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2007 Supreme(Mad) 530
High Court of Judicature at Madras
THE HONOURABLE MRS. JUSTICE R. BANUMATHI
M. Radhakrishnan
Versus
P. Lakshmipathy
C.R.P(N.P.D.)No.1669 of 2006 and M.P.No.3 of 2006
Decided On : 09-02-2007
For the Petitioner:Pa. Kadirvel, Advocate. For the Respondent:M. Saravanakumar, Advocate.
Presumption of due service of notice under the Indian Evidence Act and the burden of proof on the challenging party.
Headnote:
Rent Control - Eviction - Tamil Nadu Buildings (Lease and Rent Control) Rules - Sec.114 illus (e) of the Indian Evidence Act, Section 27 of the General Clauses Act - The court confirmed the Impugned Order dismissing the Civil Revision Petition and granting time for the Tenant to vacate the demised shop.
Fact of the Case:
The Tenant filed a petition to set aside an ex parte eviction order, claiming improper notice service. The Landlord claimed arrears of rent and habitual default by the Tenant.
Finding of the Court:
The court found overwhelming evidence of notice service and deliberate inaction by the Tenant, leading to the dismissal of the application to set aside the ex parte order.
Issues: Proper notice service, default in rent payment, and the validity of the ex parte order.
Ratio Decidendi: The court relied on Sec.114 illus (e) of the Indian Evidence Act and Section 27 of the General Clauses Act to presume due service of notice and held that the burden to rebut the presumption lies on the challenging party.
Final Decision: The Impugned Order was confirmed, dismissing the Civil Revision Petition, and granting the Tenant five months to vacate the demised shop.
This Civil Revision Petition is directed against the order of Rent Control Authorities, dismissing the Petition filed under Rule 12(3) of the Tamil Nadu Buildings (Lease and Rent Control) Rules, declining to set aside the exparte order of eviction dated 05.07.2005.
2. R.C.O.P.No.474 of 2004 was filed by the Respondent / Landlord for eviction of the Petitioner / Tenant on the ground of Wilful Default. The Petitioner / Tenant was set exparte on 05.07.2005. The Petitioner has filed an Application in M.P.No.4 of 2006 to set aside the exparte order. That Application was dismissed by the learned Rent Controller on 01.02.2006. Aggrieved by the same, the Petitioner has preferred R.C.A.No.145 of 2006, which was also dismissed by the Impugned Order.
3. Heard the submissions of the learned counsel for the Petitioner and the Respondent.
4. According to the Petitioner, no proper notice was served upon him before passing exparte order and the Rent Controller ought to have set aside the exparte order. Learned counsel for the Petitioner contended that without referring the matter to the Handwriting Expert, the Rent Controller compared the signature in the Acknowledgement Cards and erroneously came to the conclusion that the signatures found in the Affidavit and the Acknowledgement Card are one and the same and erred in finding the Petitioner was duly served.
5. Drawing the attention of the Court to various dates on which the Petitioner was served, learned counsel for the Respondent / Landlord has submitted that the Petitioner is in arrears of rent for more than five years and has committed default and is a habitual defaulter.
6. The Petitioner is in occupation of non-residential premises and is running a cycle shop. Earlier, R.C.O.P.No.2496 of 1997 was filed for fixation of fair rent. After contest, fair rent was fixed at Rs.980/- per month. The Tenant has not preferred any Appeal and the fair rent fixed at Rs.980/- has become final. Though fair rent was fixed in August 2000, the Petitioner has not paid the rent and has committed default.
7. Legal Notice dated 210. 2003 was issued by the Landlord claiming arrears of rent, which was received by the Petitioner on 11. 2003 by duly signing the Acknowledgement Card, which was marked as Exs.P.1 and 2. Only after issuing Notice, Eviction Petition was filed. By perusal of the Typed Set of Papers, it is seen that in the R.C.O.P, the Petitioner has received four R.P.A.D Notices after filing of R.C.O.P. The Petitioner has received first RPAD Notice sent through Court on 16.04.2004. Since the Acknowledgement was received after the hearing date, fresh notice was ordered. In the second time, the Petitioner has received RPAD on 21.06.2005 for the hearing on 28.06.2005. Even after receiving second notice, the Petitioner has not appeared in R.C.O.P. The Acknowledgement in the Second Notice was also not received within the hearing date. Hence, again notice was ordered to the Petitioner and Private Notice was also served. The Petitioner received the Private Notice sent by the counsel and even after receiving the third Notice, the Petitioner has not appeared in the R.C.O.P. After repeated service of Notice, since the Petitioner had not appeared, he was set exparte and exparte order of eviction was passed on 05.07.2005.
8. Since the Petitioner has raised the contention of non-serving of Notice, the learned Rent Controller has compared the signature in the Acknowledgement Cards and expressed the view that the Petitioner himself has put his signature and the signature found in the acknowledgement card are similar to that of the signatures found in the Affidavit filed in the M.P. Petition. Learned counsel for the Petitioner has contended that the Rent Controller erred in comparing the signatures without referring the matter to Handwriting expert. Contending that the Rent Controller erred in comparing the signatures without aid of the Handwriting Expert, learned counsel for the Petitioner placed relia
