AZIZ DAND SAJAN Vs. SALIM ILAHI PATEL

JUDGEMENT

(1.) BY this petition, the petitioner challenges the order dated 31-10-1984 passed by the IIIrd Extra Assistant Judge, Pune in Civil Appeal No.677 of 1980. That appeal was filed by the Petitioner challenging the judgment and decree dated 16-8-1980 passed by the learned third Addl. Judge, Small Causes Court, Pune in Civil Suit No.3229 of 1975. That civil suit was filed by the Respondents claiming therein that they are owners of house bearing C.J.S.No.924 at Synagogne, Pune and that the petitioner is a tenant in the said house. The landlords sought decree of eviction only on the ground of default in paying rent. A demand notice required to be served under Sub-Section (2) of Section 12 of the Act was sent on 27-8-1975. It was sent by registered post acknowledgment due. The envelope came back with an endorsement from the postman that the addressee has refused to accept the same. The trial court held the service of the notice valid and found that the tenant was not ready and willing to pay rent and therefore the suit filed by the landlords for a decree of eviction was decreed and the tenant was directed to vacate the suit premises. In the appeal filed by the tenant, the appellate Court confirmed the finding recorded by the trial court and dismissed the appeal. It is these two orders which are challenged in this present petition. Shri Dalvi, the learned advocate for the Petitioner urged before me that both the courts below have erred in holding that the endorsement on the envelope dated 1-9-1975 showing that the addressee refused to accept the envelope amounts to valid service of demand notice on the tenant. Shri Dalvi the learned counsel for the petitioner pointed out that perusal of endorsement on the envelope shows that the envelope was tendered to the addressee by the postman concerned on 30-8-1975 and

(2.) -9-1975, but the addressee was not found and the third endorsement shows that on 1-9-1975 the addressee refused to accept the envelope. In the submission of the learned Counsel for the Petitioner that there is a serious discrepancy in the endorsements on the envelope. If the postman found the addressee on 1-9-1975, who refused to accept the envelope, and an endorsement to that effect was also made by the postman on the envelope, there was no reason for the postman to again try to find the addressee on 2-9-1975. Shri Dalvi the learned Counsel for the Petitioner submitted that because of these discrepancies in the endorsements, no presumption under the Evidence Act could be raised in relation to service of envelope on the addressee. Shri Dalvi contended that in so far as the trial court is concerned , it has not at all considered this aspect of the matter. Observations in para 20 of the judgment of the appellate Court shows that this aspect of the matter was pointed out to the appellate court, but the appellate Court brushed aside this aspect of the matter by relying on the judgment of the Supreme Court to the effect that an endorsement made by postman on an envelope has a presumptive value. In the submission of Shri Dalvi the only person who could have explained these discrepancies was the postman, who took the envelope for service. Shri Gokhale the learned Counsel for the Respondents on the other hand submitted that there was an endorsement made on the envelope, which shows that the addressee refused to accept the envelope, therefore presumption is raised in favour of service of notice on the addressee. Now it was for the addressee to enter the witness box to deny the receipt of notice on him. In the instant case, admittedly the addressee has not entered into witness box. In the submission of Shri Gokhale, no fault can be found with the finding recorded by the Courts below, which are concurrent. 2.In the light of rival submissions if the endorsements on the envelope is seen, it is sufficient that there is a clear discrepancy in the endorsements. One does not understand as to how if the addressee refused to accept the envelope on 1-9-1975, the postman again went back to the addressee on 2-9-1975 and made an endorsement that he could not find the addressee.

(3.) SHRI Dalvi, the learned Counsel for the Petitioner further urged before me that wife of the tenant who was examined as a witness had clearly stated before the Court that the defendant is of unsound mind for a long time and that he is not capable of understanding things. Shri Dalvi further urged that the cross examination of this witness on behalf of the landlords also suggested that the landlord was also aware of the mental condition of the tenant-defendant. In the cross-examination it is suggested to the witness that there were proceedings taken by the wife of the tenant for sending the defendant to mental asylum. According to Shri Dalvi, it was for the Court to make an inquiry to find out whether the tenant-defendant is really of unsound mind or not. In the submission of Shri Dalvi, no inquiry appears to have been made by the Court into this aspect of the matter. On the other hand the learned Counsel for the Respondents Shri Gokhale submitted, by referring to observations made in the order of the trial Court, that court has applied to its mind to this aspect of the matter and has held that the defendant is not of unsound mind. Now considering this aspect of the matter in the light of rival submissions, I find that no doubt the trial court has dealt with this aspect of the matter. The observations of the trial court made in this regard also shows that the trial court has totally misconstrued the statement made in the deposition. In the deposition a suggestion was made to the wife of the tenant that her application made before the District Court for sending the tenant to mental asylum was rejected. It was also suggested that her appeal filed before the High Court in that regard was also rejected. However, both these suggestions have been denied by the wife of the tenant. However, observation of the trial court shows that trial Court has proceeded, as if, these are established facts on record. In my opinion, if at all some inquiry has been made by the Court below in to this aspect of matter, it is merely a casual inquiry. Taking over all view of the matter in my opinion, both orders passed by both the Courts below are liable to be quashed and set aside and the civil suit No.3229 of 1975 is liable to be remitted back to the trial court for de novo hearing and decision in accordance with law. The trial court will have to hold an inquiry as to whether the defendant was a person of unsound mind at the relevant time and whether it is necessary to appoint a guardian ad litem for him in the suit.