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Bachcha Lal Vs. Lachman and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1938All388
AppellantBachcha Lal
RespondentLachman and anr.
Excerpt:
- - it appears that the defendants in their written statement pleaded that the suit was bad without service of legal notice. the learned district judge held that it had been clearly proved that the plaintiffs gave a written notice to lachhman to vacate the land and that the point had not been pressed on behalf of the appellant. the learned judges considered the argument as not well-founded and remarked as follows :the contention that a court cannot be said to dispose of a suit upon a preliminary point if it takes the trouble to decide other issues in the suit is not maintainable. this being a bench case would have been binding on me but in view of subsequent amendment to section 106, in my judgment it is no longer good law......the munsif had in fact determined and recorded findings upon all the issues in the suit. the learned judges considered the argument as not well-founded and remarked as follows : the contention that a court cannot be said to dispose of a suit upon a preliminary point if it takes the trouble to decide other issues in the suit is not maintainable. learned counsel has further laid stress on the language of the order of this court. in the order the learned judges specifically sent back the case to the court of first instance under order 41, rule 23 with directions to re-admit the suit on its original number and to frame proper issues in the case allowing the parties to adduce fresh evidence relevant to the issue or issues that may be framed. the plaint was based on a 'sarkhat' which.....
Judgment:

Mohammad Ismail, J.

1. This is a plaintiff's appeal arising out of a suit brought for the recovery of arrears of rent and for possession of a plot of land by the removal of a house built thereon. The suit was contested by the defendants on various grounds. The Court of first instance decreed the suit against the defendants but on appeal the learned District Judge reversed the decree of the Court of first instance on the ground that the 'sarkhat' which was the basis of the suit, was inadmissible in evidence as it was unregistered. The plaintiff appealed to this Court from the decree of the learned District Judge and a Bench of this Court set aside the decree of the lower Appellate Court and remanded the case to the trial Court under Order 41, Rule 23, Civil P.C. The learned Munsif decreed the claim of the plaintiff. On appeal the lower Appellate Court again reversed the decree of the trial Court on the ground that no notice was legally served on the defendants as required by Section 106 of the T.P. Act. The main point argued before me in appeal has been with regard to the decision of this question. It appears that the defendants in their written statement pleaded that the suit was bad without service of legal notice. The trial Court framed an issue in the following words : Issue 3. Whether any notice for ejectment was given by the plaintiff?' The finding on this issue was against the defendants. In the grounds of appeal, para. 5, the defendants reiterated their objection to the service of the notice in the following terms:

No notice has been proved to have reached nor to have been served on Lachhman. The suit for ejectment even against Lachhman was not maintainable.

2. From a perusal of the judgment of the learned District Judge dated 14th February 1931, it appears that this ground was never pressed before him. The learned District Judge held that it had been clearly proved that the plaintiffs gave a written notice to Lachhman to vacate the land and that the point had not been pressed on behalf of the appellant. It has been argued by learned Counsel for the appellant that in view of the concurrent findings of two Courts against the defendants, it was not open to them to raise the same question again on remand. Learned Counsel for the respondents however contends that the case having been decided on a preliminary point, it was open to the defendants to re-agitate this question. Reliance has been placed on the language of Order 41, Rule 23 and on Bhadai Saju v. Sh. Manowar Ali (1920) 7 A.I.R. Pat. 735. In this case it appears that the trial Court had decided all the issues raised in the case. On appeal, the Subordinate Judge remanded the case under Order 41, Rule 23, Civil P.C. It was argued before the High Court that the order could not have been under Rule 23 because the suit was not disposed of upon a preliminary point and further because the Munsif had in fact determined and recorded findings upon all the issues in the suit. The learned Judges considered the argument as not well-founded and remarked as follows : The contention that a Court cannot be said to dispose of a suit upon a preliminary point if it takes the trouble to decide other issues in the suit is not maintainable. Learned Counsel has further laid stress on the language of the order of this Court. In the order the learned Judges specifically sent back the case to the Court of first instance under Order 41, Rule 23 with directions to re-admit the suit on its original number and to frame proper issues in the case allowing the parties to adduce fresh evidence relevant to the issue or issues that may be framed. The plaint was based on a 'sarkhat' which ultimately was held to be inadmissible but the learned Judges of this Court were of opinion that this did not dispose of the suit finally and it was open to the plaintiff, who admittedly was the owner of the land, to eject the defendants unless the latter succeeded in establishing their right to remain in possession of the property. The case was in view of the order of the Court re-opened and in my judgment it was open to the defendants to re-agitate this question in the light of the fresh evidence produced by them.

3. The next question is whether the learned Civil Judge was right in holding that there was no legal service of notice on the defendants. The learned Civil Judge relied upon Radhey Lal v. Mt. Bindo (1920) 7 AIR All 195 for the proposition that it was incumbent on the plaintiff to prove effective service on the defendants. In this case a registered notice was returned with a note 'refused'. The learned Judges held that in the absence of clear evidence it could not be held that the defendants had received notice and had then refused to accept service of it. This being a Bench case would have been binding on me but in view of subsequent amendment to Section 106, in my judgment it is no longer good law. Section 106, T.P. Act provides:.Every notice under this section must be in writing signed by or on behalf of the person giving it and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to that party responsible.

4. The underlined sentence [here italicized] was added by Act 20 of 1929. The posting in due course of a letter raises a presumption that it has reached the addressee under Section 114, Evidence Act. Section 27, General Clauses Act enacts that:

Unless the contrary is proved, service shall be deemed to have been effected by properly addressing, preparing and posting by registered post a letter containing notice.

5. this case the only reason which induced the learned Judge to hold that effective service was not proved was that there was no evidence to show who wrote the word refused'. In view of the amendment to Section 106 referred to above and the presumption of law in favour of effective service unless proved to the contrary, I hold that the learned Civil Judge has erred in deciding this issue against the plaintiff : see also Harihar Banerji v. Ramshashi Roy (1918) 5 A.I.R. P.C. 102. The matter however does not end here. Although I have held that the notice was properly served within the meaning of Section 106, T.P. Act, it is still open to the defendants to show that it is not a valid notice as required by law. The learned Civil Judge in view of his finding on the question of service of notice refrained from recording any finding on this point. I remit the following issue for the finding of the Court below under Order 41 Rule 25 : 'is the notice for ejectment a valid notice as required by law?' The finding on this issue should be returned within six weeks. The usual 10 days will be allowed to the parties for objections to the finding. No fresh evidence shall be allowed to be produced. The record of the case should be immediately sent down to the lower Appellate Court.


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