BANARSI DEVI Vs. C P SAXENA

JUDGEMENT

(1.) THIS is a landlord's second appeal arising out of a suit for eviction of a tenant. The only question that arises for consideration in this appeal is whether the notice to quit was duly served on the Respondent OF not. It appears that the notice was properly addressed and sent by registered post to the address of the Defendant -Respondent. An acknowledgement purporting to bear the signature of the Defendant was produced in evidence by the Plaintiff -appellant. The Defendant denied his purported signature on this acknowledgement. No other evidence was adduced on either side. It was held by the lower appellate court and also by the trial court that in view of the Defendant's denial the presumption of service stood rebutted and accordingly the notice was not proved to be served.

(2.) LEARNED Counsel for the Appellant has argued that the law was not correctly applied by the courts below. It has been contended that a bare denial by the Defendant, who had a motive to make a false denial in order to escape the consequences of service of notice, should not have been deemed sufficient rebuttal of the legal presumption. Learned Counsel has in this connection placed reliance on Salik Ram Sahu v. Bindeshwari Ram Rauniyar, 1965 AWR 580 and Mushtyat Ullah v. Abdul Wahab : AIR 1972 All 539. It is true that the Defendant's denial may be motivated and should be viewed with suspicion. It need not be accepted at its face value. However, as pointed out in Amar Nath v. Smt. Champa Devi : 1978 AWC 84 even the testimony of the Defendant which is legal evidence cannot be ignored altogether. Likewise, in P.B. Rao v. C.V. Raman, : 1976 (2) SCC 409 it has been held (vide paragraphs 8 to 10 of the report) that even the Defendant's denial can be accepted if there is no other evidence in rebuttal of that denial. In all theses cases the legal principle enunciated is that for the presumption of due service to apply it is not required that the postman should necessarily be produced in evidence and that the Defendant's denial by itself may or may not be believed. It can be disbelieved because evidently be had a motive for denying service of notice. If the Defendant's evidence does not inspire confidence, or if there is something else about his conduct or circumstances of the case on the basis of which his denial can be disbelieved that would be perfectly in order. The court is not bound to believe it merely because it is unrebutted. But there is nothing to inhibit a court from believing the Defendant's denial even though there is no other corroborative evidence in support of that denial. A court cannot be said to have committed an error of law in accepting the Defendant's denial. In the present case the trial court has scrutinised the acknowledgement and taken the view that the purported signature of the Defendant appeared to be a traced forgery. The lower appellate court has seen no reason to disagree with the trial court. The Appellant did not produce any expert evidence, to rebut the Defendant's denial of his signature on the acknowledgement. In these circumstances it cannot be said that the appellate court's finding of fact is vitiated by any error of law.