Ajay Kumar Sharma vs State of U.P. and others

Shishir Kumar, J.

Heard learned counsel for petitioner.

This writ petition has been filed against an order dated 11.11.2009 and order dated 13.5.2003 (Anneuxre 1 and 2 to writ petition).

It appears that a suit was filed against petitioner for arrears of rent and ejectment after serving notice under Section 106 of the Transfer of Property Act. In spite of service of summons by registered post, petitioner does not appear, as such, an exparte order was passed on 13.5.2003. When petitioner came to know he made an application under Order 9, Rule 13 of Civil Procedure Code for setting a side the decree. Court below after considering the fact that notice was served and petitioner has not deliberately appeared before the Court, therefore, vide its order dated 11.11.2009, rejected the application under Order 9 Rule 13 holding therein that it is time barred also and on merits it has been held that no case is made out for setting aside the exparte decree. Hence, the present writ petition.

Learned counsel for petitioner submits that from finding recorded it is clear that there is an endorsement on the envelope that on the dates mentioned therein petitioner was not available. Petitioner has denied the signature on the summons. A specific averment was made in the application but the same was not considered and petitioner has been deprived only on technical grounds for hearing.

I have considered the submissions made on behalf of petitioner and have perused the record.

From perusal of the record, it is clear that registered notice on a correct address was sent and admittedly, this is a shop, postman on 11.7.2002, 12.7.2002, 13.7.2002, 15.7.2002 and 16.7.2002 visited the shop but an endorsement was there that petitioner was not available on the shop. Subsequently, a summon was sent and it was received and there was a signature of petitioner but petitioner has denied that it is not his signature somebody else has made his signature. If that was so, petitioner should have made an application to verify the signature from the handwriting expert. Mere statement, is not sufficient. As regards the submission made regarding service of notice under Section 106 of the Transfer of Property Act, admittedly, it is a shop and notice was sent on correct address by registered post, it is not a case of petitioner that wrong address was mentioned. The Apex Court in AIR 1989 Supreme Court, 630 M/s Madan and others Vs. Wazir Jaichand has held that if a notice has been sent by registered post on a correct address, then service will be treated to be sufficient. In 2006(3) JCLR, 26 (Allahabad) Prakash Chandra Gupta Vs. Soberan Singh and in 2006 UPRCC, 468, Krishna Chandra Vs. Addl.District Judge, Gorakhpur this Court has held that if notice has been sent by registered post, then it is not necessary that the postman may be examined. Further in AIR 2002(Supreme Court), 3557, Basant Singh Vs. Roman Catholic Mission, the Apex Court has further held that were the notice and summon has been sent by registered post on a correct address, then a presumption will be that service is sufficient and to prove otherwise, it is the duty of the addressee to prove that service was not sufficient and burden will be upon him to examine a postman regarding sufficiency of service. Admittedly petitioner has not taken any step to examine the postman neither that petitioner was out of station or he was not available. Admittedly, postman has not been examined. Mere denial by petitionertenant is not sufficient that service upon tenant was not made.

In such circumstances, I am of opinion that finding recorded in the order dated 11.11.2009 rejecting the application as time barred as well as considering the claim that service was sufficient and deliberately petitioner has not appeared before the Court and the application has been filed after a period of limitation and no cogent reason and explanation has been given by petitioner in spite of service of summons. Therefore, in my opinion, I see no justification to interfere. The courts below has rightly rejected the application filed by petitioner.

The writ petition is devoid of merits and is hereby dismissed, however, without imposing any cost.