FAZAL AHMED Vs. K N JAIN

JUDGEMENT

(1.) Leave is granted to amend the cause title and the preamble.

(2.) S.C.C. Case No. 7 of 1999 was filed by the plaintiff-opposite party for eviction of the petitioner-defendant before the learned District Judge, 15th Court. Ghaziabad/SCC Court. During the proceeding of the suit, the deffence of the defendant-petitioner was struck off. That order has neither been challenged earlier nor even challenged in this revisional application. The suit was decreed. Mr. S. G. Hasnain, learned counsel for the petitioner contends that the notice under Section 106 of Transfer of Property Act was not properly addressed and in the absence of production of the acknowledgment due card, there cannot be any presumption that the notice was served on the defendant-petitioner. He further contends that the certificate of posting cannot be relied upon for the purpose of drawing presumption of service. He further contends that since the rate of rent is less than Rs. 2.000 per month. Act 13 of 1972 was applicable and as such, the notice should have conformed to the provision of Section 20 subsection (2A) of Act 13 of 1972. That apart he claimed, on the basis of pleadings and the material produced before the Court, the suit could not be maintained since on the own showing of the plaintiff, there was no default for a period of four months making the defendant liable to be evicted. He then contends that since the tenancy was governed by Act 13 of 1972, the regular suit before the Small Cause Court cannot be maintainable. On this ground, he prays that the order may be set aside.

(3.) Mr. M. Mishra. learned counsel for the plaintiff-opposite party on the other hand contends that the deffence of the defendant having been struck off and he having not come to deny himself the fact that no notice was struck off and he having not come to deny himself the fact that no notice was served on him. There was no rebuttal of the presumption as is available under Section 114. Illustration (f) of the Evidence Act so far as the service on the basis of certificate of posting is concerned. It is apparent from the certificate of posting that the correct address of the defendant was recorded. He then contends that (he contention of the defendant that the notice was not correctly addressed was based on the registration slip which did not mention the address except the district. He then contends that the notice was produced and proved that the notice was correctly addressed. Then again, he also pointed out that a reply was obtained from the Postal Department that the particular registered post article was delivered to the addressee. Since the defendant did not examine himself to deny the service which he could have done despite striking off the defence. There was no rebuttal and as such, the Court had rightly presumed the service to have been effected on the basis of the notice showing correct address and the letter of the Postal Department evidencing service of the said registered article supported by certificate of posting. He then contends that the Court had come to a finding on the basis of material on record that the rent was Rs. 2.080 per month and as such, it is not within the scope and purview of Act 13 of 1972. Therefore, Act 13 of 1972 cannot be attracted. He further contends that under Section 114 of the Transfer of Property Act, it is not necessary that there should be a four months' default. On the other hand. on account of non-payment of rent, lease could be forfeited and the lessee could be evicted. He also contends that the lease was from year to year as is evidenced from the documents produced by him and as such even on account of the efflux of time, the lease could have been determined though it has not specifically pleaded in the plaint. On these grounds, he supports the impugned order.