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2014 DIGILAW 1559 (RAJ)

Manju Bai v. Dhanna Lal

2014-09-22

BELA M.TRIVEDI

body2014
ORDER : 1. The appellant/defendant has preferred the present second appeal under Section 100 of CPC, challenging the judgment and decree dated 19/1/2010 passed by the Additional District and Sessions Judge, Fast Track No.3, Ajmer (hereinafter referred to as 'the Appellate Court') in Civil Appeal No.50/2009, whereby the Appellate Court has dismissed the appeal and confirmed the judgment and decree dated 11/12/2008 passed by the Civil Judge (Junior Division), Kishangarh (hereinafter referred to as 'the Trial Court') in Civil Suit No.50/2007. 2. The short facts, giving rise to the present appeal, are that the respondent/plaintiff had filed the suit against the appellant/defendant, seeking eviction from the suit premises, and for recovery of rent alleging inter-alia that the appellant/defendant was let out the suit premises by the respondent/plaintiff on 1/1/2006 at the monthly rent of Rs.200/-. It was further alleged that the appellant/defendant had failed to pay the rent for the period from 1/4/2006 to 28/2/2007. According to the respondent/plaintiff prior to filing of the suit, the plaintiff had given a notice dated 14/2/2007 under Section 106 of the Transfer of Property Act, 1882 (hereinafter referred to as 'the TP Act') which was posted on 15/2/2007, however had returned unserved with the postal endorsement of “refusal” on 17/2/2007, and thereafter the suit was filed on 21/3/2007. The appellant/defendant had resisted the suit by filing the written-statement denying the allegations made in the plaint, and further contending inter-alia that there was no default committed by the defendant in making payment of rent, and that the defendant had not received any notice. The Trial Court, after appreciating the evidence on record, decreed the suit of the respondent/plaintiff, directing the appellant to hand over the possession of the suit premises to the plaintiff, and also pay the arrears of rent. Being aggrieved by the same, the appellant had preferred the appeal before the Appellate Court, which has been dismissed vide the impugned judgment and decree. 3. Mr. Vinodi Lal Mathur, the learned counsel for the appellant though initially raised many contentions as raised in the Appeal Memo, ultimately confined his submission to the effect that the appellant had not received any notice under Section 106 of the T.P. Act and therefore there was no valid termination of the tenancy. 3. Mr. Vinodi Lal Mathur, the learned counsel for the appellant though initially raised many contentions as raised in the Appeal Memo, ultimately confined his submission to the effect that the appellant had not received any notice under Section 106 of the T.P. Act and therefore there was no valid termination of the tenancy. Taking the Court to the evidence of the appellant, he submitted that the appellant had denied to have refused to accept the notice as alleged by the respondent/plaintiff, and that it was the duty of the respondent/plaintiff to examine the concerned postman who had made endorsement of refusal on the envelop-Ex.4. Placing heavy reliance on the decision of the Apex Court in case of V.N. Bharat vs. Delhi Development Authority & Anr.,(2008) 17 SSC 321, he submitted that when the appellant had denied the receipt of the notice-Ex.2, the burden had shifted back to the respondent to prove that the notice in question was received and refused by the appellant. He further relied upon the decision in case of Mangilal vs. Sugan Chand Rathi (deceased), AIR 1965 SC 101 to submit that notice under Section 106 of TP Act is essential to bring to an end the relationship of landlord and tenant. He also submitted that as per Section 106(2), the period of 15 days would commence from the date of receipt of notice, and in the instant case, the notice having not been received by the appellant, the respondent was not entitled to terminate the lease under Section 106 of the TP Act. However, the learned counsel Mr.Gajendra Vyas for the respondent vehemently submitted that the appellant had not specifically denied in her written statement or in her evidence that she had not refused to accept the notice – Ex.2 sent by the respondent, and on the contrary had admitted that the address on the envelop – Ex.4 was correct and therefore, a presumption under section 114 illustration (f) of the Indian Evidence Act, 1872 read with Section 27 of the General Clauses Act is required to be raised against the appellant. He relied upon the decision of Apex Court in case of M/s.Green View Radio Service vs. Laxmibai Ramji & Anr., AIR 1990 SC 2156 , and the decisions of other High Courts to buttress his submissions. 4. He relied upon the decision of Apex Court in case of M/s.Green View Radio Service vs. Laxmibai Ramji & Anr., AIR 1990 SC 2156 , and the decisions of other High Courts to buttress his submissions. 4. In the instant case, it appears from the record that the respondent/plaintiff had categorically stated in the plaint that the plaintiff had sent one notice dated 14/2/2007 through registered post on 15/2/2007 and the same had returned with the postal endorsement of 'refusal' on 17/2/2007. The said notice is produced at Ex.2, the postal receipt at Ex.3, and the envelop with the postal endorsement of refusal at Ex.4. It is pertinent to note that in the written-statement, the appellant though had stated that she had not received the notice, she had has not categorically denied that she had not refused to accept the notice dated 14/2/2007. 5. It is needless to say that the defendant must not deny the allegation of the plaint evasively but must answer the point of substance, otherwise every allegation of fact in the plaint, if not denied specifically or by necessary implication would be taken to be admitted, in view of Rule 3 and 4 of Order VIII of CPC. 6. That apart, the appellant, while denying the receipt of the notice at Ex.2 in her evidence, had admitted that the address on the envelop at Ex.4 was correct. When the respondent had discharged his burden by proving that the notice at Ex.2 was sent to the appellant by registered post acknowledgment due at the correct address of the appellant and that the said notice had returned with the postal endorsement of refusal as mentioned on the envelop at Ex.4, a presumption under Section 114 of the Evidence Act read with Section 27 of the General Clauses Act was required to be raised against the appellant that the appellant had refused to accept the said notice. Mere denial by the appellant that she did not receive the notice would not be sufficient to rebut the presumption under Section 114 of the Evidence Act, as held by the Apex Court in case of M/s.Green View Radio Service vs. Laxmibai Ramji (supra), and in case of Anil Kumar vs. Nanak Chandra, AIR 1990 SC 1215 . Mere denial by the appellant that she did not receive the notice would not be sufficient to rebut the presumption under Section 114 of the Evidence Act, as held by the Apex Court in case of M/s.Green View Radio Service vs. Laxmibai Ramji (supra), and in case of Anil Kumar vs. Nanak Chandra, AIR 1990 SC 1215 . Though the learned counsel for the appellant has relied upon the decision of Apex Court in case of V.N. Bharat vs. DDA (supra) , the same would not be helpful to him. In the said case, the DDA had not produced evidence in support of the presumption of service of notice of demand sent to the appellant V.N. Bharat of the said case, and therefore the Apex Court had held inter-alia that the presumption under Section 114 of the Evidence Act was rebuttable, and on denial of receipt of the registered letter from DDA, the appellant had discharged his onus and the onus had reverted back to the DDA to prove such service by either examining the postal authorities or obtaining a certificate from them showing that the registered article had been delivered and had been received by the appellant. Such is not the case here. In the instant case, the respondent had duly proved that he had sent the notice dated 14/2/2007-Ex.2 to the appellant by registered post, A.D. on 15/2/2007 at the correct address of the appellant, and that as per the postal endorsement on the envelop at Ex.4, the same was refused by the addressee i.e. the appellant. The appellant had not led any evidence muchless sufficient evidence to rebut the said presumption raised under Section 114 of the Evidence Act read with Section 27 of the General Clauses Act. 7. The learned counsel for the appellant having failed to point out any perversity or illegality in the impugned judgments and decrees passed by the Courts below, and also having failed to point out any question of law much less substantial question of law being involved in the present appeal, the appeal deserves to be dismissed, and is accordingly dismissed.