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2005 Supreme(All) 536
ALLAHABAD HIGH COURT
Mukteshwar Prasad
SHARDA PRASAD ALIAS CHHULLI
Versus
ADDL DISTRICT JUDGE ALLAHABAD
Decided On : 23 March 2005
C. M. W. P. No. 17245 of 1985
ASHISH SRIVASTAVA, G.N.VERMA, Navin Sinha, R.N.SHARMA, Vipin Sinha,
The legal principle established is that the presumption of service of notice can be made under specific legal provisions and precedents, and the burden to rebut the presumption lies on the party challenging the factum of service.
Headnote:
Notice - Service of Notice - Section 20 (2) (a) of U. P. Act No. 13 of 1972, Section 106 of Transfer of Property Act - Ganga Ram v. Smt. Phulwati, 1970 A. L. J. 336, Dharampal Tyagi v. Anil Kumar, 1986 A. C. J. 486, Gopal Shanker Dube v. Rauniyar Biradari Panchayat Committee, Deoria & Ors. , 1988 AWC 1037 - The court found that the notice was served on the tenant by refusal, and the petitioner failed to rebut the presumption of service of notice. The court relied on legal provisions and precedents to support its decision.
Fact of the Case:
The landlord filed a suit for eviction of the tenant and recovery of arrears of rent and damages. The tenant contested the suit on the grounds that the plaintiff was not the landlord and denied receipt of the notice.
Finding of the Court:
The court found that the notice was served on the tenant by refusal, and the petitioner failed to rebut the presumption of service of notice.
Issues: The main issue was regarding the service of notice on the tenant.
Ratio Decidendi: The court held that the presumption of service of notice under Section 114 Clause (f) of the Evidence Act and Section 27 of General Clauses Act was not rebutted by the petitioner, and therefore, the notice was deemed to be served on the tenant by refusal.
Final Decision: The petition was dismissed, and the stay order was vacated with no order as to costs.
This is tenants petition under Article 226 of the Constitution of India. The petitioner has prayed for quashing the judgment and order-dated 18-10-85 passed by respondent No. 1 and judgment and order- dated 30-4-85 passed by respondent No. 2.
2. I have heard Sri G. N. Verma, Senior Advocate, assisted by Sri R. N. Sharma, learned Counsel for the petitioner and Sri Navin Sinha, Senior Advocate, assisted by Sri Ashish Srivastava, learned Counsel for landlord-respondent and have perused the record carefully.
3. It appears that landlord filed a suit for eviction of the tenant (Sharda Prasad) from House No. 54 (old) and 289 (new) Mohalla Chak, Allahabad and for recovery of arrears of rent and damages. The suit was filed with the allegations that the defendant occupied the accommodation as a tenant on a monthly rent of Rs. 24/-, which was enhanced to Rs. 30/- per month w. e. f. 15-7-1972. The tenant failed to pay arrears of rent w. e. f. 1-1- 1970. He was therefore served with a composite notice of demand and determining tenancy dated 21-3-78, which was served on him by refusal on 23-3-78. He however neither paid the arrears of rent nor vacated the accommodation.
4. The defendant contested the suit on the grounds, inter alia, that the plaintiff was not the landlord and the defendant claimed himself to be owner of the house in question and he never paid any rent to the plaintiff. It was also pleaded that no notice dated 21-3-78 was served on him and he never refused to receive the notice.
5. After having heard learned Counsel for the parties and scrutinizing the evidence on record, learned J. S. C. C. decreed the suit with proportionate costs.
6. The revisional Court dismissed the revision on 18-10-85 and confirmed the finding recorded by the Court below.
7. Learned Counsel for the tenant petitioner has pressed this petition solely on the ground that no notice was served on the tenant as required under Section 20 (2) (a) of U. P. Act No. 13 of 1972 and Section 106 of Transfer of Property Act and both the Courts below committed error of law in recording a finding to the effect that the notice was served on the tenant by refusal. He further contended that tenant denied receipt of the notice in paragraph-5 of his written statement and postman was not examined on behalf of the landlord to prove service of notice. Moreover, notice was not sent on the correct address of the tenant. He placed reliance on a Full Bench decision of this Court in Ganga Ram v. Smt. Phulwati, 1970 A. L. J. 336 and Dharampal Tyagi v. Anil Kumar, 1986 A. C. J. 486 and Gopal Shanker Dube v. Rauniyar Biradari Panchayat Committee, Deoria & Ors. , 1988 AWC 1037.
8. On the other hand, learned Counsel for the landlord-respondent has supported the finding recorded by the trial Court on the question of service of notice on the tenant and confirmed by the revisional Court also and urged with vehemence that notice was sent to the tenant on his correct address and except denying service of the notice in paragraph-5 of the written statement, the tenant said nothing in the additional pleas regarding service of notice. There is a presumption of service of notice which has not been rebutted by the tenant. The petitioner has given his address at the top of the rejoinder- affidavit dated 23-7-86 and the same address was mentioned on the registered cover also.
9. Learned Counsel for the respondent has placed reliance on the following decisions :
(1) Anil Kumar v. Nanak Chand Verma, AIR 1990 SC 1215.
(2) Puwada Venkateshwara Rao v. Chidamana Ventata Ramana, AIR 1976 SC 869 (3) Gujarat Electricity Board & Anr. v. Atma Ram Sungomal Poshani, AIR 1989 SC 1433.
10. I have considered the arguments advanced on behalf of the parties and perused the copies of the plaints, written statement judgment of the Courts below as well as statement of the petitioner recorded in the Court of J. S. C. C. , Allahabad. I have also gone through the decisions relied upon by the parties.
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