MUNSHI RAM Vs. SHAKUNTALA DEVI

JUDGEMENT

(1.) THESE two revisions are directed against an order of remand in suits for ejectment passed by the Sub Judge (CJM) Jammu on 26 -10 -1974. As a common question of fact and law has been raised in both the revisions, so this judgment will dispose of both of them.

(2.) BRIEFLY speaking the plaintiff brought two suits for ejectment against Munshi Ram and Mulk Raj in respect of shops situate Mohalla Ustad. She averred that she had purchased four shops by virtue of a registered sale deed. Out of these four shops two were leased out to the defendants. The plaintiff claimed that she required the shops for purposes of rebuilding as the shops were old and in a dilapidated condition. She further stated that after rebuilding she wanted the shops for her personal use as one of her sons had to start his own business in the shop who was without any work and was dependent upon her for his live -hood. Her further case was that she served notices of ejectment on the defendants through registered post as was apparent from the acknowledgments duly signed by the defendants. The suits were resisted on various grounds. The trial court raised a number of issues and decided all the issues excepting issue of notice in favour of the plaintiff. The trial court held that the plaintiff had failed to prove that notices had been issued to the defendants requiring them to surrender possession of the shops. The suits of the plaintiffs were consequently dismissed on this grounds. Aggrieved by the judgments and decrees of the trial court, the plaintiff went up in separate appeals before the learned Sub -Judge, (CJM) Jammu. Before the lower appellate court, applications under Order 41 Rule 27 C.P.C. were moved by the plaintiff for leave to produce evidence to prove the subject matter of issue of notices. She submitted that notices for ejectment were posted by mail. These notices were received by defendants -respondents and acknowledgments were duly signed by them. It was expected that the trial court would draw a presumption from the proved facts that the notices were delivered in the due course of postal service. In that view of the matter, the plaintiff was not required to produce any evidence to substantiate this fact; but because of an authority of Justice Anant Singh, an adhoc Judge of this court, which held that service of notice must be proved by producing evidence and no presumption can be drawn under law, the trial judge decided issues of notice against her. Accordingly to the plaintiff, it was not possible for the appellate court to reach at a correct conclusion as to the service of notices, as no presumption could be drawn according to the aforesaid authority. Therefore, she prayed that she be allowed to produce witnesses to prove service of notice. This application was resisted by the respondent on the ground that the plaintiff had sufficient time to lead evidence to prove issue of notices, the onus of which was upon her. The application was intended to fill up the lacuna which could not be allowed. The learned appellate court, however, agreed with the plaintiff that it was a fit case where the court should exercise its power in favour of allowing the plaintiff to produce evidence in order to substantiate this issue. The learned court accordingly allowed the application and permitted the plaintiff to adduce additional evidence in order to prove service of notice on the defendants subject to payment of costs. The learned Judge set aside the finding of the issues relating to notices and directed the trial court to give fresh finding thereon after recording additional evidence led by the parties. Aggrieved by this order of remand, the defendants have come upin revisions before this court.

(3.) LEARNED counsel appearing for the petitioners has argued that the lower appellate court had illegally exercised its jurisdiction in the matter of allowing the plaintiff to produce additional evidence in terms of order 41 Rule 27 C.P.C. learned counsel submitted that the onus of these issues was on the plaintiff and, therefore, it was her duty to produce evidence thereon. But as she failed to produce evidence, the only course left open to the trial court was to record finding on these issues against the plaintiff. The lower appellate court could not fill up the lacuna in the case by allowing the plaintiff to produce additional evidence. According to the learned counsel the presumption to be drawn under Section 114 of the Evidence Act was rebuttable. As the defendants had denied the receipt of notices, therefore, there was no question of drawing any presumption in the case and it, therefore, lay heavily on the plaintiff to discharge the onus which she indeed had failed to discharge.