- (1.) S. U. Khan, J. At the time of hearing no one appeared for contest ing respondent hence only the arguments of learned Counsel for petitioner were heard. This is landlord's writ petition.
(2.) PROPERTY in dispute is one room with attached latrine bath room, rent is Rs. 46/- per month and Rs. 6/- per month is payable as water tax. Landlord filed S. C. C. suit No. 283 of 1990 against tenant respondent No. 2, Santosh Kumar Srivastava. JSCC (II) Kanpur Nagar decreed the suit for eviction and arrears of rent through judgment and decree dated 18. 9. 1995 against which S. C. C. Revi-sion No. 175 of 1995 was filed which was allowed by Xth A. D. J. , Kanpur Nagar through judgment and order dated 02. 09. 1998. Revisional Court set aside the judgment and decree passed by the trial Court and dismissed the suit of the plaintiffs. The said judgment of the Revisional Court is challenged through this writ petition. The argument of learned Counsel for the tenant before the lower Revisional Court was that firstly, notice of termination of tenancy and demand of rent was not served upon the tenant and secondly, even if service was presumed, entire rent was deposited under Section 30 of U. P. Act No. 13 of 1972 by the tenant within one month from service of notice. Plaintiff stated that notice was served on 14. 3. 1990. Lower Revisional Court decided both the points in favour of the tenant. I will consider the second point first. Lower Revisional Court held that within one month from date of receipt of notice, tenant deposited the rent under Section 30 of U. P. Act No. 13 of 1972 before the Court of Munsif. The deposit was made on 6. 4. 1990 which was for the period from 1. 4. 1988 to 31. 1. 1989, second deposit was made on 13. 4. 1990 which was from 1. 1. 1989 to 31. 3. 1990. After receiving notice tenant was not at all justified in depositing the rent under Section 30 vide Gokaran Singh v. 1st Additional District and Sessions Judge, Hardoi and others, 2000 (1) ARC 653. Moreover in the suit giving rise to the instant writ petition no money order receipt and coupon containing denial of acceptance of rent by the landlord was filed. The lower Revisional Court held that as Munsif had permitted to make de posit hence deposit was bound to be accepted. In this regard also the lower Revisional Court was not right. In the suit filed on the ground of default, it has to be proved by the tenant that landlord refused to accept the rent and thereupon he deposited the same under Section 30 of the Act. This fact is to be independently proved. The order of Munsif permitting the tenant to deposit rent is not sufficient to prove the said fact vide AIR 1986 SC 1645, Maiku v. Vilayat Hussain through LRs.
(3.) AS far as service of notice is concerned, landlord filed carbon copy of letter issued by Chief Post Master, Kanpur regarding service of notice. According to the said letter registry No. 4959 dated 5. 3. 1990 was given to the addressee on 14. 3. 1990. Copy of notice was also filed by the landlord. In the said copy two addresses of the tenant were mentioned, one was residential and other was of the place where tenant was doing service. The letter of Chief Post Master, Kanpur related to the registry sent on the office address of the tenant. The lower Revisional Court on the basis of surmises held that there was possibility that the receipt clerk of the office in which tenant was working (Leyland Central Workshop Rawatpur), may have received the notice and not given the same to the tenant. The lower Revisional Court only held that there was possibility that tenant may not have received the notide. Registered notices were sent on the correct addresses. Thereafter there is always the presumption of service. Accordingly, the view of the Revisional Court on both the points is patently erroneous in law.;