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Noorera Papu Vs. Machimada Kushalappa - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKarnataka High Court
Decided On
Case NumberC.R.P. No. 2854 of 1983
Judge
Reported inILR1985KAR901; 1985(1)KarLJ174
ActsEvidence Act, 1872 - Sections 114
AppellantNoorera Papu
RespondentMachimada Kushalappa
Appellant AdvocateK.S. Gourishankar, Adv.
Respondent AdvocateP.P. Muthanna, Adv.
DispositionPetition dismissed
Excerpt:
.....to examine the postman who tried to effect service. the denial by the addressee that he has refused to receive the notice sent by registered post, may even be found to be unacceptable on the other evidence on record. sometimes, it may even be possible to reject the evidence of the addressee that he had not refused to receive the notice from his admissions or conduct or other evidence on record. there-fore, as a rule, it cannot be laid down that the presumption available under illustration (e) of section 114 of the evidence act, is rebutted on the addressee entering the witness-box and stating on oath that he had never refused to receive the notice. it depends upon the total effect of the evidence on record. - education -- admissions to professional institutions: ):[huluvadi g..........counsel for the respondents, that the evidenceadduced by the respondents regarding refusal to receive notice has been accepted by the courts below; therefore, it becomes a finding of fact, hence it is not open to this court under section 115 of the code of civil procedure, to re-appreciate the evidence and come to a conclusion other than the one arrived at by the courts below. it is also further submitted that the shara of refusal on the notice sent by registered post raises a presumption of 'due service' and by a mere assertion of the petitioner that he has not refused to receive without bringing on record the circumstances which rendered the very tendering of notice and refusal to receive the same by the petitioner improbable, the presumption of due service available to the.....
Judgment:
ORDER

K. A. Swami, J.

1. This Civil Revision Petition under Section 115 of the Code of Civil Procedure, is preferred against the order dated 17th August, 1983, passed by the District Judge, Kodagu, Madikeri, in H.R.C.R.P. No. 21/81, confirming the order of eviction passed under Section 21(l)(a) and (j) of the Karnataka Rent Control Act. (hereinafter-referred to as the 'Act') by the Principal Munsiff, Virajpet, in H.R.C. No. 27 of 1978.

2. Respondents 1 to 4 were the landlords of the premises in question. Petitioner was the tenant. The monthly rent of the permises was Rs.35/-. As the Petitioner had fallen in arrears of rent, the respondents sent a notice dated 29-3-1978 by registered post. The same was not received by the Petitioner-tenant. After refusal of the notice sent by registered post, the respondents got the notice affixed on the outer door of the premises in question on 2-4-1978 and filed the Petition for eviction under Section 21(1)(a) and (j) of the Act, on 28-8-197 ; in the Court of the Munsiff, Virajpet.

3. The Petitioner contested the proceeding. On the basis of the evidence adduced in the case, the Learned Munsiff came to the conclusion that as the Petitioner refused to receive the notice, it must be deemed to have been served upon him; that he was in arrears of rent and that the premise was reasonably and bonafide required by the respondents for the immediate purpose of demolition and reconstruction of a new building in place of the existing one. Accordingly, passed an order of eviction under Section 21(l)(a) and (j) of the Act.

4. The Petitioner went up in revision against the said order of eviction before the District Court. The Learned District Judge has also taken the view that having regard to the fact that the notice has been refused by the Petitioner, it must be deemed to have been served, and he has also relied upon the circumstance that the notice has been served by affixture. Regarding the arrears of rent, Learned District Judge has held that the Petitioner had paid only Rs.140/-out of Rs. 350/-, as such he was in arrears of rent, and the Petitioner had not complied with the requirements of Section 21(2) the Act, as such he was liable to be evicted under Section 21(1)(a) of the Act. In addition to this, the Learned District Judge also confirmed the finding of the Trial Court that the respondents required the premises reasonably and bonafide for the immediate purpose of demolition and re-construction of new premises in place of the existing one. Consequently, he rejected the Revision Petition.

5. In this Court, at the stage of admission, this Civil Revision Petition is dismissed in so far it relates to the order of eviction passed under Section 21(1) (j) of the Act by the order dated 2nd September, 1983, but it is admitted in so far it pertains to the eviction orderpassed under Section 21(1)[a] of the Act. Thereafter, on a submission made by Learned Counsel for the respondents that they, give up their claim for arrears of rent, an order came to be passed on 9thDecember 1983, dismissing the Civil Revision Petition; but however, before signing the order, it was realised that when once theaim for arrears of rent was given up, the eviction under Section 21[l][a] of the Act, could not be sustained. In view of this consequence, the matter came to be posted for being spoken to before signing the order. At this stage, Learned Counsel for the respondents submitted that the matter be-heard on merits. In view of the arguments addressed by Learned Counsel on both the sides, the order dated 9-12-1983 requires to be recalled and a fresh order is required to bepasssd. Accordingly, the order dated 9-12-1983 is recalled.

6. It is submitted by Learned Counsel Sri K. S. Gouri-shankar, for Petitioner, that in this case the notice cannot be deemed to have been served upon the Petitioner in as much as the presumption of 'due service' is not available because thePetitioner-tenant has entered the witness box and has denied the alleged refusal to receive the notice. It is alsofurther submitted that the notice by affixture has not been proved by the respondents-landlords; therefore, the same ought not to have been relied upon by the Courts below to hold that there was service of notice.

7. On the contrary, it is submitted by Sri Muthanna, Learned Counsel for the respondents, that the evidenceadduced by the respondents regarding refusal to receive notice has been accepted by the Courts below; therefore, it becomes a finding of fact, hence it is not open to this Court under Section 115 of the Code of Civil Procedure, to re-appreciate the evidence and come to a conclusion other than the one arrived at by the Courts below. It is also further submitted that the shara of refusal on the notice sent by registered post raises a presumption of 'due service' and by a mere assertion of the Petitioner that he has not refused to receive without bringing on record the circumstances which rendered the very tendering of notice and refusal to receive the same by the Petitioner improbable, the presumption of due service available to the petitioner cannot be ignored. In addition to this, it is also submitted that on coming to know that the Petitioner has refused to receive the notice sent by registered post, the respondents got the notice served by affixture as per Exhibit-P4, and it is more than two months after service of notice by affixture, the Petition is filed. Therefore, there is due service of notice as required by Section 2 [1] of the Act.

8. It is submitted by Learned Counsel appearing on both the sides that even if the order of eviction under Section 21(1 )(a) of the Act, is confirmed by this Court, the effect of it on the order of eviction passed under Section 21(1) (j) of the Act, be left open to be considered at the stage when the occasion arises. Accordinfily, the said question is left open.

9. Having regard to the contentions urged on both the sides, the following points arise for consideration :

1. Whether there was 'due service' of notice under Section 21(1)(a) of the Act ?

2. Whether it is open to the respondents to rely upon the service of notice by affixture ?

3. Whether the order of eviction passed under Section 2l(l)(a) of the Act, requires to be interfered with ?

It is not disputed that the notice as per Exhibit-P3 was sent by registered post to the Petitioner by the respondents claiming the arrears of rent. The said notice according to the respondents, was refused by the Petitioner; therefore, it was returned with a shara that the Petitioner refused to receive. Whereas, according to the Petitioner, he had not refused to receive any such notice.

10. On behalf of the landlords-respondents, the 4th respondent is examined as P.W.I. In his evidence, he has stated that the Petitioner-tenant refused to receive the notice sent by registered post. In the cross-examination, it has not been suggested to him that it is not correct to say that the notice was refused by the tenant. The tenant-Petitioner, has entered the witness-box and has stated that he has hot refused to receive the notice. He has also further stated that it is not true that the notice is also served by affixture on the house. The Trial Court has accepted the evidence adduced on behalf of the landlords and has held that noticedemanding the arrears of rent was duly served on the Petitioner. However, the Trial Court has held that there is no sufficient evidence to hold that the Petitioner-tenant has refused to receive the notice knowing the contents of it; but the Trial Court has accepted the evidence adduced by the landlords regarding the service of notice by affixture on the door of the house. The Learned District Judge did not go into thequestion of acceptability of the evidence, and he has straight-away -relied upon ihe presumption of service available underIllustration (e) of Section 114 of the Evidence Act, and has also accepted the evidence relating to service of notice by affixture. Therefore, the position remains thus :

10. (1) The evidence relating to refusal of the notice sent by registered post is not accepted by the Trial Court. Learned District Judge has not examined the evidence bearing on this point. He has straight-away placed reliance on the presumption of 'due service' available as per Illustration (e) of Section 114 of the Evidence Act. Both the Courts below have accepted the evidence relating to service of notice by affixture.

10. (2) The contention of the Petitioner is that the post-man who tried to serve the notice on the Petitioner is not examined. The Petitioner has entered the witness-box and has stated that it is not correct to say that he had refused to receive the notice. Therefore, the presumption of 'due service' as per Illustration (e) of Section 114 of the Evidence Act, stands rebutted. Hence, Learned District Judge ought not to have relied upon the presumption of 'due service'. Learned Counsel has also placed reliance on a decision of the Supreme Court, in Radhakrishna -v.- State of Uttar Pradesh, : (1963)IILLJ667SC and a decision of this Court, in G. S. Mohiudin -v.- Abdul Rawoof, 1969(2} KLJ 481.

10. (3) On the contrary, Learned Counsel for the respon dents-landlords, places reliance on a decision of the Supreme Court in Puwada Venkateswara Rao -v.- C.V. Ramana, : [1976]3SCR551 and contends that the evidence on record establishesthat the Petitioner refused to receive the notice sent by registered post, when it was tendered to him by the postman and as such the presumption of 'due service' is rightly raised by the Learned District Judge.

11. The legal position as to when the presumption of 'due service' under Illustration (e) of Section 114 of the Evidence Act, can be raised, or is available, is well settled. It is a rebuttable presumption. If the evidence relating to refusal of notice-sent by registered post-by the addressee is acceptable, the presumption of 'due service' under Illustration(e) of Section 114 of the Evidence Act is available and in such cases it can be raised. On the contrary, if the evidence on the point is notacceptable, the question of raising the presumption does not arise, as in such a case, there will not be a proof of an attempt made by the postman to serve the registered notice on the addressee and refusal of the same by the addressee. it is not aly was necessary to examine the postman who tried to effect service. The denial by the addressee that he has refused to receive the notice sent by registered post, may even be found to be unacceptable on the other evidence on record. Sometimes, it may even be possible to reject the evidence of the addressee that he had not refused to receive the notice from his admissions or conduct or other evidence on record. Therefore, as a rule, it cannot be laid down that the presumption available underIllustration (e) of Section 114 of the Evidence Act, is rebutted on the addressee entering the witness-box and stating on oath that he had never refused to receive the notice. It depends upon the total effect of the evidence on record.

In Puwada Venkateswara Rao's case the Supreme Court has specifically considered the question as to whether the notice sent by the landlord could be held not to have served at all, simply because the postman who had made the endorsement of refusal had not been produced. The decision of the High Courts of: Bombay, in Meghji Kanji Patel -v.-Kundanmal Chamanlal, : AIR1968Bom387 ; Calctta, in Nirmalabala Debi -v.-Provat Kumar Basu, (1948) 52 C.W.N. 659; Andhra Pradesh, in Ulligappa -v.- S. Mohan Rao, (1969) 2 Andhra L.T. 268 are also considered by the Supreme Court in Puwada Venkateswara Rao's case and it is held as follows :

'8............The Andhra Pradesh High Court had relied upon Meghji Kanji Patel Vs . Kundanmal Chamanlal, : AIR1968Bom387 to hold that the notice was not served. There, a writ of summons, sought to be served by registered post, had been returned with the endorsement 'refused' The Bombay High Court held that the presumption of service had been repelled by the defendant's statement on oath that he had not refused it as it was never brought to him. In this state of evidence, it was held that, unless the postman was produced, the statement of the defendant on oath must prevail. An exparte decree, passed on the basis of such an alleged service was, therefore, set aside. On facts found, the view expressed could not be held to be incorrect.9. In Nirmalabala Debi vs. Provat Kumar Basu, (1948) 52 Cal. WN 659, it was held by the Calcutta High Court that a letter sent byregistered post, with the endorsement 'refused' on the cover, could be presumed to have been duly served upon the addressee without examining the postman who had tried to effect service. What was held there was that the mere fact that the letter had come back with the endorsement ''ref-used' could not raise a presumption of failure to serve. On the other hand, the presumption under Section 114 of the Evidence Act would be that, in the ordinary course of business It was received by the addressee and actually refused by him, This is also a correct statement of the law.

10. The two decisions are reconcilable. The Calcutta High Court applied a rebuttable presumption which had not been repelled by any evidence in the Bombay case, the presumption had been held to have been rebutted by the evidence of the defendant on oath so that it meant that the plaintiff could not succeed without further evidence. The Andhra Pradesh High Court had applied the ratio decidendi of the Bombay case because the defendant-appellant before us had deposed that he had not received the notice. It may be that, on a closer examination of evidence on record, the Court could have reached the conclusion that the defendant had full knowledge of the notice Andhad actually refused it knowingly. It is not always necessary, in such cases, to produce the postman who tried of effect service. The denial of service by a party may be found to be incorrect from its own admissions or conduct...........'

Thus, the view taken by me fully receives support from the aforesaid decision of the Supreme Court.

13. In Radha Kishan's case the evidence of the addressees that they had not received 'the letters, was be-lieved by the High Court; and the Supreme Court did not interfere with that finding. Therefore, there was no question of raising presumption of 'due service'. The relevant portion of the judgment is as follows :

'10. As regards the other point, that is based on the fact that there were acknowledgments in respect of three letters in the post office we may point out that the existence of these acknowledgments would no more than raise a presumption that those articles were delivered to theaddressees. The addressees have been examined in this case and they have deposed that the letters in question were not received by them. Their evidence has been believed by the High Court and,therefore there is an end to the matter. In the circumstances, therefore, we do not accept Mr. Misra'scontention that the act of an officer of the post office is being in possession of a postal article for an inordinate length of time has no significance and cannot justify the conclusion that he had secreted the article.'

Thus, the aforesaid decision of the Supreme Court is of no assistance to the Petitioner herein.

14. In G. S. Mohedeen's case this Court has held as follows :

'24. Even this inference depends upon the assumption that the fact of refusal has been proved or is believable. A presumption available under S. 114 of the Evidence Act is clearly a rebuttable presumption and if the respondent, against whom this presumption is relied upon, enters the box and states on oath that he never refused anynotice, it may fairly be argued that he had rebutted the presumption. If the postman who tendered the covers or any person who was present at the time of tendering ring the covers had been examined and sworn to the contrary, then it would have been a case of choosing between the two versions on anexamination of the probabilities. But, in the absence of such evidence on petitioner, it appears to me to be straining the rule as to presumption beyond the limit permitted by law ''

On the state of evidence existing in that case, this Court held that in the absence of the evidence of the postman who tendered the covers or any person who was present at the time of tendering the covers, there was no scope to choose between the two versions on an examination of theprobabilities ; therefore in the absence of such evidence, the presumption available under Section 114 of the Evidence Act, was held to have been rebutted. It is clear that there is no proposition of law laid down by this Court, in the aforesaid decision that on a mere denial by the addressee that he has refused to receive the cover, the presumption of 'due service' available under Illustration (e) of Section 114 of the Evidence Act, stands rebutted. Thus, the aforesaid decision also lays down that the raising of presumption of 'due service' and rebutting of the said presumption depends upon the evidence adduced in the case. Therefore, it is not possible to hold that the decision of this Court in Mohedeen's case supports the aforesaid contention of the Petitioner.

15. Thus, it is now necessary to examine (as Learned District Judge has not considered the evidence on the point) whether the evidence on record establishes that the notice sent by registered post by the respondents-landlords to the Petitioner-tenant was refused by him. Respondent No. 4 is examined as P.W-1. He has deposed that the notice was sent by registered post and the Petitioner-tenant refused to receive the same ; that thereafter the notice was effected by affixture on the door of the house where the Petitioner resided; that a mahazar was drawn regarding affixture of notice on the door of the house. The registered cover which was returned with the refusal shara is marked as Exhibit P3. The notice which was sent in Exhibit P3 is marked as Exhibit P3(a). The notice which was affixed on the door of the house of the Petitioner is marked as Exhibit P4. The mahazar according the affixture of notice on the door of the house of the Petitioner is marked as Exhibit P4(a). Theevidence of P.W.I also further discloses that Exhibit P3(a)is the original of Exhibit P4. In the cross-examination, it is notsuggested to P.W-1 that exhibit P3 was not tried to be served on the Petitioner-tenant and he did not refuse to receive the same. On the contrary, it was suggested to P.W.I that before issuing notice as per Exhibits P3 and P4, no notice was issued to the Petitioner demanding arrears of rent. The Petitioner who is examined as D.W.I has only stated that it is not correct to say that be refused to receive that notice. It is not the case of the Petitioner, nor is there any evidence to the effect, that on the alleged date when the notice as alleged by the respondents, was refused to be received by him, he was not in station. In view of the evidence of P.W.I that after the Petitioner refused to receive the notice sent in Exhibit-P3 as per Exhibit P3(a) by registered post, the respondents effected service of notice by affixture on the door of the house in which the Petitioner resided, and the notice-Exhibit P4 affixed on the door of the said house having been proved to be a copy of the notice Exhibit P3 (a), and in the absence of any suggestion to the contra to PW1 to disbelieve the evidence of P.W.I, there is no reason to reject the evidence of P.W.1. The suggestion made to P.W.I that prior to issuing of notices as per Exhibits P3 and P4, no notice was issued to the Petitioner regarding arrears of rent, would also go to show that the notice [Exhibit P3(a)] sent by registered post in Exhibit P2, was refused to be received by the Petitioner. Therefore, it is established in the case that the notice sent by registered post demanding arrears of rent as per Section 21(1 )(a) of the Act, was refused by the Petitioner; hence, the presumption of 'due service' of notice' under Illustration (e) of Section 114 of the Evidence Act, raised by the Learned District Judge, is justified.Accordingly, the first point is answered in the affirmative.

15. 2) In view of the affirmative finding on Point No. (l) it is not necessary to examine the 2nd point.

15. 3) It also follows that the order of eviction passed under Section 21(l)(a) of Act, does not call for interference. Accordingly, Point No. (3) is answered in the negative.

15. 4) The correctness of the findings relating to arrears of rent and failure to pay the same, is not disputed. There-fore, it is not necessary to examine the correctness of the same.

16 For the reasons stated above, the Civil Revision Petition fails and the same is dismissed. However, thequestion as to what would be the effect of the order of eviction passed under Section 21(1 )(a) of the Act, on the order of eviction passed under Section 21(l)(j) of the Act, and on the right arising thereunder of the tenant, is left open.


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