MANJU BAI Vs. DHANNA LAL

JUDGEMENT

(1.) The appellant/defendant has preferred the present second appeal under Section 100 of CPC, challenging the judgment and decree dated 19/1/2010 passed by the Additional District and Sessions Judge, Fast Track No.3, Ajmer (hereinafter referred to as 'the Appellate Court') in Civil Appeal No.50/2009, whereby the Appellate Court has dismissed the appeal and confirmed the judgment and decree dated 11/12/2008 passed by the Civil Judge (Junior Division), Kishangarh (hereinafter referred to as 'the Trial Court') in Civil Suit No.50/2007.

(2.) The short facts, giving rise to the present appeal, are that the respondent/plaintiff had filed the suit against the appellant/defendant, seeking eviction from the suit premises, and for recovery of rent alleging inter-alia that the appellant/defendant was let out the suit premises by the respondent/plaintiff on 1/1/2006 at the monthly rent of Rs.200/-. It was further alleged that the appellant/defendant had failed to pay the rent for the period from 1/4/2006 to 28/2/2007. According to the respondent/plaintiff prior to filing of the suit, the plaintiff had given a notice dated 14/2/2007 under Section 106 of the Transfer of Property Act, 1882 (hereinafter referred to as 'the TP Act') which was posted on 15/2/2007, however had returned unserved with the postal endorsement of "refusal" on 17/2/2007, and thereafter the suit was filed on 21/3/2007. The appellant/defendant had resisted the suit by filing the written-statement denying the allegations made in the plaint, and further contending inter-alia that there was no default committed by the defendant in making payment of rent, and that the defendant had not received any notice. The Trial Court, after appreciating the evidence on record, decreed the suit of the respondent/plaintiff, directing the appellant to hand over the possession of the suit premises to the plaintiff, and also pay the arrears of rent. Being aggrieved by the same, the appellant had preferred the appeal before the Appellate Court, which has been dismissed vide the impugned judgment and decree.

(3.) Mr. Vinodi Lal Mathur, the learned counsel for the appellant though initially raised many contentions as raised in the Appeal Memo, ultimately confined his submission to the effect that the appellant had not received any notice under Section 106 of the T.P. Act and therefore there was no valid termination of the tenancy. Taking the Court to the evidence of the appellant, he submitted that the appellant had denied to have refused to accept the notice as alleged by the respondent/plaintiff, and that it was the duty of the respondent/plaintiff to examine the concerned postman who had made endorsement of refusal on the envelop-Ex.4. Placing heavy reliance on the decision of the Apex Court in case of V.N. Bharat vs. Delhi Development Authority & Anr., 2008 17 SCC 321, he submitted that when the appellant had denied the receipt of the notice-Ex.2, the burden had shifted back to the respondent to prove that the notice in question was received and refused by the appellant. He further relied upon the decision in case of Mangilal vs. Sugan Chand Rathi (deceased), 1965 AIR(SC) 101 to submit that notice under Section 106 of TP Act is essential to bring to an end the relationship of landlord and tenant. He also submitted that as per Section 106(2), the period of 15 days would commence from the date of receipt of notice, and in the instant case, the notice having not been received by the appellant, the respondent was not entitled to terminate the lease under Section 106 of the TP Act. However, the learned counsel Mr.Gajendra Vyas for the respondent vehemently submitted that the appellant had not specifically denied in her written statement or in her evidence that she had not refused to accept the notice Ex.2 sent by the respondent, and on the contrary had admitted that the address on the envelop Ex.4 was correct and therefore, a presumption under section 114 illustration (f) of the Indian Evidence Act, 1872 read with Section 27 of the General Clauses Act is required to be raised against the appellant. He relied upon the decision of Apex Court in case of M/s.Green View Radio Service vs. Laxmibai Ramji & Anr., 1990 AIR(SC) 2156, and the decisions of other High Courts to buttress his submissions.