Kamal Bhatnagar vs S. Charles

J.V. Gupta, Acting C.J.—This is defendant''s second appeal against whom suit for ejectment and recovery of rent has been decreed by both the Courts below.

The plaintiff filed the suit for ejectment and recovery of rent against the defendant with the averments that he is owner of shop measuring 9'' X 5'', situated in Sector 7-A, YMCA Road, Faridabad, which was taken on rent by the defendant on a monthly rent of Rs. 350/- vide agreement dated February 17, 1982. According to the plaintiff the construction of the aforesaid shop in dispute was completed in January, 1981, i.e., after the commencement of Haryana Urban (Control of Rent and Eviction) Act, 1973, and therefore, the provisions of the Act were not applicable in respect of the shop in dispute. It was also pleaded that the tenant has failed to pay rent regularly without sufficient cause and till May 9, 1984, rent has not been paid. Thus a sum of Rs. 5210/- was claimed as arrears of rent According to the plaintiff the tenancy was terminated by a notice dated June 4, 1984, and on the expiry of the period of said notice, the suit was filed on October 5, 1984.

In the written statement the plea taken by the defendant was that the Civil Court has no jurisdiction to try the suit as the provisions of Haryana Urban (Control of Rent and Eviction) Act, 1973 are applicable to the disputed shop It was denied that the defendant has not paid rent as alleged. As a matter of fact the plaintiff has not been issuing any receipt against the payment of rent though the rent was duly paid No notice was ever served upon the defendant and therefore, the tenancy was never validly terminated. The trial Court after framing the issues and relying upon the evidence of the parties, came to the conclusion that the disputed premises was constructed and completed in July, 1981 and as such the provision of Haryana Urban (Control of Rent and Eviction) Act, were not applicable. It was further found that the tenancy was terminated by a valid notice given to the defendant. The defendant has not led any evidence to negative such presumption which arises in favour of the plaintiff It was found that the defendant has nowhere proved that the addresses given on the certificate of posting and the registered cover were not correct. In view of this finding, the plaintiff''s suit was decreed; both for ejectment and recovery of the arrears of rent amounting to Rs. 5210/- In appeal, the learned Additional District Judge affirmed the said findings of the trial Court and thus maintained the decree passed in favour of the plaintiff.

Learned counsel for the defendant-appellant submitted that the notice terminating the tenancy was never served on the defendant Even the address given therein was not correct and, therefore, there was no presumption of its service on the defendant. According to the learned counsel, on the facts and circumstances of the case, the tenancy was never validly terminated. In support of this contention, he has referred to Puran Chand v. Lajya Wati (1972) 74 P. L. R. 930 and Shiv Dutt Singh Vs. Ram Dass, . He further submitted that it has been wrongly held by the Court''s below that the construction of the shop in dispute was completed in January, 1981. According to the learned counsel, there were two shops which were constructed by the plaintiff much earlier and therefore, the Rent Act as such was applicable.

After hearing the learned counsel for the appellant I do not find any merit in this appeal After considering the entire evidence on record, it has been concurrently found by both the Court''s below that the plaintiff constructed the shops in dispute in the year 1981 as alleged in the plaint. It is a pure finding of fact and could not be interfered with in the second appeal As regards the validity of the notice, it has been found by the Courts below that it stands duly proved from the postal receipt Exhibit P- 0 and certificate of posting Exhibit P 11 and the fact that the registered envelope was not received back by the plaintiff which had been sent to the defendant, so a valid presumption can be taken that the same was received by the defendant. Moreover, the defendant has not led any evidence to rebut that presumption. The address given on the registered envelope, postal receipt and certificate of posting was correct and complete and thus, there was no escape from the conclusion that the said notice, copy Ex. P. 9 was duly sent by the plaintiff to; the defendant through registered post and also through certificate of posting which must have been received by him It is again finding of fact which could not be challenged in second appeal.

Consequently, the appeal fails and is dismissed with costs.