Parminder Singh vs Savita Sharma

M.M. Kumar, J.—This is defendants appeal challenging the order of his ejectment with a further relief of possession granted to the plaintiff-

respondent in respect of the demised shop. The plaintiff-respondent has also been held entitled to arrears of rent w.e.f. 1.7.1997 upto 31.12.1999

@ Rs.500/- p.m. alongwith interest @ 12 percent p.a. It has further been held that the plaintiff-appellant is also entitled to recover damages @

Rs.2000/- p.m. from the date of termination of tenancy till the delivery of possession. The District Judge while passing the judgment and decree in

favour of the plaintiff-respondent has reversed the findings recorded by the trial Court vide its judgment and decree dated 7.6.2001 holding that

there was valid notice issued to the tenant-appellant u/s 106 of the Transfer of Property Act, 1882 (for brevity ''the Act'') terminating the tenancy

of the tenant-appellant.

The plaintiff-respondent sought a decree for possession by ejectment of the tenant-appellant from the demised shop and recovery of arrears of

rent alleging the rate of rent of Rs. 500/-. The arrears of rent has been claimed from 1.7:1997 to 31.12.1999. It is claimed that a notice u/s 106 of

the Act was issued on 3.1.2000 and the tenant appellant has failed to vacate the demised premises. The stand of the tenant-appellant is that no

valid notice was issued and the rent has been deposited upto November, 1999. It is claimed that plaintiff-respondent never issued any receipt

acknowledging payment of rent and that she alongwith her son threatened the tenant-appellant of forcible dispossession. It was claimed that no

notice of termination of tenancy has been issued and if any such notice has been issued is not valid in the eyes of law.

The trial Court took the view that no notice was issued terminating the tenancy. The Trial Court opined that the plaintiff - respondent Savita

Sharma herself stated that notice under the registered cover was not delivered which led to the pasting of the notice on the demised shop by her.

However, pasting of notice on the demised shop could not be proved. It has been further concluded that plaintiff-respondent had made

contradictory statenrent with regard to the date of sending the notice. Some time she stated that it was sent on 1.3.2000 and at other stage she

gave the date as 3.1.2000. On the basis of the afore-mentioned analysis of the evidence, the trial Court held that the plaintiff-respondent failed to

serve a valid notice on the tenant-appellant u/s 106 of the Act and, therefore, she was not entitled to obtain possession of the demised shop by

way of ejectment of the tenant-appellant.

On the other issue regarding arrears of rent, the trial Court held that the plaintiff-respondent failed to prove the non payment of rent or her

entitlement to claim damages @ Rs.2000/- p.m.

On appeal, the learned District Judge reversed the finding with regard to service of notice u/s 106 of the Act by observing as under:

I have gone through the documents and evidence available on the file very carefully. PW 1 Savita Sharma appellant has stated in her examination-

in-chief that she had sent a notice through her counsel to the respondt nt through registered post vide postal receipt Ex.PWl/B, She has further

stated that a separate notice under postal certificate was issued through Ex.PW1/C. Though, she has stated in her cross-examination that notice

was dated 1.3.2000, but, in the later part of the cross-examination, she has corrected the date as 3.1.2000, Surinder Singh post man PW2 has

stated that as per record he firstly gone to deliver the registered letter to Parminder Singh respondent on 4.1.2000 at the address written on the

registered cover, but he was not met, so, he made report accordingly. He has again went to deliver the registered letter to the addressee on

5.1.2000, but he refused to take the same and thereafter he made report Ex.PW2/B. It is also apparent from Ex,PWl/C that a notice under postal

certificate was sent to the respondent. It is well settled law that when the respondent refused to accept the notice sent to him through registered

post and a separate notice was also issued to him under postal certificate, it amounts to service of notice upon the addressee. Parminder Singh

DW1 has admitted that correct address has been written on the registered letter. So, notice dated 3.1.2000 is deemed to have been served upon

the respondent. Mere disclosing the date of notice as 1.3.2000 by the appellant in the cross-examination does not effect the case of the appellant,

especially when she has corrected the date of notice in the later part of her cross-examination itself.

The plea that notice was required to be served by granting the tenant-appellant a period of three months has also been rejected because nothing

was proved on record that there was any stipulation to that effect. The District-Judge further found that the tenant-appellant is in arrears of rent

from 1.7.1997 to 31.12.1999 @ Rs.500/- p.m. and she was also entitled to recover damages @ Rs.2000A p.m. from the date of terminating the

tenancy till the delivery of possession.

Shri A.K. Chopra, learned counsel for the tenant-appellant has argued that the contradictory statement made by the plaintiff-respondent when

she appeared as PW1 cannot be ignored in which she has stated that the notice was issued, on 1.3.2000 or 3.1.2000. According to the learned

counsel, as the registered notice was not received the plaintiff-respondent undertook pasting of notice on the demised shop after realising that the

registered AD notice has not been served on the tenant-appellant. Referring to the oral statement with regard to the period of three months

required for serving notice u/s 106 of the Act, learned counsel has pointed out that the lower appellant Court could not brush aside the oral

evidence which assumes significance in the absence of any document.

Shri Amit Jain, learned counsel for the plaintiff-respondent has argued that he does not wish to press the claim with regard to arrears of rent.

However, he has on the other issue submitted that there is a valid notice issued terminating the tenancy of the tenant-appellant. He also claimed that

damages @ Rs.2000/- p.m. from the date of termination of tenancy till delivery of possession may be granted to the plaintiff-respondent. Referring

to the provisions of Section 100 of the Code, learned counsel has argued that findings with regard to issuance of valid notice cannot be gone into

by this Court as it is a question of fact.

Having heard the learned counsel at some length. 1 am of the view that no interference in the view taken by the Id. District Judge would be

warranted in exercise of jurisdiction u/s 100 of the Code. It has been found on the basis of cogent evidence adduced by the plaintiff-respondent

that there is valid notice served on the tenant-appellant. The plaintiff-respondent has produced Surinder Singh, Post Man, PW2 who had made

endorsement on the envelope by recording that the tenant-appellant has re-fused to accept the notice on 5.1.2000. He also proved his report

Ex.PWI/B. In such circumstances service of notice on the tenant-appellant has to be presumed in view of the provisions of Order V Rules 17 and

19 of the Code because procedure in case of refusal to accept service by examination of serving postman has been followed which is envisaged by

Ordei V Rules 17 and 19 of the Code. Another notice was also sent under postal certificate which has been proved on record as Ex.PWl/C. The

cumulative effect of the afore-mentioned evidence is that there was a valid notice issued u/s 106 of the Act especially when the tenant-appellant

while appearing as PW1 has admitted that correct address was written on the registered letter. The error with regard to the date of registered

notice stated by the plaintiff-respondent in her statement is deemed to have been corrected when lateron she repeatedly stated the date of notice to

be 3.1.2000 instead of 1.3.2000. Therefore, no interference in the findings of fact with regard to issuance of valid notice would be warranted as

there is sufficient evidence to prove the afore-mentioned finding.

The plaintiff-respondent, through his counsel, has given up the arrears of rent w.e.f. 1.7.1997 to 31.12.1999. However, damages @

Rs.2000/- p.m. from the date of termination of tenancy i.e. 1.3.2000 till the delivery of possession has been claimed.

In view of the above, the judgment and decree passed by the Id. District Judge is upheld in all respects except the arrears of rent w.e.f.

1.7.1997 to 31.12.1999 @ Rs.500/- p.m. i.e. for a period of 30 months amounting to Rs.15,000/-. With the aforementioned modification, the

appeal stands disposed of.