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2015 DIGILAW 3972 (ALL)

Manmeet Singh Basra v. Kiran Malhotra

2015-12-14

VIVEK KUMAR BIRLA

body2015
JUDGMENT Vivek Kumar Birla, J. – Heard learned counsel for the revisionist. 2. Supplementary affidavit filed today is taken on record. 3. The revisionist has come up before this Court challenging the impugned order dated 5.10.2015 passed by Additional District Judge, Court No. 9, Kanpur Nagar in S.C.C. Suit No. 83 of 2013. 4. The suit was filed on the ground that the defendant was a tenant of the plaint which was rented out for 11 months w.e.f. 1.10.2008 @ L 9000/- and rent deed dated 1.10.2008 was executed to this effect between the parties; the tenant defaulted in making payment; rent w.e.f. 1.6.2012 is due; the tenant has made payment of electricity dues by means of cheque, which was dishonoured; his tenancy was terminated by registered notice dated 23.3.2013, which was received back with the endorsement that the tenant has refused to accept the same. Hence, the service of notice is sufficient and it was also claimed that the tenant is liable to make payment @ L 1,000/- per day. 5. In reply, it was stated that the flat in question was rented out @ L 2,000/- per month and rate of rent has wrongly been mentioned @ L 9,000/- per month; he has deposited L 3 lacs in advance but the receipt was never given; service of notice by the registered post was also denied and it was claimed that the same was never received by him. 6. Apart from other documents, the plaintiff had produced a copy of the notice dated 23.3.2013 sent by registered post; the receipt of refusal dated 25.3.2013; photocopy of the agreement dated 1.10.2008; and original lease deed dated 1.10.2008 was also produced. The tenant did not produce any documentary evidence in reply. 7. Six issues were framed. Issue nos. 1 and 2 regarding rate of rent as to whether the rate of rent was L 9,000/- per month and rent is due from 1.6.2012 was decided against the tenant on the ground that the tenant only claimed that he had made signatures on plain papers and as such the genuineness of the signature on the rent deed was not in dispute. The tenant was also cross examined and the court below found that admittedly, he made payment upto May or June, 2013 and thereafter he did not make any payment to the landlord and never deposited rent in court and as such it was held that the tenant had not complied with Section 20 (4) and Section 30 of the Act 13 of 1972 and Order 15, Rule 5 of C.P.C, hence he had committed a default in making payment of rent. 8. Issue no. 3 was regarding applicability of the act. Since the rate of rent was L 9,000/- per month it was found that the act is not applicable. 9. Issue no. 4 regarding service of notice was also decided against the revisionist on the ground that the landlord had proved the notice by postal receipt and refusal and on the contrary in his cross examination the tenant has accepted that the address mention in the notice dated 23.3.2013 in Paper No. 7-Ga was correct and he never challenge the validity of the notice. 10. A reference may be made in this regard to the Full Bench decision of this Court in the Case of Ganga Ram v. Phoolwati, AIR 1970 Alld., pg. 446, wherein three questions were framed. The question no. 2 as framed in the aforesaid judgment and its answer is as follows: - 2. Whether it is incumbent on the plaintiff to prove the endorsement of refusal on the notice sent by registered post by producing the postman or other evidence in case the defendant denies service on him? 2. The answer is in the negative. 11. After detailed discussion and considering the provisions of Section 106 of the Transfer of Property Act, 1882 Section 27 of the General Clauses Act and Section 114 of the Indian Evidence Act, Post Office Act, 1898 the answer to question no. 2 was given in negative. 12. In such view of the matter, I do not find any legal infirmity in recording a finding against the tenant in issue no. 4 regarding service of notice on the tenant. 13. Admittedly, as the rent was not deposited and other issues were decided against the tenant, the issue no. 5 as to whether the tenant is liable to be evicted was also decided against the tenant and the relief as prayed for was granted to the landlord. 14. 4 regarding service of notice on the tenant. 13. Admittedly, as the rent was not deposited and other issues were decided against the tenant, the issue no. 5 as to whether the tenant is liable to be evicted was also decided against the tenant and the relief as prayed for was granted to the landlord. 14. All finding of facts as well as law were recorded against the revisionist. Consequential and other issues were also decided by the court below in favour of the landlord. 15. All these finding of facts, it cannot be re-appreciated by this Court in the light of the decision of Hon'ble Apex Court in Hindustan Petroleum Corporation Ltd. v. Dilbahar Singh, 2014 (9) SCC 78 . 16. I do not find any legal infirmity in the order impugned herein dated 5.10.2015 passed by Additional District Judge, Court No. 9, Kanpur Nagar in S.C.C. Suit No. 83 of 2013. As such, the revision is devoid of merits and is accordingly dismissed. Revision dismissed.