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1978 DIGILAW 849 (ALL)

Bal Govind Kaya v. Jamuna Prasad

1978-08-30

K.N.SINGH

body1978
JUDGMENT K.N. Singh, J. This is a plaintiff's application in revision under section 115 of the Code of Civil Procedure for setting aside the judgment and decree of the courts below dismissing their suit. The plaintiffapplicants filed a suit for ejectment of the defendants from the building in dispute and for recovery of Rs. 835/ as arrears of rent and Bhumi Bhawn Kar. The defendants contested the suit, inter alia, on the ground that no notice as contemplated under section 106 of the Transfer of Property Act had been served on them. The trial Court upheld defendants contention and held that their tenancy had not been determined prior to the filing of the suit as no notice under section 106 of the Transfer of Property Act was served on them. It decreed the suit for recovery of arrears of rent but it dismissed the plaintiffs' suit for defendants' ejectment. On plaintiffs' revision, the Addl. Distt. Judge, Kanpur affirmed the findings of the trial court. The only issue which arises for determination is whether notice under section 106 of the Transfer of Property Act was served on defendant no. 1 in accordance with law. The plaintiffs case was that they sent notice under registered cover on the correct address of the defendants but they refused to accept the same. On the other hand, the defendant contended that notice was never tendered to them and they never refused to accept the same. Jamuna Pd. defendant No. 1, examined himself in the witness box and denied service of the notice. The plaintiffs, on the other hand, examined the postman who had made endorsement of refusal on the registered cover. The trial court on appreciation of the evidence recorded a finding that the notice was never tendered to the defendant No. 1 and, therefore, no presumption about service of notice could arise. The trial court's finding was affirmed by the lower revisional court. Learned counsel for the applicants urged that the findings recorded by the two courts are vitiated as they have misread the evidence and have evaluated the same in a manner not permissible under the law. Learned counsel referred to the trial court's observation that the postman had noted refusal of the addressee on 29th April, 1970, therefore, there was no occasion for noting the refusal on 30th April, 1970. Learned counsel referred to the trial court's observation that the postman had noted refusal of the addressee on 29th April, 1970, therefore, there was no occasion for noting the refusal on 30th April, 1970. The Additional District Judge also observed that even though the postman in his statement before the trial court proved the endorsement made by him on the envelope, he did not, however, state that he had actually tendered the registered envelope to Jamuna Prasad defendant that he had refused to accept the same. Learned counsel urged that these are no valid considerations for rejecting the testimony of the postman. The landlord did what was possible under the law and the courts below wrongly rejected the testimony of the postman. I have gone through the statement of the postman and I have also perused the registered envelope. On a careful scrutiny of the same, it is possible to take a different view than that taken by the courts below, but that is not permissible in proceedings under section 115 of the Civil Procedure Code. Both the courts have relied upon a number of circumstances in discarding the testimony of the postman. Even if the testimony of the postman may be accepted the finding of fact recorded by the courts below are not open to challenge in the present proceedings. Findings of fact recorded by the lower courts are not open to interference by this Court while exercising jurisdiction under section 115 of the Code. In M/s. D.L.E. Housing and Construction Co. v. Sarup Singh (A.I.R. 1971 S.C. 2324), it is held that while exercising jurisdiction under section 115 it is not competent to the High Court to correct errors of fact, however, gross or even errors of law unless the said errors have relation to the jurisdiction of the Court to try the dispute itself. The 'word illegally' and 'with material irregularity' as used in clause (c) of section 115 do not cover either errors of fact or law; those do not refer to the decision arrived at but merely to the manner in which it is reached. The errors contemplated by this clause may relate either to breach of some provision of law or to material defect of procedure affecting the ultimate decision, and not to errors either of fact or of law after the prescribed formalities have been complied with. The errors contemplated by this clause may relate either to breach of some provision of law or to material defect of procedure affecting the ultimate decision, and not to errors either of fact or of law after the prescribed formalities have been complied with. In the instant case, the plaintiff was supported in his stand by the testimony of the postman as well as the endorsement of refusal on the registered envelope, while on behalf of the defendant his statement on oath denying the service was available on the record. The courts below considered the evidence produced on behalf of the parties and adjudged the testimony of postman in the background of a number of circumstances, one of which was that the defendant had made complaint to the higher postal authorities against the postman, as a result of which a departmental enquiry was held against the postman and he was transferred. The other circumstances which were taken into account were that relations between the parties were strained, that a suit had been filed by the defendant against the plaintiffs restraining them from taking possession of the house in dispute by force and the defendants had made unsuccessful efforts to deposit rent under Section 7C of U.P. Act III of 1947, and the circumstances that the postman did not state that he had tendered the registered envelope to Jamuna Prasad. The findings of the courts below are based on these circumstances. It is not possible to hold that the findings recorded by the courts below suffer from any illegality or material irregularity. In the result, the revision fails and is accordingly dismissed, but there will be no order as to costs.