SALIKRAM SAHU AND OTHERS Vs. BINDESHWARI RAM RAUNIYAR

JUDGEMENT

(1.) THIS is a landlord's second appeal from the decree of the Addl. Civil Judge, Deoria reversing that of the trial Court and dismissing their suit for ejectment of the tenant. The Plaintiff Appellant Salikram Sahu alleged that the Defendant Bindeshwari Ram Rauniyar was his tenant but had not paid rent due for a considerable time inspite of three notices of demand. The Defendants resisted the suit and denied that he had committed any default. He alleged that the rent claimed by the Plaintiffs was excessive and also that no notice of demand Under Section 3 of the U.P. Rent Control and Eviction Act was served on him. The trial court found that the rent was due as claimed by the Plaintiffs and that the Defendant's story of alleged adjustment was untrue, and that notice Under Section 3 had been duly served on the Defendant who had not paid the rent. It decreed the suit. On appeal the learned Civil Judge confirmed the finding of the trial Court that the rent was due and had not been paid by the Defendant but he dismissed the suit on the ground that the Plaintiff Appellant had not established that the notice Under Section 3 of the Rent Control and Eviction Act was served on the Defendant, and therefore, the suit was incompetent. The Plaintiff has come to this Court in second appeal.

(2.) I have heard Mr. Gopi Nath for the Appellants and perused the judgments of the Courts below. The Respondent is not represented. I think that the finding that Plaintiff had not proved the service of notice on the Defendant is erroneous. It appears that a notice was sent by registered post but returned to the Plaintiffs with the endorsement "refused". The Defendant deposed that he had not received or refused to accept any notice. Learned judge was of the opinion that the denial rebutted the presumption that the registered letter containing the notice must have been tendered in the ordinary course, and the Plaintiffs should have produced the postman who went to the Defendant's house to deliver the letter. As the Plaintiffs admittedly had not produced the postman, the learned Judge held that they had not proved the tender of notice and, therefore, the condition imposed Under Section 3(1)(a) of the Rent Control and Eviction Act had not been complied with and the suit for ejectment was incompetent. I regret that the learned Judge was in error. In Wasu Ram and Ors. v. R.L. Sethi and Anr. (1) (1963 AWR 472), it was held that a bare denial by the addressee who stood to profit by his denial and therefore had all the motive in the world to deny will not necessarily weaken the presumption created by the endorsement "refused", and that if the addressee states on oath that he never received the communication, the Court must decide after considering all the surrounding circumstances whether he should be believed. In the present case, the Defendant's denial was a bare denial and he did not prove any exceptional circumstances from which the Court could conclude that the regular course of practice could not have been, or was not followed, in his case. It is difficult to believe his bare denial; therefore the presumption is not rebutted, and the learned Judge wrongly shifted the burden of proof. His finding cannot stand.

(3.) FURTHERMORE , the learned Judge ignored two other and subsequent notices which were admittedly served on the Defendant. In both of them he was reminded that he had not paid arrears of rent. Learned Judge took the view that these notices were merely of termination of tenancy under Section 106 Transfer of Property Act and invalid because they were not accompanied by a notice of demand Under Section 3 of the U.P. Rent Control and Eviction Act. Here again he was in error. It has been held by this Court that the landlord can send a combined notice of demand for rent and termination of tenancy, and if he does, the latter will be deemed a conditional one.