GANPATI DEVI v. IIND ADDITIONAL DISTRICT JUDGE, BAHARICH
1997-05-29
A.S.GILL
body1997
DigiLaw.ai
AMARBIR SINGH GILL, J. ( 1 ) THE petitioner, who is a landlady of a shop at Bahraich. in this writ petition has challenged the order dated 11. 10. 1988 of Hnd Additional District Judge, Bahraich, accepting the revision against the decree passed by the Judge Small Causes Court in favour of the petitioner. ( 2 ) THE facts of the case are that Smt. Ganpati Devi petitioner purchased a shop from its erstwhile owner Hira Lal on 19. 5. 1977, which was already on rent with opposite party Gokul Prasad. It was alleged that the petitioner as well as Hira Lal aforesaid had informed the tenant of the transfer of the title of the shop in favour of the petitioner and that the tenant should attorn to petitioner as landlady and pay the rent to her. After repeated demand for the payment of the rent, the petitioner served the legal notice on 4. 11. 82 claiming arrears of rent with effect from 19. 5. 77 to 19. 11. 82. However, the tenant did not accept the notice and refused acceptance, whereafter the land-lady filed a suit for arrears of rent, damages and eviction. Tenant Gokul Prasad contested the claim, he admitted the relationship of land-lady and tenant between the parties, but claimed that he was never given any notice of the transfer either by the petitioner or by the earlier owner hira Lal. He came to know of it of his own and thereafter he made efforts to pay the rent to the petitioner, but the same was not accepted. He even sent the arrears of rent by post to the petitioner as well as to the earlier owner, but the same was refused. Having no other option but to deposit the rent under Section 30 of U. P. Urban Buildings (Regulation of Letting, Rent and eviction) Act, 1972 (U. P. Act No. XIII of 1972), he deposited the rent with the permission of the court and even continued the deposit of rent for ensuing months thereafter till the filing of the suit. He even deposited the rent on the date of first hearing in the suit. He claimed the benefit of section 20 (4) of Act No. XIII of 1972. He, thus, claimed that he was neither in arrears of rent nor he received any legal notice.
He even deposited the rent on the date of first hearing in the suit. He claimed the benefit of section 20 (4) of Act No. XIII of 1972. He, thus, claimed that he was neither in arrears of rent nor he received any legal notice. ( 3 ) THE Judge Small Cause Court decreed the suit of plaintiff against the petitioner for arrears of rent and eviction. Gokul Prasad filed revision petition and after considering the merit, the learned additional District Judge differed with the decision of trial court and allowed the revision and dismissed the suit of the petitioner, which decision is being impugned in this writ petition. ( 4 ) THE learned counsel for the parties have been heard at length. ( 5 ) THE learned counsel for the petitioner has raised two material contentions, firstly once the trial court gave finding that the notice was duly served on the tenant, it was a finding of fact, the revisional court could not have upset the same and secondly that once the tenant had known that the petitioner has purchased the shop and have become the land-lady, the tenant was required to tender rent to the land-lady instead of depositing the same under Section 20 (4) of Act No. XIII of 1972. In order to appreciate the contentions, it would be necessary to refer to some of the facts relevant to these two points. The notice was sent by the land-lady petitioner through registered post on the address of the tenant "gokul Prasad, resident of Mohalla Mewatipura, Bahraich" whereas his correct address was a "gokul Radio Watch Company, Chowk, Bahraich", and it carried a report of refusal. The trial court presumed this report as due/deemed service of the notice and proceeded to decide the matter as if the legal notice was duly served. The tenant gokul Prasad admittedly denied if any notice was served upon him. Besides, there is other evidence on record that Gokul Prasad was neither residing at the address given on the envelope nor he was carrying on any business on that address. Hira Lal, the previous owner/landlord of the shop in question appeared as P. W. 2, who admitted in his statement that Gokul Prasad resides at mohalla Brahmanipura and not at Mewatipura, besides that Gokul Prasad carried out his business in the shop let out to him by Banshi Dhar Puran Mal.
Hira Lal, the previous owner/landlord of the shop in question appeared as P. W. 2, who admitted in his statement that Gokul Prasad resides at mohalla Brahmanipura and not at Mewatipura, besides that Gokul Prasad carried out his business in the shop let out to him by Banshi Dhar Puran Mal. The tenant Gokul Prasad according to his case had sent the rent by post to the land-lady and Hira Lal, the earlier owner. He has "refused" coupon of the money order placed on record, which shows that the tenant gokul Prasad has given his address as "gokul Prasad, Gokul Radio Watch Company, Chowk, bahraich". However, the registered envelope carried the address of Gokul Prasad tenant as resident of Mohalla Mewatipura, Bahraich. In the given circumstances the presumption available under Section 114 of the Indian Evidence Act, 1872 of its due service is not available. Even otherwise, if the tenant denied the service of such a notice, the presumption being rebutable, onus of proving due service of the registered notice on the tenant shifts to the petitioner land-lady, which could be proved by producing the Postman who made the report of refusal on the registered notice. ( 6 ) THE learned counsel for the petitioner, no doubt, contended that the tenant/opposite party had received the summons issued on the same address, but there is material difference on personal service and service by post. It is not necessary that summons were received by Gokul Prasad only on that address. He would be served personally by the process server wherever he happens to meet him, even if he is in the Court compound. Unless and until the postal address is correct, the presumption under Section 114 of the Indian Evidence Act of its due service is not available and such a presumption, if any, is rebuttable one by the addressee by denying the service of such a registered letter. Legal position stands clarified by this Court in its decisions in Smt. Bachchi devi and another v. 1st Additional District Judge and others, 1983 ARC 849 ; Dharampal Tyagi v. Anil Kumar. 1986 (2) ARC 121. Since in this case the land-lady did not produce any other evidence that Gokul Prasad refused to accept the registered notice, tenant Gokul Prasad rebutted the factum of service of legal notice on him.
1986 (2) ARC 121. Since in this case the land-lady did not produce any other evidence that Gokul Prasad refused to accept the registered notice, tenant Gokul Prasad rebutted the factum of service of legal notice on him. the evidence before the trial court was lacking therefore to consider and hold the due service of the legal notice and as such the revlsional court could not accept the same as finding of fact. It is no doubt true that the revisional court has a limited scope to interfere with the finding of fact in an order passed by the Judge Small Causes court, however, this limited scope does not include the power to interfere with the legal error made on the face of record or if the trial court misconceived the legal position. Such a view has been taken by the Supreme Court in the case of Jagdish Prasad v. Smt. Angoori Devi, 1984 (2)LCD 189. The learned counsel relied upon a decision in Smt. Radhajl Maharani and another v. VIIth Additional District Judge, Meerut and another, 1983 ARC 39, wherein this Court observed that the finding given by the trial court on rate of rent being a finding on pure question of fact cannot be interfered by the revisional court, unless found to be legally erroneous. This decision in any way supports the aforesaid view that even a finding of fact, which is legally erroneous, can be interfered in the revision. Other decision relied upon by the learned counsel is Ram Ratan rastogi v. District Judge. Allahabad and others, 1983 ARC 40, wherein elucidating the scope of revisional power this Court observed that the revisional court is competent to decide the question of limitation and thereafter the revision on merit instead of remanding the case. The legal question involved was that if the application for review under Section 16 (5) of the U. P. Act No. XIII of 1972 was or was not filed within limitation and the Court observed that the revisional court instead of remanding the case for decision by the Prescribed Authority could have decided this legal point and thereafter the revision itself. There is, thus, no infirmity in the order of the learned Additional District Judge in upsetting the finding of the trial court on the question of service of legal notice on the tenant Gokul Prasad.
There is, thus, no infirmity in the order of the learned Additional District Judge in upsetting the finding of the trial court on the question of service of legal notice on the tenant Gokul Prasad. ( 7 ) THE other contention raised by the learned counsel for the petitioner was that the deposit made by the tenant under Section 30 (2) of U. P. Act No. XIII of 1972 was not due deposit. It has been contended that since the tenant himself admitted that he had come to know that the present petitioner has purchased the disputed shop and became his land-lady, there was no question for him to. deposit the rent in the court instead of tendering the same to her. The contention is not supported from the evidence on record. The case of the opposite party/tenant before the trial court was that no notice of transfer of title in favour of present petitioner was issued to him either by her or previous owner Hira Lal. The petitioner no doubt pleaded that she and the previous owner had issued notice to the tenant of change of title, in the same, however, she admitted that no notice in writing was sent to the tenant rather he was told verbally. Even if that be correct, there was no necessity for the land-lady to refuse the money order sent by the tenant towards the payment of rent. There was, thus, no option for the tenant but to approach the earlier owner whom he had also sent the money and who too refused to accept the same. There being no option left with the tenant except to approach the court for permission to deposit the rent under Section 30 of the U. P. Act No XIII of 1972 and the court permitted him to do so. He continued depositing the rent, the arrears as well as the rent for the ensuing months and in fact on the date of alleged legal notice he was not in arrears of rent at all because arrears of rent claimed in the notice also stood deposited with the Court. There is, thus, no material to differ with the finding of the revisional court or to accept this petition. ( 8 ) THERE is no merit in this petition and the same is dismissed. No order as to costs. .