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2015 DIGILAW 2483 (ALL)

Anita Sharma v. Om Prakash Batra

2015-08-19

MANOJ KUMAR GUPTA

body2015
JUDGMENT Manoj Kumar Gupta,J. 1. Heard learned counsel for the petitioners and Sri Sanjay Agrawal on behalf of the respondents. 2. S.C.C. suit no. 119 of 2002 was instituted by the plaintiff-respondents against the petitioners for recovery of arrears of rent and for ejectment. It was decreed by the trial court by judgement dated 4.1.2010. The trial court recorded a specific finding that notice dated 11/6/2002 under section 106 of Transfer of Property Act, 1882 terminating the tenancy was served on 12/6/2002 by registered post. The acknowledgement bears the signatures of Parul, the daughter of the petitioner no.1. It has further been held that although the petitioners have denied service of the notice, but they have not produced any handwriting expert to prove that the acknowledgement does not bear the signatures of Parul. The court has held that the petitioners have failed to discharge their burden and accordingly, decided issue no.4 relating to service of notice in favour of the plaintiff-respondents and against the petitioners. 3. On issue no.1, the trial court has held that the date of construction of the building is after 26 April 1985 and consequently, the provisions of U.P. Act no. XIII of 1972 would not apply. The findings have been affirmed by the revisional court with the dismissal of the revision. 4. The only submission made by learned counsel for the petitioners is that the plaintiff-respondents failed to prove the service of notice under section 106 of Transfer of Property Act, 1882 on the petitioners. In this regard, he has placed reliance on a decision of the Supreme Court in the case of V. N. Bharat vs. D.D.A. & another AIR 2009 SC 1233 . Therein, the dispute was whether the demand notice for payment of instalments in respect of a flat, issued by Delhi Development Authority, was served on the allottee or not. The Delhi Development Authority, claimed that notice was sent to the allottee at the correct address by registered post and thus there was presumption of service under section 114(f) of the Evidence Act. The allottee, on the other hand, categorically denied receipt of the notice. The Supreme Court held that presumption of service of notice under section 114(f) of the Evidence Act, 1872 is a rebuttable presumption. The allottee having categorically denied receipt of notice, had discharged his onus, and the burden shifted on the person claiming service of notice. The allottee, on the other hand, categorically denied receipt of the notice. The Supreme Court held that presumption of service of notice under section 114(f) of the Evidence Act, 1872 is a rebuttable presumption. The allottee having categorically denied receipt of notice, had discharged his onus, and the burden shifted on the person claiming service of notice. The Supreme Court further noticed that in that case, there was no material on record to prove service of notice, except the plea of presumption under section 114(f) of the Evidence Act. It was held thus : - "19. The assertion of service of notice on account of such presumption has been denied by the appellant as a result whereof onus of proving service shifted back to the respondent. The respondent DDA has not led any other evidence in support of the presumption of service. In such circumstances, it has to be held that such service had not been effected. ................... 20. As far as the MRTP Commission is concerned, there is no definite finding on the question of service of the demand notice. On the other hand, the Commission presumed that the appellant must have had knowledge of the allotment which had been widely publicised in leading newspapers. According to the Commission, it was for the appellant to have made inquiries relating to completion of the construction and it should have waited for a demand notice to have been sent to him. In our view, the Commission also erred in placing the onus of proof of service of the demand notice on the appellant, since except for denial there is nothing else that the appellant could have produced to prove a negative fact. As we have indicated hereinbefore, the presumption under Section 114(f) of the Evidence Act is a rebuttable presumption and on denial of receipt of the Registered letter from DDA the appellant discharged his onus and the onus reverted back to the respondent to prove such service by either examining the postal authorities or obtaining a certificate from them showing that the registered article had been delivered to and had been received by the appellant." 5. However, the facts of the present case are clearly distinguishable. The plaintiffs in order to prove service of notice not only produced the postal receipt, but also led evidence to prove that the registered cover was sent on the correct address. However, the facts of the present case are clearly distinguishable. The plaintiffs in order to prove service of notice not only produced the postal receipt, but also led evidence to prove that the registered cover was sent on the correct address. There is also no dispute about it. The plaintiffs have also brought on record the acknowledgement bearing signature of Parul. Concededly, Parul was the daughter of the first petitioner and thus a family member residing with the petitioners in the tenanted premises. She had not appeared in the witness box to deny her signatures on the acknowledgement on account of the fact that she had died during the pendency of the suit. The first petitioner was examined as DW-1. Although she stated that she did not receive the notice, but she feigned ignorance about the person signing the acknowledgement. The trial court, after considering the oral testimony of the defendants and their witnesses, concluded that the defendants have failed to discharge their onus. The revisional court has concurred with the findings recorded by the trial court. 6. After considering the entire aspect of the matter, this court finds that there is no such illegality or perversity in the view taken by the courts below which may warrant interference with the concurrent findings of fact rendered by the courts below. The person whose signature were there on the acknowledgement had not denied her signatures thereon. Even DW-1 failed to state during cross-examination that the acknowledgement does not bear the signatures of Parul. Mere statement that the notice was not served on Parul without denying her signatures on the acknowledgement was not sufficient. The petitioners also did not make any effort to examine a handwriting expert to prove that the acknowledgement does not bear the signatures of Parul. In view of these facts, the trial court was justified in disbelieving the plea that the notice was not duly served. 7. It is noticeable that apart from presumption of service of notice sent by registered post, the present case is one where there was positive evidence on record, in the form of acknowledgement, evidencing actual service of notice. Thus, the decision cited by the learned counsel for the petitioners would not apply to the facts of the instant case. 8. No other submission has been made by the learned counsel for the petitioners. The petition lacks merit and is dismissed. 9. Thus, the decision cited by the learned counsel for the petitioners would not apply to the facts of the instant case. 8. No other submission has been made by the learned counsel for the petitioners. The petition lacks merit and is dismissed. 9. In the end, learned counsel for the petitioners submitted that petitioner no.1 is a widow and some time may be granted so that the petitioners may be in a position to search out an alternative accommodation. Learned counsel for the respondents has no objection to the same. 10. In such view of the matter, it is provided that in case, the petitioners furnish an undertaking before the trial court within two weeks from today, that they will handover vacant possession of the demised premises to the respondent-landlords by 29 February 2016, then in such circumstance, the execution of the decree shall remain stayed for the aforesaid period. It is further provided that alongwith the undertaking, the petitioners shall also deposit the entire arrears of rent/damages until 29 February, 2016 in advance. In case any amount had already been deposited in the suit or in the revision, the benefit thereof shall be admissible to the petitioners while ensuring compliance of the directions given above. The respondents-landlords shall be free to withdraw the rent/damages, if any deposited by the petitioners.