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Vadhere Devubhai Govindji Vs. Rameshwarpuri Ratanpuri - Court Judgment

LegalCrystal Citation
SubjectCivil;Tenancy
CourtGujarat High Court
Decided On
Judge
Reported in(1984)1GLR631
AppellantVadhere Devubhai Govindji
RespondentRameshwarpuri Ratanpuri
Cases ReferredKundal Lal Rallaram v. Custodian
Excerpt:
..............regarding the legality and validity of the notice to the following effect was raised:whether the suit notice is legal and valid?both the parties have led evidence on the question as to whether the notice was properly served or not. the trial court also discussed this aspect of the matter. the plaintiff examined himself at exh. 46 and also examined the postal peon at exh. 50. the trial court accepted the evidence of the plaintiffs side and came to the conclusion that the notice was duly served and further held that the notice was legal and valid. the trial court negatived the contention urged by the defendant with regard to the title of the plaintiff and hold that the plaintiff had right to file the suit. the trial court decreed the suit of the plaintiff for rs. 159.65 paise and further.....
Judgment:

A.P. Ravani, J.

1. Wanted a decree of eviction? Get an endorsement of 'refusal' on the registered postal envelope containing notice of demand of arrears of rent and the tenant will be evicted. Is this the position of law or will it be open to a tenant to rebut the presumptions of delivery of notice and or knowledge about the contents of notice arising against him on account of the endorsement of 'refused' on the registered envelope? This question has surfaced for decision in the background of the facts that follow.

2. The petitioner-original defendant of Regular Civil Suit No. 8 of 1976 of the Court of Civil Judge (JD), Bhanvad-Jamjodhpur, has preferred this revision application. An ejectment suit was filed by the respondent-plaintiff inter alia on the ground that the defendant-tenant was in arrears of rent for a period of more than six months and that despite notice of demand he had not paid the arrears of rent. Therefore, according to the plaintiff, defendant-tenant being not ready and willing to pay the rent, was liable to be evicted from the suit premises. The suit premises consist of one room, osri, kitchen and an open fali and the same is situated in village Bhanvad in Jamnagar district. The rent of the suit premises is Rs. 4 per month. It was alleged that the notice dated January 23, 1976 was sent by registered A. D. post and an amount of Rs. 392/- as arrears of rent for a period of 98 months was demanded and the notice was refused on January 27, 1976 by the defendant. Thereafter on March 9, 1976 the suit was filed and the vacant possession of the suit premises was prayed for. The defendant, appeared in the suit and resisted the same inter alia stating that he was residing in the premises for the last about 15 years. He specifically stated that he had not received the notice and he had never refused to accept the delivery of the notice. He also challenged the legality and validity of the notice. The defendant further challenged the title of the plaintiff and contended that the suit property was that of a religious Trust and the plaintiff had no right to give the notice, nor had he any right to file the suit for ejectment of the suit premises.

3. It appears that during the pendency of the suit, the original plaintiff died and his disciple has been brought on record and he continued the suit. After framing the issues and after recording the evidence, the trial court came to the conclusion that the defendant-tenant was in arrears of rent and he was not ready and willing to pay the rent. Therefore the trial court passed a decree for eviction of the suit premises. Before the trial court, issue as to whether the notice was properly served or not was not specifically raised but the parties were conscious about this fact. A specific issue regarding the legality and validity of the notice to the following effect was raised:

Whether the suit notice is legal and valid?

Both the parties have led evidence on the question as to whether the notice was properly served or not. The trial court also discussed this aspect of the matter. The plaintiff examined himself at Exh. 46 and also examined the Postal Peon at Exh. 50. The trial court accepted the evidence of the plaintiffs side and came to the conclusion that the notice was duly served and further held that the notice was legal and valid. The trial court negatived the contention urged by the defendant with regard to the title of the plaintiff and hold that the plaintiff had right to file the suit. The trial court decreed the suit of the plaintiff for Rs. 159.65 paise and further ordered the defendant to hand over the vacant possession of the suit premises within three months from the date of the decree. The judgment was pronounced by the trial court on April 24, 1978.

4. The petitioner-tenant, being aggrieved by the judgment and decree passed by the trial court preferred an appeal being Regular Civil Appeal No. 106 of 1978 in the Court of District Judge at Jamnagar. Before the learned District Judge both the parties appear to have concentrated on the question of title of the suit premises and the right of the plaintiff to file the suit. There is no discussion in the judgment, with regard to the point as to whether the notice was duly served upon the petitioner-defendant or that there was no service as contended by the petitioner-defendant. The learned District Judge has elaborately discussed the point with regard to the right of the deceased plaintiff to file the suit and claim a decree for eviction on the ground of non-payment of rent. The learned District Judge held in favour of the plaintiff-respondent and against the petitioner-defendant-tenant and confirmed the judgment and decree passed by the trial court by his judgment dated September 11, 1980.

5. The only point which arises in this revision application is, as to whether the notice demanding arrears of rent was duly served upon the petitioner-defendant? Is it that the courts below have committed an error in holding that there was proper service of notice on the defendant-tenant

6. In this connection it appears clear that the evidence of the postman, Exh. 50, has been misread and the plea raised by the defendant in the written statement as well as the evidence of the defendant on this point have been totally ignored by the courts below. The trial court discussed this question, that is, the question with regard to the service of notice, in paragraph 12 of its judgment. It is stated by the trial court that postman Vinodrai Durlabhji was examined at Exh. 50 and that in his evidence he has stated that 'he tendered the notice cover Exh. 51 to defendant but the defendant has not accepted delivery. So he made endorsement on cover Exh. 51 in that respect. The witness is independent and I have no reason to disbelieve his testimony The defendant has refused to accept notice. So presumption of service of notice goes against defendant.' This is the only discussion with regard to the service of notice. It is clear that the contention raised by the defendant in his written statement and his oral evidence in this connection have not been considered at all by the trial court. There is no discussion whatsoever on this point in the judgment of the learned District Judge. Probably the point might not have been raised specifically before him.

7. Counsel for the respondent-plaintiff has tried support from the judgment and decree passed by the lower courts and has relied upon a decision of this Court in the case of Adambhai Haji Ismail v. Ramdas reported in 15 G.L.R. 655 and has also relied upon a decision of the Supreme Court in the case of Puwada Venkateswara Rao v. Chidamana Venkata Ramana reported in : [1976]3SCR551 . From the Full Bench decision of this Court cited above, the counsel for the respondent-plaintiff has relied upon the following passage:

On the basis of a mere endorsement of refusal found on the returned registered envelop without being substantiated by any evidence of the postal peon who went to deliver the letter, a statutory rebuttal presumption of fact that the addressee had in fact refused to accept the delivery of the letter can be raised under the provisions of Section 114 of the Evidence Act.

8. The counsel for the respondent-plaintiff further submitted that in cases where a notice sent by registered post is returned with an endorsement as 'refused', it is not always necessary to examine the postman who tried to effect service. In support of this contention he relied upon the decision of the Supreme Court in the case of Pawada Venkateswara Rao (supra) wherein it is held that, where a notice sent by registered post is refused with endorsement as 'refused', it is not always necessary to produce the postman who tried to effect the service.

9. In the instant case the plaintiff has even examined the Postal Peon to prove that the defendant had refused to accept the delivery of the notice. Therefore, in the submission of the counsel for the respondent-plaintiff the trial court was justified in raising the presumption against the defendant and in holding that the notice was properly served upon him and that he had knowledge about the contents of the notice.

10. The point at dispute is not as to whether a presumption under the provisions of Section 27 of the General Clauses Act (X of 1897) [or under Section 28 of the Bombay General Clauses Act (I of 1904)] together with the presumption under Section 114 of the Evidence Act would arise or not. The crucial question is as to what is the effect of the presumption and once the presumption is raised what will be the consequences thereof? Will the court be required to straightaway hold on the basis of the presumption that the notice in question was duly served upon the defendant and that the defendant had knowledge about the contents of the notice? Or will it be necessary for the Court to further examine the evidence on record and on appreciation of evidence to come to its own conclusion as to whether the presumption so raised is rebutted or not and if rebutted, what is its effect on the overall appreciation of evidence? In the instant case, the lower court has raised the presumption and straightaway held against the defendant and has not even referred to the pleadings of the defendant and the evidence of the defendant. It could not be controverted by the counsel for the respondent-plaintiff that the lower court has not at all considered the pleadings of the defendant and the evidence of the defendant on this point. In this background it is necessary to examine as to whether the decision cited by the counsel for the respondent-plaintiff are of any help to him.

11. As laid down by the Full Bench of this Court in Adambhai's case (supra), the presumption that arises is two-fold: one is under the provisions of Section 27 of the General Clauses Act and another is under the provisions of Section 114 of the Evidence Act. After referring to the provisions of Section 12 of the Rent Act and the object underlying Section 12(2) of the Rent Act which restricts the right of the landlord to recover possession on the ground of non-payment of rent, it is observed as follows:.The notice has to be given as per the manner provided in Section 106 of the Transfer of Property Act. Therefore, if the notice that is contemplated in Section 12(2) is duly served on the tenant as per the manner and provisions of Section 106 of the Transfer of Property Act and if the provisions of Section 27 of the General Clauses Act are complied with a presumption arises that the notice was duly served on and received within proper time by the addresses. This presumption will be under Section 27 of the General Clauses Act. If there is an endorsement of refusal on the envelope a presumption under Section 114 of the Evidence Act also arises, viz. that the notice was duly tendered to the tenant but he refused to receive the same and consequently the tenant had the knowledge of the contents of the notice. The special provisions of the Rent Act, in our opinion, makes no difference in this aspect of the law.

12. It must be noted that the presumption that arises is a statutory rebuttable presumption of fact. In view of the provisions of Section 27 of the General Clauses Act the presumption with regard to the delivery of the registered article arises and when there is an endorsement of 'refusal' on the registered article, a further presumption under Section 114 of the Evidence Act as to the knowledge of the contents of the notice also arises. But as laid down by the Full Bench itself these presumptions are rebuttable presumptions, and it would be profitable to refer to the observations made by the Full Bench in this connection:

Once presumptions arise under Section 27 of the General Clauses Act and Section 114 of the Evidence Act, the burden to rebut the said presumptions would be on the addressee in case where the letter is returned back with an endorsement of 'Refused'. One who challenges an endorsement made by the postal authority in discharge of the duties has to lead evidence to rebut the presumption arising because of the endorsement....

13. The aforesaid observation makes it clear that after the presumption is raised, it does not put an end to the matter. It only shifts the burden of proof. The chief function of a rebuttable presumption is to determine, upon whom the burden of proof rests. Such burden can be shifted by direct or indirect evidence or even by invoking presumptions of law or of fact, if they are available and applicable.

14. Now what is the burden proof? As laid down by the Supreme Court in the case of Kundal Lal Rallaram v. Custodian, Evacuee Property Bombay reported in A.I.R. 1961 S.C. 1316-

the phrase 'burden of proof has two meanings - One, the burden of proof as a matter of law and pleading and the other burden of establishing a case; the former is fixed as a question of law on the basis of the pleadings and is unchanged during the entire trial whereas the latter is not constant but shifts as soon as a party adduces sufficient evidence to raise a presumption in his favour. The evidence required to shift the burden need not necessarily be direct evidence, i.e. oral or documentary evidence or admissions made by opposite party; it may comprise circumstantial evidence or presumptions of law or fact....

In this connection it is further laid down by the Supreme Court as follows:

Briefly stated, the burden of proof may be shifted by presumptions of law or fact; may be rebutted not only by direct or circumstantial evidence but also by presumptions of law or fact. We are not concerned here with irrebuttable presumptions of law.

15. In view of the law laid down by the Supreme Court, it is clear that even after a statutory rebuttable presumption is raised, it would at the most shift the burden of proof on to the other side. The raising of such a presumption would not put an end to the matter. A presumption so raised may even be rebutted by presumptions of law or of fact. In the instant case the courts below have not taken into consideration at all as to whether any such presumption was available in favour of the defendant and what is the effect of any such presumption and what is the effect of the evidence led by the defendant? This is a serious error of law committed by both the courts below which has resulted into miscarriage of justice.

16. It is a trite knowledge that everyone is presumed to know the law whether this be so or not, in fact. Further, regard being had to the normal human conduct and behaviour, it is to be presumed that everyone knows the natural consequences of his act. In the instant case, as in all such cases, the presumption would be that the defendant knew the relevant provisions of law and the natural consequences of his act. The law on the point is that if a tenant who is in arrears of rent continuously for a period of six months or more and even after the receipt of a notice demanding rent, fails to comply with the same or take necessary action within the prescribed period so as to get the protection of the Rent Act, he would be liable to be evicted from the premises occupied by him. In such a situation, would it be that a tenant to whom the notice is addressed and tendered by the postal peon would ever refuse to accept delivery of the same? A presumption is that normally he would not act in this fashion since he is presumed to know the law and the natural consequences of his act. Natural consequences of his act of refusal would be that, though he does not actually receive the notice, he will be deemed to have received it and will further be deemed to have knowledge of the contents thereof. This would clearly be against his own interest Ordinarily no sane person would act against his own interest In view of this state of statutory and other presumptions, it can safely be presumed that a tenant to whom a registered notice is addressed and tendered ordinarily will not refuse the same. Thus in such a situation, conflicting presumptions arise One set of facts and circumstances give rise to a presumption with regard to the delivery and service of the notice and even the knowledge regarding contents of the notice. Another set of facts and circumstances give rise to the presumption that everyone knows the law and the natural consequences of his act. therefore a presumption arises that ordinarily a tenant would not refuse to accept the service of notice. Such an action of refusal to accept the notice is likely to result into eviction of the suit premises. This will be natural and ordinary result or consequence of his action. Thus, there is a conflict of presumption the resultant effect of which is to nullify each other:

Conflicting presumptions, however, neutralise each other, and leave the case at large to be determined solely on the evidence given (see Phipson on Evidence, Ninth Edition, page 39).

17. In the instant case, the initial presumption regarding service and knowledge of contents of notice which has arisen in favour of the plaintiff and against the defendant is neutralised by another set of presumption that everyone is supposed to know the law and natural consequences of his act. Refusal to accept the notice will not in any way be in the interest of the defendant-tenant. No sane person will act against his own interest. Therefore, simple denial by the addressee (in this case the defendant-tenant) to the effect that he has never refused to accept the service of notice should have been held sufficient to rebut the presumption arising on account of the endorsement of 'refusal' on the registered article. This position has not been taken into consideration by the courts below. Once, on account of the conflicting presumptions the effect of presumption arising on either side is neutralised, the case should have been deter-mined on the basis of the evidence alone.

18. In the instant case, the trial court has relied upon the evidence of the postman and has not referred to the evidence of the defendant at all. As far as the evidence of the plaintiff is concerned, he has no personal knowledge in this behalf. He himself had not sent the notice but his Guru Shivanand Giri who died during the pendency of the suit had issued the notice and therefore, he had no personal knowledge in this behalf. While considering the evidence of the postman, Vinodrai, Exh. 50, the trial court observed that the postman had tendered the notice (registered cover) Exh. 51 to the defendant but the defendant had not accepted the delivery of the same and so the postman had made endorsement of refusal on the cover. As a matter of fact, the evidence of the postman Exh. 50, is not to this effect. In the very first line of the cross-examination the postman has stated that he knew the defendant by his address but he did not know him personally. He has stated that after reading the endorsement on envelope Exh. 51, he said that he had gone to deliver the envelope Exh. 51 at the address in question. This part of the deposition of the posting makes it clear that the postman was saying merely on the basis of the endorsement on the envelope and on the basis of the name of the tenant on the envelope. This is quite natural in view of the fact that the postman has given his deposition on January 24, 1978, while the registered article in question was allegedly refused by the defendant on January 27, 1976, i.e., after a period of about two years. Furthermore, as stated by the postman, he was already transferred to some other place in the month of June 1977. Thus, it is clear that the witness only stated that after reading the endorsement on Exh. 51 he was in a position to say that the defendant had refused to accept the delivery of the registered cover Exh. 51. He was not sure as to whether, as a matter of fact, the defendant himself had refused to accept the service or not. Thus, the trial court has clearly misread the evidence of the postman Vinodrai, Exh. 50.

19. Ordinarily it will not be possible for any postman to remember exactly as to when and where a particular registered article was refused to be accepted by a particular addressee. Every day he will be required to deal with innumerable ordinary postal articles and many registered postal articles. Even in a small town number of registered articles are bound to be numerous. Assuming that there may be only few such articles in a particular region, even then, there will be no special reason for the postman to earmark particular registered article which might have been refused by the addressee and then remember the same. It is a routine business for him and he cannot have any special reason to remember the same. By the very nature of circumstances, the evidence of postman cannot carry the matter any further except to prove the endorsement of refusal on the envelope. From such evidence it cannot be further inferred that a particular addressee to whom the registered article was addressed had personally refused the same. It is difficult to conceive of a postman having computerised memory and to be able to give evidence in court after a considerable lapse of time and to say that he in fact tendered the registered article in question to the addressee who refused to accept the same. If he says to this effect it would be rather extraordinary and unusual. Unless the postman explains the circumstances under which he remembered the particular registered article and the addressee who refused it and further satisfactorily explains as to how he identified the addressee, his evidence cannot be considered to be normal and natural and therefore cannot be accepted without sufficient corroboration.

20. In the instant case the postman has honestly not tried to give any special reason for remembering the registered article and for identifying the addressee. As stated above the trial court misread his evidence and accepted the same, which could not have been done.

21. On this point the trial court has not at all referred to the evidence of the defendant. The defendant has clearly stated in his written statement that he had not received any such notice as alleged and he had not refused the same. The defendant has clearly stated that he was working in a Factory (Oil Mill) and his working hours were from 7 a.m. to 8 p.m. The fact that the defendant vas serving in a factory does not seem to have been seriously disputed at all by the plaintiff. He has been put some questions in cross-examination with regard to his working hours. But the fact that he was serving in a Factory (Oil Mill) is not challenged at all. In his cross-examination he has also stated that it was not true that on January 27, 1976 he had not attended his service. This is the only cross-examination on this point. No reason whatsoever has been assigned by the lower courts, as to why the case put forth by the defendant in his written statement and substantiated by him in his deposition should not have been believed. The postman has clearly stated that he had gone to deliver the registered article at about 9-30 a.m. In view of the deposition of the defendant that his working hours were from 7 a.m. to 8 p.m. and that he was serving in a Factory (Oil Mill) at the relevant time, it is difficult to uphold the conclusion arrived at by the trial court that the notice was duly served upon the defendant. The trial court has reached its conclusion on account of the misreading of the evidence of the postman and without taking into consideration the case put forth by the defendant in his written statement and in his deposition. Once it is held that the statutory presumption which arose in favour of the plaintiff is neutralised on account of the conflicting presumption which also arose in favour of the defendant, the matter was required to be decided on the basis of the evidence led by the parties. As stated hereinabove, no reason whatsover has been assigned by the lower courts for not accepting the evidence of the defendant. Normally a tenant who is occupying the premises for the last about 15 years and who is serving in a Factory as a labourer would never expose himself to the serious consequence of being evicted from his residential house. There being no valid reason to discard the evidence of the defendant, the same has got to be accepted.

21.1. Thus, the finding arrived at by the courts below that there was legal and valid service of the notice to the defendant is not correct and the same is required to be reversed and set aside. Once it is held that there was no service of notice then the natural consequence is that there is no demand as required under Section 12(2) of the Rent Act. Therefore, in absence of demand, as laid down under the provisions of Section 12(2) of the Rent Act, a tenant cannot be evicted from the premises occupied by him on the ground that he was not ready and willing to pay the rent.

22. In the result, the judgment and decree passed by the trial court and confirmed by the lower appellate court directing the defendant to hand over the vacant possession of the suit premises is required to be quashed and set aside and the same is hereby quashed and set aside. Rule made absolute with no order as to costs.


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