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Budha and ors. Vs. Bedariya - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMadhya Pradesh High Court
Decided On
Case NumberSecond Appeal No. 116 of 1975
Judge
Reported inAIR1981MP76
ActsCode of Civil Procedure (CPC) , 1908 - Sections 100 and 101 - Order 14, Rule 5; Madhya Pradesh Accommodation Control Act, 1961 - Sections 2(1) and 12(1); Madhya Pradesh Accommodation Control Rule, 1966 - Rule 15; Madhya Pradesh General Clauses Act, 1958 - Sections 28; General Clauses Act, 1897 - Sections 27; Evidence Act, 1872 - Sections 16 and 114; Trancfer of Property Act, 1882 - Sections 106; Madhya Pradesh Anusuchit Jati Avam Anusuchit Janjati Rini Sahayata Adhiniyam, 1967 - Sections 2(4) and 7
AppellantBudha and ors.
RespondentBedariya
Appellant AdvocateSwami Saran, Adv.
Respondent AdvocateN.P. Mittal, Adv.
DispositionAppeal partly allowed
Cases ReferredShyam Charan v. Sheoji Bhai By
Excerpt:
.....15-11-1967, which they have failed to pay or tender within two months of his forwarding a notice of demand (vide ex. ' 13. the aforesaid section is applicable to a situation like the present one because the madhya pradesh accommodation control act by its section 12 (1) (a) read with the rule 15 (b) of the aforesaid rules authorises and/or requires the notice of demand of arrears of rent to be served by post. it is well settled that unless contrary is established by reliable evidence, normal presumption is that a communication properly addressed and posted must have reached the addressee. in the present case, the defendant-appellants appear to have felt satisfied by simply denying in written-state-ment the plaint averments on the point; in view of divided success parties are directed..........of post and it was for the defendant to prove the contrary.17. a presumption of correctness of the postal endorsement of 'refusal' can also be drawn with the aid of sections 16 and 114 of the indian evidence act. in (1888 ilr 15 cal 681) jogendro chunder v. dwaraka nath a notice to quit was sent by registered letter and was returned with the postal endorsement of refusal. in holding that this was sufficient evidence, the learned judges of the calcutta high court observed thus:''upon the case cited before us-- 'lootf ali v. pearee mohun', (1871) 16 wr 223 and 'papillon v. brunton', (1860) 5 h and n 518, and having regard also to section 16(111)(b), evidence act, we think that only a captious doubt could lead us to regard that service as insufficient.'further in (1909-17 cal wn 1073).....
Judgment:

H.G. Mishra, J.

1. This is defendant's second appeal against the judgment and decree dated 9-4-1975, passed by the Additional District Judge, Morena, confirming the judgment and decree dated 28-6-1974, for ejectment of appellant from the suit house.

2. Facts giving rise to this appeal so far as they are material for its decision are as under :

The plaintiff-respondent brought the present suit for ejectment under Section 12 (1) (a) of the Madhya Pradesh Accommodation Control Act, 1961 (for short, 'the Act'), on the allegation that the defendant-appellants are his tenants under rent-note dated 15-11-1967, Ex. P-1, on a monthly rent of Rs. 20/- in the suit house, situated in Uttampura in the town of Morena. It was further alleged that the defendants were in arrears of rent with effect from 15-11-1967, which they have failed to pay or tender within two months of his forwarding a notice of demand (vide Ex. P. 3) by registered acknowledgement due post No. 192 dated 5-7-1973 which has been returned by them and bears an endorsement of 'refused'. This suit was instituted on 3-10-1973, wherein a decree for arrears of rent, ejectment and mesne profits have been claimed.

3. The defendant-appellants resisted the suit, inter alia, on the ground that (i) the defendants are Jatavas and are as such, entitled to the benefit of the provisions of Section 7 of the Madhya Pradesh Anusuchit Jati Avam An us uc hit Janjati Rini Sahayata Adhiniyam, 1967 (Act No. 12 of 1967), (hereinafter referred to as 'the Adhiniyam'); and that (ii) the ground under Section 12 (1) (a) of the Act is not available to the plaintiff-respondent, (iii) and that the plaintiff is not entitled to a decree for ejectment or arrears of rent and mesne profits.

4. The trial Court, after trial, decreed the suit. Aggrieved by this judgment and decree the defendants filed an appeal, which has been dismissed by the lower appellate Court. Hence this second appeal.

5. In this appeal, Mr. Swami Saran learned counsel for the defendant-appellants, contended that (i) (a) the trial of the suit has been rendered radically defective on account of absence of an issue with respect to the factum of 'refusal' of the notice of demand (Ex. P-3); (b) that the endorsement of 'refusal' on Ex. P-3 has not been proved, as production of the postman was considered necessary in view of denial by the defendant of the plaint averment pertaining to the 'refusal.' As such, the ground under Section 12 (1) (a) of the Act is not available to the plaintiff; (ii) that the Courts below have no jurisdiction to pass decree for ejectment or arrears of rent and/or mesne profits against the defendant in view of the provisions of Section 7 read with Section 2 (4) of the Adhiniyam.

6. Shri N. P. Mittal, learned counsel for the plaintiff-respondent, argued in support of the impugned judgment and decree.

7. Having heard the learned counsel for the parties, I have come to the conclusion that the appeal deserves to be partly allowed.

8. In plaint para 5, the plaintiff has averred the factum of forwarding the notice of demand of arrears of rent (Ex. P. 3) on 5-7-1973, by registered post acknowledgment due to the defendants, which has been received back with an endorsement of 'refusal'. The defendants have denied these averments. The trial Court has, however, not framed any specific issue on the point. On the basis of these facts, it was contended by Mr, Swami Saran, that framing of a specific issue on the point of notice being refused was vital for decision of the case and omission to frame the same has rendered the trial radically defective. I am afraid this contention cannot be accepted. Firstly, the trial Court has framed Issue No. 3 to the effect that :

Whether the plaintiff is entitled to get a decree for ejectment? This issue is wide enough to cover the issue said to have been omitted. Parties appear to have understood the Issue No. 3, as framed, to cover the aforesaid dispute, This appears to be the reason why the defendant-appellant did not submit any application under O. 14, R. 5, C. P. C., for framing of a separate and specific issue on the point. No grievance about absence of the issue was voiced in the first appellate Court either. Moreover, after the notice (Ex. P-3) was put in evidence by the plaintiff, the defendants got an opportunity to lead evidence by way of rebuttal. Accordingly, absence of a separate issue on the point is not shown to have occasioned any material prejudice to the defendant-appellants. Having gone through the trial with full knowledge of the fact that they have to meet the plaintiff's case on the ground of re-fusal of the notice (Ex. P-3), they cannot be permitted now to turn round and make a grouse in the matter.

9. This brings me to the further contention advanced by Shri Swami Saran, viz., that in absence of production of postman, who had put the endorsement of 'refusal' on the notice (Ex. P-3), the notice should not be regarded to be a legally proved document.

10. This suit giving rise to this appeal is governed by the provisions of M. P. Accommodation Control Act, 1961, Ac-cordingly,

'Determination of a lease in accordancewith the Transfer of Property Act is unnecessary and a mere surplusage because the landlord cannot get eviction of the tenant even after such determination. The tenant continues to be so even thereafter. That being so, making out a case under the Rent Act for eviction of the tenant by itself is sufficient and it is not obligatory to found the proceeding on the basis of the determination of the lease by issue of a notice in accordance with Section 106 of the Transfer of Property Act.' as held in 1980 Jab LJ 1 : (AIR 1979 SC 1745) V. Dhanapal v. Yesodai Ammal.

11. In the present case, the plaintiff-respondent has sought ejectment on the ground under Section 12 (1) (a) of the Act. A postulate of the aforesaid provision, inter alia, is service of a notice of demand of arrears of rent on the tenant by the landlord in the prescribed manner. Section 12 (1) (a) does not prescribe the manner, but leaves it to be prescribed by the State Government. By virtue of powers conferred by Section 50 of the Act, the State Government has made Rules known as, 'Madhya Pradesh Accommodation Control Rules, 1966' to carry out the purposes of the Act. Rule No. 15 of the aforesaid Rules prescribes the mode of service of notice, which is also applicable to the service of a notice envisaged by Section 12 (1) (a). It runs as under:

'15. Service of notice, etc.-- Unless otherwise provided by the Act, any notice or intimation required or authorised by the Act to be served on any person shall be served-

(a) by delivering it to the person; or

(b) by forwarding it to the person by registered post with acknowledgment due.'

12. The M. P. General Clauses Act, 1957 (Act No. 3 of 1958) by Section 28 lays down the meaning of 'service by post' thus:

'28. Meaning of Service by post.--Where any Madhya Pradesh Act authorises or requires any document to be served by post, whether the expression 'service' or either of the expressions 'give' or 'send' or any other expression is used, then unless a different intention appears, the service shall be deemed to be effected by properly addressing, preparing and posting by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the timeat which the letter would be delivered in the ordinary course of post.'

13. The aforesaid section is applicable to a situation like the present one because the Madhya Pradesh Accommodation Control Act by its Section 12 (1) (a) read with the Rule 15 (b) of the aforesaid Rules authorises and/or requires the notice of demand of arrears of rent to be served by post. By virtue of the Section 28 of the M. P. General Clauses Act, 1957, a presumption arises with respect to the service having been effected at the time at which the letter would have been delivered in the ordinary course by post to the addressee. In order to bring this presumption into play, it is necessary that (a) serving of the document in question should be authorised or required by any Madhya Pradesh Act; and (b) the document in question was sent by properly addressing, preparing and posting by registered post. To this requirement by virtue of the Rule 15 (b) one more requirement is added, viz., that the document in question (notice in our case) should be sent by registered post acknowledgment due. This presumption is wide enough to cover the case of service by 'refusal' also. Accordingly, when a notice properly addressed and forwarded to a tenant by landlord by registered post acknowledgment due, returns with postal peon's report of 'refusal', the presumption enacted by the aforesaid Section 28 will attach to it

14. With the aid of Section 27 of the General Clauses Act, 1897, which is applicable to cases of service by post authorised or required by central enactment, such as the Transfer of Property Act, the Code of Civil Procedure, etc., it has been held in (AIR 1938 All 388 at p. 389) Bachcha Lal v. Lachman and (AIR 1953 Assam 206 Para 6) Saligram Rai Chunilal Bahadur and Co- v. Abdul Gani, that the presumption of service enacted by Section 27 of the General Clauses Act, 1897, extends to cases of postal peon's report of 'refusal' provided it is shown that the notice forwarded by registered post was properly addressed.

15. In (1963 Jab LJ 85) Shambhudayal v. Aliya Bi it has been held by this Court that.

'It is well settled that unless contrary is established by reliable evidence, normal presumption is that a communication properly addressed and posted must have reached the addressee. Hence if it is returned unserved as a result of refusal to receive it and bearing an endorsement to that effect on the communication, the addressee will be deemed to have received it and the sender will be deemed to have fulfilled his part of duty in the matter. (See Harihar Banerji v. Ramshashi Roy, AIR 1918 PC 102; Bhagwan Radha Kishen v. Commr. of Income-tax, U. P. Lucknow, AIR 1952 All 857, Sushil Kumar Chakra-varty v. Ganesh Chandr'a Mittal, AIR 1958 Cal 251 and Hukumchand v. Dulichand, 1958 MPLJ (Notes) 62; distinguishing, Jankiram Narhari v. Damo-dhar Ram Chandra, 1956 Nag LJ 441 : (AIR 1956 Nag 266).

16. In the present case, the plaintiff-respondent has resorted to mode of service falling within Clause (b) of Rule 15 of the 1966 Rules. The Notice Ex. P-3) was forwarded to Budha, the defendant-appellant, by registered post with acknowledgment due. The notice (Ex. P-3) is at Index No. 6 of the trial Court's file - 'C-I', while its acknowlelgment due receipt is wrongly separated and put at Index No. 16 of the trial Court's file 'D'. This notice is properly addressed and has been returned with postal peon's endorsement of 'refusal'. In the situation, the presumption enacted by Section 28 of the M. P. General Clauses Act. 1957 arises and enures to the benefit of the plaintiff. Accordingly, on production of the notice (Ex. P-3) with refusal endorsement, it had to be deemed that its service was properly effected on the defendant at the time at which the letter would be delivered in the ordinary course of post and it was for the defendant to prove the contrary.

17. A presumption of correctness of the postal endorsement of 'refusal' can also be drawn with the aid of Sections 16 and 114 of the Indian Evidence Act. In (1888 ILR 15 Cal 681) Jogendro Chunder v. Dwaraka Nath a notice to quit was sent by registered letter and was returned with the postal endorsement of refusal. In holding that this was sufficient evidence, the learned Judges of the Calcutta High Court observed thus:

''Upon the case cited before us-- 'Lootf Ali v. Pearee Mohun', (1871) 16 WR 223 and 'Papillon v. Brunton', (1860) 5 H and N 518, and having regard also to Section 16(111)(b), Evidence Act, we think that only a captious doubt could lead us to regard that service as insufficient.'

Further in (1909-17 Cal WN 1073) Dur-ganath v. Rajendra Nath another Bench of the Calcutta High Court following the decision has held that:

'Service was sufficiently proved by ths production of the postal endorsement.' Similar view was taken in (AIR 1920 Cal 287 (2), Girjsh Chandra v. Kishore Mohan wherein the view taken in AIR 1915 Cal 313 was treated as one on facts of that case and it was held that:

''the production of postal endorsement would be a sufficient proof.' In (AIR 1926 Lah 520) Sher Afzal v. Mohanlal, law on the point has been laid thus:

'Where a notice sent by post in a registered cover is returned by the postman with the note that the addressee refused to receive it, and the posting of the notice has been proved, the presumption under Section 114, that the addressee did refuse to receive it arises.'

The ratio of (AIR 1953 Mad 884) (Bapayya v. Venkataratnarn) on the point runs thus:

'We think that the postal endorsement is admissible in evidence even if the postman is not. examined and that unless rebutted it would be sufficient notice under Sention 106, T. P. Act.' Similar is the view taken in (AIR 1967 J & k 141) Punun Mal v. Durga Singh and (AIR 1970 All 446) (FB) Gangaram v. Phulwati.

18. The presumption arising under Section 28 of the M. P. General Clauses Act, 1957 is of mandatory character. The Court is bound to draw that presumption. The presumption which can be drawn with the aid of Sections 16 and 114 of the Evidence Act is an optional presumption. In[ such a case the Court may adopt any one of the two courses specified in Section 4 of the Evidence Act, i. e., the Court may 'either regard such a fact as proved unless and until it is disproved or may call for proof of it.' But in either case, after arising of the presumption, the party serving notice after properly addressing, preparing and posting by registered post, need not examine postman to prove the postal endorsement of refusal. Production of the notice with postal endorsement of refusal is by itself sufficient evidence to prove the fact that service of the notice was effected by refusal at the time at which the letter purports to have been refused by the addressee. Accordingly, in this case, it was not for the plaintiff to have examined the postman to prove the faclum of refusal of the notice (Ex. P-3)by the addressee. It was for the defendants to have disproved the fact or presumption.

18A. In the present case, the defendant-appellants appear to have felt satisfied by simply denying in written-state-ment the plaint averments on the point; but Budha (D. W. 1) has not even dared to depose that notice (Ex. P-3) was never tendered to and refused by him. The case where a defendant enters into a witness box and denies the factum of notice having been tendered or refused by him may stand on a different footing. 'Where a notice sent by registered post has returned with an endorsement as 'refused' it is not always necessary to produce the postman who tried to effect service. A denial of service by a party may be found to be incorrect from its own admission or correct,' as held in (AIR 1976 SC 869) Puwada Venkateswara v. C. V. Ramana. Here, there is not even a denial by defendant of the service. Accordingly, the presumption attaching to the correctness of the postal endorsement of refusal stands unrebutted and prevails in the facts and circumstances of the present case.

18B. Budha the defendant, appellant No. 1, is the Karta, being eldest male member of the family of which the other appellants are also the members. Service on one of the co-tenants is service on all. Law imputes notice of a fact which but for his wilful abstention or gross negligence a person would have known it. Accordingly, service of the notice Ex. P-3 has been duly effected for purposes of Section 12 (1) (a) of the Act and production thereof with refusal endorsement constitutes legally sufficient proof of the factum of refusal thereof by and on behalf of the defendant-appellants.

19. In view of the aforesaid discussion, the contention advanced by Mr. Swami Saran to the effect that in absence of production of the postman, refusal endorsement on the notice (Ex. P-3) has remained unproved, does not merit acceptance and is hereby rejected.

20. This brings me to the second contention stated above. The defendants are admittedly Jatavas to whom the Adhini-yam (Act No. 12 of 1967) applies. As a consequence of default in payment or tender of arrears of rent after service of notice on a tenant as envisaged by Sec-tion 12 (1) (a) of the Act, the following rights arise in favour of a landlord: (a) the right to recover arrears of rent; and (b) the right to evict under Section 12 (1) (a) of the Act. So far as the right of landlord to seek ejectment is concerned, it is not within the domain of the Adhiniyam. It is not a right which is fettered by any of the provisions contained therein. Accordingly, on proof of the availability of ground under Section 12 (1) (a) of the Act, the plaintiff in entitled to a decree t'or ejectment.

21. In this case, the defendants were in arrears of rent with effect from 15-11-1967, the notice of demand of arrears (Ex. P-3) was sent to them by the plaintiff-respondent which was refused by and on their behalf by Budha. The suit for ejectment has been brought after expiry of two months of the service of the said notice. The defendants had neither paid and/or tendered rent in arrears as required by the Section 12 (1) (a) nor did they deposit arrears of rent in the trial Court according to the mandate of Section 13 (1) of the Act. Accordingly, when both the Courts below have hold that the plaintiff is entitled to a decree for ejectment on the ground under Section 12 (1) (a). it cannot be said that they have acted in any manner contrary to law. Accord-ingly, the decree for ejectment deserves to be confirmed and is hereby confirmed.

22. The defendants being Jatavas, un-disputedly belong to Scheduled Castes. The Adhiniyam has been applied to Scheduled caste including Jatavas with effect from 15-8-1973. Accordingly, the Adhiniyam will be deemed to have commenced visa-vis the appellants on and after 15-8-1973. This is what has been held by Baj-pai. J. in 1978 (1) MPWN 30 : (AIR 1979 Madh Pra 58) Pooranmal v. Sushila Devi and by me in (1978 Jab LJ 223 : (AIR 1978 Madh Pra 160)) Mangilal v. Mittilal Radhyelal (firm). Arrears of rent under a decree or otherwise would fall within the aforesaid definition of the word 'debt', as held in (1979 Jab LJ 273 : (AIR 1979 Madh Pra 14) ) (FB) Daryaobai v. Surajmal. Mesne profits are also within the pale of Section 7 read with Section 2 (4) of the Adhiniyam as held by Bajpai in Pooranmal's case (supra). Section 7 of the Adhiniyam puts a bar on the jurisdiction of the Court to enforce such a liability which was subsisting on 15-8-1973. Accordingly, the; decree for arrears of rent and mesne profits which had accrued due prior to 15-8-1973 could not be passed by the Courts below against the defendant-appellants. Only decree for rent for period between 15-8-1973 to 28-6-1974 could be passed. The remedy, if any, may lie elsewhere, in respect of arrears of rent for period prior to 15-8-1973. Consequently the decree passed by the Courts below in respect of arrears of rent and mesne profits prior to 15-8-1973, cannot be allowed to stand.

23. So far as the decree for mesne profits is concerned, in cases governed by the Madhya Pradesh Accommodation Control Act, 1961, liability to pay mesne profits arises only on passing of decree for ejectment as held in (AIR 1977 SC 2270) Shyam Charan v. Sheoji Bhai By virtue of definition of 'tenant' in Section 2 (i) of the Act, a person ceases to be a tenant only after decree for eviction has been passed against him.

24. In view of the foregoing discussion, it is clear that the liability for arrears of rent accruing after 15-8-1973 up to 28-6-1974 and for mesne profits accruing after 28-6-1974 i. e., after passing of the decree for ejectment by the trial Court till recovery of possession of the suit premises by the plaintiff from the de-fendant-appellants can be enforced through the present suit.

25. In view of the aforesaid discussion, the appeal deserves to be partly allowed and is hereby allowed to the extent that the judgment and decree of the Courts below for arrears of rent and mesne profit up to 15-8-1973 are set aside. The decree for ejectment and rent accruing due after 15-8-1973 up to 28-6-1974 and for mesne profits accruing after 28-6-1974 till recovery of possession of the suit premises by the plaintiff from the defendant-appellant deserves to be confirmed and is hereby confirmed. In view of divided success parties are directed to bear their own costs throughout.


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