A.P.RAVANI - (1.)Wanted a decree of eviction ? Get an endorsement of refusal on the registered postal envelope containing notice of demand of arrears of rent and the tenant will be evicted. Is this the position of law or will it be open to a tenant to rebut the presumptions of delivery of notice and or knowledge about the contents of notice arising against him on account of the endorsement of refused on the registered envelope ? This question has surfaced for decision in the background of the facts that follow.
(2.)The petitioner-original defendant of Regular Civil Suit No. 8 of 1976 of the Court of Civil Judge (JD) Bhanvad-Jamjodhpur has preferred this revision application. An ejectment suit was filed by the respondent-plaintiff inter alia on the ground that the defendant-tenant was in arrears of rent for a period of more than six months and that despite notice of demand he had not paid the arrears of rent. Therefore according to the plaintiff defendant-tenant being not ready and willing to pay the rent was liable to be evicted from the suit premises. The suit premises consist of one room osri kitchen and an open fali and the same is situated in village Bhanvad in Jamnagar district. The rent of the suit premises is Rs. 4 per month. It was alleged that the notice dated 23/01/1976 was sent by registered A. D. post and an amount of Rs. 392.00 as arrears of rent for a period of 98 months was demanded and the notice was refused on 27/01/1976 by the defendant. Thereafter on 9/03/1976 the suit was filed and the vacant possession of the suit premises was prayed for. The defendant appeared in the suit and resisted the same inter alia stating that he was residing in the premises for the last about 15 years. He specifically stated that he had not received the notice and he had never refused to accept the delivery of the notice. He also challenged the legality and validity of the notice. The defendant further challenged the title of the plaintiff and contended that the suit property was that of a religious Trust and the plaintiff had no right to give the notice nor had he any right to file the suit for ejectment of the suit premises.
(3.)It appears that during the pendency of the suit the original plaintiff died and his disciple has been brought on record and he continued the suit. After framing the issues and after recording the evidence the trial court came to the conclusion that the defendant-tenant was in arrears of rent and he was not ready and willing to pay the rent. Therefore the trial court passed a decree for eviction of the suit premises. Before the trial court issue as to whether the notice was properly served or not was not specifically raised but the parties were conscious about this fact. A specific issue regarding the legality and validity of the notice to the following effect was raised:
Whether the suit notice is legal and valid ? Both the parties have led evidence on the question as to whether the notice was properly served or not. The trial court also discussed this aspect of the matter. The plaintiff examined himself at Exh. 46 and also examined the Postal Peon at Exh. 50. The trial court accepted the evidence of the plaintiffs side and came to the conclusion that the notice was duly served and further held that the notice was legal and valid. The trial court negatived the contention urged by the defendant with the title of the plaintiff and held that the plaintiff had right to file the suit. The trial court decreed the suit of the plaintiff for Rs. 159.65 paise and further ordered the defendant to hand over the vacant possession of the suit premises within three months from the date of the decree. The judgment was pronounced by the trial court on 24/04/1978