BALLOO RAM BOOKSELLER Vs. CHHEDI LAL

JUDGEMENT

(1.) This is a tenant's second appeal against a decree for ejectment. The suit for ejectment was dismissed by the trial Court, but, on appeal, decreed by the learned Judge. The appellant Balloo Ram is the tenant of the plaintiff-respondent Chhedi Lal. The accommodation in dispute is situate in Banda. The landlord served notice on Balloo Ram to pay the rent within one month. As he did not receive it, he filed the suit for ejectment. Balloo Ram contested the suit on the ground that the notice was received in his absence while he was away on business. He alleged that on his return his wife informed him of the notice which had been received in, his absence. According to him, this was the first time he came to know about it. On the very next day he sent the amount due to the plaintiff, but the latter had already filed a suit and refused to accept the amount tendered by Balloo Ram. The defendant contended that the suit for ejectment was not maintainable as he had tendered the rent within one month if the service of notice on him. The trial court held that the defendant had not committed default in payment of rent and was, therefore, not liable to ejectment. On appeal the learned Temporary Additional Civil Judge, Banda, held that, as the notice was admittedly received in the defendant's absence, the onus was on him to prove that the person who signed the postal receipt was not his agent. He accordingly held that the plaintiff had served a valid notice which the defendant had failed to comply with within the prescribed period of one month. The learned Judge reversed the decision of the trial Court and decreed the suit for ejectment. Aggrieved by this decision the defendant Balloo Ram had come to this Court in second appeal.

(2.) It is common ground that the landlord did issue a notice. It is also admitted that the notice was handed over to the defendant by his wife and son on his return to Banda. The finding of the trial court that the tenant was away on business when the notice was delivered was not seriously challenged before the appellate Court. The defendant's case was that the notice must have been received by some unauthorised person who handed it over to his wife or son. The plaintiff's case was that the identity of the person receiving the notice was within the exclusive knowledge of the defendant and the onus was on him to prove that the person who received it and passed it on to his family had no authority on behalf of the defendant. As he had failed to discharge this onus it must be held that the notice was received by his agent and was duly served.

(3.) The learned Munsif believed the evidence of the defendant that he was out of station when the notice was received in his absence. He rejected the plaintiff's contention that, under the presumption arising from Section 114 of the Evidence Act, the notice must be presumed to have reached the defendant at the time mentioned in the acknowledgement. He took the view that as the presumption under the section was rebuttable the defendant had rebutted it by his sworn testimony that he was out of station when the notice was delivered. He accordingly held that no notice had been served on the defendant under Section 3 (1) (a) before the filing of the suit.