. On the question of sufficiency of service of a notice to quit sent by registered post, this Court may refer to the judgment in the case of Harihar Banerji Vs. Ramsashi Roy AIR 1918 PC 102, wherein it was held that a notice to quit is to be construed not with a desire to find fault in it which would render it defective but should be construed ut res magis valeat quam pereat . It was also held that when a notice is sent by registered post properly addressed there was a strong presumption that the notice was properly delivered in the usual course. The observations made in the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spute with regard to the claim made by the revisionisttenant, and the decree of the trial court in so far as it imposes the liability for payment of house tax and water tax, may accordingly be modified. 35. No other argument was raised by the learned counsel for the revisionist. 36. The scope of revisional jurisdiction under Section 25 of the Provincial Small Cause Courts Act, 1887 (in short 'the Act, 1887') fell for consideration in a recent judgment of the Supreme Court in the case of Trilok Singh Chauhan V. Ram Lal Ors. (2018) 2 SCC 566 , wherein referring to the earlier judgments in the case of Hari Shankar Vs. Rao Girdhari Lal Chowdhury AIR 1963 SC 698 , Bell Co. Ltd. Vs. Waman Hemraj AIR 1938 Bom 223 and Mundri Lal Vs. Sushhila Rani (2007) 8 SCC 609 , it has been held as follows: 15. The scope of Section 25 of the 1887 Act, came for consideration before this Court on several occasions. In Hari Shankar v. Rao Girdhari Lal Chowdhury [AIR 1963 SC 698], in paras 9 and 10, this Court laid down the following: (AIR p. 701) 9. The section we are dealing with, is almos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t justified in interfering with a plain finding of fact and more so, because he himself proceeded on a wrong assumption. 16. Another judgment which needs to be noted is judgment of this Court in Mundri Lal v. Sushila Rani [(2007) 8 SCC 609]. This Court held that jurisdiction under Section 25 of the 1887 Act, is wider than the revisional jurisdiction under Section 115 CPC. But pure finding of fact based on appreciation of evidence may not be interfered with, in exercise of jurisdiction under Section 25 of the 1887 Act. The Court also explained the circumstances under which, findings can be interfered with in exercise of jurisdiction under Section 25. There are very limited grounds on which there can be interference in exercise of jurisdiction under Section 25; they are, when (i) findings are perverse or (ii) based on no material or (iii) findings have been arrived at upon taking into consideration the inadmissible evidence or (iv) findings have been arrived at without consideration of relevant evidence. 37. Counsel for the revisionist has not been able to point out any material error or illegality in the order passed by the trial court so as to ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
