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1993 DIGILAW 591 (ALL)

Jhabul Ram v. District Judge, Ballia

1993-10-08

D.S.SINHA

body1993
Judgment : D.S. Sinha 1. HEARD Sri Vishnu Kumar Singh, holding brief of Sri R. N. Singh, learned counsel representing the petitioner and Sri M. A. Qadeer learned counsel representing the contesting respondent no. 3. 2. THE respondent no. 3 instituted Small Cause Case No 25 of 1980, Mohd. Idris v. Jhabul Ram, in the Court of Judge Small Causes/Munsif (East), Ballia, for ejectment of the petitioner from the shop in dispute and for recovery of arrears of rent together with damages. THE petitioner resisted the suit on the ground that there was no arrears and that the requisite notice under section 20 of the U. P. Urban Building (Regulation of Letting, Rent and Eviction) Act, 1972, hereinafter called the Act, and section 106 of the Transfer of Property Act, 1882 had not been served on him. He also claimed the benefit of sub-section (4) of Section 20 of the Act. By means of the decree and judgment dated 22nd January, 1981 the Judge Small Causes decreed the suit of the respondent no. 3 on the findings that the requisite notice had been served on the petitioner and that he was not entitled to the benefit of the provisions of sub-section (4) of Section 20 of the Act in as much as he had not made requisite deposit on the first date of hearing as envisaged in sub-section (4) of Section 20 of the aforesaid, Act. 3. AGGRIEVED by the decree and judgment of the Judge Small Causes, the petitioner filed a revision, no. 5 of 3981, Jhabul Ram v. Mohd. Idris, in the Court of District Judge, Ballia, under section 25 of the Provincial Small Causes Court Act, 1887. The learned District Judge, Ballia agreeing with the finding of the learned Judge Small Causes dismissed the revision of the petitioner and affirmed the decree and judgment dated 22nd January, 1981 passed against the petitioner vide his order and judgment dated 19th May, 1981. 4. TWO decrees and judgments dated 22nd January, 1981 and 19th May, 1981, passed by the Judge, Small Causes, Ballia and the District Judge, Ballia, aforesaid, are under challenge in this petition under Article 226 of the Constitution of India. 4. TWO decrees and judgments dated 22nd January, 1981 and 19th May, 1981, passed by the Judge, Small Causes, Ballia and the District Judge, Ballia, aforesaid, are under challenge in this petition under Article 226 of the Constitution of India. Learned counsel for the petitioner contends that the courts below erred in holding that the requisite notice had been duly served on the petitioner and that he was not entitled to the benefit of the provisions of sub-section (4) of Section 20 of the Act. 5. LEARNED counsel contends that the petitioner had denied the factum of refusal of notice as endorsed by the Postman on the registered cover containing the notice and the denial was sufficient to rebut the presumption of service of notice upon him. According to him, the courts below, therefore, went wrong in presuming the service of notice upon the petitioner. The contention of the learned counsel, in the opinion of the court, is wholly untenable. 6. THE courts below have categorically found that on behalf of the petitioner there was only bald denial in respect of the endorsement of refusal upon the registered cover containing the notice. THE denial was rot supported by any further material. Mere denial of refusal on the part of the addressee of registered cover is not enough to rebut the presumption of service upon him. If the letter under registered cover returned back with a postal endorsement that the addressee refused to accept the same, there is a rebuttable presumption of service. THE presumption of service can be rebutted by producing material to show that the endorsement of refusel was wrong. Dealing with the question of presumption with regard to service of a letter sent under registered cover, the Honourable Supreme Court, in its decision rendered in the case of Gujrat Electricity Board v. Atam Ram, AIR 1989 SC 1433 , has ruled thus : "There is presumption of service of a letter sent under registered cover if the same is returned back with a postal endorsement that the addressee refused to accept the same. No doubt the presumption is rebuttable and it is open to the party concerned to place evidence before the court to rebut the presumption by showing that the address mentioned on the cover was incorrect or that the postal authorities never tendered the registered letter to him or that there was no occasion for him to refuse the same. THE burden to rebut the presumption lies on the party, challenging the factum of service. In the instant case the respondent failed to discharge this burden as he failed to place material before the Court to show that the endorsement made by the postal authorities was wrong and incorrect. Mere denial made by the respondent in the circumstances of the case was not sufficient to rebut the presumption relating to service of the registered cover. Bald denial of the petitioner could not absolve him from the burden of rebutting the presumption of service of notice arising from the endorsement by the postal authorities on the registered cover containing the notice. The courts below did not commit any error, much less an error apparent on the face of record, in holding that the notice in question was duly served on the petitioner. 7. THE contention of the learned counsel for the petitioner that the courts below erred in not granting to the petitioner the benefit of the provisions of sub -section (4) of section 20 of the Act also is devoid of substance. THE benefit of sub-section (4) of Section 20, aforesaid, can be claimed by a tenant only where he unconditionally pays or tenders to the landlord or deposits in court the entire amount of rent and damages for use and occupation of the building due from him, damages for the use and occupation being calculated at the same rate as rent, together with the interest thereon at the rate of 9% per annum and the landlord's costs of the suit in respect thereof, after deducting therefrom any amount already deposited by him under sub-section (1) of Section 30 of the Act, at the first hearing of the suit. THE expression 'first hearing' has been defined by the explanation added to sub-section (4) of Section 20 of the Act as the the first date for any steps or proceedings mentioned in the summons served on the defendant. THE expression 'first hearing' has been defined by the explanation added to sub-section (4) of Section 20 of the Act as the the first date for any steps or proceedings mentioned in the summons served on the defendant. In this case, it has been found by the courts below, as a matter of fact, that the summons of the suit had been served on the petitioner on 16th September, 1980 and the first date mentioned therein for filing written statement etc, was 6th October, 1980. THE petitioner could claim the benefit of the provisions of sub-section (4) of Section 20 of the Act by making the requisite deposit on 6th October, 1980 but he did not do so inspite of the service of summons on 16th September, 1980 calling upon him to appear and file written statement on 6th October, 1980. THE defendant chose to appear in court on 13th October, 1980 and moved an application for grant of time to file written statement. He again prayed for time on 13th November, 1980. Eventually, he filed written statement on 15th December, 1980 and on that date he made the deposit of the amount of rent and damages etc. for claiming the benefit of the provisions of sub-section (4) of Section 20 of the Act. Obviously, 15th December, 1980, on which the petitioner made the deposit was not the first date of hearing as contemplated under sub-section (4) of Section 20 of the Act. 8. FOR the purpose of grant of benefit of the provisions of sub-section (4) of Section 20 of the Act in this case the date of first hearing was 6th October, 1980. No deposit having been made by him on the first date of hearing, namely, 6th October, 1980 the petitioner could not claim the benefit of sub-section (4) of Section 20 of the Act. The counts below rightly declined to grant to the petitioner the benefit of sub-section (4) of Section 20 of the Act. For the foregoing reasons, the court is clearly of the opinion that the impugned decrees and judgements are sound in law and the petition has no merit. 9. IN the result, the petition is dismissed. However, there will be no orders as to costs. Petition dismissed.