ROSHAN LAL MALHOTRA Vs. RAJ BAHADUR

JUDGEMENT

(1.) This writ petition under Article 226 of the Constitution of India filed by the tenant-petitioner is directed against the orders dated 8th September, 2003 and 23rd July. 2004. passed by the prescribed authority under the provisions of the U.P. Act No. XIII of 1972 (in short 'the Act'), copies whereof are annexed as Annexure Nos. '2' and V, respectively, to the writ petition.

(2.) The facts leading to the filing of the present writ petition are that the petitioner in this petition is the tenant and the respondent is the landlord of the accommodation in dispute. On 18th November, 2002 an application has been filed by the landlord-respondent purporting to be an application under Section 21 (1) (a) of the Act for release of the accommodation in dispute in favour of the landlord. The prescribed authority vide its Order dated 15th February, 2003, held that the service of summons of the aforesaid application for release of the accommodation filed by the landlord is sufficient and directed the case to be proceeded ex parte. On 8th September, 2003, the prescribed authority allowed the release application ex parte filed by the landlord and directed release of the accommodation in dispute in favour of the landlord. The petitioner-tenant for the first time when came to know of the aforesaid proceedings on 23rd January, 2004, filed an application under Rule 22 (b) of U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972, read with Section 151 and Order IX. Rule 13 of the Code of Civil Procedure. In the present application filed by the tenant, which was supported by an affidavit, he has categorically stated that he came to know of the pendency of the aforesaid release application only on 23rd January, 2004, He further stated that the tenant-petitioner has never been served with any notice of the release application filed by the landlord and it is wholly incorrect to say that the opposite party ever met with any process server of the Court with regard to service of summons of the aforesaid release application. It is also incorrect to say that the tenant-petitioner has received any registered notice sent by the Court in present release application pending before the prescribed authority, therefore there is no question of petitioner's refusing to receive any summons sent by the Court. The petitioner-tenant further stated that in fact with the collusion of postman and the opposite party-landlord it appears that a forged report regarding service of the registered letters/notice were manipulated on the basis of which the prescribed authority has presumed the service of summons to be sufficient, whereas in fact the notice has never been served upon the petitioner-tenant. The prescribed authority by the Order Impugned found that from the endorsement of the refusal, It is presumed that the service of summons is sufficient and proceeded to decide the matter ex parte. It is further submitted that the presumption of service of summons refusing by the petitioner-tenant is rebutable presumption and once the petitioner-tenant has put in appearance denying the allegations that he has ever been served and that the note of refusal has been manipulated, therefore, it was incumbent upon the prescribed authority to have recorded a finding by asking the landlord to produce the postman concerned as held by this Court. In support of his contention, learned counsel appearing on behalf of the petitioner-tenant relied upon the case in Gur Bachan Singh v. Dharam Samaj Society, AIR 1981 All 208, particularly paragraph 11, which is reproduced below :

(3.) Learned counsel appearing on behalf of the tenant-petitioner further relied upon a decision in Shiv Dutt Singh v. Ram Dass, AIR 1980 All 280, wherein paragraph 10 relied upon by learned counsel for the tenant is reproduced below: