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SMT. KALLO @ KALAWATI versus D.J. BADAUN AND ORS.

High Court of Judicature at Allahabad

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Smt. Kallo @ Kalawati v. D.J. Badaun And Ors. - WRIT - A No. 21095 of 1986 [2006] RD-AH 17410 (9 October 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Reserved

Civil Misc. Writ Petition No.21095 of 1986

Smt.Kallo alias Kalawati  Vs.District Judge and others

Hon. Sanjay Misra, J.

The petitioner is a tenant at a rent of Rs.60/- per month of the accommodation in dispute. The respondent landlord filed a suit no.29 of 1981 in the court of Judge Small Causes for eviction on the ground of arrears of rent. The suit was decreed on 3.5.1982 whereafter the petitioner filed a revision no.36 of 1982. The revisional court set aside the judgment of the trial court  and remanded  the matter. However, the revisional court held that the petitioner was not entitled  to the benefit of section 20(4) of the U.P.Urban Buildings (Regulation of Letting, Rent and Eviction )Act,1972 and the said issue was settled  finally. Upon remand the trial court decreed  the suit for eviction and arrears of rent by  the judgment and order dated 28.5.1985. The petitioner preferred a revision No.93 of 1985 which was dismissed by the judgment and order  dated 27.9.1986. The present  writ petition has been filed against the aforesaid orders.

Sri S.A. Shah learned counsel for the petitioner has confined his argument to the issue of notice which accordingly to him had not been proved to have been served on the petitioner. He has referred to the written statement filed by the tenant wherein it was alleged that no notice was given and the allegation of the landlord that the tenant had manipulated the postman's report was denied. It was alleged that the landlord had himself managed to get a report of the postman in collusion with him. To prove the said averments the statement of the petitioner has been referred to wherein he had deposed that he had not

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received any notice from the landlord nor he had refused to accept any such notice. It is contended that the statement  of one Mazhar Husain was recorded on behalf of the landlord. In this statement it was  admitted that he had gone alongwith the postman when the postman had gone to serve the notice on the petitioner. He has stated that the petitioner refused to accept the notice  from the postman in his presence and the postman made the report of refusal  on 29.11.1980 also in his presence. Contention of the learned counsel is that the finding recorded by the courts below is contrary to the evidence in as much as  it was conclusively proved that the report of the postman was obtained by the landlord and such admission of going alongwith the postman was sufficient to draw an inference. It is stated that once the burden of proof  shifted upon the landlord then he was required to discharge the burden regarding service of notice.

In support of his argument learned counsel for the petitioner has cited the decision of the Hon'ble Supreme Court in the case of  M/S Green View Radio Service Vs. Laxmi Bai Ramji reported in AIR 1990 SC 2156. The Hon'ble Supreme court has held that when the addressee as a witness states that he never received such letter and the acknowledgment 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. In that case the burden would shift on the plaintiff who wants to rely on such presumption. This rebuttal by the defendant would depend  on the veracity  of his statement.

In the present case, the landlords case is that he had sent one notice through his counsel bearing paper no.93Ga which was returned with report dated 29.11.1980 of the postman showing refusal by the petitioner. The second notice being paper no.95Ga dated 30.11.1980 was sent  by registered post at the correct address.  This notice also

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returned back with report of refusal. In the statement of Mazhar Husain he has stated that he was neither called by the postman  nor he

accompanied the postman for service of this second notice on the petitioner. The denial of the petitioner in the written statement and her statement relates to the first notice. Therefore, when the second notice was  also sent then the statement of denial made by the petitioner did not shift the burden  of proof on the landlords in as much as there was  no specific denial regarding service of second notice by refusal. Consequently,  when the statement and denial of the petitioner was itself vague the courts below  have doubted its veracity  and recorded  their findings against the petitioner.  The said findings cannot be held to be erroneous or not according to law. There is no merit in the above submission of learned counsel for the petitioner.

Lastly it has been submitted that since the petitioner is a very old tenant therefore she may be given sufficient time to vacate the premises. Learned counsel for the respondent landlord  Sri Manish Kumar Nigam has expressed his acceptance in case the petitioner is given not more than three months to vacate the premises.

In view of the aforesaid submissions this court finds that the petitioner has been a tenant for several decades and it would be in the interest of justice that she be given at least  three  months time to vacate the premises. In case the petitioner files an undertaking  before  the trial court to the effect that she will vacate the premises and handover its peaceful possession to the respondent landlord on or before 31st December 2006 and deposits the entire arrears of rent uptill then in advance at the rate of Rs.60/- per month with the trial court, within a period of three weeks from today then the petitioner shall not be evicted till then. In case of failure of any of the aforesaid conditions, the respondent landlord shall be at liberty to evict her in accordance with law forthwith.

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The writ petition lacks merits and is dismissed. No order is passed as to costs.

October 9,_2006

Gc.


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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