SHAMSADBI NAGA PINJARI Vs. GUNVANTIBAI RAMSNEHI

JUDGEMENT

(1.) THE petitioner here is a tenant, who has been ejected by the decree of the District Court, Dhulia in appeal from the judgment and decree passed by the Civil Judge (Junior Division), Taloda. The petitioner -defendant is a monthly tenant at a rent of Rs. 4 per month. The petitioner did not pay rent and she was, therefore, according to the landlady in arrears of rent from September 12, 1962. Because she was in arrears of rent therefore a notice of payment was issued to her on June 21, 1965, but it was refused. Because there was no compliance on the part of the petitioner therefore the landlady filed, a suit on July 26, 1965 on two grounds. The first ground was that the petitioner was in arrears of rent for a period more than six months. The second ground was that she wanted the premises for personal requirement. The petitioner contested the claim of the landlady by stating that she had not refused the notice at all; that on the other hand she had paid Rs. 254, which amount was not accounted for and that the landlady had also refused to accept four money orders. On the basis of these pleadings the trial Court framed a number of issues and found as a fact that the landlady had established that the petitioner was a wilful defaulter for more than six months from September 12, 1962; but the landlady did not establish that she required the suit premises reasonably and bona fide for her own use; and it was held that the amount of Rs. 86 from September 12, 1963 to February 11, 1965 and the amount of Rs. 48 from July 12, 1965 to July 11, 1966 were due. As regards the issue of refusal of money orders by the landlady the trial Court held that there was refusal of money orders of the sum of Rs. 11 and of another sum of Rs. 23 -25 P. In view of these findings the trial Court ordered that the petitioner should pay a sum of Rs. 134 and dismissed the landlady's suit for possession. The landlady, therefore, went in appeal against this decree of the trial Court to the District Court, who reversed certain findings of fact recorded by the trial Court. The learned District Judge also held that the landlady was entitled to take possession of the suit premises on the ground that the petitioner was in arrears of rent for more than six months and that she had not paid the same within one month of the notice. It is this decree of the learned District Judge which is sought to be corrected here.

(2.) THE first contention of Mr. Kotwal, the learned advocate for the petitioner, is that the tenancy of the petitioner was not validly terminated because there was no valid service of the notice by the landlady. According to him there is no evidence to establish that the notice was refused by the petitioner. He further contended that the landlady did not given evidence during the course of her deposition either as regards the notice or its refusal on the part of the petitioner. He further contended that the landlady ought to have examined the postal peon if she wanted to establish that there was refusal on the part of the petitioner. The endorsements on the registered letter, not being legally proved according to him cannot be said to be admissible in evidence. It is, however, difficult for me to accept these contentions of Mr. Kotwal for the obvious reason that the landlady had mentioned all the details regarding the service of her notice on June 21, 1965 and also regarding the refusal of the notice by the petitioner on June 24, 1965 in her plaint. She has also deposed about the giving of notice. She has further tendered the refused registered letters containing notices with acknowledgments bearing endorsements made by the postman who must have gone to serve the notice on the addressee i.e. the petitioner -tenant. But Mr. Kotwal has relied on (1) Gobinda Chandra v. Dwarka Nath A.I.R.[1915] Cal. 313; (2) Butto Kristo v. Gobindaram Marwari : AIR1939Pat540 and (3) Vaman v. Khanderao [1934] 37 Bom. L.R. 376 in support of his contention that if the postal peon was not examined, then the endorsement made by the postal peon cannot be admissible in evidence. Now it is true that in Gobinda Chandra v. Dwarka Nath that Court did observe in the context of the facts and circumstances of that case that the postal peon's statement of refusal of acceptance on certain date must be proved unless the statement is admissible under Section 32(2) of the Evidence Act. According to the observations of that Court the endorsement on the cover of a letter by a postal peon that the cover was tendered to the addressee on a certain date and was refused, is at best a record of statements by the peon and the events recited therein but they must be proved by calling him as a witness, unless the statement becomes admissible under Sections 32(2) or 33 of the Evidence Act. According to that Court such a statement is not admissible even as a statement made by a public officer in the discharge of his duties. But this view was not accepted by the same High Court in the other case Sushil Kumar v. Ganesh Chandra : AIR1958Cal251 , where the Division Bench of the Calcutta High Court referred to the above said case, Gobinda Chandra v. Dwarka Nath, and observed that the view opposite to what found favour with the Court in that case was taken in a large number of cases. The learned Judges of the Calcutta High Court in Sushil Kumar v. Ganesh Chandra observed that if the notice was returned with the endorsement 'refused' then the presumptions under Section 114 (e) and (f) of the Evidence Act were available. It is not necessary to examine the postal peon at all because of these presumptions unless and until those presumptions were rebutted. It cannot, therefore, be said that the Calcutta High Court has taken the view on the basis of which Mr. Kotwal canvasses his argument.

(3.) MR . Kotwal then cited Vaman v. Khanderao wherein this Court was of the view that the postman should ordinarily be examined for the purpose of establishing refusal by the addressee. Beaumont C.J. while delivering the judgment in that case observed that the refusal in that case by defendants Nos. 4 and 5 of a registered letter containing notice was not proved because the postman who took the letter and brought it back was not called. At the same time the learned Chief Justice observed (p. 384):.But in any case, even if the refusal had been proved, I should not be prepared to hold that the registered letter tendered to the addressee and refused and brought back unopened, was well -served. There are, I know, some authorities in this Court to the contrary, but it seems to me impossible to say that a letter has been served so as to bring the contents to the notice of the person to whom the letter is addressed, if the agent for service states that in fact the notice was not served, although the reason may have been that the addressee declined to accept it. It is, therefore, clear from the judgment in that case that there were also other decisions of this very Court, which took a view contrary to that taken in the facts and circumstances of that case by Beaumont C.J.