D.N. Jha, J.
1. This is defendant's second appeal directed against the iudg-ment and decree passed by Additional District Judge, Lucknow dismissing the defendant's appeal and upholding the judgment and decree passed by the Additional Civil Judge, Lucknow.
2. Plaintiff who is the respondent in this appeal filed a suit for arrears of rent and ejectment against the defendant-appellant. In brief, the case of the plaintiff was that defendant was a tenant on monthly rent of Rs. 8.75 in the shop with 'ahata' appurtenant to it. The tenancy was to commence from the 1st day of each calendar month and ended with the last day of each calendar month. The plaintiff was in arrears of rent from 1-5-1964 to 12-4-1967. The arrears of rent claimed was Rs. 317.43 till the date of filing of the suit. Pendete lite interest and future damages has also been claimed coupled with the relief of ejectment. Plaintiff sent the notice by registered post on 9-3-67 but was refused by the defendant-appellant on 13-3-1967 and, therefore, the suit was filed. The suit was resisted by the defendant. He denied receipt of the notice. He further stated that the rent was tendered to the landlord, but was refused and, therefore, it was deposited.
3. The learned Civil Judge, who tried the case after considering the evidence held that the notice was served by refusal and the rent was not paid by the defendant to the landlord. On these findings the learned trial court decreed the suit. Defendant feeling aggrieved went up in appeal but the same was dismissed on 5-12-1972 after recording a finding that the notice in question was tendered for delivery to the defendant-tenant and that she refused the same. This is how the defendant feeling aggrieved has come up before this court by means of this second appeal.
4. I have heard the learned counsel for the parties. The sole contention raised by the learned counsel for the appellant is the same which was urged before the appellate court viz., that the notice was not duly served and, therefore, decree passed by the court below suffered from legal infirmity. Learned counsel in support of his contention placed reliance on Meghji Kanji Patel v. Kundanmal Chamanlal Mehtani (AIR 1968 Bom 387), wherein it was held:--
'Where an ex parte decree is passed after the writ of summons has been sent to a defendant by registered post and the cover containing the summons has been returned with the postal endorsement 'refused', it is undoubtedly for the defendant to satisfy the court that the letter was not tendered to him. But the defendant can only do so by making a statement on oath. This must usually remain uncontroverted, unless the postman, who tendered the letter to him, is summoned and makes a statement that he tendered the cover containing the summons to the defendant and after cross-examination, his evidence is believed.'
This division has been confirmed by the Supreme Court in Pawada Venkateswara Rao v. Chidamana Venkata Ramana (AIR 1976 SC 869).
5. In the instant case the notice was sent by registered post. The receipt of notice was denied. The plaintiff in order to prove his case examined herself and the postman. The learned courts below have accepted that the letter addressed to the defendant and sent by registered post was duly tendered but had been refused bv the defendant. The learned counsel in order to overcome this finding argued that the courts below did not consider the evidence of the postman in its true perspective. He maintained that the postman had catgorically stated that he could not identify the defendant who had been produced before him in this Court. Therefore, he argued that presumption of refusal by the defendant could not legitimately be inferred. In my opinion, the argument though fascinating, but is devoid of substance. The statement of the postman does not show that he had not gone to the place of addressee or that it had not been refused by the adressee. In the circumstances, if he failed to identify after a lapse of time, any adverse inference cannot be drawn to nullify the effect of endorsement made on the letter. The learned appellate court has referred to a decision of this Court Dwarka Singh v. Ratan Singh Ahuja (1969 ALJ 849 (869)) wherein Section 27 of the General Clauses Act and Section 114 of the Evidence Act have been drawn for the rescue in such case like the one in hand. I see no error in the approach made by the learned appellate court. The trial court as well as the appellate court after considering the oral and the documentary evidence proceeded to record a finding that the notice in question was tendered for delivery to the defendant and that she refused the same. Nothing could be shown to dislodge the finding. I, therefore, see no error of law or of procedure committed by the court below so as to warrant interference with the judgment under appeal. No other point has been Dressed.
6. In view of the aforesaid discussion the appeal fails and is accordingly dismissed. I, however, make no order as to costs. If there is any stay order, it stands vacated.