SANAULLA KHAN v. HANSRAJ — 1991 DIGILAW 250 (KAR)

HAKEEM, J. ( 1 ) THIS revision is directed against the trial Court's order setting aside the exparte order of eviction passed in H. R. C. No. 3033 of 1981. ( 2 ) THE brief facts are as follows: The petitioner herein is the landlord in respect of the premises in question, which is a godown bearing No. 13 situated at Kalasipalyam layout in Bangalore City. The respondent, which is a registered firm was in occupation of the said premises as a tenant under the petitioner on a monthly rent of Rs. 500/ -. The landlord filed h. R. C. No. 3033 of 1981 before the Small Causes Judge, Bangalore city, seeking eviction of the tenant on the ground under Section 21 (1) (h) of the Karnataka Rent Control Act, 1961 (the 'act' ). By an order dated 24-9-1982 the tenant was placed exparte and the landlord's petition was allowed directing the tenant to deliver possession of the premises by 31-12-1982. On 29-1-1983 the tenant preferred an application Misc. No. 67 of 1983 under Order 9 Rule 13 read with Section 151 of the C. P. C. seeking to set aside the said order. The said application is supported by the affidavit of one Rajeev juneja, a partner of the firm of M/s. Hansraj and Co. (the tenant ). It is, inter alia, averred that the landlord had fraudulently obtained an order of eviction without due service of notice of the petition upon the firm which is the tenant. It is stated that the godown 'is opened only for the purpose of either bringing in or taking out the goods, and that the business premises of the tenant is located at No. 11, S. J. P. Road, bangalore-2, which fact was within the knowledge of the landlord. It is denied that there was valid tender of notice sent to the godown address or that it was refused. In his objection statement the landlord denied that the exparte order of eviction was obtained by him without due notice. According to him, the notice issued to the tenant on the address of the premises, registered post was refused, as evident from the postal shara. It was further denied that he had furnished incorrect address of the tenant. On these pleadings the parties went to trial. According to him, the notice issued to the tenant on the address of the premises, registered post was refused, as evident from the postal shara. It was further denied that he had furnished incorrect address of the tenant. On these pleadings the parties went to trial. Considerable evidence was let in by both the parties, on an appreciation of which the Court below has upheld the tenant's contention and set aside the exparte order of eviction passed in h. R. C. No. 3033/1981. ( 3 ) SRI U. L. Narayana Rao, learned Counsel for the landlord has urged that in view of the evidence and material on record, the trial court was not justified in setting aside the exparte order of eviction passed as early as on 24-9-1982. Referring to the proceedings in the h. R. C. case it is sought to be pointed out that the landlord had taken necessary steps from time to time for effecting service of notice upon the tenant, which, according to him, could not be served since it was deliberately evaded; and ultimately, the notice sent through registered post was also refused. The learned Counsel placed reliance on the provisions of sub-rule (3) of Rule 28 of the Karnataka Rent Control rules 1961 (the Rules), to contend that in view of the shara of refusal on the registered cover, no further proof was necessary to establish due service of notice. As such it was not open for the tenant to question the validity of the said notice. On the other hand Sri K. G. Raghavan, learned Counsel for the tenant sought to justify the reasoning of the learned trial Judge in passing the impugned order. ( 4 ) IN order to appreciate the rival pontentions of the parties, it is appropriate to state certain relevant facts found in the proceedings of h. R. C. No. 3033 of 1981: on 18-11-1981 the petition was filed under Section 21 (1) (h) of the act. On 17-12-1981 notice to the tenant was stated to have been served on 'shop', and noting the tenant's absence. Thereafter notice by registered post was issued. The order dated 22-1-1982 discloses that the notice was returned with the endorsement that the door is locked. On 17-12-1981 notice to the tenant was stated to have been served on 'shop', and noting the tenant's absence. Thereafter notice by registered post was issued. The order dated 22-1-1982 discloses that the notice was returned with the endorsement that the door is locked. On the same day the landlord files an application under Order 5 Rule 20 of the C. P. C. , the affidavit in support of which had been sworn on 13-1-1982. The said application was allowed. On 15-3-1982 it is recorded that the notice to the tenant is duly published by affixture as per shara dated 24-2-1982. It is pertinent to note here that not being satisfied with the service of notice as aforesaid the learned trial judge directed the landlord on 18-3-1982 to furnish the 'shop address' of the tenant. Obviously, the Court required the business address of the tenant to be furnished. On 31-3-1982 a Memo was filed on behalf of the landlord stating that inspite of his best efforts he could not get the tenant's address. The Court then directed issue of notice by registered post once again. The address furnished by the landlord on the cover was again that of the schedule premises, i. e. , the godown. The proceedings recorded on 30-7-1982 are that the notice by registered post was returned with a shara of refusal dated 15-7-1982. Once again a fresh notice by registered post is taken to the same godown address, which was returned with a similar shara. Thereupon the matter was posted for exparte evidence, and on a consideration of the averments in the landlord's affidavit the order of eviction came to be passed on 24-9-1982. ( 5 ) THE Court below has found that the shara of refusal on the registered letter is a manipulation and that the tenant had no knowledge of the proceedings. He has therefore accepted the claim of the tenant that he came to know of the exparte order only when delivery of the premises was taken in execution. ( 6 ) SUB-RULE (3) of Rule 28 of the Rules reads as under: "28 (3) Notwithstanding anything in sub-rule (1) or (2), the controller or the Court may direct a notice, intimation or order to be sent to the person concerned by registered post, prepaid for acknowledgement. ( 6 ) SUB-RULE (3) of Rule 28 of the Rules reads as under: "28 (3) Notwithstanding anything in sub-rule (1) or (2), the controller or the Court may direct a notice, intimation or order to be sent to the person concerned by registered post, prepaid for acknowledgement. Any acknowledgement received through post and any 'shara' or endorsement made by a postal official thereon shall be accepted as evidence of the fact stated therein without any further proof. " (Underlining by me) it is clear that the postal acknowledgement and the endorsement made by a postal official thereon would only invoke a statutory presumption regarding due service of notice. It seems to me that what is sought to be incorporated in the Rule is the principle regarding statutory presumption as contemplated under Section 27 of the general Clauses Act and Section 114 of the Evidence Act. It is not possible to give any other interpretation to the said Rule, so as to prevent the aggrieved party from establishing by acceptable rebuttal evidence that such registered letter was in fact not tendered to him or refused by him. In view of the drastic consequences of such deemed service of notice, the evidence regarding refusal of notice must be clear and convincing, whenever the correctness of the said endorsement is disputed. In the instant case, the petitioner has denied that he had refused to receive the notice sent by registered post. It is stated that the premises is only a godown used for the limited purpose as pleaded and cannot be regarded as the place of business of the firm. The tenant has produced a number of money order acknowledgements signed by the landlord himself, which discloses the business address of the tenant as No. 11, SJP Road, Bangalore, while the landlord pretended ignorance regarding the correct business address, when he was asked by the Court to furnish the same. The evidence of the postman who was examined on behalf of the tenant is also of no assistance to the landlord. Admittedly, he does not know the person who is said to have refused the registered notice. He has further stated that the shara of refusal is recorded by a Clerk on the basis of the chart noting such refusal. No such chart is produced before the court. In the circumstances, no value could be attached to the said shara. Admittedly, he does not know the person who is said to have refused the registered notice. He has further stated that the shara of refusal is recorded by a Clerk on the basis of the chart noting such refusal. No such chart is produced before the court. In the circumstances, no value could be attached to the said shara. Yet another fact to be noticed is that the Registered covers opened in Court contained only the Court notice without the petition copy. It appears to be well settled that when a copy of the petition or brief statement of the case is not sent with the notice it does not amount to due service of notice even under Order 5 Rule 20 (2) C. P. C. In that view of the matter also there is no valid ground to interfere with the impugned order. ( 7 ) IN the result, Civil Revision Petition is dismissed. However, in view of the fact that the petitioner has been out of possession since january 1983, it is just and expedient to direct the trial Court to dispose of the eviction petition in H. R. C. No. 3033/1981 before 30-6-1991. --- *** --- .