JAGAT RAM KHULLAR Vs. BATTU MAL

JUDGEMENT

(1.) This second appeal by a tenant against the appellate order of the Rent Control Tribunal setting aside an order of the Addl Rent Controller dismissing the landlord's application for the ejectment of the tenant on the ground of want of notice raises an interesting question relating as to the presumption of fact and of law with regard to service of notice by post.

(2.) . The facts leading to the present appeal, in so as they are relevant may be briefly stated. The landlord sought the eviction of the tenant on various grounds which was resisted, inter alia, on the ground that the petition for eviction was liable to be dismissed for want of notice of termination of the tenancy as required under section 106 of the Transfer of Property Act. The plea of want of notice was converted on behalf of the landlord and at the trial of petition, the landlord proved the postal cover duly addressed to the tenant but returned by the postal authories with the endorsement "refused" and stated on oath that the notice was sent to the tenant under the postal cover which was returned with the aforesaid endorsement. On the other hand the tenant stated on oath that he never received the notice and that the cover was neither tendered to him nor was there any occasion for him to refuse to take delivery. A plea was raised on behalf of the landlord that presumption of service must be raised by virtue of clause (f) of section 114 of the Evidence Act. On behalf of the tenant, it was contended that the persumption had been rebutted by his statement on oath denying the tender and the refusal of the postal cover and that in view of the rebutal, service of notice could not be presumed in the absence of evidence of actual tender and refusal. The plea of the tenant prevailed with the Addl. Rent Controller and the petition was accordingly dismissed. The landlord's appeal against the order was, however, allowed by the Rent Control Tribunal and it was held that although the presumption under section 114 of the Evidence Act was rebutable, the bare statement of the tenant was insufficient to rebut the presumption. The contention of the tenant that no other evidence could have been produced was rejected on the ground that evidence could have been produced that there was strike in the post office or something extraordinary had happened which prevented the delivery or tender of the cover. The Rent Control Tribunal sought support for this conclusion from a decision of this Court in the case of Shri O.P. Bahal v. Shri A. N. Saraff and a Full Bench decision of the Allahabad High Court in the case Ganga Ram v. Phulwati.

(3.) . Shri Sultan Singh who appears for the landlord raises a preliminary objection that the Second Appeal is barred by time. The appellate Older was made on November 7, 1972. The tenant made separate applications on November 16, 1972 for certified copies of the appellate order as well as the original order. Copy of the appellate order was ready on November 25, 1972 but the copy of the appellate order was ready on January 19, 1973. The appeal filed on January 22, 1973. The contention that the appeal was barred by time based on the hypothesis that the tenant was entitled to deduct the additional time taken in obtaining the certified copy of the original order because a second appeal need not be accompanied by such an order. It was not disputed that if the second appeal must be accompanied by a copy of the original order, the appeal was within time. It was contended that the second appeal need not be accompanied by a copy of the original order because there was no such provision in the Code of Civil Procedure. This contention, however, overlooks the provision of Rule 2(a) of the Rules and Orders of the Punjab High Court, Volume V, Chapter I, Part A-A(q), as applicable to this Court. The aforesaid Rule clearly enjoins that "in the case of Second Appeals in addition to the documents prescribed by Order XLI, Rule I of the Code, memorandum shall be accompanied by a copy of the judgment of the Court of first instance unless the appellate Court dispenses therewith". It follows, therefore, that unless an appellant in the second appeal seeks exemption from filing the copy of the original order or the appellate Court dispenses with it, the second appeal is not complete until it is accompanied by a copy of the original order. No such exemption was either sought or granted. The appellant would, therefore, be entitled to the exclusion of additional time that may be required in obtaining certified copy of the original order. The appeal was accordingly filed within time and the objection is overruled.