# Roshan Lal Malhotra v. Raj Bahadur

- **Citation:** (2005) 1 ILRA 339
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-09-08
- **Case number:** Civil Misc. Writ Petition No. 28938 of 2004
- **Bench:** Anjani Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/roshan-lal-malhotra-v-raj-bahadur-40448
- **Pages:** 4

## Headnote

Sri B. Dayal

U.P.
Urban
Building
(Regulation
of
letting Rent & Eviction) Act 1972-Section
21
(1)
(a)-readwith-Code
of
Civil
Procedure Order IX rule 13 read with
section
151
C.P.C.-Presumption
regarding service of summons- refusal
by tenant/petitioner disputing the note
of refusal-it was incumbent upon the
prescribed authority to record specific
finding asking the land lord to produce
the post man- order to proceed ex parteliable to quashed-matter remanded back
to decide in accordance with law after
affording opportunity of hearing.

Held- Para 2

The prescribed authority by the order
impugned
found
that
from
the
endorsement
of
the
refusal,
it
is
presumed that the service of summons is
sufficient and proceeded to decide the
matter ex parte. It is further submitted
that the presumption of service of
summons refusing by the petitionertenant is rebutable presumption and
once the petitioner-tenant has put in
appearance denying the allegations that
he has ever been served and that the
note of refusal has been manipulated,
therefore it was incumbent upon the
prescribed authority to have recorded a
finding by asking the land lord to
produce the postman concerned as held
by this Court
Case law discussed:
AIR 1981 Alld-2008 (relied on)
AIR 1980 Alld-280 (relied on)
1978 ARC-496- (relied on)

## Text

1 All] Roshan Lal Malhotra V. Raj Bahadur
339
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD: 7.3.2005

BEFORE
THE HON'BLE ANJANI KUMAR, J.

Civil Misc. Writ Petition No. 28938 of 2004

Roshan Lal Malhotra

...Petitioner
Versus
Raj Bahadur

 ...Respondent

Counsel for the Petitioner:
Sri N.C. Rajvanshi,
Sri M.K. Rajvanshi

Counsel for the Respondent:
Sri B. Dayal

U.P.
Urban
Building
(Regulation
of
letting Rent & Eviction) Act 1972-Section
21
(1)
(a)-readwith-Code
of
Civil
Procedure Order IX rule 13 read with
section
151
C.P.C.-Presumption
regarding service of summons- refusal
by tenant/petitioner disputing the note
of refusal-it was incumbent upon the
prescribed authority to record specific
finding asking the land lord to produce
the post man- order to proceed ex parteliable to quashed-matter remanded back
to decide in accordance with law after
affording opportunity of hearing.

Held- Para 2

The prescribed authority by the order
impugned
found
that
from
the
endorsement
of
the
refusal,
it
is
presumed that the service of summons is
sufficient and proceeded to decide the
matter ex parte. It is further submitted
that the presumption of service of
summons refusing by the petitionertenant is rebutable presumption and
once the petitioner-tenant has put in
appearance denying the allegations that
he has ever been served and that the
note of refusal has been manipulated,
therefore it was incumbent upon the
prescribed authority to have recorded a
finding by asking the land lord to
produce the postman concerned as held
by this Court
Case law discussed:
AIR 1981 Alld-2008 (relied on)
AIR 1980 Alld-280 (relied on)
1978 ARC-496- (relied on)

(Delivered by Hon'ble Anjani Kumar, J.)

1. This writ petition under Article
226 of the Constitution of India filed by
the tenant-petitioner is directed against
the orders dated 8th September, 2003 and
23rd July, 2004, passed by the prescribed
authority under the provisions of the U.P.
Act No. XII of 1972 (In short 'the Act'),
copies whereof are annexed as Annexure
Nos. '2' and '7', respectively to the writ
petition.

2. The facts leading to the filing of
the present writ petition are that the
petitioner in this petition is the tenant and
the respondent is the land lord of the
accommodation in dispute. On 18th
November, 2002 an application has been
filed by the land lord- respondent
purporting to be an application under
Section 21 (1) (a) of the Act for release of
the accommodation in dispute in favour of
the land lord. The prescribed authority
vide its order dated 15th February, 2003
held that the service of summons of the
aforesaid application for release of the
accommodation filed by the land lord is
sufficient and directed the case to be
proceeded ex parte. On 8th September,
2003, the prescribed authority allowed the
release application ex parte filed by the
land lord and directed release of the
accommodation in dispute in favour of the
land lord. The petitioner-tenant for the
first time when came to know of the
aforesaid proceedings on 23rd January,
340 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
2004, filed an application under Rule 22
(b) of U.P. Urban Building (Regulation of
Letting Rent & Eviction) Rules, 1972,
read with Section 151 and Order IX Rule
13 of the Code of Civil Procedure. In the
present application filed by the tenant,
which was supported by an affidavit, he
ha categorically stated that he came to
know of the pendency of the aforesaid
release application only on 23rd January
2004. He further stated that the tenantpetitioner has never been served with any
notice of the release application filed by
the land lord and it is wholly incorrect to
say that the opposite party ever met with
any process server of the Court with
regard to service of summons of the
aforesaid release application. It is also
incorrect to say that the tenant-petitioner
has received any registered notice send by
the Court in present release application
pending before the prescribed authority,
therefore
there
is
no
question
of
petitioner's refusing to receive any
summons
sent
by
the
Court.
The
petitioner-tenant further stated that in fact
with the collusion of postman and the
opposite party-land lord it appears that a
forged report regarding service of the
registered letters/notice were manipulated
on the basis of which the prescribed
authority has presumed the service of
summons to be sufficient, whereas in fact
the notice has never been served upon the
petitioner-tenant. The prescribed authority
by the order impugned found that from
the endorsement of the refusal, it is
presumed that the service of summons is
sufficient and proceeded to decide the
matter ex parte. It is further submitted that
the presumption of service of summons
refusing
by
the
petitioner-tenant
is
rebutable presumption and once the
petitioner-tenant has put in appearance
denying the allegations that he has ever
been served and that the note of refusal
has been manipulated, therefore it was
incumbent upon the prescribed authority
to have recorded a finding by asking the
land lord to produce the postman
concerned as held by this Court. In
support of his contention, learned counsel
appearing on behalf of the petitionertenant relied upon the case reported in
AIR 1981 Allahabad, 208 Gur Bachan
Singh Vs. Dharam Samaj Society,
particularly paragraph 11, which is
reproduced below :

"11. The crucial question which thus
arises in the present case now is as to
whether in the state of evidence which
exists on the record the defendant can be
said to have rebutted the presumption
which had been raised against him. The
defendant in the present case stated on
oath that the postman has not served the
notice on him. He has not at all been
cross-examined on the aforesaid point by
the plaintiff. The plaintiff's only witness
has made a statement that he had not
accompanied the postman. The only thing
which the plaintiff has been sent to the
correct address of the defendant. The
contention of the plaintiff's counsel that
the defendant should have cross examined
the plaintiff on the aforesaid question and
should have also produced the postman,
in my opinion, is without any force. The
plaintiff himself had not accompanied the
postman for effecting the service and thus
there was no question of cross-examining
the plaintiff on that question. The
postman had made an endorsement of
refusal on the notice and the defendant
would not call a witness who was going to
depose against him. It was for the
plaintiff, in case he wanted to produce
better evidence to produce the postman in
evidence in order to believe the version of
1 All] Roshan Lal Malhotra V. Raj Bahadur
341
the defendant that he was not served. On
similar facts this Court in the case of Shiv
Dutt Singh v. Ram Dass, (1980 All LR
457): (AIR 1980All, 280), held:-

"In the instant case the defendant
clearly gave out that the postman never
came to him to offer this notice nor he
refused to take it. Nothing was elicited in
cross-examination to show that he was not
telling the truth. He could not have
examined the postman as he would not
have
deposed
against
his
own
endorsement and more so if it was done to
oblige the plaintiff. The defendant could
not have produced any other witness as
that would have been stamped as got up
evidence. As a party to the suit, having
knowledge of the facts, he was bound to
examine
himself
otherwise
another
presumption would have been raised
against him. Therefore, the presumption
of service in the circumstances of this
case was amply rebutted by the solitary
statement and the suit was bad for ant of
notice."

Similar view has been taken by this
Court in Hub Lal v. Bhudeo Prasad
Sharma (1980 All LJ 437); Amar Nath v.
Smt. Champa Devi (1978 All LR 90),
Ram Nekshatra v. Girdhar Das Kashya
(1979 UP RCC 5) and also by the Delhi
High Court in Jagat Ram Khullar v. Battu
Mal (AIR 1976 Delhi, 111). In my
opinion in the present case the defendant
rebutted the presumption of service of
notice against him by examining himself
and deposing that the postman never
served a notice on him. His testimony was
not challenged by the plaintiff in the cross
examination. The plaintiff did not produce
the postman or any other evidence to
show that the defendant was not deposing
the truth and that notice had, in fact, been
served on him. The plaintiff having failed
to prove that he had served notice of
termination of tenancy under Section 106
of the T.P. Act on the defendant, the
plaintiff's suit was liable to be dismissed
on this ground alone."

3. Learned counsel appearing on
behalf of the tenant-petitioner further
relied upon a decision reported in AIR
1980 Allahabad, 280 Shiv Dutt Singh Vs.
Ram Dass, wherein paragraph 10 relied
upon by learned counsel for the tenant is
reproduced below:

"10. In Jagat Ram Khullar V. Battu
Mal (AIR 1976 Delhi,111) it was
observed that a statement of the
addressee on oath that the postal cover
said to have been refused by him, was
never tendered to him would be sufficient
to dislodge the presumption and shift the
onus on the other side to establish by
evidence that the service had been duly
effected. It is, therefore, not possible to
accept the contention that the bare
statement on oath of the addressee in such
a case would not, as a mater of law, be
sufficient to dislodge the presumption that
may be raised either under S. 114 of the
Evidence Act or under S. 27 of the
General clauses act. A statement on oath
of a party to the proceedings is a piece of
oral evidence like statement of any other
witnesses- and there is no rule of law that
such a statement should not be accepted
merely because it is made by a person
who is interested in the proceedings nor is
there any requirement of law that the
statement on oath of a party to the
proceedings must always be corroborated
by any independent evidence before it
could be accepted b court of law. Once
the presumption is raised the matter of
rebuttal need not be limited to the
342 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
instance given in the counter illustration
to S. 114".

4. It is further submitted by learned
counsel appearing on behalf of the tenantpetitioner that the petitioner having
discharged his burden by making a
statement that the service of summons has
in fact never been done and that he has
never refused to receive the registered
letters/summon and further that the said
refusal has been manipulated. In view of
the law laid down, referred to above, the
order to proceed ex parte by the
prescribed authority is liable to be set
aside. Learned counsel for the tenantpetitioner further relied upon a decision of
the apex court reported in 1978 ARC, 496
Ramji Dass and others vs. Mohan Singh,
wherein the apex court has held as under:-

"...After having heard counsel, we
are inclined to the view that, as far as
possible, Court's discretion should be
exercised in favour of hearing and not to
shut out hearing. Therefore, we think that
the order of the High Court should not
have been passed in the interests of justice
which always informs the power under S.
115 C.P.C. We, therefore, set aside that
order and also the ex parte decree. We
direct the trial court to take back the suit
on file and proceed forthwith to trial."

5. In view of what has been stated
above, the orders passed by the prescribed
authority impugned in the present writ
petition dated 8th September, 2003 and
15th February, 2003 deserves to be
quashed. The matter now will go to the
prescribed authority to be decided in
accordance with law after affording an
opportunity of hearing to the tenantpetitioner.

6. In the result, the writ petition
succeeds and is allowed. The order dated
8th September, 2003, passed by the
prescribed authority, Annexure-2 to the
writ petition and the order dated 15th
February, 2003, is quashed. The matter
now will go back to the prescribed
authority to be decided in accordance with
law after affording an opportunity of
hearing to the tenant-petitioner. Since the
matter is old, the prescribed authority is
directed to decide the application filed by
the land lord -respondent for release of
the accommodation in dispute within a
period of sic months' from the ate of
presentation of a certified copy of this
order before him.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD: 24.2.2005

BEFORE
THE HON'BLE AJOY NATH RAY, C.J.
THE HON'BLE ASHOK BHUSHAN, J.

Special Appeal No. 86 of 2005

Vijay Bhan Singh Kasana
...Petitioner
Versus
The State of U.P. & others ...Respondents

Counsel for the Petitioner:
Sri Mithilesh Kumar Tiwari

Counsel for the Respondents:
S.C.

Constitution
of
India-
Article
226-
Cancellation of appointment- Petitioner
selected as Constable in P.A.C.-false
declaration concealing involvement in
Criminal proceeding- within 3 days of
first declaration given-another affidavit
disclosing criminal cases- cancellation of
appointment held- proper- Single Judge
rightly not exercised discrianary power.