AMARNATH Vs. CHAMP

JUDGEMENT

(1.) THIS is a defendant's revision application under Section 115 of the Civil Procedure Code. The plaintiff opposite party filed a suit for ejectment of the defendant-revisionist from a house on the basis of permission obtained under Section 3 of the erstwhile U.P. Act III of 1947. It was alleged that the defendant was her tenant in the disputed house at Rs. 10\- per month: that she needed the house for her own use and obtained permission from the District Magistrate on August 4, 1970 and filed a suit for ejectment; that the defendant filed a revision, against the said order before the Commissioner which was rejected and the representation made by him under Section 7-F of the Act was- also rejected by the State Government. Thereafter she gave a notice to quit to the defendant, which was received back with the endorsement of refusal. Hence that suit. The defendant-revisionist contested that suit, inter alia, on the grounds that the plaintiff alone was not the landlord and not entitled to SUB; that no notice to quit was served on him and that the permission granted by the District Magistrate was illegal. The suit was originally instituted in the court of the Munsif, Gorakhpur, and on coming into force of the Civil Laws (Amendment) Act, 1972, was transferred to the Court of Small Causes. The learned Judge Small Causes Court came to the Conclusion that the defendant had not committed any default in the payment of rent; that the notice to quit was served on him by refusal; that the plaintiff alone was entitled to sue but the permission granted under Section 3 of the old Act was: not valid. The suit was accordingly dismissed. The plaintiff filed a revision and the learned District Judge agreed with the findings of the trial court except on the validity of the permission. In his opinion the permission granted under Section 3 was valid. The plaintiff's suit for ejectment of the defendant was decreed and the latter was given two months' time to vacate the house. The defendant has now come up in revision to this Court. The first point urged in the memo of revision is that the suit was instituted in the court of Munsif, Gorakhpur and from that court it was transferred to the court of IV Additional Munsif from where it was sent to the court of Judge Small Causes which was illegal. According to the revisionist, the plaint should have been returned for presentation to the proper court or the learned District Judge should have passed an order under Section 24 of the Civil Procedure Code transferring it to the Small Cause Court, THIS contention carries absolutely no force because Section 9 of the Civil Law (Amendment) Act makes it clear that all suits pending in regular courts on the date that Act came into force shall stand transferred to the court of small causes unless recording of evidence has started. Therefore, the question of returning the plaint for presentation to the proper court or of an order of transfer under Section 24, C.P.C. did not arise. The second contention is that Sri S.P. Sharma who granted permission under Section 3 of the old Act was not competent to do so as he was not duly authorised. The material on the record shows that on September 20. 1972, the then District Magistrate, Gorakhpur, had authorised the District Supply Town Rationing Officer to perform all the functions under the U.P. (Temporary) Control of Rent and Eviction Act, 1947. Copy of this order (Ex. 6) was filed. The contention that the succeeding district Magistrates had not passed a similar order authorising Mr. S.P. Sharma carries absolutely no force. In Mudan Lal v, Kali Prasad (A.I.R. 1950 Alld. 108) this question was discussed at length and it was held that the power of delegation has been given to the District Magistrate as a functionary and not to the person by name. THIS functionary is permanent and there is a permanent succession to this office. An order passed by any particular individual in his capacity as District Magistrate shall, therefore, be deemed to be an order passed by his successors-in-office when he was succeeded by another person and it is not necessary that a successor should pass a fresh order to give effect to the previous order of his predecessor. It is for the successor to change the order of his predecessor if he wants but so long as the order is not changed it shall continue to be effective until it is changed by his successor. In the instant case there is no denying the fact that the District Magistrate had delegated his powers under the Act to the District Supply Town Rationing Officer. There is also no denial that Sri S.P. Sharma was the District Supply Town Rationing Officer on the date he granted permission and will be deemed to have authority to do so. Therefore, the permission cannot be held to be illegal. The third point which has aroused some interest is regarding the service of notice to quite. The notice of ejectment (Ex. 4) is dated September 16, 1971. It was sent to the defendant-revisionist by registered post and was received back with the endorsement of refusal dated September 17, 1971. The address given on the envelop was correct and the defendant admitted that the letters sent at this address are ordinarily delivered to him. There can be no manner of doubt that when a letter is sent by registered post at correct address and is received back with an endorsement of refusal the presumption is service of that letter. In the instant case also both the lower courts were right in holding that the presumption would be of service of notice on the defendant. As held in the case of N. G. Gavete v. State of Maharashtra (1977(1) S.C.C. 133) presumptions, whether of law or of fact, are always rebuttable. In other words, the party against which a presumption may operate can and must lead evidence to show why the presumption should not be given effect to. If, for example, the party which initiates a proceeding or comes with a case to a court offers no evidence to support it, the presumption is that such evidence does not exist. And. if some evidence is shown to exist on a question of issue, but the party which has it within its powar to produce it, does not, despite notice to it to do so, produce it, the natural presumption is that it would, if produced, have gone against it. Similarly a presumption arises from failure to discharge a special or particular onus. The result of a trial or proceeding is determined by a weighing of the totality of facts and circumstances and presumptions operating in favour of one party as against those which may tilt the balance in favour of another. Such weighment always takes place at the end of a trial or proceeding which cannot for purposes of the final weighment, be split up into disjointed and disconnected parts simply because the requirements of procedural regularity and logic embodied in procedural law, prescribe a sequence, a stage and a mode of proof for each party tendering its evidence. What is weighed at the end is one the end is one totality against another and not selected bits or scraps of evidence against each other. Coming back to the case before me the position is that notice (Ex. 4) was sent to the defendant revisionist by registered post. Correct address of the defendant was given on it. It was received back with an endorsement of refusal. In the eye of law the presumption would be of service of the notice unless rebutted. In the instant case the defendant examined himself and stated on oath that 'none had come to deliver any notice to him nor he had refused to take the notice (Ex. 4). It is interesting to note that he was not at all cross-examined on this point. The trial court and the learned lower revisional courts have not at all analysed the statement of the defendant-revisionist or discredited him on any satisfactory ground. The learned lower revisional court has simply remarked that the simple statement of the defendant on this point is not enough. The Evidence Act nowhere prescribes that the testimony of a witness cannot be believed unless corroborated. In the instant case the defendant had stated on oath that no notice was delivered to him nor he had refused to take any notice. If a witness makes a statement on oath the presumption is that it is correct unless proved otherwise. In this case when the defendant was not at all cross-examined or there existed any such circumstances on the record on the basis of which his statement could be discredited, there is no reason why the learned lower revisional court should have held that his statement was not enough to rebut the presumption of service. In this connection it will not be out of place to refer to the case of P. V. Rao v. C. V. Ramane (A.I.A. 1976 S.C. 869) in which a similar question arose. A writ of summons sought to be served by registered post had been returned with the endorsement 'refused'. The Bombay High Court held that the presumption of service had been repelled by the defendant's statement on oath that he had not refused it as it was never brought to him. In this state of evidence it was held that unless the post man was produced the statement of the defendant on oath that must prevail. Their Lordships of the Supreme Court observed that on the facts found in that case the view expressed could not be held to be incorrect. In the instant case neither the plaintiff came forward to depose that he had accompanied the post-man and it was in his presence that the defendant had refused to take the notice nor the postman was examined. No other person in whose presence the defendant-revisionist may have refused to take the notice was produced. Therefore, there is no reason why the statement on oath of the defendant, which could not be shaken in cross-examination, should not have been believed to rebut the presumption of service. In my judgment the learned lower courts erred in holding that the presumption was not rebutted. In my view it was amply rebutted by the statement of the defendant with the result that the plaintiff-opposite party failed to prove service of notice on the defendant-revisionist and a decree for ejectment could not be passed. The revision application is allowed and the judgment and decree dated August 24, 1976 passed by the learned First Additional District Judge, Gorakhpur, are set aside. Costs on parties.