Barinder Kumar Barua vs Addl. District Judge, Allahabad

A.K. Yog, J.—Learned counsel for the parties are served. No interim application is pending. Case is ripe and ready for hearing. None of the parties has objection to the hearing of the case.

Man Mohan Tandon and Deepak Tandon (respondent Nos. 3 & 4) are the owners and landlords of premises bearing Municipal No. 1 (New No. 15), Hastings Road Nyaya Marg (now renamed justice C.S.P. Singh Marg). Allahabad, wherein one Nitai Lal Barua was tenant at a monthly rent of Rs. 35 per month, besides tax.

It is not necessary to dilate upon the facts of this petition, as this petition can be decided on a short ground. There has been several innings between the parties. It has come on record that the landlords filed J.S.C.C. suit No. 419 of 1975 before Judge. Small Cause Court, Allahabad. True copy of the plaint has been annexed as Annexure 4 to the petition Nitai Lal Barua, admittedly, died after filing of the suit, but before filing of the written statement his legal representatives were brought on record.

Parties led evidence. Main thrust of the defendant-tenant was that registered notice u/s 106. Transfer of Property Act (for short called TPA) with the endorsement of refusal (line se inkar kiya) was not sufficient and the presumption of the service was not available to the plaintiff as the plaintiff failed to summon Postman to prove the service on the basis of this endorsement of refusal.

The Judge, Small Causes Court decreed the suit by means of the judgment and order dated 6th December, 1977 and allowed the reliefs claimed in the plaint (Annexure 6).

Feeling aggrieved, tenant-petitioner filed Revision No. 22 of 1978 before the Court of District Judge u/s 25, Provincial Small Causes Court Act, which was allowed and the matter was remanded back to the trial court vide judgment and order dated 28th March, 1978.

The Judge, Small Causes Court vide judgment and order dated 29th November, 1978 again decided the suit in favour of the plaintiff allowed the suit partly. The said judgment was again challenged by filing revision, which too was allowed and suit was decreed by the Revisional Court exercising jurisdiction u/s 25, Provincial Small Causes Courts Act.

Feeling aggrieved, tenant-petitioner filed writ petition in this Court, which was allowed and the matter as again remanded back for decision afresh vide judgment and order dated 5th September, 1984 (Annexure 10).

The Judge, Small Causes Court in view of the directions contained in the remand order stated above, vide judgment and order dated 16th January, 1986 allowed the suit and granted relief in favour of the plaintiff-respondent Nos. 3 & 4. The tenant-petitioner being aggrieved again filed SCC Revision No. 115 of 1986 (Annexure 12 to the petition), which has been dismissed. The Revisional Court has concurred by the findings recorded in its judgment (Annexure 11).

Present petition has been filed under Article 226, Constitution of India praying for issuance of writ of certiorari quash impugned judgment and orders dated 16th January, 1986 and 17th November, 1990 (Annexures 11 & 12) passed by respondent nos. 1 and 2 respectively.

The legal grounds for challenging the said orders are contained in Paragraph 22 of the writ petition.

Ground (a) in the petition is based on the surmise that onus to prove the service of notice is upon the plaintiff. It may be mentioned that the petitioner has confused between concept of burden to prove on the one hand and (sic) on the other hand. Parties have pleaded and led evidence being fully aware of the controversy involved. The onus loses significance. A perusal of the judgment shows that no such argument was raised before the Revisional Court regarding the discharge of onus or the burden. A perusal of the judgment shows that parties had led evidence. The burden to prove service of the notice. Undisputedly, lay upon the plaintiff. The two Courts below after appreciating evidence on record have recorded findings of fact that plaintiff succeeded in proving notice.

Ground (B) in the petition is founded on the argument that Postman of Beat No. 14 has not been examined. Perusal of the judgment shows and learned Counsel for the petitioner has not disputed that one Postman Brij Lal was examined, who was responsible for delivering letters of Beat No. 4 within whose area the premises in question was situate. It has also come on record all possible efforts were made by the plaintiff to summon record from the department concerned, but it as reported that original record was weeded out or not available and it could not be ascertained as to who was the Postman responsible to deliver the letter at the redirected address, namely, at the office of N.I.P. The Courts below have considered various aspects and also the case law on the point and held that notice was duly proved. The petitioners have not filed the statement of Brij Lal. P.W. 2 for perusal of this Court whether even a suggestion was made contrary to what is being asserted by the tenant-petitioner, in the absence of his statement or any other material not being filed with the writ petition, it is not possible for this Court to assume evidence and find fault with the concurrent findings recorded by the Courts below.

There is another aspect of the matter. A person having died and it being an impossibility to produce said Postman of Beat No. 14 it cannot be said that plaintiff had failed in discharging his onus. Statement of Brij Lal on relevant issues is sufficient, particularly when plaintiff had failed to point out any irregularity or any attending circumstances to show that letter was not sent for being served at the office of N.I.P. in due course of business as required under law or relevant Government Orders. Thus it will be presumed that letter was duly taken and sought to be served at the N.I.P. Office to the addressee. While writ petition was pending a supplementary affidavit has been filed. Paragraphs 3 and 4 of the said supplementary affidavit show that an effort is being made now to challenge the endorsement of refusal by Nitai Lal Barua. It was taken by the Postman of Beat No. 4 at N.I.P office on the ground that there was no person in the office of N.I.P. by the name of Nitai Lal Barua. While making an attempt to develop this lien of argument, petitioners forget that it has already come on record that letter was redirected from Beat No. 4 to Beat No. 14 on the information tendered by the family members of Nitai Lal Barua that he will be available at N.I.P. office. This statement of Brij Lal not having been controverted, there is no reason to disbelieve that letter was not taken to N.I.P. Now the averments made in the supplementary affidavit that said Nitai Lal Barua was having another name, namely, P.W.D Cruz. On the statement contained in the said Supplementary Affidavit there remains no doubt that said Nitai Lal Barua had another name, i.e. alias P.W.D''s Cruz. There is nothing on record to show that the alias name of Nitai Lal Barua was not known in his N.I.P. Office. There is nothing on record to show that Postman was not directed to deliver letter at N.I.P. Office. In that view of the matter, petitioners cannot be allowed to raise new plea founded on new material in the present writ petition under Article 226 Constitution of India.

Ground (C) of the plaintiff relates to the plea of res judicata in view of the disposal of earlier J S.C.C. Trial Court had framed issue No. 8 on the said point. Finding of the Judge Small Causes Court on Issue No. 8 reads thus:

It has not been shown as to how the suit is barred by res judicata. This issue is decided in the negative.

Memorandum of S.C.C Suit No. 115 of 1986 has not been filed to show that the said finding was challenged before the Revisional Court. There is no mention in the judgment of the Revisional Court (Annexure 12) that said plea was raised before it. The defendant having failed to raise the said plea before the Revisional Court cannot be permitted to raise the same in writ jurisdiction.

Grounds (D) and (E) require no consideration as the same need re-appreciation of evidence, which is not possible, particularly when no good ground has been made for the same.

On behalf of respondents reliance has been placed on the following decisions:

1970 ALJ 337 (FB)

1984(2) ARC 290 (DB) (Paragraph 10)

1994 (2) ARC 512 (Paragraph 5)

(sic) 1989 SC 630.

Perusal of the said decisions show that legal position is fully crystallized. No postman is required to be produced and a presumption is raised, in law, in case a registered letter is received back with the endorsement of refusal provided it was sent on correct address and in the name of correct person.

In the instant case as noted above, there is no dispute, whatsoever, that Nitai Lal Barua was employed in (sic) Nitai Lal is however, not at all material that he was having different names, particularly when there is no material to show that there was any confusion when the Postman went to serve the said letter. As already pointed out the petitioners have not filed relevant copy of the evidence for the perusal of this Court to throw light on this aspect. The concurrent findings of fact recorded by the two Courts below do not suffer from manifest error apparent on the face of record requiring interference by this Court under Article 226 Constitution of India in writ jurisdiction.

Writ petition accordingly fails and is therefore dismissed.

No other point has been raised and pressed.

Learned counsel for the petitioner Sri Rakesh Harsh Srivastava, Advocate, after consulting his clients has stated before this Court today that his clients have authorised him to give an undertaking on behalf of his clients that the petitioners may not be dispossessed from the accommodation in question on the condition that they shall hand over peaceful vacant possession to the landlord on or before 31st March, 2000 and they are prepared to give an undertaking in writing and other conditions, which may be imposed by this Court.

In view of the above, I direct that petitioners may not be evicted/dispossessed on the basis of impugned judgment till 31st March, 2000.

The tenant-petitioners file before concerned Prescribed Authority, oh or before 31st August, 1999, an application along with his affidavit giving an unconditional undertaking to comply with the conditions mentioned hereinafter.

Petitioner-tenant shall not be evicted from the accommodation in his tenancy for eight months i.e. upto 31st March, 2000. Tenant-petitioned his representative/assignee etc. claiming through him or otherwise, if any, shall vacate without objection and peacefully deliver vacant possession of the accommodation in question on or before 31st March, 2000 to the landlords'' nominee/representative (if any appointed and intimated by the landlord) by giving prior advance notice and notifying to the landlord by Registered A.D. post (on his last known address or as may be disclosed in advance by the landlord in writing before the concerned Prescribed Authority, time and date on which landlord is to take possession from the tenant.

Petitioners shall on or before 31st August, 1999 deposit entire amount due towards rent etc. upto date i.e. entire arrears of the, past, if any, as well as the rent for the period ending on the 31st March, 2000.

Petitioners and everyone claiming under them undertake not to ''change'' or damage'' or transfer/alienate/assign in any manner, the accommodation in question.

In case tenant-petitioners fail to comply with any of the conditions or directions contained in this order, landlord shall be entitled to evict the tenant-petitioners forthwith from the accommodation in question by peeking police force through concerned Prescribed Authority.

Defaulting party shall pay Rs. 25,000/- (Rupees Twenty five thousand only) as damages to the other party if there is violation of the undertaking or any one or more of the conditions contained in this order.