K K ARORA Vs. BHAGWANT KAUR

JUDGEMENT

(1.) THIS revision application under Section 115, Code of Civil Procedure arises out of the revisional order passed by the court of IV Additional District Judge under Section 25 of the Small Causes Court Act allowing the landlord's revision application against the judgment and decree passed by the court of Judge Small Causes Court dismissing the suit of the Plaintiff. The Plaintiff filed a suit against the tenant stating in the plaint that the tenancy was terminated after notice under Section 106 of the Transfer of Property Act was given to the tenant, whereafter the present suit was filed by the Plaintiff. The tenant revisionist took a number of pleas at the stage of evidence. Counsel for revisionist stated that he was giving up all the other pleas and confined his case only oil the plea regarding absence of service of notice upon him. The case of the Defendant is that he was neither served any notice nor did he refuse to accept the same. The Plaintiff examined his sop and stated that be gave notice to his counsel and thereafter stated that notice was also sent to the Defendant at his residential address and that the notice was also affixed on the door of the disputed house, but later on stated during cross -examination that he has not sent notice through the office address. The other witness examined by him also deposed that the Plaintiff's son affixed the notice in his presence on the outer -door of the house on the front portion. although the Defendant resided in the back portion of the house. The Defendant not only examined himself, but examined one witness Arun Kumar who stated that the Defendant was an employee of his Department and that he was transferred in 1975. Smt. Prem Arora, the wife of the Defendant, was examined who stated that no notice was affixed on her door in the year 1974. The revisionist stated that no notice was served upon him. The trial court believed the statement of the Defendant's witness and held that no notice was served upon the Defendant who did not refuse to accept any notice. The trial court consequently dismissed the Plaintiff's suit. The Plaintiff filed a revision application and the revisional court entered into the evidence and held that as over the registered envelope containing notice an endorsement to the effect 'not met' was made by the postman, service was not effected, but at the same time it held that as notice was also sent to the Defendant under certificate of posting, as such there was a presumption of service. The statement of the Defendant to the effect that he did not receive notice was not accepted. The revisional court also held that from the evidence it was proved that the notice was pasted at the residence of the Defendant without deciding the question as to whether the same was pasted on the front portion or the back portion of the house which in fact was in occupation of the tenant. The revisional court also found that the notice sent to the Defendant at his office address was not correctly addressed. The revisional court thus recorded a finding that the notice was served on the Defendant, but made no reference to the statement which was made by the Defendant himself that he was not served with the notice and to his knowledge no affixation was ever made and that it was absolutely incorrect that any notice which might have been sent by the Plaintiff was ever delivered to him.

(2.) SRI S.K. Shukla, learned Counsel for the revisionist, contended that the revisional court had no jurisdiction to enter into the question of fact and in case it was acting as an appellate court, it Was bound to consider the statement of the defence witness and in the absence of any statement on behalf of the Plaintiff to show that in fact any notice was said to have been sent by certificate of posting or was delivered to the Defendant -applicant, it was bound to consider the contradiction in the statement of witnesses P.W.1 and P.W.2.

(3.) COMING to the question of effecting the service through notice under certificate of posting, the learned Counsel for the applicant contended that the document said to be the receipt showing that the letter addressed to the Defendant was sent under certificate of posting appears to be a suspicious document. The document was sent to the Defendant under certificate of posting from Daliganj post office and at the same time a registered letter was sent from Aminabad post office the same day which is two miles away from Daliganj. Learned Counsel contended that even if it would be taken that such a receipt was of the letter which was despatched from Daliganj post office to the Defendant then no presumption of the letter on the Defendant -applicant could be drawn. In support of his case the learned Counsel referred to a case B.L. Srivastava v. M.M.L. Shridhar : AIR 1975 MP 21 in which a Division Bench of Madhya Pradesh High Court held that "however the certificate of posting may give rise to the presumption that the letters were posted but no presumption can be drawn that they were received by Respondents 2 and 3."