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1 - 10 of 13 (0.32 seconds)Section 113 in The Indian Evidence Act, 1872 [Entire Act]
Prime Industries vs Rafeeq Ahmed on 7 April, 1997
The court in judgment Prime Industries vs Rafeeq Ahmed
reported as , '67 (1997) DLT 121' observed
(5) Turning to the question whether notice of demand was served on the
tenant or not, it is established on record that notice sent by registered
Ad post dated 16th April,1980 Exhibit AW.I/2 was avoided by lhe
appellant. Copies of that notice were also sent to appellants No.2 arid 3.
They too avoided receipt of the same. As per Postal Authority's remark
Suit No. 950/27 Page 10
on the envelope despite repeated visits and informations being given to
the addressee they did not make themselves available to receive the
notice. Hence the notices were returned as undelivered. The notice of
demand was simultaneously sent under Certificate of posting because
respondent found that the appellants were intentionally avoiding
service. This was done in order to ensure that appellants are served
with the notice of demand. The notice sent under Upc was proved on
record as Exhibit AW.I/9. However, the name of appellants No.2 and 3's
father was wrongly mentioned in the Upc as Mushtaq Ahmed. The real
name of their father is Shaukat Ali Khan.
Gadakh Yashwantrao Kankarrao vs E.V. Alias Balasaheb Vikhe Patil And ... on 19 November, 1993
It would not be correct on the part of
Bawa Shiv Charan Singh to contend that notice of demand had not been
Suit No. 950/27 Page 12
served on the tenant or that the Tribunal wrongly concluded that the
notice of demand was served. Since the notice was sent by registered
post as well as under Upc to the tenant, therefore, to my mind, the
Courts below were not wrong in arriving at a conclusion that notice of
demand was served. Hence there was sufficient compliance of the
provisions of law. Reliance by Bawa Shiv Charan Singh on the decision
of Supreme Court in the case of Gadakh Yashwantrao Kankarrao Vs.
E.V. alias Balasaheb Vikhe Patil & ors. is of no help to him. In that case
notice was only sent under Certificate of Posting and not under
registered cover. It was in this backdrop the Apex Court observed that
no presumption under Section 114 of the Indian Evidence Act can be
drawn. The facts of that case are distinguishable. In the case in hand
notice to the tenant was sent by registered Ad cover as well as under
Inmacs Ltd. vs Prema Sinha & Ors. on 26 September, 2008
Perusal of the rent receipts Ex. PW1/D1 to PW1/D21 clearly
reveals that these are proper rent receipts. As the defendant has in
the past able to get the proper rent receipts from the defendant
then why a simple chit on white paper and which also does not
bear the signature of the plaintiff has been taken by him instead of
the proper rent receipts. Thus, it does not inspire confidence. Even
for the sake of argument, if it is admitted that rent was received by
the plaintiff even after the service of termination notice even that
will not help the defendant as it is well settled that receipt of rent
after the service of the notice does not amount to waiver of the
notice unless the said receipt of rent is with the intention to
continue the tenancy. Reliance is placed on the judgment of
Hon'ble Delhi high court reported as "INMACS LTD v/s PREMA
SINHA & ORS in 153 (2008) DLT 311 (DB)" where in the court
observed:
" Dealing with the issue whether accepting rent after serving upon the
tenant a notice to quote amounts to a waiver under Section 113 of the
Suit No. 950/27 Page 14
Transfer of Property Act, in the decision reported as 2006 (4) SCC 205,
Sarup Singh Gupta Vs. S Jagdish, their Lordships of Supreme Court held:
"6 ... A mere perusal of Section 113 leaves no room for doubt that in a given
case, a notice given under Section 111, Clause (h), may be treated as
having been waived, but the necessary condition is that there must be
some act on the part of the person giving evincing an intention to treat the
lease as subsisting. Of course, the express or implied consent of the
person to whom such notice is given must also be established. The
question as to whether the person giving the notice has by his act shown
an intention to treat the lease as subsisting is essentially a question of fact.
In reaching a conclusion on this aspect of the matter, the Court must
consider all relevant facts and circumstances, and the mere factthat rent
has been tendered and accepted, cannot be determinative.
Sarup Singh Gupta vs S. Jagdish Singh And Ors. on 29 March, 2006
Perusal of the rent receipts Ex. PW1/D1 to PW1/D21 clearly
reveals that these are proper rent receipts. As the defendant has in
the past able to get the proper rent receipts from the defendant
then why a simple chit on white paper and which also does not
bear the signature of the plaintiff has been taken by him instead of
the proper rent receipts. Thus, it does not inspire confidence. Even
for the sake of argument, if it is admitted that rent was received by
the plaintiff even after the service of termination notice even that
will not help the defendant as it is well settled that receipt of rent
after the service of the notice does not amount to waiver of the
notice unless the said receipt of rent is with the intention to
continue the tenancy. Reliance is placed on the judgment of
Hon'ble Delhi high court reported as "INMACS LTD v/s PREMA
SINHA & ORS in 153 (2008) DLT 311 (DB)" where in the court
observed:
" Dealing with the issue whether accepting rent after serving upon the
tenant a notice to quote amounts to a waiver under Section 113 of the
Suit No. 950/27 Page 14
Transfer of Property Act, in the decision reported as 2006 (4) SCC 205,
Sarup Singh Gupta Vs. S Jagdish, their Lordships of Supreme Court held:
"6 ... A mere perusal of Section 113 leaves no room for doubt that in a given
case, a notice given under Section 111, Clause (h), may be treated as
having been waived, but the necessary condition is that there must be
some act on the part of the person giving evincing an intention to treat the
lease as subsisting. Of course, the express or implied consent of the
person to whom such notice is given must also be established. The
question as to whether the person giving the notice has by his act shown
an intention to treat the lease as subsisting is essentially a question of fact.
In reaching a conclusion on this aspect of the matter, the Court must
consider all relevant facts and circumstances, and the mere factthat rent
has been tendered and accepted, cannot be determinative.