Gujarat High Court
Savsingbhai vs Chandrakalaben on 21 December, 2010
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
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CRA/1118/1998 12/ 12 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
REVISION APPLICATION No. 1118 of 1998
=========================================================
SAVSINGBHAI
RAMABHAI PALIA - Applicant(s)
Versus
CHANDRAKALABEN
J RAJPAL & 2 - Opponent(s)
=========================================================
Appearance
:
MR
AR LAKHIA for
Applicant(s) : 1,
NOTICE SERVED for Opponent(s) : 1,
MR RN SHAH
for Opponent(s) : 2,
RULE SERVED for Opponent(s) :
3,
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CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 21/12/2010
ORAL
ORDER
Heard learned advocate Mr. A.R. Lakhia appearing on behalf of petitioner - original tenant and learned advocate Mr. R.N. Shah appearing on behalf of respondent No.2 - landlord.
The original plaintiff - landlord has filed civil suit against present petitioner - tenant being Regular Civil Suit No.165 of 1984 before Civil Judge, Dahod which has been decided in favour of landlord vide decree and judgment dated 30th December 1987, where, trial Court has allowed suit filed by plaintiff and also directed to present petitioner to hand over vacant possession of suit premises with mesne profit Rs.25/- per month.
Against aforesaid judgment and decree passed by trial Court, present petitioner - tenant has preferred Regular Civil Appeal No.58 of 1993 before lower appellate Court, Godhra which was dismissed by lower appellate Court vide judgment and order dated 4th July 1998, Ex.22 with a direction to tenants to handover possession i.e. peaceful possession of suit premises to landlord within fifteen days from the order passed by lower appellate Court.
Learned advocate Mr. Lakhiya appearing on behalf of petitioner - tenant raised one legal contention about finding given by trial Court while deciding civil suit that notice issued by landlord to tenant is duly served or not ? The answer is given in affirmative and also tenant was in arrears of more than six month rent which has also been decided in affirmative. He submitted that in respect to ground of subletting to defendant No.3 and defendant No.1 and 2, whether plaintiff has proved it or not ? The answer is given by trial Court in negative. He also submitted that ground of plaintiff that whether defendant Nos.1 and 2 had acquired suitable residential premises or not ? For which, plaintiff has also failed to prove it and decided in negative. But, issue of entitlement for possession by plaintiff has been decided in affirmative. He submitted that issue No.2 which has been decided by trial Court in Para 9, where, in written statement, specific contention has been raised by tenant that suit notice dated 17.01.1984 was not received by tenant and it was not refused by tenant, but, landlord has obtained wrong endorsement from postman as 'refused' and it was specifically case of tenant that this notice was not served to tenant and postman has never served it and according to case of plaintiff Ex.39, suit notice has not been accepted by tenant which was found with endorsement as 'refused'. The tenant was examined at Ex.45. In his evidence, it was specifically made clear and denied fact that suit notice was not given by postman and no such postman has come forward at the residence of tenant and he has not refused to accept suit notice. But, trial Court has committed gross error while wrongly misunderstood cross-examination of defendant tenant Ex.45 that after 1984, he has not paid any amount of rent to plaintiff and for that, plaintiff has given notice. Ex.41/42 where endorsement has been made by postman as 'refused' and after misinterpreted and misread the evidence of defendant tenant Ex.45, come to conclusion that suit notice was served to defendant tenant, therefore, according to him, trial Court has committed gross error in law in deciding issue No.2 against present petitioner tenant. He also submitted that same aspect has been examined by lower appellate Court and lower appellate Court has held that defendants tenants were knowing the fact of issuance of notice by plaintiff to tenant. The relevant discussion made by lower appellate Court in Para 8 of judgment is quoted as under :
"8. on the other hand, ld. Advocate for the respondent, Mr. Parikh has vehemently argued before me that defendant has stated that the or they have not received the notice issued by the plaintiff and no such postman have ever offered them such notice, then in that case the burden to prove issuance of notice and refusal by defendant is shifted to the plaintiff. And he has to prove it by examining the postman. But further, here the defts. Have come with the specific case that that plaintiff has joined hands with the postman, and obtained endorsement of 'refusal', therefore, person who is alleging some facts, he must prove it by or with the help of cogent evidence. Here, in this case the defendants have failed to prove this fact, and therefore, the ld. Judge has rightly decided the case. He has not made any mistake in deciding the suit. Thus, say of plaintiff that defendants are in arrears of rent from 1.9.82 is proved by the plaintiff on oath are not challenged by the defendants in their cross examination. Not only that the defendants have stated in his chief examination from which date he has paid the rent and from which date the rent is not paid is not known to the defendants. Further, the facts stated by the plaintiff are not challenged in the cross examination and therefore, say of the plaintiff is to be believed. Further, ld. Adv. For the defts. Have put a question to the plaintiff in the cross examination that after the notice was served to the defendants , defendants approached to the plaintiff for making payment of the arrears of the rent, but the plaintiff refused to take it. Now, this suggestion itself shows that defendants knowing the facts of issuance of the notice by the plaintiff to the defendants. Under the circumstances, the ld. Judge has rightly decided the case. Not only that after the decision of the lower court, defendants have not paid any rent or deposited in the court during pendency of this appeal and since last five years, the appeal is pending in this court. Not a single farthing is paid by the defendants to the plaintiff or deposited by them in the court, though they are enjoying the possession of the premises since year 1982. That till 1998, 16 years have passed and they have not paid any single farthing to the plaintiff, therefore, the ld. Judge has rightly decided the case. Under the circumstances, it is clear that defendant is not ready and willing to pay any amount towards rent of premises and if it was their intention, then, they would have deposited the rent during 16 years and after conclusion of the appeal, it could have been adjusted. As the rent is not deposited and rent is in arrears, the appeal may please be dismissed with cost, and the order passed by the learned Judge is required to be continued."
Further, relevant observations have been made in Para 9 of judgment by lower appellate Court is also necessary to be referred here, therefore, same is quoted as under :
"9. ...Further, it is contended by the appellant that notice was issued to the defendants, but, defendant refused to accept. It is also true that defendants denied the said notice was ever offered by any postman. Then in that case, burden is shifted upon the plaintiffs to prove that postman has offered defendants said notice. That defendants refused the same and postman has rightly endorsed on the cover, the endorsement of 'refusal'. In the present case, when the defendants has taken specific plea that plaintiff has joined hands with the postman and obtained false endorsement on the cover of 'refusal'. Therefore, now it is clear that when the defendants alleging the same, and has raised plea in the written statement, then, it is to be proved by the defendant as the burden is shifted on the defendants. Now if we go through the entire chief examination of the defendant, he has not uttered word about this contention which was raised in the written statement and therefore, he has failed to prove his contention taken in the written statement merely taking the contention is not sufficient in itself, but, it is to be proved with the help of cogent evidence on record and without evidence, plea cannot be accepted. Under the circumstances, defendant has failed to prove that plaintiff has obtained false endorsement on the cover of refusal. Further, contention of the defendant that they approached the plaintiff to pay the rent, but, plaintiff refused to accept was denied by the plaintiff. This goes to show that defendants were knowing about the service of notice of the plaintiff. Not only that, defendant has stated in chief examination that it is not correct that the defendant has not paid the rent regularly. To show this fact, no documentary evidence is produced by the defendants. Further, he has admitted in the cross-examination that for the first time, this fact was given to him by the plaintiff. Further, he has admitted that he is not keeping the account of the rent. He has no documentary evidence to show that he has ever paid Rs.5/- as rent to the plaintiff. On Page 5, he has categorically stated that he does not know on which date, he has paid the rent to the plaintiff. At the bottom of this page, after 1984, I have not paid rent to the plaintiff and the plaintiff had served notice of it. It is not correct to say that he has refused to take notice. So, he is in know of the fact that he has not paid rent and defendants are served with the notice by the plaintiff because he himself has in the cross-examination admitted that he was in arrears of rent and therefore, plaintiff has served the notice to them. Further, he has stated that he has not refused to accept the notice. Therefore, the fact of service of notice is known to the defendants. Under the circumstances, I am of the opinion that a ld.Judge has rightly passed the decree of eviction on the ground of arrears of rent. During the pendency of appeal, even the defendant has not paid any single farthing, towards the arrears of rend and they are enjoying the possession of premises since last 16 years without making any payment of rent, therefore, I am of the opinion that ld. Single Judge has rightly passed the order of eviction. Under the circumstances, I decided point No.1 in the negative."
I have heard both learned advocates appearing on behalf of respective parties in respect to an issue whether before filing suit against defendant tenant, suit notice was served to tenant or not and whether that facts have been proved by plaintiff before trial Court or not. I have considered reasoning given by trial Court as well as lower appellate Court in respect to aforesaid issue. The suit premises is a 'zupada' (hut) having rent of Rs.5/- per month and there was no rent note executed by landlord in favour of tenant. In evidence of defendant tenant Ex.45, a specific denial has been made by defendant tenant that it is not correct to say that for the period 15th September 1982 to 15th January 1984, for about 16 months, rent has not been paid by tenant. Whatever rent was paid by tenant, no receipt was issued by landlord. In respect to issue of notice, the suit notice has not been given to tenant by any postman and no postman went for it and he has not refused suit notice and suit filed by plaintiff is without serving notice to tenant and tenant was not paying regular rent is also not correct facts. He has not remembered fact that upto which period, rent was paid by tenant to landlord. One sentence in cross-examination has been made by tenant that after 1984, he has not paid rent. For that, plaintiff has issued notice to tenant, but, in a next sentence, a specific denial is made by tenant in his evidence Ex.45 that he has not refused to accept suit notice from postman. In light of this entire evidence of plaintiff Ex.39 and evidence of tenant Ex.45, the trial Court as well as lower appellate Court have committed gross error in law in not considering entire evidence of both parties as a whole and only selected one sentence from cross-examination of defendant tenant and on that basis, finding has been given without proving the facts by plaintiff on record while not examining postman before trial Court. It is a duty of plaintiff or rather burden upon plaintiff who must have to prove fact before trial Court that suit notice has been served to defendant tenant. A specific stand has been taken by defendant tenant in written statement as well as in his evidence that suit notice is not received by him and he has not refused it, therefore, there was a collusion between postman and landlord, for that, a specific allegation has been made by defendant tenant in written statement and therefore, issue has been framed accordingly by trial Court. In such circumstances, burden upon plaintiff to prove the fact before trial Court that suit notice was sent to defendant tenant which has been refused by him and for that, plaintiff must have to examine postman who has made endorsement on envelop of suit notice. The postman was not examined before trial Court. Not only that but no other person was examined by plaintiff before trial Court except plaintiff Ex.39. Therefore, merely taking one or two sentences from cross-examination of tenant and ignoring entire evidence of defendant tenant, the finding which has been given by trial Court is contrary to law. It is a legal obligation upon trial Court to consider whether particular document is required to be proved by plaintiff or not when it has been specifically denied by other side. The trial Court has merely selected one sentence from cross-examination of defendant that rent from 1984 onwards is not paid by defendant and for that, plaintiff has issued notice, but, whether that notice was received by tenant or not and whether it has been refused by tenant or not, for that, plaintiff must have to examine postman who had made endorsement as 'refused' upon envelopment of suit notice. Therefore, issue No.2 has been wrongly decided as it found contrary to evidence on record and law and on that basis, judgment and decree passed by trial Court, which is an apparent error committed by trial Court in deciding civil suit filed by landlord. In absence of suit notice or so long facts of suit notice is not proved as to whether it was served to tenant or not, suit for possession or recovery of suit premises is not maintainable under provisions of Section 12(2) of Bombay Rent Act, therefore, according to my opinion, contentions raised by learned advocate Mr. Lakhiya having substance and apparently, plaintiff has failed to prove facts before trial Court that suit notice was served to defendant tenant who has refused it, therefore, it amounts to service of suit notice to defendants. When defendant tenant has raised specific contention in written statement that suit notice was not received by him and he has not refused it and because of collusion between postman and landlord, endorsement of refusal has been obtained by landlord. In such allegation, a rebuttal evidence must have to be produced by plaintiff before trial Court proving facts that suit notice was served to defendant who has refused it after examining postman or any other reliable evidence before trial Court. That burden has not been discharged and facts of suit notice is not proved whether it has been served to defendant tenant or not. Therefore, it is a clear case of error of law committed by trial Court which has been confirmed by lower appellate Court, therefore, contentions raised by learned advocate Mr. R.N. Shah cannot be accepted, hence, rejected.
In this case, statutory presumption that suit notice is served to defendant tenant cannot be applicable, because, there was a rebuttal evidence given by defendant tenant that he has not received suit notice and postman has not come to serve the suit notice and he has not refused it, then, burden is shifted upon plaintiff to prove facts that suit notice was served at the correct address of defendant tenant which has been refused by defendant tenant. For that, whoever postman has made endorsement, the same must have to be examined, has not been examined in facts of this case.
In view of this, judgment and decree passed by trial Court dated 30th December 1987 in Civil Suit No.165 of 1984 and judgment and order passed by lower appellate Court in Regular Civil Appeal No.58 of 1993 dated 4th July 1998 are hereby quashed and set aside while remanding matter back to trial Court concerned to decide issue No.2 afresh whether suit notice has been served to defendant tenant or not and whether tenant has refused it or not, after giving reasonable opportunity of hearing to respective parties and thereafter, to decide the merits of matter in accordance with law.
In view of above, present Civil Revision Application is allowed. Interim relief, if any, shall stand vacated. No order as to costs.
[H.K. RATHOD, J.] #Dave Top