AMRUTLAL WELJIBHAI RATHOD Vs. VISHWASRAO DEORAO PATIL

JUDGEMENT

(1.) A decree passed by the District Judge, Yavatmal on 29-3-1985 in Civil Appeal No 189/82, setting aside the decree of eviction passed by the 5th Joint Civil Judge, Junior Division, Yavatmal on 26-8-1982 in Regular Civil Suit No. 207/81 has been assailed in this revision. It was not disputed that the plaintiff Amrutlal was the landlord and the defendant Vishwasrao was his tenant occupying the tenement. The plaintiff obtained the permission to determine the tenancy of the tenant from the Rent Controller. In pursuance of this permission, a notice was issued. The suit for eviction came to be filed which was decreed by the trial Court, but that decree has been set aside by the Appellate Court in appeal. The dismissal was based only on one ground viz that the quit notice was never served on the defendant With a view to appreciate the real controversy centering round this point, it will be necessary to state that the plaintiff sent one notice on 9-9-1981 by Registered Post A. D. on the address of the defendant. According to the plaintiff, this notice was returned back to him with the endorsement "refused", on 12-9-1981. The plaintiff also sent another notice determining the tenancy on the same date. But instead of sending it by Registered Post, it was sent under Certificate of Posting. The case of the defendant is that, he did not receive this notice.

(2.) IT appears that during the trial the postal receipt evidencing the registration was produced before the Court. The plaintiff on oath deposed before the Court that this notice was sent by Registered letter acknowledgement due. The Postman Mr. Dhurve (P. W. 2) was examined by the plaintiff and this witness stated on oath that on 12-9-1981 he did take this registered packet to the defendant who refused to accept it, and therefore, he wrote an endorsement "refused" and returned back that registered packet to the post. It is also interesting to note that in the testimony of Mr. Dhurve, he positively stated that on the very day, there was one money order addressed to the defendant. He took that money order to the defendant and the defendant accepted it. The witness was cross-examined. After the examination of this witness, the defendant was examined and in his cross-examination, a question was put to him whether the money order was tendered to him by the postman Mr. Dhurve on 12-9-1981. To this question, instead of a plain denial, the defendant deposed that he does not remember. This is the state of evidence, The trial Court held that this evidence was quite believable, and therefore he recorded a finding that the quit notice was served on the dependent. The appellate Court on the other hand appear to be more impressed by the testimony of the defendant who merely stated that he did not receive this notice. In fact, the case of the defendant was that he was out of Yavatmal on 9th. The appellate Court, however, without anything on record held that the defendant was out of Yavatmal from 9th to 12th. The evidence of the Postman came to be disbelieved inspite of the reply given by the defendant that he does not remember whether he accepted the money order or 12-9-1981. On this evidence the Appellate Court disagreed with the trial Court and held that the notice was not served on the plaintiff. As far as the notice sent under the Certificate of posting is concerned, a postal receipt has been filed on record and it has been accepted. There is thus no question that this letter was not posted. The only case put forth by the defendant was that, he did not receive this notice. The trial Court held that there is a presumption available under section 114 and more particularly illustrated by illustration (F) which enables the Court to draw an inference that the letter received the addressee. The Appellate Court, however, disagreed with the trial Court and observed that the only presumption available under section 114 of the Evidence Act was that the said letter was posted. According to the Appellate Court, the presumption did not go an inch further. In short the Appellate Court held that there is no presumption that the letter reached the addressee, inspite of the provision in section 114 of the Evidence Act.

(3.) IT is on these two findings that the Appellate Court disagreed with the trial Court and recorded a positive finding that the quit notice was not served. It is only on this finding that the suit for eviction came to be dismissed.