DHARMENDRA KUMAR JAIN Vs. VIIITH ADDITIONAL DISTRICT JUDGE

JUDGEMENT

(1.) RAISING a small controversy about the service of registered notice by refusal given by the landlord to the tenant as envisaged under section 106 of the Transfer of Property Act, the present writ petition has been filed against the concurrent judgments of the two courts below holding that the presumption of service stands rebutted as the defendant tenant has denied the receipt of notice in his deposition and the postman was not examined.

(2.) THE facts of the case may be noticed in brief. A J. S. C. C. Suit No. 39 of 1986 was instituted by the grandfather of the petitioners against Shri Ghanshyam, respondent no. 3 herein, for recovery of arrears of rent, ejectment and pendente lite and future mesne profit on the ground that the tenant is in arrears of rent for a period of four months and has failed to pay the same in spite of notice of demand and termination. A registered notice dated 30th of November, 1985 was sent to the respondent tenant demanding the arrears of rent amounting to Rs. 1270/- from Miti Bhadon Badi-1 Sambat 2032 corresponding to 22nd of August, 1975 along with Rs. 30/- as cost of notice total Rs. 1,300/- within a month of receipt of notice. It was stated that on a monthly rent of Rs. 10/- the respondent (defendant) is the tenant of shop No. 27/102/3 situate at Haveli Bahadur Khan, Dhuliaganj, Agra. The tenancy commenced on Miti 1 of every month of Vikrami calender and ends on Sudi 15 (Purnima) of the same month.

(3.) THE suit was contested on a number of pleas, which are not relevant to be noticed herein except one that the notice of demand and terminating tenancy was never served on him. The trial court on the basis of the pleadings of the parties framed six issues. Issue no. 1 relating to the validity of the service of notice on the defendant is the only surviving issue and relevant for the purposes of the present writ petition. A copy of the notice dated 30th January, 1985 (Paper No. 20 C), its registered receipt paper No. 21 C and the envelope returned with endorsement of refusal paper No. 22 C have been filed. Ghanshyam, the respondent no. 3 herein examined himself as DW/1. In his deposition he has admitted that on the said registered envelope containing the notice the address of his shop, is correctly mentioned. The courts below have held that since the defendant has stated in his deposition that such a notice was never tendered to him, the presumption of service of notice stands rebutted as held in the case of Nawabzada Mohd. Ishaq Khan Vs. The Delhi Iron and Steel Co. Ltd. : AIR 1979 Alld. 366. The said finding of the trial court has been affirmed in revision No. 137 of 1993 preferred by the petitioners by VIIIth Additional District Judge, Agra by the impugned judgment.