Allahabad High Court
Fazal Ahmed vs K. N. Jain on 19 January, 2000
Equivalent citations: 2000(2)AWC1206, 2000 ALL. L. J. 3106, 2001 A I H C 464, (2000) 3 CIVLJ 205, (2000) 2 ALL WC 1206, (2000) 39 ALL LR 200, (2000) 1 ALL RENTCAS 423, 2000 ALL CJ 2 1294
Author: D. K. Seth
Bench: D. K. Seth
JUDGMENT D. K. Seth, J.
1. Leave is granted to amend the cause title and the preamble.
2. S.C.C. Case No. 7 of 1999 was filed by the plaintiff-opposite party for eviction of the petitioner-defendant before the learned District Judge, 15th Court. Ghaziabad/SCC Court. During the proceeding of the suit, the deffence of the defendant-petitioner was struck off. That order has neither been challenged earlier nor even challenged in this revisional application. The suit was decreed. Mr. S. G. Hasnain, learned counsel for the petitioner contends that the notice under Section 106 of Transfer of Property Act was not properly addressed and in the absence of production of the acknowledgment due card, there cannot be any presumption that the notice was served on the defendant-petitioner. He further contends that the certificate of posting cannot be relied upon for the purpose of drawing presumption of service. He further contends that since the rate of rent is less than Rs. 2.000 per month. Act 13 of 1972 was applicable and as such, the notice should have conformed to the provision of Section 20 subsection (2A) of Act 13 of 1972. That apart he claimed, on the basis of pleadings and the material produced before the Court, the suit could not be maintained since on the own showing of the plaintiff, there was no default for a period of four months making the defendant liable to be evicted. He then contends that since the tenancy was governed by Act 13 of 1972, the regular suit before the Small Cause Court cannot be maintainable. On this ground, he prays that the order may be set aside.
3. Mr. M. Mishra. learned counsel for the plaintiff-opposite party on the other hand contends that the deffence of the defendant having been struck off and he having not come to deny himself the fact that no notice was struck off and he having not come to deny himself the fact that no notice was served on him. There was no rebuttal of the presumption as is available under Section 114. Illustration (f) of the Evidence Act so far as the service on the basis of certificate of posting is concerned. It is apparent from the certificate of posting that the correct address of the defendant was recorded. He then contends that (he contention of the defendant that the notice was not correctly addressed was based on the registration slip which did not mention the address except the district. He then contends that the notice was produced and proved that the notice was correctly addressed. Then again, he also pointed out that a reply was obtained from the Postal Department that the particular registered post article was delivered to the addressee. Since the defendant did not examine himself to deny the service which he could have done despite striking off the defence. There was no rebuttal and as such, the Court had rightly presumed the service to have been effected on the basis of the notice showing correct address and the letter of the Postal Department evidencing service of the said registered article supported by certificate of posting. He then contends that the Court had come to a finding on the basis of material on record that the rent was Rs. 2.080 per month and as such, it is not within the scope and purview of Act 13 of 1972. Therefore, Act 13 of 1972 cannot be attracted. He further contends that under Section 114 of the Transfer of Property Act, it is not necessary that there should be a four months' default. On the other hand. on account of non-payment of rent, lease could be forfeited and the lessee could be evicted. He also contends that the lease was from year to year as is evidenced from the documents produced by him and as such even on account of the efflux of time, the lease could have been determined though it has not specifically pleaded in the plaint. On these grounds, he supports the impugned order.
4. I have heard both the counsel at length.
5. It is not disputed that the defence of the defendant was struck off and that the defendant did not examine himself even on the question of notice in the witness box. Therefore, admittedly, there is no rebuttal of the evidence adduced on behalf of the plaintiff. A notice has been proved and the notice shows the correct address of the defendant. The reliance on the registration receipt cannot clinch the issue when the notice itself gives the correct address supported by the letter of the postal department evidencing that the registered post article was duly delivered to the addressee. The absence of the production of the card cannot be fatal since it has been acknowledged by the postal department, which is also supported by the certificate of posting, which has a presumptive value under Section 114 illustration (f) of the Evidence Act. A presumption can be drawn as soon as it is proved that the notice was posted with the correct address as evidenced in the certificate of posting as well as in the notice itself, which is supported by the reply of the postal department evidencing service on the addressee. Thus, it cannot be said that the learned court below had acted illegally or with material irregularity in drawing presumption of service on the materials produced before him particularly when the defendant did not rebut the presumption by examining himself that he had never received the notice. Therefore. I do not find any infirmity in the finding with regard to service of notice.
6. Order V. Rule 19A provides in proviso that where the summons were properly addressed, prepaid and duly sent by registered post acknowledgment due, the declaration referred to this sub-rule (2) of Order V, Rule 19A shall be made notwithstanding the fact that the acknowledgment having been lost, misled, or for any other reason, has not been received by the Court within 30 days from the date of the summons. The above proviso requires certain conditions to be fulfilled, namely, (1) it is to be properly addressed. (2) the postage must be prepaid. (3) it is to be sent by the registered post. (4) such registered post must be with acknowledgment due and (5) that one month has lapsed from the date it was sent.
7. However, these preposition is made for application in respect of service of summons. Whereas in the present case, we are not concerned with the service of the summons, but in respect of the service of notice. Admittedly the notice was sent by registered post. The postage was prepaid. Now the question arose as to whether it was correctly addressed and was served. The correct address is available from the notice itself. The registration slips may not contain the whole address. The registration slip can be used only to prove that it was registered and postage was prepaid. It was not a document to prove that the notice was correctly addressed. Whether a notice was correctly addressed, can be ascertained from the copy of the notice which is said to have been sent. Whether it was served or not can be ascertained from the acknowledgment card if endorsed by the addressee. In case acknowledge card has not come back, since it is not a service of summons therefore, there is no scope of declaration of service by the Court. But the Court may accept the service of notice on the basis of the material placed before it.
8. In the present case, a reply from the postal department was obtained. In the said reply the postal department had affirmed after verifying its own record that the relevant article under the particular registration slip was duly served on the addressee. Apart from the acknowledgment card, the addressee is supposed to endorse signature signifying the receipt of the article in the document presented to the addressee while delivering the registered article which is maintained in the office itself. The postal department also obtains signature on the acknowledgment card signifying receipt of the article addressed to him and such acknowledgment is sent by the post to the addressee. Thus, if the postal acknowledgment card is misled. it can be ascertained by the postal department as to whether it was properly served on the addressee. Such a document being available the Court is free to accept such service.
9. The defendant having not come to the witness box to deny the receipt of the registered letter, there has been no rebuttal with regard to the service of notice. The question of disbelief of the service could be harboured only when the addressee denies receipt of service. When the postal department after verifying its own record certifies that the same has been duly served on the addressee, the same cannot be easily discarded, nor it can be disbelieved, particularly when it is supported by under certificate of posting bearing correct address, which again can be deemed to have been proved. Unless the defendant comes and denies the service, it is not open to Court to refuse to accept the service in the fact and circumstances of the case.
10. Section 114 of the Evidence Act empowers the Court to presume existence of facts likely to have occurred regard being had to the common course of natural events, human conduct and public and private business in their relation to fact of a particular case. Section 114 relates to facts which are relevant fact within the meaning of Section 16 of the Evidence Act. which prescribed that when there is a question whether a particular act was done, the existence of event a course of business, according to which it naturally would have been done, to be relevant fact. Section 32 of the Evidence Act in sub-section (2) provides that when the statement was made by such person in the ordinary course of business, and in particular when it consists of an entry or memorandum made by him in books kept in the ordinary course of business, or in the discharge of professional duty; or of an acknowledgment written or signed by him of the receipt of money, goods, securities, or property of any kind: or of a document used in commerce written or signed by him or of the date of a latter other document usually dated written or signed by him shall be relevant facts made by a person even if he has not given evidence.
11. Thus, when a case comes within in scope of ambit of illustration (f) of Section 114. then the same has to be read having regard to the Section 16 and Section 32(2) of the Evidence Act. The common course of service is to be presumed when the postal department acknowledges to have delivered the notice to the addressee. Registered postal receipt along with the copy of notice bearing correct address raises a presumption in the absence of return of notice that it was duly received by the addressee. Post office upholds the wholesome example in public office. It was so held in the case of Ayisabeevi and another v. Aboobacker, AIR 1971 Kar 231 and Jagat Ram Khullar and another a. Bhattu Mal. AIR 1976 Del 111. But such presumption is rebutttable. If the defendant denies the receipt of the envelope or signature, presumption is rebutted as is held in the case of Munshi Ram and another v. Shakuntata Devi, AIR 1978 J&K 31. Simple denial without reliable evidence, without further rebuttal the presumption continues as was held in Pakhar Singh v. Krishan Singh, AIR 1974 Raj 112. The presumption under Section 114 is one of fact and not of law and when defendant pledges his oath that the cover was never delivered to him, the presumption of irregularities of office business cannot be treated as rebuttal. It was so held in the case Govind Chandra Saha and another v. Dwarka Nath Patila, 20 CLJ 455 : 19 CWN 489, Ram August Tiwari and others a. Bindeshwart Tiwari and others, AIR 1972 Pat 142. In Aburubanmal v. Official Assignee 45 MLJ 817 it was held that the letter, correctly addressed and proved to have been posted and not returned by dead letter office, must be presumed to reach its destination in proper time. However, the presumption does not arise unless there is a proof of actual posting as was held in Hullas v. Allahabad Bank, AIR 1956 Cal 644.
12. Although in respect of the letter sent under certificate of posting, the presumption under Section 27 General Clauses Act, does not apply, but the presumption under Section 114(f) applied as was held in Jitendra Nath Das v. Binoy Lal Das AIR 1976 Cal 478. The presumption under Section 27 of the General Clauses Act is a presumption of law whereas the presumption under Section 114 the Evidence Act is a presumption of fact as was explained in Ganga Ram v. Smt. Phool Watt, AIR 1970 All 446 (FB), The certificate of posting raised a presumption that the letter was posted and reached its destination unless contrary is proved. It was so held in the following case: Smt. Hemangini Dassee v. Smt. Samalatika Dassee, AIR 1940 Cal 227.
Dhanapati v. Corporation 55 CWN 751. Sukitmar Guha v. Naresh Chandra Ghosh and another. AIR 1968 Cal 49. Meghiji Malsee Ltd, v. P.O. Oomen of Pulivelil Kizhakkelhil House and others. AIR 1963 Ker 306. Dineshwar v. Manoram. AIR 1978 Pat 256. It is not always necessary to produce the postman for denial of service. It may be found to be incorrect either form the parties admission or from his conduct, as was laid down in Puwada Venkateshwara Rao v. Chidamana Venkata Ramana, AIR 1976 SC 869.
13. So far as the question of default for four months is concerned, the same is available under Act 13 of 1972. In the present case, the Court having found that the case is not covered under Section 13 of 1972, that ground cannot be available to the defendant. On the other hand, Section 114 of the Transfer of Property Act entitles the landlord to forfeit the tenancy on account of nonpayment of rent. However, such nonpayment of rent would not amount to forfeiture of the tenancy if on the first date of hearing, the tenant deposits the arrears of rent.
14. Section 111 of the Transfer of Property Act in clause (g) provides forfeiture in case of breach of express condition. Section 114 provides that if forfeiture is on account of nonpayment of rent being breach of condition unless at the first hearing the lessee deposits or tenders the arrears together with interest and full cost of the suit or give security as the Court think sufficient for making such payment within 15 days, then the Court may not pass a decree for ejectment. Section 111 or 114 of the Transfer of Property Act does not postulate four months' default. On the other hand it speaks of the breach of any of the condition of lease.
In the present case, it is not contended that such a step was taken.
15. It is further contended by Mr. Husnain that the rent was less than Rs. 2.000 but the Court had come to a finding on the basis of the documents produced, namely. 28 Ga by which the rent was fixed at Rs, 1,300 in August. 1990. The Court had come to a further finding on the basis of the document 29Ga that the rent was fixed at Rs. 1.400 in August. 1991 whereas by reason of similar documents the rent was found to have been fixed at Rs. 1,570 in August, 1992. Rs. 1,730 in August, 1993. Rs. 1,890 in August. 1994 and Rs. 2,080 in August. 1995. These findings being findings of fact on the basis of the documents produced and there having been no defence being available. these findings of fact cannot be said to be perverse so as to entitle this Court to interfere with such findings. If these findings cannot be interfered with and the rent is said to be Rs. 2.080 per month, in that event. definitely it eases out the case from the purview of Act No. 13 of 1972 and as such the question of four months' default may not be very much material. Thus, it also cannot be contended that the notice does not conform to Section (2) (a) of Act No. 13 of 1972.
16. After having gone through the order, it appears that the Judgment is welt-reasoned one. 1 do not find any infirmity in the findings so arrived at by the learned court below so as to discard it or categorise it as perverse. No material having been produced particularly when the defence was struck off to rebut those materials seeking to prove the case of the plaintiff, I do not see any reason to interfere with the order impugned.
17. The revision, therefore, falls and is accordingly dismissed. No cost.