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Allahabad High Court · body

2012 DIGILAW 253 (ALL)

Anita Gupta (Smt. ) v. Vijay Kumar Sharma

2012-01-30

PRAKASH KRISHNA

body2012
Prakash Krishna, J.;- This is landlord's revision under section 25 of the Provincial Small Causes Court Act against the judgment and decree dated 12.5.2011 passed in SCC Suit No.17 of 2009 whereby the Court below has dismissed the suit. SCC Suit No.17 of 2009 was instituted by the plaintiff on the allegations that she is the owner of House No. III K-35/6B, Ghaziabad Development Authority Flats, Triple Storey, Rakesh Marg, Nehru Nagar, Ghaziabad. The said house was let out on a monthly rent of Rs.3000/- to Vijay Kumar Sharma who has not paid any rent since 1.1.2009. The house in question is a new building and besides the above, the monthly rent is Rs.3000/- and as such the provisions of U.P Act No. 13 of 1972 are not applicable. The tenancy has been determined by giving a notice dated 10.2.2009 by registered post as also by speed post and also under postal certificate. The notice was served on 14.2.2009. The tenant has failed to comply with the notice, hence the suit. The suit was contested on the pleas that the defendant took the house in question on rent from Vijay Bansal. There is no relation of landlord and tenant between the parties. The monthly rent at Rs.3000/- was admitted. It was further stated that he did not receive the notice given under section 106 of the Transfer of Property Act and as such the suit is not maintainable. The parties led evidence in support of their respective cases. The plaintiff examined herself as PW-1 and also produced Vijay Bansal as PW 2. She filed documentary evidence to prove the service of the notice on the defendant-tenant by way of postal receipts and acknowledgment receipt. In reply, the defendant produced himself as DW-1 and Ajay Kumar Sharma as DW-2. The trial Court found that the provisions of U.P Act No. 13 of 1972 are not applicable as the rate of rent is Rs.3000/- per month in view of section 2(1)(g) of of U.P Act No.13 of 1972. The said provision exempts building from the operation of the Act fetching monthly rent more than Rs.2000/-. The said finding was not disputed by the counsel for either of the parties. It was found that the relationship of landlord and tenant existed between the parties. The said provision exempts building from the operation of the Act fetching monthly rent more than Rs.2000/-. The said finding was not disputed by the counsel for either of the parties. It was found that the relationship of landlord and tenant existed between the parties. The suit has been dismissed on the ground that the defendant has deposited the requisite amount under section 20(4) of the aforesaid Act and as such the Court relieved the tenant from eviction, decree. Shri P.C.Jain, learned counsel for the applicant submits that in view of the finding recorded by the trial Court which has not been disputed by the learned counsel for the defendant that the provisions of U.P Act no.13 of 1972 are not applicable, the trial Court committed illegality in extending the benefit of Section 20(4) of the Act to the tenant. Shri Vijay Prakash learned counsel for the defendant tenant very fairly does not dispute the above proposition of law. Even otherwise also, when the provisions of U.P Act No. 13 are not applicable, there is no question of extending the benefit of Section 20(4) of the said Act to such tenant. Obviously on this score the trial Court committed mistake in dismissing the suit. The learned counsel for the defendant however, supports the judgment of the trial Court on a different point and submits that the finding recorded by it on the question of service of notice determining the tenancy is perverse and illegal. Elaborating the argument it was submitted that the service of notice was denied by the defendant in his oral deposition and therefore, the presumption available with regard to service of registered letter/notice stands rebutted. Reliance has been placed by him on the following judgments: Mahabir Prasad Agarwal versus Brij Nath Gigras 1989(1) ARC 413. The decision relied upon by the learned counsel for the defendant-tenant does not advance the case further. In this very case, it was held by the High Court that the presumption of service drawn by trial Court is essentially a finding of fact which cannot be disturbed in second appeal. Paragraph 25 of the report shows that the notice was sent by registered post at the correct address of the tenant. In this fact situation, the trial Court repelled the argument of the tenant that the presumption of service stands rebutted as its receipt was denied by the defendant-tenant in evidence. Paragraph 25 of the report shows that the notice was sent by registered post at the correct address of the tenant. In this fact situation, the trial Court repelled the argument of the tenant that the presumption of service stands rebutted as its receipt was denied by the defendant-tenant in evidence. The High Court agreed with the trial Court. Then reliance was placed on a decision of the Apex Court in Anil Kumar versus Nanak Chandra Verma 1990 (2) ARC 542. The said decision is also not of any help to the defendant tenant. The relevant paragraph 2 is reproduced below: "The question considered in both the decisions was as to the statement on oath by the tenant denying the tender and refusal to accept delivery. It was held that the bare statement of the tenant was sufficient to rebut the presumption of service. In our opinion, there could not no hard and fast rule on that aspect. Unchallenged testimony of a tenant in certain cases may be sufficient to rebut the presumption but if the testimony of the tenant itself is inherently unreliable, the position may be different. It is always a question of fact in each case whether there was sufficient evidence from the tenant to discharge the initial burden." The case on hand stands on a better footing. Here is the case where the registered letter was served on the defendant-tenant. The acknowledgment receipt being paper no. 22-C is on the record. It bears his undisputed signature of the defendant tenant. I have perused the statement of the defendant-tenant (DW-1). He has not denied that the said acknowledgment receipt does not contain his signature. He pleads ignorance as to whether the documents sent through acknowledgment receipt was received by him or not. His reply is evasive. In the cross examination, the witness has further admitted that the address written on the registered notice is correct. Much emphasis was laid by the learned counsel for the applicant on paragraph 5 of the examination in chief wherein it has been stated that the notice determining the tenancy with respect to disputed house was not given by Shri Vijay Bansal or by the plaintiff. It has to be read in the light of the cross examination. In the cross examination, the witness has not denied his signature on the acknowledgment receipt. It has to be read in the light of the cross examination. In the cross examination, the witness has not denied his signature on the acknowledgment receipt. He has also admitted that the notice was sent at the correct address. It is a case of actual delivery of notice on the defendant-tenant. The delivery of service on defendant-tenant is proved by the acknowledgment receipt containing his signature. His denial is for the sake of denial and is not trustworthy or reliable. The learned counsel for the plaintiff-landlord has relied upon a recent decision of the Apex Court in the case of Dr.Sunil Kumar Sambhudayal Gupta & Others versus State of Maharashtra 2010 AIR SC2 7049 wherein it has been laid down that it is a responsibility of addressee to prove by adducing evidence of official of Post Office, that the registered letter has not been delivered to him. In the present case, the defendant tenant has failed to discharge the said burden. Except denial that too in examination in chief, the tenant has not produced any other evidence to corroborate his stand. Therefore, the finding recorded by the trial Court that the notice was validly served on the defendant-tenant is well considered finding and calls for no interference under section 25 of the Provincial Small Causes Court Act. No other point was pressed. Viewed as above, it is held that the trial Court was not justified in extending the benefit of Section 20(4) to the defendant-tenant as the provisions of U.P Act No. 13 of 1972 are not applicable to the building in question and the building in question is not a controlled building. It was the case of month to month tenancy which has been determined by giving a valid notice to the tenant. Before parting with the case, it may be noted that the trial Court at least should have passed the decree for the recovery of the amount which was deposited under section 20(4) of the Act. In the result, the revision succeeds and is allowed. The judgment and decree of the trial Court is set aside and the suit for recovery of arrears of rent, damages, pendente lite and future for use and occupation of the disputed property as also for the ejectment of the defendant from the premises in question stands decreed. In the result, the revision succeeds and is allowed. The judgment and decree of the trial Court is set aside and the suit for recovery of arrears of rent, damages, pendente lite and future for use and occupation of the disputed property as also for the ejectment of the defendant from the premises in question stands decreed. The defendant-tenant shall also be liable to pay the arrears of rent, damages, pendente lite and future till the date of actual date of possession at the rate of Rs.3,000/- p.m. The suit stands decreed with costs through out.