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2000 DIGILAW 811 (KAR)

G. H. Manjula v. Kamalluddin alias Kamal

2000-12-06

H.N.TILHARI

body2000
ORDER Hari Nath Tilhari, J.—This revision under Section 18 of the Small Causes Courts Act arises from the judgment and decree dated 19.6.1999 passed by the XII Additional Judge, Small Causes Court, decreeing the Plaintiff's claim in Small Causes case No. 874 of 1998. The trial Court granted the decree for a sum of Rs. 22,696.00 and also awarded interest at the rate of 10% p.a. from the date of suit till the date of realisation. The Plaintiff's case has been that the Defendant had been the Plaintiff's tenant and the Plaintiff has been the owner of the property in dispute and under the agreement executed between them, the Defendant took the premises in suit on a monthly rent of Rs. 500.00. There is no dispute among the parties so far as above facts are concerned. According to the Plaintiff's case, the Defendant did not pay the rent regularly and according to the Plaintiff's case from September 1, 1997 the Defendant had not paid any amount towards rent. The Plaintiff therefore contended that the Defendant has been liable to pay a sum of Rs. 20,000.00 towards arrears of rent and a sum of Rs. 1,000.00 towards interest and a sum of Rs. 2,696.00 towards electricity charges. Therefore, in all he has claimed Rs. 23,695.00 from the Defendants being the arrears of rent and electricity charges as on 31.12.1997. The Plaintiff's case is that the Plaintiff gave a legal notice on 19.1.1998 calling upon the Defendant to pay the rent. But inspite of notice being issued, he did not pay, but gave a reply as per Ex.P-4. The Plaintiff further alleged that as the Defendant withheld the rent without any reason, hence the Defendant shall be liable to pay the interest thereon at the rate of 24% p.a. till the payment of entire rent. The premises was leased for business purposes. 2. The Defendant contested the Plaintiff's claim and he denied that he was a defaulter and had not paid rent from 30.6.1997. The Defendant denied that he was in arrears of any rent. The Defendant further asserted that a sum of Rs. 1,001.00 was given in advance and a sum of Rs. 30,000.00 by cheque which cheque had been encashed by the Plaintiff. The Defendant took the plea that Plaintiff had to supply 20 HP power connection. But that was not supplied in time. The Defendant further asserted that a sum of Rs. 1,001.00 was given in advance and a sum of Rs. 30,000.00 by cheque which cheque had been encashed by the Plaintiff. The Defendant took the plea that Plaintiff had to supply 20 HP power connection. But that was not supplied in time. The Plaintiff required the Defendant to pay additional sum of Rs. 15,000.00 and the Defendant had paid additional sum of Rs. 14,000.00 on 18.9.1997 by cheque. The Defendant asserted that because of non-supply of 20 HP power connection, the Defendant had to suffer a lot of loss and could not carry on his business properly. The Defendant further alleged that the Plaintiff has been liable to return Rs. 30,000.00 and cash amount of Rs. 1,001.00 and additional sum of Rs. 14,000.00 paid to him. He further alleged that the Plaintiff was liable to pay compensation to the Defendant to the tune of Rs. 45,000.00. The Defendant's case has been that to avoid and to cover up his laches, the Plaintiff has issued notice with false claims in order to counter balance the claim of the Defendant. It may be mentioned that the Defendant has not set up any counter claims in the written statement. In paragraph 10 of the written statement, he has taken a plea amongst others saying that the Plaintiff having acknowledged the letters sent by the Defendant and having failed and neglected to arrange for supply of power, on 14.11.1997 the Defendant vacated the industrial shed and handed over the possession to the Plaintiff and thus ceased to be the tenant. 3. The trial Court framed only three issues: (1) Whether the Plaintiff proves that the Defendant is in arrears of rent from September 1997 to December 1997 amounting to Rs. 20,000.00 and electricity charges of Rs. 2,696.00? (2) Whether Plaintiff is entitled to suit claim with past and future interest with costs? (3) What order? 4. No point of dispute appears to have been framed and tried to the effect namely, whether the Defendant had vacated the disputed premises on 14.11.1997? But, no doubt, though issue was not framed, the trial Court had recorded the finding taking the view that except for his statement, the Defendant has not produced any evidence including that of his workers to prove that he had vacated the disputed premises on 14.11.1997. But, no doubt, though issue was not framed, the trial Court had recorded the finding taking the view that except for his statement, the Defendant has not produced any evidence including that of his workers to prove that he had vacated the disputed premises on 14.11.1997. When attention of the Court was no doubt invited to Ex.D-7 and Ex.D-8, the Court appears to have cursorily observed that by these letters primarily a demand was made to the Plaintiff to provide power connection and though no doubt the Defendant has stated that he informed the Plaintiff that he will hand over possession of the premises to the Plaintiff, but Defendant demanded back the advance amount etc., and then the Court observes that it is important to note that no tenant will vacate the premises unless and until he receives back the advance amount and taking this view, the Court below opined that Plaintiff is entitled to rent for four months namely September, October, November and December. It opined that burden was on the Defendant to prove that he had vacated the premises and held that the Defendant failed to adduce the material evidence even of his witnesses. The decision has been challenged in this Court by filing this revision under Section 18 of the Small Causes Courts Act. 5. I have heard the learned Counsel for the Petitioner Sri Ratnagiri Swamynathan, and Sri K.R. Ramesh, learned Counsel for the Respondent. 6. From a perusal of the judgment and after hearing the learned Counsels for the parties, in my opinion, that the judgment and decree of the Court below has not been passed in accordance with law firstly for the reason that the trial Court did not frame the point of dispute which would have indicated the burden on the question namely whether the Defendant vacated the premises on 14.11.1997 or not. No issue was framed. Issues are to be framed in such cases to indicate the burden on which the parties lies to establish a particular fact and when an issue was not framed, it could not be said that the Defendant has not prayed to lead the evidence even of his workers and others. Apart from that, the decision further suffers from material error of law rendering the decision to be not in accordance with law by not taking note of the fact that Ex.D-8 was received by the Plaintiff. Apart from that, the decision further suffers from material error of law rendering the decision to be not in accordance with law by not taking note of the fact that Ex.D-8 was received by the Plaintiff. It contained same address of the Plaintiff as is given in the plaint. The learned Counsel for the Plaintiff submitted that this was not received by him or served on him and that his client has denied receipt of such notice. It is a well settled principle of law of evidence under Section 114 illustration 'F' of the Evidence Act that a letter sent on correct and proper address will ordinarily be presumed to have reached its destination unless it has been returned to the sender or unless specific reason has been shown by the addressee to show as to why it has not been received. Section 114 F' illustration is as to the question whether a letter was received, if it is shown to have been posted and the addressee's correct address has been given and it is proved to have been sent to addressee on correct address, then it would be presumed that it reached the addressee. In the present case, the address of the addressee mentioned in those letters namely the present Plaintiff is same as has been mentioned in the plaint by the Plaintiff himself. There appears no reason as to why the letter did not reach. Section 27 of the General Clauses Act in this regard is what being taken note of and it is being quoted herewith. It reads as under: Section 27.-Meaning of service by post.-Where any Central Act or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression 'serve' or either of the expressions 'give' or 'send' or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post. 7. That principle under Section 27 may be applicable and may be relied for the purpose of drawing of presumption under Section 114 of the Evidence Act. 7. That principle under Section 27 may be applicable and may be relied for the purpose of drawing of presumption under Section 114 of the Evidence Act. So this contention that letter was not received is not acceptable. Really when it was served on the Plaintiff, the Plaintiff should have sent a reply denying the contents of the letter. In other words, the burden is on the Plaintiff to have denied the contents of the letter and to have communicated the same to the Defendant. Hence it may be presumed that, under Section 114 of the Evidence Act, the letter Ex.D-8 reached. In that letter, the Defendant has mentioned that he has handed over possession of the property to the Plaintiff on 14.11.1997, as per Ex.D-8. I am unaware of any law under which the trial Court has raised the presumption that no tenant will vacate the premises unless he has received back the advance paid by him. Such presumptions are not to be raised unless law so provides. Even after vacating the premises, the parties may claim the advance. So it appears that the Court below did not apply its mind properly to the evidence and keeping in view the principles of law. It has only tried to proceed on conjectures or surmises. Any way, the judgment and decree of the Court below appears to have been passed not in accordance with law. The judgment and decree of the Court below, as such, is set aside. The Court below is directed to decide the suit afresh according to law after framing the issue as indicated earlier. Let the parties be allowed to adduce evidence whatever they want on that issue. 8. The amount which has been deposited by the tenant in the trial Court should be kept with itself till the decision of the suit on merits and may be disbursed only after the suit had been decided. 9. The trial Court is expected to proceed expeditiously with the proceedings of the suit. 10. Respective parties to bear their own costs.