PRAMOD KUMAR Vs. ILLRD ADDITIONAL DISTRICT JUDGE MEERUT

JUDGEMENT

(1.) SUDHIR Narain, J. The petitioner seeks a writ of certiorari for quashing the order dated 24. 4. 1995 passed by the Judge Small Causes Court, decreeing the suit for recovery of arrears of rent, ejectment and damages against the petitioner, and the order dated 11. 1. 1996, passed by respon dent No. 1 dismissing the revision of the petitioner against aforesaid order.

(2.) FACTS of the case in brief are that respondent No. 3 is landlord of Shop No. 2 situated in Capt. Mangal Singh Market, Sardhana Road, Daurala, District Meerut Petitioner is its tenant.

(3.) THE petitioner filed revision against said order. Respondent No. 1 has dismissed the revision by order dated 11. 1. 1996. Petitioner has challenged these orders in the instant writ petition. 6, Learned counsel for the petitioner has urged that the finding recorded by the Courts below that the rent was at the rate of Rs. 400/- per month is erroneous. A copy of the rent-note has been annexed as Annexure 1 to the writ petition which indi cates that rate of rent is Rs. 400/- per month. THE petitioner in his statement did not deny his signature on these docu ments. THE learned counsel for the petitioner has drawn attention that there is no signature on the first page and only second page of the document bears petitioner's signature. This question was not raised before the Court below. THE first page is the continuation of the second page. Petitioner himself in his written statement pleaded in para 12 thereof that the photostat copy of the agreement dated 11. 6. 1991 was supplied to the petitioner in which rate of rent was shown at the rate of Rs. 400/- per month. He protested to the plaintiff. He, however, state that rate of rent was indicated for the income-tax pur poses. THE petitioner filed document which itself indicated that the rent receipt was at the rate of Rs. 400/- per month. THE rent receipt for the month of July, August and September 1991 is at the rate of Rs. 400/- per month. THE rent receipt for the month of October, November and Decem ber, 1991, is shown to be at the rate of Rs. 340/- and again for the month February 1992 at the rate of Rs. 400/- per month. It is not the case of the petitioner that the rate of rent was Rs. 340/- per month. THE plain tiff in his examination clarified that the petitioner had incurred amount in repair ing roof. THE case of the petitioner was that rate of rent was Rs. 100/- per month. THE Courts below relying upon the rent-note coupled with rent receipts, held that the rent was Rs. 400/- per month. This finding does not suffer from any illegality. 7. Second submission of the learned counsel for the petitioner is that the petitioner had paid Rs. 8000/- as advance and that should have been adjusted. THE rent-note date 11. 6. 1991 itself indicates that the tenant has given security deposit of Rs. 8000/- which shall be returned when the shop is vacated. THE plaintiff admitted that he had received Rs. 8000/- as security. THE trial Court has in its operative portion of the decree, directed that Rs. 8000/-deposited by the petitioner, shall be ad justed towards rent. In view of the opera tive part of the decree, the submission of the learned counsel for the petitioner is that amount is to be adjusted does not survive. It has already been directed to be adjusted. THE Court has recorded finding that the petitioner failed to pay rent for the month of March and April, 1992. THE suit has been decreed for recovery of rent for the month of March, 1992 to 8. 5. 1992 and pendent late future damages at the rate of Rs. 400/ -. THE amount of Rs. 8000/- shall be adjusted towards rent and pendent late future damages. 8. It is not disputed that the shop in question was constructed in the year 1991. Petitioner, himself, stated in para 3 of the written statement that the shop in ques tion was constructed in the year 1991. THE plaintiff asserted that it was constructed in the year 1989-90. THE suit was filed on 30-5-1992 before ten years from the date of construction as such the provisions of U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, was not applicable. It is also not the case of the petitioner that this Act was applicable to the shop in question. 9. THE learned counsel for the petitioner submitted that the petitioner never received any notice alleged to have been sent by the plaintiff-respondent No. 31-3-1992 purported to be sent under Sec tion 106 of the Transfer of Property Act. Notice was alleged to have been refused by the petitioner on 3-4-1992 which con tained the endorsement of refusal by the postman. THE petitioner appeared in the witness box and denied that he, ever refused to accept such notice. It is con tended that presumption of service raised under the provisions of Section 114 of the Evidence Act stood rebutted on the denial of service by the petitioner and the plain tiff ought to have produced the postman and in absence of examination of the postman concerned, the Court below acted illegally in holding that the presump tion was not rebutted by the petitioner. 10. In Full Bench decision of this Court in Ganga Ram v. Smt. Phoolan Devi, AIR 1970 Allahabad 446, one of the ques tion referred to the Full Bench was "whether it is incumbent on the plaintiff to prove endorsement of refusal on the notice sent by the registered post by producing the postman or other evidence in case the defendant denies service on him. " THE Full Bench after considering the various decision answered it in negative and held the* it was not necessary for the plaintiff to produce the postman or other evidence in case the defendant denies ser vice on him. 11. Learned counsel for the petitioner has placed reliance upon the decision in Taley Ram v. Jagminder Das, 1972 All India Rent Control Journal 640, wherein it was hold that a report of postman could not be accepted without the examination of the postman con cerned, regarding the correctness of his report. THEre is admittedly a presumption of service but the same can be rebutted by evidence, but if the postman is not ex amined in Court, the presumption is very slight. In this case, the Tribunal had recorded a finding that the notice was not served upon the defendant after taking into consideration various circumstances. This finding was affirmed by the High Court. 12. Learned counsel for the petitioner further placed reliance upon the decision of Gauhati High Court in Md. Achab AH v. Md. Abdul Matilib Majarbhuiya 1993 (Vol. 2) Current Civil Cases 230, wherein it was held that if the statement of defendant/addressee is found trustworthy, then merely because the post al peon came and deposed, is itself not sufficient to hold that statement of defen dant is not trustworthy. This case was decided on its own facts. 13. THE controversy was settled by the decision of Hon'ble Supreme Court inanil Kumar v. Nanak Chandra Verma, AIR 1990 SC 1215, wherein the view taken in Shiva Dutt Singh v. Ram Das, AIR 1980 Allahabad 280 and the decision of Delhi High Court in AIR 1976 Delhi 115 Jagat Ram Khullar v. Battu Mai, that the bare statement of the tenant was sufficient to rebut presumption was over-ruled. It was held that there could not be hard and fast rule on that aspect. THE Court observed "in our opinion there could not be hard and fast rule on that aspect. Unchallenged tes timony of tenant in certain cases may be sufficient to rebut the presumption but if the testimony of the tenant itself is in herently unreliable, the position may be different. It is always a question of fact in each case, whether there was sufficient evidence from the tenant to discharge in tail burden. " 14. In Radhey Shyam Patwa v. Xth A. D. J. Varanasi and others, 1993 (2) A. R. C. 485, the Court after considering the various decisions held that mere fact that the tenant has denied that he ever refused to receive the notice is itself not sufficient to hold that the presumption stands rebutted. It depends upon the facts of each case. If the Courts below record the finding that notice was served by refusal it is ques tion of fact. It was also not necessary to produce the postman for examination to establish that the tenant had refused to accept the notice. 15. In the present case, admittedly the provisions of the Act No. XIII of 1972 were not applicable. THE suit has not been filed on the ground that the petitioner com mitted default in payment of of arrears of rent or any conditions existed for his evic tion under the provisions of the Act. In case the tenancy is determined in accord ance with law he was liable for eviction. It was proved that the notice was sent to the petitioner on his correct address. THE petitioner admitted that the postman was not inimical to him. 16. THE Courts below considered the entire facts and recorded finding that the petitioner refused to accept notice and there is no reason to take different view in the matter. 17. THE petitioner has urged two other points which were neither taken in the written statement nor urged before the Courts below. 18. THE learned counsel for the petitioner has submitted that tenancy was for a period of 11 months and the suit could not have been filed prior to expiry of 11 months. He placed reliance upon clause 5 of the Agreement which reads as under: - - "the present agreement is valid for eleven months only, the agreement will be renewed after eleven months, if the tenant wishes to retain the shop provided the owner is willing to let him again. " 19. THE agreement is dated 11 th June, 1991. THE notice terminating the tenancy was given on 31-3- 1992. It is alleged to have been served by refusal on 3-5-1992 and the tenancy accordingly stood terminated on 3-5-1992. Plaintiff filed suit on 3-5-1992. 20. THE plaintiff in para 2 of the plaint had stated that the tenancy was monthly tenancy which commenced from 1st of each month and terminated on the last date of the same month accordingly. THE petitioner filed written statement and did not specifically deny this fact. THE rent was admittedly payable monthly. THE fact that the agreement was to come to end eleventh month did not provide that the tenancy was for fixed term. THE tenancy was a monthly tenancy but after expiry of eleven months, the petitioner was not entitled to continue unless the tenancy was renewed. THE character of the tenancy continued to be monthly tenancy. 21. Secondly, the petitioner could claim to remain in occupation for eleven months only. THE suit for ejectment has been filed on 30th May, 1992 i. e. after 11 months. THE petitioner cannot have grievance that 11 months have not expired. THE suit has been decreed for ejectment on 24th May, 1995. 22. Learned Counsel for the petitioner has placed reliance upon the decision in Smt. Shanti Devi v. Amal Kumar Banerjee, A. I. R. 1981 S. C. 1550, wherein it was held that where a lease is for a definite term it expires by efflux of time by reason of Section 111 (a) of the Transfer of Property Act. Hence, service of a notice under Section 106 is not necessary for determination of lease. If the contention of the petitioner is accepted then after expiry of 11 months, he was not required to be served with any notice under Section 106 of the Transfer of Property Act and suit could have been decreed for ejectment even without service of notice upon him. THE petitioner cannot have any grievance from his eviction as 11 months have al ready expired. 23. Last submission of the learned counsel for the petitioner is that the rent-note provided certain conditions to be complied which are as under: (1) THE shop has been rented ex clusively for the purpose of Sales and Repairs of Television Sets. (2) THE shop will not be sublet to anyone. (3) THE business shall be in the proprietorship of the tenant, no partner ship all be permitted. (4) THEre will be an increase of Rs. 25/- in the rent every year on a monthly basise the rent shall increase by Rs. 25/- a month every year. THE increase will con tinue every year till the tenant vacates the shop on the renewal of the lease. 24. It is urged that unless the petitioner violates any of these conditions, he is not liable to be evicted. He has placed reliance upon Section lll (g) of the Trans fer of Property Act which provides that any lease of immovable property is determined by forfeiture i. e. to say (i) in case lease breaks an express condition which provides that on breach thereof, the lesser may re-enter. THE termination of tenancy by forfeiture as provided under Section lll (g) applies only when lease is of a per petual nature and secondly the terms of the lease contrition provide that the tenan cy can be determined only on the breach of such condition. 25. In the present case, a bare perusal of rent-note does not provide for either of them. THEre is no stipulation in the agree ment that lease is determinable only when the conditions are violated and secondly it is not a permanent lease. THE agreement itself indicates that it is only for 11 months and secondly for a perpetual lease docu ment should have been registered. It is only a rent-note and not a registered docu ment. 26. Learned counsel for the petitioner has placed reliance in Hari Prasad Tamoli v. Smt. Indira Devi, A. I. R. 1977 Patna 208, wherein it was held that unless there is a clause of re-entry in default of payment of rent, non-payment of rent will not entail forfeiture. THE agree ment must provide that clause for re- entry. Similar view expressed Raja Sri Krishna Chandra Manasingh Harichandan Mar-daraj Dhramarbar Roy and another v. M/s National Chemical and Salt Works Limited (India), Calcutta, AIR 1957 Orissa 35. Ac cording to this case, a clause of forfeiture applies only when there is provision of re-entry in the agreement. If there is no condition of re-entry a forfeiture clause is not applicable. Admittedly there is no clause of re-entry provided in the agree ment entered into between petitioner and respondent No. 3, the tenancy could not have been terminated by forfeiture. THE only course for the plaintiff was to ter minate the tenancy under Section 106 of the Transfer of Property Act. THE plaintiff has not terminated the tenancy by forfei ture. 27. In view of the discussion made above, there is no merit in the writ petition and it is, accordingly dismissed. Petition dismissed. .