COMMISSIONER OF HAZARIBAGH MUNICIPALITY Vs. FULCHAND AGARWALA

JUDGEMENT

(1.) This appeal is by the Municipality of Hazaribagh who brought the suit for ejectment of the defendant on the grounds of non-payment of rent and breach of conditions of tenancy and for damages for use and occupation of the premises after the determination of the lease. The defendant had taken lease from the Municipality of two stalls at a monthly rent of Rs. 14 for each, for the period from 1st September, 1936 to 31 December, 1937, but the defendant held over his possession after that date. Plaintiff-Municipality served a notice by registered post addressed to the defendant to his known address, on the 3rd March 1956, asking him to quit the premises from 1st April, 1956. There was no response from the defendant. Ultimately, the suit was instituted on the 24th September, 1956. The defendant in his written statement pleaded that he had no concern with that premises, and was not in possession of the same in 1924, in a family partition, those premises fell to the share of his brother Nathulal Agarwal who was in possession of these two stalls. Secondly he denied the relationship between him and the Municipality as that of the landlord and tenant and asserted that no notice had been served upon bun before the institution of the suit. Another plea also was taken that full payment of rent for the said premises had been made to the Municipality, The trial Court decreed the plaintiffs suit but it was reversed by the appellate Court. The second appeal is, therefore, by the Municipality.

(2.) The two main grounds on which the lower appellate Court has dismissed the plaintiff's suit are that the notice dated 3rd March, 1056, issued by the Municipality by registered post, was not proved to have been served upon the defendant and in absence of such service the suit was not maintainable. Secondly that assuming that the notice was served, the Municipality by accepting rent for a period of two months after the notice waived its notice and, therefore, the suit also could not lie. The defendant's plea that he was not a lessee under the Municipality was disbelieved. But, all the same, the suit was dismissed.

(3.) Ext. 4 (b) is the postal receipt which shows that on the 3rd March, 1956, the notice was sent by registered post to the defendant's address. Ext. 7 is the postal acknowledgment from which it appears that one K. L. Jain received that registered notice on the 6th March, 1956. In evidence, on behalf of the Municipality, it was stated that K. L. Jain who had received the notice, though it was addressed to the defendant was the Munib of the defendant D. W. 2 and D. W. 4 denied him to be his Munib. But, in evidence, the defendant himself said that he could not say who was his Munib in March, 1956 when this notice was served at his end. He further stated that he could not say who were his Munihs in 1955 and 1966 without reference to papers that were with him. He admitted that the pay and allowance paid to the Munib were entered in Bahi-khatas which were maintained. He however, did not produce either any paper or Bahi-khata which would have thrown abundant light on the question as to whether K. L. Jain was his Munib in March, 1956 when he received the notice on behalf of the defendant. It is well established that a party who has in his possession documentary evidence that is expected to throw light on the point at issue or in controversy between two parties, must produce it in Court. The ordinary rule that documents should be called for from a party, if wanted by other party, does not apply to cases where the documents in question are in possession of a litigating party That rule is applicable to such cases where documents are sought to be produced by a third party. A party who fails to produce a document which is likely to throw light on the point of controversy involved in a litigation must be subject to an adverse Inference to the effect that if he had produced such document that would have gone against his own contention on the point. Reference may be made to the cases of Hiralal v. Badkulal, AIR 1953 SC 225. T S. Murugesam Pillai v. M. D. Gnana Sambanda Pandara Sannadhi, AIR 1917 PC 6 and Rameshwar Singh v. Bajit Lal Pathak, AIR 1929 PC 95. The trial Court drew such inference against the defendant on his failure to produce his Bahi-khatas or other papers that would have shown if K. L Jain was the Munib working with him in March, 1956. The appellate Court has not considered this aspect at all. It made much of a slight discrepancy that appeared from the evidence of the plaintiff's witness who had said in examination-in-chief that Kundan La] Jain (K. L. Jain) was the Munib of the defendant whose hand-writing he knew and whose signature had appeared in the postal acknowledgment (Ext. 7). In cross-examination, that witness said that it was Kanak Lal Jain and not Kundan Lal Jain who was the Munib. "K. L." were the initials used in Exhibit 7 and the witness spoke about that. The appellate Court thought that this was a serious error that would be taken to be sufficient to negative all the evidence that was adduced on behalf of the plaintiff about the service of notice on the defendant. In our opinion, this was clearly a wrong approach. When a letter is posted, it is presumed that It has reached its destination and delivered to the addressee. If the letter is sent under registered post, that presumption is still stronger. If any one at the other end received it and signed the postal acknowledgment receipt for the defendant-addressee, the presumption will be that it was received on behalf of the defendant. These are some of the well known presumptions which must be applied to a case of this nature. Undoubtedly, this presumption is rebuttable and could be contradicted by evidence adduced on the other side either to show that what would appear by way of presumption was not, in fact, true either on account of fraud or collusion or some such things. In the present case, once the postal receipts were exhibited, it was for the defendant to show that the man who had received at his end the registered postal article was not his man. This he could have easily shown if he had liked to do so, provided it was true, from his own papers about which he spoke in evidence in Court. Failure on his part to do so should have been taken in law as strengthening the presumption arising out of postal receipts. Learned Counsel appearing for the respondent urged before us that the conclusion of the lower appellate Court that the notice was not served on the defendant was a question of fact and should not be interfered with in second appeal by this Court. The trial Court had referred to the presumption that ordinarily arises from the postal receipts. Before the lower appellate Court case Ilarihar Banerji v. Ramshashi Roy, reported in 45 Ind App 222: AIR 1918 PC 102, was also placed in support of such presumption. This case was sought to be differentiated by the Court below by saying that in the reported decision there were a number of joint tenants and notice was received by some of them and the receipt for some other notices was signed by some others on behalf of the addressees. We do not see how this, in fact, affects the real essence of the decision. In our view, the appellate Court has failed to properly notice the presumption that arose in favour of the plaintiff in regard to the service of the notice from postal receipts and to take adverse inference against the defendant from his failure to produce his account books and other papers which would have thrown light on the question whether K. L. Jain was or was not the Munib working with him in March, 1956. For these reasons, the conclusion of the Court below in this respect cannot be taken to be a finding of fact unassailable in a second appeal. That finding was arrived without proper and full consideration, both of the legal position and also the inference that arises from the facts brought on the record by evidence. In our view, it must be held in this case that the plaintiff Municipality proved that it had given a notice dated the 3rd March, 1956 which was served on the defendant on the 6th March, 1956 and in that notice the plaintiff Municipality determined the lease and asked the defendant to vacate the premises from the 1st April 1956.