Punjab-Haryana High Court
Sudesh Kumar Vasudeva vs Mrs. Veena Garg on 27 April, 2004
Equivalent citations: (2004)138PLR175
JUDGMENT M.M. Kumar, J.
1. This is landlord-plaintiffs petition filed under Article 227 of the Constitution for setting-aside the order dated 30.1.2004, dismissing his application under Order XII Rule 6. The learned Civil Judge has come to the conclusion that the tenant-defendant has disputed the maintainability of the suit alleging that the tenant-respondent is a trespasser. It is yet to be proved as to whether the registered A.D. notice was served upon the defendant or not by adducing evidence, Therefore, the Civil Judge has come to the conclusion by recording the following order:-
"I have heard Ld. counsel for the parties and gone through the records of the present case. Plaintiff filed the present suit for ejectment of the defendant alleging that tenancy of the defendant was terminated vide legal notice dated 17.12.2002 sent on 20.12.2002 through registered post and UPC. In the written statement, the defendant has denied the fact that tenancy was been terminated by alleged legal notice and any legal notice was served upon the defendant. It was also alleged that suit of the plaintiff was not maintainable and the plaintiff had been alleging that defendant is trespasser and never claimed that defendant was tenant under him. The fact as to whether the tenancy of the defendant was terminated by valid and legal notice dated 17.12.2002 as alleged by plaintiff and whether the said notice was duly served upon the defendant or not, is a question of fact which can only be decided after evidence is lead on the merits of the case. Therefore, it cannot be said that there is admission of the fact of termination of tenancy of the defendant. Judgments relied upon by Ld. counsel for the plaintiff are not applicable to the facts and circumstances of the present case. Therefore, present application is dismissed."
2. It is pertinent to mention that the landlord-petitioner after the suit for ejectment of the tenant-defendants from the demised premises have claimed recovery of damages to the tune of Rs. 24,000/- on account of unauthorised use and occupation with effect from 1.02.2003 till the date of filing of the suit and further damages @ of Rs. 200/- per day thereafter. During the pendency of the suit an application under Order XII Rule 6 was filed, claiming that the whole claim made by the landlord-petitioner stands admitted and judgment and decree be passed in his favour. That application has been dismissed by the Rent Controller. Peeling aggrieved, the instant revision petition has been filed by the landlord-petitioner.
3. Mr. Manoj Chahal, learned counsel for the landlord-plaintiff has argued that the tenant-defendant who had filed a civil suit had herself averred that she was a tenant under the landlord-plaintiff According to the learned counsel, the endorsement on the registered notice that the tenant-defendant has refused to accept service. In support of his submission, the learned counsel has placed reliance on a judgment of the Supreme Court in the case of Anil Kumar v. Nanak Chandra Verma, A.I.R. 1990 S.C. 1215. He argued that there would be presumption of service of notice if it was refused by the addressee and the refusal by the tenant-defendants to accept delivery and tender would not be sufficient to rebut that presumption. 4. After hearing the learned counsel, I am of the considered view that the evidence is yet to be adduced before the courts below as the defendant has not admitted any averment made by the landlord plaintiff. It is only in cases of categorical admission of the defendant that Order XII Rule 6 would be attracted. Present is not the case where Order XII Rule 6 could be invoked as number of facts have been disputed. The evidence is required to be adduced to prove these facts. Therefore, there is no merit in this petition.
Dismissed.