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2009 Supreme(All) 3917
[2010(1) ADJ 811]
ALLAHABAD HIGH COURT
BEFORE : SHISHIR KUMAR, J.
RAMESH KUMAR .....Petitioner
Versus
Smt. SAVITRI GOYAL ...Respondent
(Civil Misc. Writ Petition No. 64143 of 2009, decided on 24th December, 2009)
Counsel :
Rajiv Gupta for the Petitioner; Manish Goyal for the Respondents.
Headnote:U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972—Sections 20(4), 20(2)—Transfer of Property Act, 1882—Section 106—General Clauses Act—Section 27—Evidence Act, 1872—Section 114—Suit—Arrears of rent and ejectment of—Also, allegation of sub-letting—Presumption of service of notice—Notice sent under Section 106 for termination of tenancy—Received back with remark of refusal—Subsequent notice was again received with a remark of refusal—Suit decreed by trial Court—Dismissal of revision against, holding that notice was sufficient, and that there was no compliance of Section 20(4) of Act of 1972—Court below recorded a finding that of registered letter has been sent on correct address, then there will be a presumption that service upon addressee was sufficient—Petitioner failed to discharge of burden and has failed to prove that either notice was not sent on correct address, or same has not been served upon him, therefore, findings of fact by Courts below cannot be interfered with—A finding was recorded that on first date of hearing rent of only 21 months have been sent and tax and other amount required under Section 20(4) has not been disposited—In other words, on first date of hearing rent, tax, interest, etc. has not been deposited—Thus, tenant not entitled for any benefit of Section 20(4) of Act—Water tax and house tax is a part of rent, and if same has not been deposited, tenant is not entitled to get benefit of Section 20(4)—Both Courts have recorded a finding that petitioner is a defaulter—Hence, no interference. [Paras 15 to 19]
Result; Petition Dismssed.
Hon’ble Shishir Kumar, J.—This writ petition has been filed for quashing the order dated 24.10.2009 (Annexure 7 to writ petition) passed by Additional District Judge Court No. 9 Agra and order dated 14.10.1997 (Annexure 5 to writ petition) passed by Additional J.S.C.C. Agra.
2. Plaintiff-respondent who is landlord instituted a suit before the Judge, Small Causes Court which was numbered as Suit No. 1 of 1989 against petitioner- Ramesh Kumar for arrears of rent and ejectment. It was alleged in the plaint that defendant is tenant of shop in question on rent of Rs. 200 per month and he is in arrears of rent since 1.2.1987 and taxes from 1.4.1986. Allegations of sub-letting as well as material alterations were also made in the plaint. A notice under Section 106 of the Transfer of Property Act was sent for termination of tenancy dated 2.11.1988 which was received with a remark of refusal dated 11.11.1988 while the subsequent notice dated 19.11.1988 was again received with a remark of refusal dated 2.12.1988. A written statement was filed specifically stating therein that it was taken on rent about 25 years back from previous owner and now premises in question is on annual rent of Rs. 2,400/- plus taxes to the tune of Rs. 491.90 but same was not accepted by plaintiff. In paragraph 5 of written statement it was also stated that he has never refused to receive notice neither he met with any postman. The Bank draft was sent but same was not encashed after receipt of the same. Admittedly, petitioner has deposited Rs. 11,000/- towards demand of the plaintiff for rent before the first date of hearing, therefore, he is entitled for benefit under Section 20 sub-clause (4) of the Act. Petitioner has never received any notice as alleged in the plaint. The learned trial Court has decreed the suit on two grounds (a) that tenant was served with a valid notice by holding the envelope (showing the endorsement of refusal) (b) that defendant-petitioner failed to establish the deposit of the total demand of the landlord as she claimed i.e. interest, stamp fee, process fee, counsel fee and damages, without any whispering that how much amount should have been deposited on the first date of hearing to get benefit of the provisions of Section 20 sub-clause (4). Petitioner aggrieved by aforesaid order filed a revision. Revisional Court vide its order dated 12.1.2000 allowed the revision on the issue of service of notice and matter was remanded with liberty to adduce evidence by the parties. Revisional Court order was challenged by respondent-landlord by filing a writ petition which was allowed and matter was remanded back to revisional Court on 8.4.2009 with a direction to decide the revision on the basis of material available on record.
3. On the basis of remand order, revisional Court vide its judgement and order dated 24.10.2009 has dismissed the revision and held that notice was sufficient and there is no compliance of Section 20 sub-clause (4) of the Act.
4. Sri Rajiv Gupta, learned counsel appearing for petitioner submits that both the Courts have failed to consider that petitioner was not put any question regarding alleged service of notice at the time of cross-examination. The Court below has also failed to take into consideration the fact that neither there was any signature of postman on the endorsement of refusal by petitioner nor even his name was stated. The suit itself was bad because there was no valid notice of termination of tenancy. Various efforts were made by petitioner to pay rent to landlord through money order or pay order but the same was ignored by trial Court because no finding has been recorded that what was the amount due and in spite of fact that total Rs. 11,000/- was deposited by petitioner, it cannot be accepted that it was not a sufficient deposit. The burden upon petitioner has wrongly been shifted regarding service of notice. At no point of time any question was put from petitioner regarding alleged service of no
