ANIL KUMAR SHARMA Vs. JAGDISH PAL

JUDGEMENT

(1.) PLAINTIFF (hereinafter to be referred : as landlord) filed a suit for possession and for recovery of rent against respondent Anil Kumar Sharma (hereinafter to be referred as tenant) mainly on the ground that he was entitled to seek eviction of the tenant without assigning any reason as the shop, subject-matter of tenancy, was constructed less than ten years prior to filing of the suit and was, therefore, exempt from the provisions of the Rent Restriction Act. In the suit that he filed, he also referred to a suit bearing No. 284 dated 4. 6. 1983, which he had previously filed in the Court of the Sub-Judge Ist Class, Faridabad, and which in the ultimate analysis was compromised during the pendency of the appeal before the Additional District Judge, Faridabad. The said suit was stated to have been compromised on enhancing the rent to Rs. 300/- per month and on tenant agreeing to make payment of the rent at that rate regularly and in case of default for continuous period of three months, his liability to incur eviction. Further, the compromise also provided that the previous rent was to be paid by way of instalments and in case of default of four months the tenant was again liable to be evicted. The grounds for eviction in the present suit, were also nonpayment of rent and sub-letting, but at present we are concerned only with the first ground, indicated above. Before filing the suit, the. landlord issued a notice under Section 105 of the Transfer of Property Act asking his tenant to vacate the shop and hand over the vacant possession to him. The said notice was given on 4th December, 1986, and as per the record of the case the tenant is stated to have refused to receive the said notice on 17th December, 1986.

(2.) THE case was contested by the tenant on various grounds and the pleadings of the parties gave rise to the issues, which have been mentioned in paragraph No. 3 of the judgment passed by the First Appellate Court. After resultant trial, the Sub-Judge decreed the. suit directing the tenant to vacate the premises. The tenant being aggrieved against the said judgment and decree passed by the trial Court, carried an appeal before the Additional District Judge, which was dismissed. This is tenant's second appeal in this Court.

(3.) THE main contention of the learned counsel appearing for the tenant-appellant is that notice under Section 106 of the Transfer of Property Act, which was a necessary prelude for instituting the suit of the present kind was not proved to have been served or properly served upon the tenant The endorsement of refusal dated 17th December, 1986, alone could not prove that a notice under Section 106 of the Transfer of Property Act was issued and the same was refused to be accepted by the tenant. In any case, contends the counsel that when the tenant had appeared in the witness box and categorically stated that he had not refused any notice sent by the landlord, the presumption that initially might have been for issuance of notice under Section 106 of the Transfer of Property Act, stood sufficiently rebutted. In such a situation, the tenant ought to have led evidence in rebuttal to prove that the endorsement made by the Postman on the registered letter of refusal was not correct and inasmuch as the Postman was not examined, it would be deemed that the landlord had not served any notice. The learned counsel for the tenant for his aforesaid stand relies upon Puran Chand v. Smt. Lajya Wati (1972) 74 P. L. R. 930. as also Gian Kaur and Ors. v. Dilbagh Singh, (1988-1) 93 P. L. R. 268.