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2007 DIGILAW 540 (MAD)

M. Radhakrishnan v. P. Lakshmipathy

2007-02-09

R.BANUMATHI

body2007
Judgment :- This Civil Revision Petition is directed against the order of Rent Control Authorities, dismissing the Petition filed under Rule 12(3) of the Tamil Nadu Buildings (Lease and Rent Control) Rules, declining to set aside the exparte order of eviction dated 05.07.2005. 2. R.C.O.P.No.474 of 2004 was filed by the Respondent / Landlord for eviction of the Petitioner / Tenant on the ground of Wilful Default. The Petitioner / Tenant was set exparte on 05.07.2005. The Petitioner has filed an Application in M.P.No.4 of 2006 to set aside the exparte order. That Application was dismissed by the learned Rent Controller on 01.02.2006. Aggrieved by the same, the Petitioner has preferred R.C.A.No.145 of 2006, which was also dismissed by the Impugned Order. 3. Heard the submissions of the learned counsel for the Petitioner and the Respondent. 4. According to the Petitioner, no proper notice was served upon him before passing exparte order and the Rent Controller ought to have set aside the exparte order. Learned counsel for the Petitioner contended that without referring the matter to the Handwriting Expert, the Rent Controller compared the signature in the Acknowledgement Cards and erroneously came to the conclusion that the signatures found in the Affidavit and the Acknowledgement Card are one and the same and erred in finding the Petitioner was duly served. 5. Drawing the attention of the Court to various dates on which the Petitioner was served, learned counsel for the Respondent / Landlord has submitted that the Petitioner is in arrears of rent for more than five years and has committed default and is a habitual defaulter. 6. The Petitioner is in occupation of non-residential premises and is running a cycle shop. Earlier, R.C.O.P.No.2496 of 1997 was filed for fixation of fair rent. After contest, fair rent was fixed at Rs.980/- per month. The Tenant has not preferred any Appeal and the fair rent fixed at Rs.980/- has become final. Though fair rent was fixed in August 2000, the Petitioner has not paid the rent and has committed default. 7. Legal Notice dated 210. 2003 was issued by the Landlord claiming arrears of rent, which was received by the Petitioner on 11. 2003 by duly signing the Acknowledgement Card, which was marked as Exs.P.1 and 2. Only after issuing Notice, Eviction Petition was filed. 7. Legal Notice dated 210. 2003 was issued by the Landlord claiming arrears of rent, which was received by the Petitioner on 11. 2003 by duly signing the Acknowledgement Card, which was marked as Exs.P.1 and 2. Only after issuing Notice, Eviction Petition was filed. By perusal of the Typed Set of Papers, it is seen that in the R.C.O.P, the Petitioner has received four R.P.A.D Notices after filing of R.C.O.P. The Petitioner has received first RPAD Notice sent through Court on 16.04.2004. Since the Acknowledgement was received after the hearing date, fresh notice was ordered. In the second time, the Petitioner has received RPAD on 21.06.2005 for the hearing on 28.06.2005. Even after receiving second notice, the Petitioner has not appeared in R.C.O.P. The Acknowledgement in the Second Notice was also not received within the hearing date. Hence, again notice was ordered to the Petitioner and Private Notice was also served. The Petitioner received the Private Notice sent by the counsel and even after receiving the third Notice, the Petitioner has not appeared in the R.C.O.P. After repeated service of Notice, since the Petitioner had not appeared, he was set exparte and exparte order of eviction was passed on 05.07.2005. 8. Since the Petitioner has raised the contention of non-serving of Notice, the learned Rent Controller has compared the signature in the Acknowledgement Cards and expressed the view that the Petitioner himself has put his signature and the signature found in the acknowledgement card are similar to that of the signatures found in the Affidavit filed in the M.P. Petition. Learned counsel for the Petitioner has contended that the Rent Controller erred in comparing the signatures without referring the matter to Handwriting expert. Contending that the Rent Controller erred in comparing the signatures without aid of the Handwriting Expert, learned counsel for the Petitioner placed reliance upon the decision reported in O. Bharathan ..Vs.. Sudhakaran (A.I.R. 1996 S.C. 1140). The said case related to the comparing of disputed signatures on the counterfoils which contain the signature of the Witnesses. The said case before the Supreme Court related to Election Petition where there was allegation of improper reception of votes void or invalid votes. The above observation of the Supreme Court in the factual context of the said case is not applicable to the case in hand. 9. The said case before the Supreme Court related to Election Petition where there was allegation of improper reception of votes void or invalid votes. The above observation of the Supreme Court in the factual context of the said case is not applicable to the case in hand. 9. In the Eviction Petition, Court Notice duly addressed was sent to the Petitioner and served upon him. Under Sec.114 illus (e) of the Indian Evidence Act, where any judicial or official act is shown to have been done in a manner substantially regular, the Court may presume that all such acts have been rightly and regularly done and can presume due service of Notice. As soon as it is proved that the letter was properly addressed and posted by Registered Post, under Section 27 of the General Clauses Act, service shall be deemed to be duly effected. Where such Registered Post returned with endorsement "Refused", it is presumed to be sufficient. The burden to rebut the presumption lies on the party challenging the factum of service. 10. The contention of the Petitioner that the Petitioner / Tenant has not received the Court Notice has no force. Overwhelming materials clearly show that he has received the Notice. There is deliberate inaction on the part of the Petitioner, obviously with a view to delay the eviction proceedings. Without paying the fair rent, the Petitioner cannot squat on the property. The authorities below have rightly dismissed the application, declining to set aside the exparte order. The Impugned Order does not suffer from any serious infirmity calling for interference. 11. In the result, the Impugned Order dated 20.07.2006 in R.C.A.No.145 of 2006 on the file of VIII Judge, Small Causes Court, Chennai is confirmed and this Civil Revision Petition is dismissed. No costs. Consequently, the connected M.P.No.3 of 2006 is closed. C.R.P.No.1669 of 2006 Today, this matter came up as Being Mentioned. On behalf of the Revision Petitioner / Tenant, Affidavit has been filed seeking six months time to vacate the demised shop. 2. Heard the submissions of both sides. 3. In consideration of the submissions made onbehalf of the Revision Petitioner / Tenant, five months time from the date of the order (09.02.2007) is granted to the Revision Petitioner / Tenant to vacate and hand over vacant possession to the Respondent / Landlord.