- (1.) By means of this writ petition the petitioner has challenged the decree passed by the Judge, Court of Small Causes dated July 24, 1976 and the decree passed in revision by the IInd Additional District Judge, Moradabad dated August, 27, 1980.
(2.) The respondent No. 3 brought a suit against the petitioner in the Court of the Small Causes, Moradabad seeking the relief of eviction besides arrears of rent and damages for use and occupation with the allegations the petitioner has been tenant of the building in question and that he had made default in payment of rent. Despite the service of notice, it was contended that the rent due had not been paid or tendered within the prescribed period by the tenant. The tenant had, therefore, incurred liability for being evicted as envisaged under Section 20(2)(a) of the U.P. Urban Buildings (Regulation of Letting . Rent and Eviction) Act, 1972. In defence it was asserted that the notice referred to by the respondent No. 3 had not been served and hence there was no default incurred by the tenant nor was he liable to eviction. Both the Courts below found that the service of notice had been duly effected by refusal on the part of the petitioner and thus he was liable to be evicted. The suit was accordingly decreed by the trial Court and the revision filed against the same by the petitioner also failed.
(3.) Learned counsel for the petition has urged that assuming that the notice under registered cover was served upon the petitioner in the manner averred by the respondent No. 3 and found by the Courts below, there can be no presumption raised to the effect that on this account the petitioner became aware of the contents of the envelop contained the impugned notice. The argument advanced is that there was no actual service upon the petitioner in the sense that he did not take delivery of the envelop contained the said notice. The service of notice has been presumed on the basis that the same was tendered to him and he refused to accept the delivery as was also endorsed by the concerned Postman on the envelop. In this behalf it is submitted that there should be no presumption raised as to the knowledge of the petitioner with respect to the contents of the envelop. The submission thus made is unacceptable and the question raised stands concluded by the majority view taken in the case of Har Charan Singh v. Shiv Rani and others, 1981 AIR(SC) 1284. In the case the precise argument advanced before the Supreme Court also was that there could be no presumption of knowledge with respect to the contents of the notice. In such circumstances, the Majority speaking though Mr. Tulzapukar, J. observed that in view of the provisions contained in Section 27 of the General Clauses Act, 1897 and Section 114(f) of the Evidence Act it is obvious that when these provisions raised the presumption that the service shall be deemed to have been affected it means the addressee to whom the communication is sent must be taken to have known the contents of the document sought to be served upon him without anything more. The presumption thus arising is rebuttable no doubt but in the instant case both the Courts below have found that there is no valid ground to disagree with this part of the finding namely, that the presumption with respect to the service of the notice by the refusal has not been rebutted from the side of the petitioner. The majority view taken by the Supreme Court is binding on this Court.;