Sudesh Tikoo vs Smt. Raj Vanshi

Permod Kohli, J.—This is tenant's appeal against eviction decree passed by the District Judge, Udhampur with respect to a shop situated at

Court Road, Udhampur. The respondent commenced the, suit for eviction against the appellant herein on the solitary ground of default in payment

of rent and the commission of three defaults as envisaged under the provisions of J&K Houses and Shops Control Act. The factual background as

emerge from the record is, that the suit shop was rented out to the appellant in the year 1987 on monthly rent of Rs. 500/- as alleged by the

plaintiff and the @ Rs. 450/- per month as claimed by the defendant/appellant. It is claimed by the plaintiff/ respondent that the appellant/defendant

became defaulter in payment of rent with effect from 1.6.1990. A notice dated 9.6.1992 was sent to him through registered post claiming arrears

of rent amounting to Rs. 12,000/- for the period 1.6.1990 to 31.5.1992. The said notice was served upon the defendant and despite service,

neither the rent was paid nor deposited in accordance with law. Another notice dated 14.6.1993 was issued on 14.6.1993 demanding an amount

of Rs. 18,000/- as arrears of rent with effect from 1.6.1990 to 31.6.1993. The said notice was refused by the defendant and the rent remained

unpaid having not been deposited or tendered. On commission of three consecutive defaults in payment of rent during the period of 18 months ,

the present suit came to be filed on 21.12.1993. The plaintiff- respondent claimed rent w.e.f. 1.12.1990 to 30.11.1993 in the suit.

The appellant on being served, filed his written statement of defence denying his liability for arrears of rent and claimed that he has been paying

the rent regularly sometimes to the plaintiff and sometimes to her attorney, Vijay Kumar. The appellant also denied receipt of notices said to be

served upon him by the plaintiff as alleged in the plaint. As against the claim of the plaintiff regarding rate of rent at Rs. 500/-PM, the defendant

stated that the rent was fixed at Rs. 450/- per month. On pleadings of the parties, the trial court framed as many as five issues on 1.6.1994:

Whether the plaintiffs are entitled to the arrears of rent with effect from 1.12.1990 to 30.11.93 amounting to Rs. 18,000/-as the same is not

paid? OPR

Whether the defendant has committed three legal defaults of two months each within the period of 18 months as such is liable to be evicted from

the suit shop? OPP

Whether the plaintiff has no cause to file the present suit against defendant?OPD

Whether the notices issued by the defendant to the plaintiffs are invalid under law; if so, what is the effect of this on suit. OPD

To what relief the plaintiffs are entitled? OPP

Plaintiff/respondent produced S/Shri Vijay Kumar, her attorney, Bodh Raj, the Postman. Isher Dass, Advocate and Gopal Krishan as her

witnesses in support of her case, whereas the-defendant appeared as the sole witness.

The trial court after hearing the parties, decreed the suit of the plaintiff - respondent vide the impugned judgment by holding all the issues to be

proved except Issue No. 4. The trial court returned finding that service of only first notice dated 9.6.1992 stands proved whereas the service of

second notice was not established.

The validity of the impugned judgment has been questioned in the present appeal and sought to be set aside on the grounds that the trial court

did not appreciate the evidence of the parties. The service of notices has not been established. It is also stated in the memo of appeal that the

plaintiff has failed to prove the commission of three defaults. The whole transaction was oral and the rent of the shop was being, paid without any

receipt and accordingly it is prayed that the impugned judgment be set aside. The 1st appellate court being the final court of fact, it is deemed

necessary to scan evidence and consequently the findings on each of the issue.

Issue No. 1

Vijay Kumar, the attorney of the plaintiff has stated that the shop owned by the plaintiff, was rented out to one Sudesh Tikoo. The rent of the

shop was fixed at Rs. 500/- per months initially in the year, 1987. The rent was payable on the 1st day of every English Calendar month. The

defendant stopped paying rent w.e.f. 1.6.1990 without any reason and has not paid till the date of filing of the suit. He has further deposed that in

the year 1992, a notice was sent through Mr. Isher Dass, Advocate claiming arrears of rent and for eviction of the shop. But despite notice, neither

he paid the rent nor vacated the shop. Thereafter another notice was issued through Mr. Baldev Raj, Advocate but had no impact on the

defendant. 64 months rent is payable by the defendant till September, 1995 amounting to Rs. 32,000/-, which has not been paid by him. In the

cross-examination, this witness has admitted hat he obtained the power of attorney in December, 1993. His mother -in-law lives at Udhampur and

in the year,1990, he was serving at Poonch. He used to come after 2/3 months to collect the rent. He also admitted that his mother-in law also

used to collect rent. The witness also admitted that initially rent was fixed at Rs. 500/- per month but subsequently at request , it was reduced to

Rs. 450/-, as the defendant stated that he was not doing well in the business. The witness denied a suggestion that his mother-in -law has received

the rent from the defendant but not issued any receipt.

The defendant in his statement stated that he had obtained the shop on rent from Amir Chand, husband of the plaintiff. The rent of the shop was

fixed at Rs. 450/- per month. He has paid the rent of the shop upto December, 1993. The rent of the shop used to be collected sometimes by

Smt. Sanjogta Devi and sometimes by her son-in-law, Vijay Kumar. No receipt was being issued for the rent. He has denied receipt of any

registered notice in June, 1993 regarding demand of rent, as no rent was payable by him. Plaintiff has rented out four more shops. Plaintiff and

Vijay Kumar were receiving rent of those shops also without issuing receipt. In cross-examination, defendant has stated that the shop was obtained

by him in the year 1987. Plaintiff never issued any receipt for payment of rent nor he has obtained any receipt. He denied the suggestion that

initially he was paying rent at the rate of Rs. 500/- and subsequently reduced to Rs. 450/- per month. Sometimes, rent was being paid at the shop

in presence of customers. He does not remember the names of the customers in whose presence rent had been paid. He denied having refused to

receive the envelope from the Postman. He has also denied that any notice was received by him in June, 1992 from the Postman regarding

payment of rent. He has further stated that after filing of the suit, he tendered rent but the same was not accepted by the plaintiff. He is willing to

pay the rent. He does not remember, how much rent is paid to plaintiff, Smt. Sanjogta Devi and how much to Vijay Kumar. However, whenever

Vijay Kumar used to be out in connection with his service, rent was being received by Smt Sanjogta in his absence and whenever Vijay Kumar

was available at Udhampur, he used to receive the rent. What emerges from the statements of Vijay Kumar and the defendant is, that the rent of

the shop was Rs. 450/- per month. No rent deed was executed between the parties and the rent was payable on monthly basis. According to the

parties, rent was being received by Smt. Sanjogta Devi and Vijay Kumar, her son-in -law. The plaintiff has denied having received any rent from

the defendant w.e.f. June, 1990, though the defendant has stated that he has paid the rent upto December, 1993 without any receipt. In the cross-

examination, the defendant/appellant specifically stated that after riling of the suit, he offered rent to the plaintiff, who refused to accept the same.

He has further stated that he is willing to pay the rent. This is an unqualified statement admitting the liability for payment of rent without specifying

the period for which the rent was offered and the period for which he intends to pay the rent. This statement is in fact admission on part of

defendant/appellant that the rent demanded, is payable by him. This leaves no room for any doubt in respect to the payment of rent. Therefore, the

plaintiff has established that rent has not been paid w.e.f. 1.6.90 to 30.11.93 Since rent for three years is illegally recoverable, her claim for arrears

of rent w.e.f. 1.12.90 to 30.11.93 i.e. for a period of three years, is established. The plaintiff has claimed rent @ Rs. 500/- amounting to Rs.

18,000/- but in view of admission of Vijay Kumar, rate of rent being Rs. 450, the trial court has rightly passed the decree for recovery of Rs.

16,200/- @ Rs. 450/- per month for the aforesaid period.

Issue No. 2

This issue is dependent upon the proof of service of notice as service of notice of demand is sine-quo-non for bringing the tenant within the

mischief of default in payment of rent under Clause (i) of Proviso to section 11(1) read with section 12 of the J&K Houses and Shops Control

Act.

Mr. Sunil Hali, learned counsel for the appellant/defendant has strenuously argued that despite specific plea of denial of service of notice in the

written statement, no issue has been framed by the trial court, which has rendered the impugned judgment and decree invalid and contrary to law.

Apparently, this argument appears to be attractive, but from the impugned judgment and the evidence led by the parties, there is clear indication

that both the parties were conscious of their pleadings and have led evidence on the question of service of the notices. Plaintiff produced S/Shri

Isher Dass, Advocate, Bodh Raj, Postman besides the attorney, who also made statement regarding the service of the notices of demand.

Defendant in his own statement, denied receipt of any notice in June, 1992 as also having refused to receive any envelope. Therefore, parties

contested this fact notwithstanding that no specific issue is framed on the question of service of notice. It is settled proposition of law that if the

parties were aware of the issues involved in the trial and have addressed themselves on such question, it is immaterial whether any specific issue is

framed or not.

There is another aspect that prevents the court from accepting the plea of the appellant. Because Issue No. 2, which relates to commission of

three defaults in payment of rent includes within its scope and ambit, the question of service of notice. No prejudice has been shown to be caused

to the appellant nor any prejudice appears to have been caused after reading the evidence of the parties on this count. Therefore, there is no

substance in the contention of the learned counsel for the appellant.

Now coming to the question, whether plaintiff has proved that three legal defaults in payment of rent have been committed. I have already

returned finding that the appellant/defendant was in arrears of payment of rent as on the date of filing of the suit. Only question that remains to be

examined is, occurrence of defaults in the manner prescribed under law. A conjoint reading of Clause (i) of Proviso to section 11(1) read with

section 12 of the J&K Houses and Shops Control Act, makes it obligatory upon the landlord to issue a notice of demand claiming the arrears of

rent, if the rent for a period more than two months has become due and payable by the tenant. The tenant is to be called upon to pay arrears of

rent within 30 days from the date of receipt of notice.

The landlord has also to wait for commission of two more defaults of two months each after the service of the notice in order to claim eviction

on the ground of payment of rent within a period of 18 months. In para-5 of the plaint, plaintiff has specifically averred that a registered notice

dated 9.6.1992 demanding arrears of rent amounting to Rs. 12,000 from 1.6.1990 to 31.5.1992 and another notice under registered cover dated

14.6.1993 again demanding Rs. 18,000/- as arrears of rent w.e.f. 1.6.1990 to 30.6.1993 were sent to the defendant. In para-6 of the plaint, it is

further stated that despite receipt of notice, defendant not only failed to pay rent demanded but also failed to pay rent for the subsequent period till

ending November, 1993. In reply to this paragraph, it is stated that the plaintiff has been demanding enhancement of rent but defendant refused to

oblige and concocted story of non-payment of rent. It is further stated that reference to the contents of the notices reveal that the notices are invalid

in law. This is all, what has been stated in respect to service of notices upon the defendant. At the first place, denial in the written statement, is no

specific denial and perhaps no specific issue was required to be framed. Irrespective of this position, parties have led their respective evidence on

this question. Mr. Isher Dass, Advocate, who issued notice dated 9.6.92, has appeared as witness. He has not only proved copy of notice EXPW

ID, which bears his signatures, but also stated that the acknowledgement receipt on record is the same which was sent by him alongwith registered

envelope and received back by him duly served, which he handed over to the plaintiff. There is postal receipt on record. The postal receipt, the

notice as also the A/D receipt contains the address of the appellant/defendant. Neither the correctness of the address nor the signatures on A/D

have been denied by the defendant in the written statement or while making statement on oath in the witness box.

In Basant Singh and Another Vs. Roman Catholic Mission, , the Apex Court held as under:

Order 5, proviso to Sub-rule (2) of Rule 19-A of CPC provides that where the summons are properly addressed, prepaid and duly sent by

registered post with acknowledgement due, notwithstanding the fact that the acknowledgement having been lost or misled, or for any other reason,

has not been received by the court within thirty days from the date of issue of the summons, the court shall presume that notice is duly served.

Further, Section 27 of the General Clauses Act, 1897 (in short 'Act') provides similar provision. The presumptions are rebuttable. It is always

open to the defendants to rebut the presumptions by leading convincing and cogent evidence.

Once it is proved that summons were sent by registered post to a correct and given address, the defendant's own conduct becomes important.

Before the trial court, the appellants were allowed to lead evidence in support of their contentions. As order to this effect was passed by the trial

court on 11.1.1991. The premises in question is occupied by two defendants jointly Hari Singh and Basant Singh. Hari Singh appeared and

examined himself stating that he did not receive the registered letter. However, the defendant Basant Singh did not appear and no evidence

whatsoever, on His behalf, has been led to rebut the presumption in regard to service of summons sent o him under registered post with

acknowledgement due. His own conduct shows that the registered summons had been duly served on him. As already noticed, Hari Singh

appeared and save and except the bald statement that registered letter was not tendered to him, no evidence whatsoever was led to rebut the

presumption. He could have examined the postman, who would have been the material witness and whose evidence would have bearing for

proper adjudication, He has failed to discharge the onus cast upon him by the statute. This apart, it is inherently improbable that the registered

summons were duly served on Basant Singh but not to Hari Singh when they occupied the tenanted premises jointly.

In M/s. Green View Radio Service Vs. Laxmibai Ramji and another, , it has been held:

.... The service is complete when the notice is sent by post. In the present case, as pointed out earlier, the notice was sent by the plaintiffs

Advocate by registered post acknowledgement due. The acknowledgement signed by the party was received by the advocate of the plaintiff. Thus

in our view the presumption of service of a letter sent by registered post can be rebutted by the addressee by appearing as witness and stating that

he never received such letter. If the acknowledgment due receipt contains the signatures of the addressee himself and the addressee as a witness

states that he never received such letter and the acknowledgement due does not bear his signature and such statement of the addressee is believed

then it would be sufficient rebuttal of the presumption drawn against him. The burden would then shift on the plaintiff who wants to rely on such

presumption to satisfy the court by leading oral or documentary evidence to prove the service of such letter on the addressee. This rebuttal by the

defendant of the presumption drawn against him would of course depend on the veracity of his statement. The court in the facts and circumstances

of a case may not consider such denial by the defendant as truthful and in that case such denial alone would not be sufficient. But if there is nothing

to disbelieve the statement of the defendant then it would be sufficient rebuttal of the presumption of service of such letter or notice sent to him by

registered post.

There is legal presumption of service of the notices u/s 27 of the General Clauses Act read with section 114 of the Evidence Act. Where-ever

registered letter is posted prepaying fee on the address of the addressee , there is legal presumption that the same has been received by the

addressee. Appellant/defendant having not disputed the signatures and the address, there is presumption in favour of service. It is also settled law

that every presumption is rebutable. However, onus to rebut such presumption, is upon addressee and a strong evidence is required to rebut the

same. From the evidence on record and the pleadings, it cannot be said that this presumption has been successfully rebutted by the

appellant/defendant on account of following circumstances:

There is no specific denial in respect to the notices detailed in para-5 of the plaint. Vague denial in the written statement that story of service of

notices is concocted, is no denial in the eyes of law. Even while appearing as witness, the defendant has not denied that the notices placed on

record by the plaintiff and referred to in plaint, were not received by him. No doubt, the trial court did not afford any opportunity to the parties to

record admission/denial of the documents, but plaintiff produced Mr. I.D. Sharma, Advocate to prove notice dated 9.6.92 and also service and

acknowledgement received by him. Once this evidence was led by the plaintiff, the defendant was required to be more vigilant and concerned, if he

had not received notices, it was his bounden duty to deny his signatures on the acknowledge- ment. That having not been done, presumption in

respect to the service of notices Under Sections 27 of the General Clauses Act and 114 of the Evidence Act, does not stand rebutted. It is also

admitted that after the service of notices, no rent was paid. Defendant/appellant having not paid the rent for four months after the service of first

notice and within the period of notice, has committed three legal defaults within the period of 18 months and has rendered himself liable for

eviction. I have no reason to disagree with the findings of the trial court on Issue No. 2 which inter alia include the question of service of notice.

Issue Nos. 3 and 4

Parties did not address any argument on these issues. I accordingly agree with the finding of the trial court.

From the above, it cannot be said that the trial court has failed to properly appreciate the evidence on record. The findings of the trial court are

based upon cogent reasoning. There is another plea of the appellant that no opportunity was provided him to lead evidence. I have perused the

record of the trial court. Issues were framed on 1.6.1992. On the same day, plaintiff was asked to furnish list of witnesses within seven days, if the

witnesses are sought to be summoned, failing which plaintiff shall produce the witnesses of his own. Plaintitf's evidence was closed on 21.8.1997

and the case was listed on 18.9.1997 for the evidence of the defendant. Defendant never approached the court for a request to summon any

Witness. No list was presented to the court for summoning the witnesses. On the other hand, defendant/appellant sought opportunity to lead

evidence. Defendant's evidence continued upto 21.2.1998. As many as five opportunities were allowed to appellant/defendant to lead evidence.

There is no attempt on part of the appellant for summoning of the witnesses by court nor any list was furnished during all this period. Therefore,

defendant cannot be permitted to say that he was denied opportunity to lead evidence. It is lastly argued that plaintiff herself has not appeared as

witness and thus, suit should have been dismissed on this ground itself.

To support his contention, reliance is placed upon AIR 1998 Raj 185 and Chinta Narayanamma Vs. Kholli Sahu and Others, reported as

Ram Prasad Vs. Hari Narain and Others, it has been held as under:

Section 118 of the Indian Evidence Act, 1872 provides thus:

All persons shall be competent to testify unless the court considers that they are prevented from understanding the questions put to them or from

giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same

kind.

I have given my anxious consideration to the rival contentions and carefully perused the impugned order as well as the authorities cited before me. I

am of the considered view that word "" acts"" used in Rule 2 of Order 3 CPC does not include the act of power -of-attorney holder to appear as a

witness on behalf of a party. Power of Attorney holder of a party can appear only as a witness in his personal capacity and whatever he has

knowledge about the case, he can states on oath but he cannot appear as a witness on behalf of the party in the capacity of that party. If the

plaintiff is unable to appear in the Court a commission for recording his evidence may be issued under the relevant provisions of the Code of Civil

Procedure...

In para-5 of Judgment titled Chinta Narayanamma Vs. Kholli Sahu and Others, the court noticed judgment of Bombay High Court in case of

Gendalal Cotton Mills Ltd. and Another Vs. Basant Kumaribai and Others, , wherein the following findings were returned:

... The respondent, who is the landlady, has not been examined in support of her case nor has she been examined as a witness on commission. On

this ground alone the suit of the respondent ought to have been dismissed because the bona fide requirement which, as I have mentioned above, is

a state of mind and something more must be proved in his case. Ramanlal, the respondent's son, is said to be her constituted attorney but that

could only be for the purpose of conducting the case but his evidence cannot be substituted for the legal evidence of the landlady herself.

Relying upon aforesaid findings, the court held:

In our view, the learned Judge of the Bombay High Court has correctly laid down the law and the opposite parties Nos. 2 and 3 were justified in

drawing adverse inference against the petitioner for not examining herself as a witness.

Mr. Sharma, learned counsel appearing for respondent has referred to Ramkubai (Smt) Deceased by Lrs. and Others Vs. Hajarimal

Dhokalchand Chandak and Others, . The Apex Court in the above case considering somewhat similar circumstances held:

We have already noted above that the ground of bona fide requirement of the landlady was accepted by the trial court but it was negatived by the

Appellate Court and the same was confirmed by the High Court. the Appellate Court was swayed away by the fact that the landlady herself did

not come into the witness box to support her claim. What is not appreciated by the Appellate Court is that her son Bhikchand who was also her

G.P.A. holder and for whose benefit the business is to be set up, did come into the witness box to support the case of personal requirement. The

Appellate Court was of the view that the bona fide requirement is in the first place a state of mind and might be something more and that could be

established only by the landlady. In all fairness to Mr. Mohta, we must note, that he conceded that that reasoning of the Appellate Court could not

be supported.

Let the present case be examined in the light of above referred judgments.

It is defendant's own case that rent was being received both by the plaintiff and her attorney. As a matter of fact, what has been stated by the

defendant is, that Vijay Kumar used to receive the rent and whenever he is out in connection with his service, rent was being received by Smt.

Sanjogta in his absence. Therefore, what emerges from his statement is, that it was the attorney who was oftenly receiving the rent. Even if both the

plaintiff and the attorney were receiving rent, it cannot be said that this fact was within the exclusive knowledge of the plaintiff. Though Vijay

Kumar was given Power of Attorney only in December, 1993, but he was receiving rent from the commencement of the tenancy. Under such

circumstances, non-appearance of plaintiff in witness box, is not fatal and plaintiff cannot be non-suited on this ground.

There is no merit in the contentions of the learned counsel for the appellant.

In view of the findings on Issue Nos. 1 and 2, there is no scope for interference in this appeal, which is accordingly dismissed. However,

without any order as to costs.