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2012 DIGILAW 157 (HP)

Pawan Kumar v. Palampur Rotary Eye Foundation, Rotary Eye Hospital, Palampur, Kangra

2012-04-03

RAJIV SHARMA

body2012
JUDGMENT Rajiv Sharma, J.—This Regular Second Appeal is directed against the judgment and decree dated 30.09.2011, passed by the learned District Judge, Kangra Division at Dharamshala (HP) in Civil Appeal No. 11-P/XIII-2011. Material facts necessary for adjudication of this Regular Second Appeal, are that the respondent-plaintiff (hereinafter referred to as "the plaintiff" for convenience sake) had filed a suit for possession of shop No. 25 bounded by Shop No. 20 in the North, Hospital Building in the South, road in the East and corridor of the Hospital Building in West in Block of Mela Mal Sood, Rotary Eye Hospital Building, existing on land comprised in Khata No. 145, Khatauni No. 262, Khasra Nos. 170, 171, measuring 0-31-36 hects, situated at Mohal and Mouza Banghiar (Maranda), Tehsil Palampur, Distt. Kangra (H.P.). It is pleaded that the plaintiff is owner of shop No. 25. The shop is in possession of appellant-defendant (hereinafter referred to as "the defendant") as a tenant on monthly rent of Rs. 535/-. The tenancy commences from 1st day of each calendar month. It is further averred that the defendant has not paid the rent for the month of December 2008 without any reasonable cause. It is further averred that the plaintiff in its meeting held on 30.12.2006 had decided to demolish the block of the building and to reconstruct the same in order to cater the increasing demand of public. Plaintiff requested the defendant to vacate the premises. However, he did not accede to the same. A notice was served upon the defendant to hand over the vacant possession of the premises in dispute. It is in these circumstances that the suit was filed for possession. 2. The suit was contested by the defendant. According to the defendant, Shri Dile Ram (PW-1) was not competent to file the suit. It is admitted that monthly rent was Rs. 535/-. However, it is pleaded that the tenancy of the defendant was permanent in nature. He was ready and willing to pay rent, but the plaintiff refused to receive the same. It is further pleaded that defendant has supplied food to the patients and plaintiff has not yet made payment to defendant to the tune of Rs. 12500/-. It was also pleaded that in the meeting dated 30.12.2006, it was never discussed by Governing Body to demolish the shop. 3. Replication was filed by the plaintiff. It is further pleaded that defendant has supplied food to the patients and plaintiff has not yet made payment to defendant to the tune of Rs. 12500/-. It was also pleaded that in the meeting dated 30.12.2006, it was never discussed by Governing Body to demolish the shop. 3. Replication was filed by the plaintiff. The issues were framed on 13.07.2009. Learned Civil Judge (Sr. Division), Palampur, District Kangra (H.P.) partly decreed the suit. A decree for recovery of Rs. 535/- on account of arrears of rent for the month of December, 2008 was passed in favour of the plaintiff and against the defendant. However, suit of the plaintiff for possession was dismissed. Plaintiff preferred an appeal before learned District Judge Kangra Division at Dharamshala (HP) against the judgment and decree dated 07.01.2011, passed by learned Civil Judge (Sr. Division), Palampur. The first appellate Court partly accepted the appeal on 30.09.2011 and decreed the suit for possession of shop No. 25. It was also held that the possession of defendant over the disputed shop was illegal after 31.12.2008. The judgment of the trial Court was modified to this extent. Hence this Regular Second Appeal. 4. Mr. Ashwani K. Sharma, learned Counsel for the appellant, on the basis of substantial questions of law framed, has strenuously argued that Shri Dile Ram was not competent to file the suit. He also argued that the notice issued to the defendant was not valid. According to him, the tenancy was permanent in nature. He also argued that Dr. Shiv Kumar, Chairman was also not competent under law to execute the "Special Power of Attorney" in favour of Shri Dile Ram. 5. I have heard the learned Counsel for the parties and gone through the pleadings carefully. 6. PW-1 Dile Ram has testified that plaintiff is owner of disputed shop. He further stated that Dr. Shiv Kumar, Chairman has executed special power of attorney in his favour vide Ex. P-1. According to him, the defendant is tenant @ Rs. 535/- per month. He further stated that the defendant has paid the rent till November, 2008. The shop in question was required by the plaintiff for extension. The Governing Body of the plaintiff has also decided in its meeting held on 06.01.2007 to reconstruct the building. The notice Ex. P-2, dated 12.12.2008 was issued to the defendant to vacate the shop by 31.12.2008. He further stated that the defendant has paid the rent till November, 2008. The shop in question was required by the plaintiff for extension. The Governing Body of the plaintiff has also decided in its meeting held on 06.01.2007 to reconstruct the building. The notice Ex. P-2, dated 12.12.2008 was issued to the defendant to vacate the shop by 31.12.2008. He has proved the postal receipt, Ex. P-3 and acknowledgment Ex. P-4. He has also proved the site plan Ex. P-5 and copy of Jamabandi Ex. P-6. According to him, the defendant has not paid the rent since December, 2008. 7. DW-1 Pawan Kumar has testified that the plaintiff was liable to pay Rs. 12500/-. However, he has not produced any bill for the same. He has also testified that he did not receive any notice. He has sent the rent by way of money order, but the plaintiff has not received the same. 8. There is no merit in the contention of Mr. Ashwani Kumar Sharma, learned Counsel for the petitioner that notice, Ex. P-2 was not served upon his client. The notice was issued on 12.12.2008. Plaintiff has proved the postal receipt Ex. P-3 and acknowledgment Ex. P-4. There is presumption under the General Clauses Act that the defendant has received the notice. In fact, the defendant has signed the acknowledgment Ex. P-4. 9. Their Lordships of the Hon'ble Supreme Court in Dr. Sunil Kumar Sambhudayal Gupta and Others Vs. State of Maharashtra, (2010) 13 SCC 657 have held that there is presumption of service by registered AD letter and the same implies that addressee has to prove that letter was not delivered to him. Their Lordships have held as under : 53. The complainants have denied the receipt of letter dated 3.4.1985 written by the appellant No. 2 to the father of the deceased, referred to hereinabove. However, the appellants have produced the correspondence with the post office and proved the postal stamp to show that the said letter had been sent by registered A.D. to Ramkishan Gupta (PW.8). The law in this regard is well settled. 54. In Gujarat Electricity Board and Another Vs. However, the appellants have produced the correspondence with the post office and proved the postal stamp to show that the said letter had been sent by registered A.D. to Ramkishan Gupta (PW.8). The law in this regard is well settled. 54. In Gujarat Electricity Board and Another Vs. Atmaram Sungomal Poshani, (1989) 2 SCC 602 , this Court examined the issue regarding the presumption of service of letter sent by registered post u/s 27 of the General Clauses Act, 1897 and held as under: There is a presumption of service of a letter sent under registered cover.... 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.....The burden to rebut the presumption lies on the party challenging the factum of service. (Emphasis added) A similar view has been re-iterated by this Court in Chief Commissioner of Income Tax (Administration), Bangalore Vs. V.K. Gururaj and Others, (1996) 7 SCC 275 ; and Shimla Development Authority and others Vs. Smt. Santosh Sharma and another, AIR 1997 SC 1791 . 55. In Harihar, Banerji v. Ramshashi Roy, AIR 1918 PC 102 , a similar view had been taken by the Privy Council, referring to Illustration (f) of Section 114 of the Indian Evidence Act, 1872. 56. In view of the above, it was the responsibility of the complainants to prove by adducing evidence of the official of the Post Office, Kanpur that the said letter had not been delivered to them. However, for the reasons best known to the prosecution such an exercise has not been undertaken. 10. In a recent judgment Chairman-Cum-M.D., Coal India Ltd. and Others Vs. Ananta Saha and Others, (2011) 5 SCC 142 , their Lordships of the Hon'ble Supreme Court have reiterated that if show cause notice is sent by registered post, it can be presumed that the addressee has received the same. Their Lordships have held as under : 23. 10. In a recent judgment Chairman-Cum-M.D., Coal India Ltd. and Others Vs. Ananta Saha and Others, (2011) 5 SCC 142 , their Lordships of the Hon'ble Supreme Court have reiterated that if show cause notice is sent by registered post, it can be presumed that the addressee has received the same. Their Lordships have held as under : 23. Similarly, we find no force in the submission made by the delinquent that he did not participate in the disciplinary proceedings and did not make any comment on receiving the inquiry report along with the second show cause notice as the notices had not been served upon him in accordance with law. The second show cause notice and the copy of the inquiry report had been sent to him under registered post. Therefore, there is a presumption in law, particularly, u/s 27 of the General Clauses Act, 1897 and Section 114 Illustration (f) of the Evidence Act, 1872 that the addressee has received the materials sent by post, (vide : Greater Mohali Area Development Authority and Another Vs. Manju Jain and Others, AIR 2010 SC 3817 . 11. According to the notice served upon the defendant, he had to vacate the premises by 31.12.2008. He has refused to do so. The Chairman of the plaintiff Dr. Shiv Kumar has authorized Shri Dile Ram to file the suit. The Chairman was competent to file the suit. The Governing Body in its meeting held on 06.01.2007 vide document mark-PX has decided to reconstruct the building and also issued notice to the defendant to vacate the premises. Rather, the decision was taken to issue notice to all the tenants occupying different shops for the purpose of reconstruction. According to Jamabandi Ex. P-6 for the year 2001-02, the plaintiff is owner in possession of 117/128 shares in the suit property and the nature of the suit property is hospital and shops. There is no illegality whereby Dr. Shiv Kumar, Chairman has appointed Shri Dile Ram as special power of attorney to file the present suit. Consequently, there is no substantial question of law involved in this Regular Second Appeal. Accordingly, in view of the observations and discussions made hereinabove, there is no merit in this Regular Second Appeal and the same is dismissed, so also the pending applications, if any. No costs.