Sri Naresh Sethi vs Smt. Rajkumari
2021 Latest Caselaw 468 UK

     IN THE HIGH COURT OF UTTARAKHAND AT
                    NAINITAL

               Civil Revision No.57 of 2013

Sri Naresh Sethi S/o Late Sri Jai Karan Dass Sethi, R/o
156-B Rajpur Road, Dehradun second address Sethi
Motor Transport, Near Prince Chowk, Haridwar Road,
Dehradun                                ..... Revisionist

                                  Vs.

Smt. Rajkumari W/o Late (Lala) Sumer Chand R/o 158
Rajpur Road, Dehradun                .....Respondent


Mr. Hari Mohan Bhatia, Advocate for the revisionist
Mr. Piyush Garg, Advocate for the respondent



                            JUDGMENT

Hon'ble Sharad Kumar Sharma, J. (Oral)

The revisionist/tenant has approached this Court, exercising the revisional jurisdiction under Section 25 of The Provincial Small Cause Courts Act of 1887, whereby he has questioned the impugned judgment, as had been rendered, by the court of 4th Additional District Judge/Judge, SCC on 22.05.2013, by virtue of which, the SCC suit no.05 of 2003, as was preferred by the landlord/respondent was decreed, and as a consequence thereto, the effect of the judgment and decree, was that the revisionist was directed to vacate the disputed premises and to handover the vacant and peaceful possession, along with the arrears of rent and the damages at the rate as directed therein in the judgment of 22.05.2013.

2. The brief facts, which emerges for consideration in the present SCC revision are that the landlord is shown to have issued a notices under Section 106 of the Transfer of Property Act, 1882, whereby the landlord had expressed her intention of terminating the tenancy of the revisionist/tenant from the tenement in question, which constitutes to be the part of and the portion of the property, which was then bearing municipal no.156-B, Rajpur Road, Dehradun. In response to the notice, which was sent by the landlord, thereby terminating the tenancy, a reply was submitted by the revisionist, through his counsel, denying the contents of the notice on the pretext that the provisions of U.P. Act No.13 of 1972; are not applicable over the tenement in question, on the premise that since the rent itself, which the tenement carried, is ` 2,000/- per month.

3. The proceedings before the Judge, SCC, after service of notice, was taken up by the learned court of 5th Additional District Judge, and on considering the written statement as was filed by the defendant/revisionist, herein i.e. paper no.27-C, wherein according to the pleadings, raised therein and which has been dealt with, by the learned trial court, it was observed that the rent of the tenement was ` 2,500/- per month apart from taxes and other municipal dues which were payable on it, which were in exclusion of the rent which was due to be paid towards the tenement in question. This fact also stands substantiated from the response which was filed by the revisionist/defendant, to the notice wherein the taxes

were observed to be, apart from the rent, which was settled to be paid for the tenement in question.

4. In response to the written statement paper no.27-C, the additional plea, was also raised by the revisionist/defendant with regards to the effect of receipt of the rent, which was received by the respondent/landlord on 13.09.2003 and the balance amount, as referred therein in para 16. In response to the written statement, the landlord/respondent had filed a replication i.e. paper no.29C (1-10), reiterating the fact, that the aspect pertaining to the remittance of the rent and whether it would be inclusive of the other taxes and dues, to be paid on the rent of the tenement in question for the purposes of excluding the applicability of U.P. Act No.13 of 1972, itself runs contrary to the evidence, which was placed on record by the revisionist herein, in support of his contention. The parties to the proceedings of the suit, had led their respective evidences by filing the list of documents being paper no.7Ga by the plaintiff/respondent and list of documents which were supplied by the defendant/revisionist herein; through list no.62C and 81C.

5. On exchange of pleadings, the learned trial court has framed the points of determination on 24.07.2012, which is referred to hereunder:-

(i) Whether the defendant has committed default in payment of rents and taxes as mentioned in para 3 of the plaint? If so, its effect.

(ii) Whether the provisions of U.P. Act No. XIII of 1972 are not applicable to the property in suit? If so, its effect.

(iii) Whether the taxes are included in the rent?

(iv) Whether the notice upon the defendant was validly served? If so, then effect and if not so, then effect?

(v) Whether the plaintiff is entitled to mesne profit? If so, at what rate?

(vi) Whether the defendant has paid a sum of Rs.

20000.00 to the plaintiff as mentioned in para 16 of the written statement? If so, its effect.

(vii) Whether the defendant is entitled to set-off as claimed?

(viii) Whether the defendant is entitled to the benefit of section 20(4) of U.P. Act XIII of 1972?

(ix) To what relief, if any, is the plaintiff entitled to?

(x) To what relief if any, is the defendant entitled to?

6. The learned trial court, after appreciating the evidence on record and the rival contentions, which has been raised by the parties, had decreed the SCC suit and, hence the present revision has been preferred before this Court, and in the revision herein, the counsel for the revisionist has confined his arguments from three major perspectives;

first with regards to the impact of the service of notice on him on 25.12.2002 by virtue of an affixation;

second aspect which has been argued, is whether the provisions of U.P. Act No.13 of 1972 would be applicable or not, in order to oust the jurisdiction of SCC Court; and third aspect, which was argued was with regards to the settlement of mesne profit @ 3,000/- per month, which was payable w.e.f. 25.01.2003. Besides this, no other argument was pressed, by the revisionist counsel.

7. When the SCC revision was filed before this court on 12.6.2013, the same was taken up on 13.06.2013, the same was admitted and an interim order was granted initially subject to certain riders which were attached to it, by the interim order, which was passed on 13.06.2013, but later on, during its pendency, the revisionist had moved an application being Miscellaneous Application No.12731 of 2020, whereby in the application, certain facts were narrated therein to the effect that taking advantage of the revisionist tenant, being out of station, it was alleged by the revisionist that the tenement in question was forcibly occupied by the landlord/respondent, in view of the facts as had been narrated in his application, as referred aforesaid. As far as the aspects, which were pleaded in the application dated 17.12.2020, is concerned, one fact which is admittedly quite apparent is that the revisionist, as per the averments made in the application, filed by him, he is not in possession of the tenement in question at all. With regards to act and the mode of the forceful eviction, as the allegation has been levelled by the revisionist herein, would be

altogether a subject matter, which had been alien to the present revision and which cannot be taken into consideration for the first time under Section 25 of the Act, because it would be entailing an appreciation of evidence, which cannot be invoked by virtue of filing of an interim application. Hence, the said plea is not being considered by this Court, in the present writ petition at this stage.

8. Reverting back to the questions, which were argued by the counsel for the revisionist, as far as the argument extended by the revisionist counsel, pertaining to the service of notice, which the defendant, has contended that it was not validly served upon him, was already an aspect which was a subject matter of the consideration in (2012) 2 UAD 780 Girwar alias Ghanshyam vs. Vishwakarma Pracheen Mandir Samiti (registered), though under the supervisory jurisdiction under Article 227 of the Constitution of India, but the finding which has been recorded is with regards to the evidence of service of notice in the light of the provisions contained under Section 27 of the General Clauses Act read to be with Section 114 of the Evidence Act, it was dealt with by the Court and a presumption of service of notice was drawn in view of the finding recorded in paragraph 13 and 14 of the said judgment, which has been referred to hereunder, where it had been observed, in the light of the judgment of the Allahabad High Court as reported in [2008 (70) AKR 61] "Rajendra Kumar vs. Sanatan Dharma Intermediate College Sadar Meerut Cantt. Through its Manager", that if a registered notice

is returned with an endorsement "not met", it would be deemed to be an effective service of notice. An identical finding has been recorded with regards to the implications of a service of notice by extracting the impact of Section 27 of the General Clauses Act in para-14 of the judgment, which is referred to hereunder:-

"14. In the case at hand, the learned revisional court has recorded a categorical finding that on the back of envelope endorsement is made 'not met'. The Postman visited the house on 14.3.2002, 15.3.2002, 16.3.2002, 18.3.2002, 19.3.2002 and 20.3.2002 and has also made endorsement on 21.3.2002 to this effect that the recipient does not meet and after intimation also he did not come take the envelope. The revisional court came to the conclusion that the Postman visited again and again to the address of the defendant but he avoided to take delivery of the envelope. The defendant also did not adduce concrete evidence on the basis of which it can be said that the Postman had not visited on the given address and the defendant was not residing on the given address. The defendant was also given intimation by the Postman but despite this he did not come to receive the envelope. Therefore, the presumption of service drawn by the revisional court U/S 27 of General Clauses Act and section 114 of Evidence Act, is perfectly justified.

9. In view of the logic, which has been assigned by the Coordinate Bench of this Court, in aforesaid paragraphs, I too concur with the reasoning given therein that once the notice is being sought to be

served upon and when the process server or, for that purposes, even the postal department approaches for the service of notice and the addressee is not made available at the place of address where the notices were expected to be served, a presumption of service has been extracted to be drawn in the light of the provisions contained under Section 27 of the Act, and hence, the first limb of argument, which was dealt with by the trial court, while deciding issue no.4, is answered against the revisionist.

10. Besides this, if the finding, which has been recorded on the issue no.4, is taken into consideration, in relation to the notice, the contents of said notice which was on record as paper no.89C, the fact that it was addressed to the defendant; and the fact that it was not returned; the presumption drawn in the light of the provisions contained u/s 27 of the General Clauses Act, cannot be said to be perverse, in any manner whatsoever, and hence said question raised by the counsel for the revisionist, is answered against him. This contention is also supported from the fact, that even if the statement, which has been recorded before the court below, is taken into consideration, the power of attorney holder, who was the son of the plaintiff, had deposed the fact of sending of the notice on the correct address, which was a fact, not denied by the defendant, by way of any suggestion or placement of a question in the cross-examination and the fact of cognizance of sending of notice was upheld. Furthermore, the defendant had not controverted the fact that on the date of service of notice, which was

made by the peon of the postal department, at the given address, he had not met the revisionist. Hence, the conclusion derived in para 34 of the judgment, which is under challenge in the present revision, affirms the fact that the notices sent was effectively served upon the defendant/revisionist.

11. The another question, which was argued by the counsel for the revisionist, pertaining to the aspect of the exclusion of applicability of U.P. Act NO.13 of 1972, which was a question formulated by the court below, by way of issue no.2, was on a premise that the rent which was payable for the tenement in question after inclusion of the taxes and other dues payable on it, then only that it crosses the cut-off limit of ` 2,000/- as contemplated under the exception clause of U.P. Act NO.13 of 1972, as contained under Section 2(1)(g) of the Act, this argument of the revisionist counsel is not acceptable and the logic and reason for the same, is that the counsel for the respondent/landlord, has submitted that the two documents, which were brought on record by way of an evidence i.e. rent receipts paper no.17Ga and 18Ga, which were relied by the defendant/revisionist as to be the documents, to show the actual remittance of rent, was showing an amount paid towards the rent, was exclusive of the taxes and hence the inference which would be drawn is that the rent payable for the tenement in question was outside the ambit and purview of Section 2(1)(g) of the U.P. Act No.13 of 1972 and, hence, the findings, which have been recorded by interpreting the provisions of U.P. Act No.13 of 1972, has been rightly determined by the

learned trial court, and even, I am in agreement with the same, for the reason, being that if the language of Section 7 of U.P. Act No.13 of 1972, itself is taken into consideration, where the aspect of determination of standard rent is taken into consideration, the taxes and other municipal dues, and the liability of its payment has been held to be in "addition to the rent due to be paid", that means the taxes and other dues will not fall to be part of the rent itself for the purposes of Section 2(1)(g) of the Act. The said finding and the logic, which has been given therein, is also to be determined from the rent receipts being paper no.35C and the secondary evidence which was adduced by the parties, before the court below, which had rather showed, that the rent which was payable towards the tenement in question was not falling within the exception clause of Section 2(1)(g), to apply the provisions of U.P. Act No.13 of 1972 and to make the SCC suit, as not tenable. Hence, this question also stands answered against the defendant revisionist.

12. Lastly, the determination of mesne profit @ ` 3,000/- per month w.e.f. 25.01.2003, which is also one of the questions, which has been raised by the counsel for the revisionist during the course of his argument, I am of the view that if the set of property, which was the subject matter of the proceedings of the SCC suit itself, is taken into consideration, being a property, which is situated at a prime location of Rajpur Road, Dehradun and where admittedly the fact of rent being ` 2,000/- is a fact which was even admitted in reply to the notice and was also established by the

documentary evidence, the determination of mesne profit @ ` 3,000/- per month, as it has been determined by the learned trial court, would be a just and an appropriate mesne profit, which has been directed to be levied apart from the damages, which has been imposed upon the revisionist.

13. In view of the above, I do not find any merit in the revision. The revision is dismissed accordingly.

(Sharad Kumar Sharma, J.) 25.02.2021 Rajni