HIGH COURT OF JUDICATURE AT ALLAHABAD MATTERS UNDER ARTICLE 227 No. - 14130 of 2025 Mukesh Kumar Sharma .....Petitioner(s)

Versus Sri Raj Kumar Goyal .....Respondent(s)

Counsel for Petitioner(s) : Pankaj Agarwal Counsel for Respondent(s) : Shekhar Gangal Court No. - 36 HON'BLE ROHIT RANJAN AGARWAL, J.

1. Heard learned counsel for the petitioner and Sri Shekhar Gangal, learned counsel for the respondent.

2. The suit for eviction was filed in the year 2002 being S.C.C. Suit No. 16 of 2002 on the ground of default of rent. The landlord-respondent had alleged that tenant-petitioner was in default of rent since 1991. According to landlord's counsel, the rent was paid in the year 2016. The trial court framed following issues for consideration:-

"1-

क्या प्रितवादी वादी का मु० 600रू0 प्रितमाह की दर से िकरायेदार आबाद ह?ै

2-

क्या प्रितवादी द्वारा वादी के स्वािमत्व से इंकार िकया गया ह?ै

3-

क्या वादी का वाद प्राड़ न्याय (रसजुिडकेटा) के िसद्धान्त से बािधत ह?ै

4-

क्या वादी द्वारा प्रेिषत नोिटस िद0-08-04-02 वैध ह?ै

5-

क्या प्रितवादी द्वारा िकराया अदा करने में चूक की गयी ह?ै

6-

क्या िववािदत सम्पित्त पर अिध० 13 सन 1972 के प्रावधान आकिषत होते ह?ैं

7-

क्या वादी कोई अनुतोष प्राप्त करने का अिधकारी ह?ै "

3. The Additional Judge, Small Cause Court decreed the suit for eviction and arrears of rent. Aggrieved by said order, a S.C.C. Revision No. 39 of 2016 was filed which has been dismissed by order impugned.

4. Learned counsel for the petitioner submits that both the courts below have wrongly recorded finding as to service of notice in fact the service of notice was not done. According to him, rent was tendered upto 2002 as has been admitted by landlord himself but after 2002 the rent was deposited in the year 2016.

5. Sri Gangal, learned counsel appearing for respondent submits that rent was not paid since 1991 and specific finding has been recorded by both courts below in regard to service of notice upon the tenant-petitioner.

6. I have heard respective counsel for the parties and perused the material on record.

7. From perusal of the judgment of both courts below, it is clear that this is a case of default of rent on the part of tenant for a long time. Finding of fact has been recorded as to arrears of rent. Further, finding as to service of notice upon tenant-petitioner is concerned, the courts below have recorded that service was by refusal.

8. Recently, the co-ordinate Bench of this Court in Prem Bahadur Dalela vs. Umeshraj Bali, S.C.C. Revision No. 157 of 2015, decided on 06.11.2019 after considering in depth as to presumption of notice and taking note of decision rendered in case of Ugrasen vs. Parmeshwari Devi, 2014 (9) ADJ 356 held as under:-

“22. As far as the aforesaid proposition is concerned, there is no quarrel. However, the law in so far as the presumption of notice is concerned has also been considered by a co-ordinate Bench of this Court in the case of Ugrasen Vs. Parmeshwari Devi reported in 2014 (9) ADJ 356. The question before the Court was who has to prove the endorsement of refusal was wrong. In other words, the question to be decided was that whose responsibility was to seek the production of the postman to prove the endorsement of refusal.

23. The aforesaid aspect was considered in light of the statutory provisions as well as various authorities on the subject. The relevant portion of the aforesaid report is reproduced hereinafter:-

7. Another relevant provision is section 114, Illustrations (e) and (f), Indian Evidence Act, 1872 (hereinafter referred to as "Act, 1972") which reads as under:

"114. Court may presume existence of certain facts.--The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.

Illustrations The Court may presume--

...

(e) The judicial and official acts have been regularly performed; (f) That the common course of business has been followed in part