DHARAM VIR Vs. RAM CHANDRA

JUDGEMENT

(1.) THE defendant as appellant has preferred this revision against the Judgment and decree passed on 19.2.82 in respect of S.C.C. suit No. 23 of 1980 pending in the Court of Judge, Small Causes Court (IIIrd Addl. District Judge), Moradabad.

(2.) THE revision has been filed challenging the Judgment and decree under findings on the points. The learned Counsel for the revisionist argued only three points before me challenging the judgment and decree. It has been contended that the building was completed in 1972, as such the suit was not maintainable in view of provisions of Section 2(2) of U.P. Act No. 13 of 1972. It has been further contended that the rent was inclusive of the water tax and as the rent was paid in Court after getting the notice, the defendant is entitled to have protection under Section 20(4) of the Act. It has been further contended that the enhanced rent was inclusive of the water tax and enhanced municipal taxes and as such there was no default in payment of the rent. It has been further contended that the notice under Section 106 of T.P. Act was not served and the defendant denied on oath relating to service of notice and as such the Court ought to have held that the presumption arising out of Section 114 of the Evidence Act was not available as that presumption has been rebutted by the defendant No. 1. Moreover, the postal peon has not been examined to substantiate the plaintiff's contention that the defendant wilfully refused to access the notice. He noted that the case of the petitioner-plaintiff was for eviction of the defendant from the shop situated on Gulzarimal Dharamshala Road and for recovery of Rs. 1736/- as rent from 1.2.80 to 9.7.80 and Rs. 848/- as damages for use and illegal occupation. It was the plaintiff's contention that the assessment was made on 1.4.73, as such it was not barred under Section 2(2) of the Act No. 13 of 1972 and as there was no deposit of water tax, so that rent as deposited by the defendant under Section 30 of U.P. Act No. 13 of 1972, was invalid deposit. As such, the plaintiff was entitled to get a decree.

(3.) THE learned Counsel for the defendant-appellant contended before me that the defendant denied the service and the plaintiff did not take recourse to examine the postman and no explanation has been afforded why he did not choose to examine the postman. Moreover, it is the categorical statement on oath by the plaintiff that he did not accompany the postal peon while delivering the registered letter, containing the notice. As such, the Court ought to have held that there was no valid service of notice.