High Court · 2025

affirming the said judgment and decree. Petitioners have also questioned the order dated 30th September, 2022, whereby Judge Small Causes Court decided issue No.- 2 in favour of the landlord- respondents.

3. Two fold arguments have been advanced by Mr. Arvind Srivastava, learned counsel for the petitioners: firstly, that no service of notice was ever affected upon the defendant - petitioner; and secondly, the plaintiff failed to discharge the burden qua factum of service of notice so as to maintain the suit for eviction.

4. In support of his submissions so advanced as above, Mr. Srivastava, learned counsel for the petitioners has taken the Court to the document of notice which according to him, was addressed to one Qureshi Mistri whereas the name of tenant petitioner was Mohd Shareef Qureshi inasmuch as the address given on the envelop of the notice was only Mohalla- Itwariganj, District - Jhansi, whereas the correct address was House No.- 163, Itwariganj District Jhansi.

5. It is submitted that in the plaint the name also was written as Qureshi Mistri which came to be subsequently amended as Mohd. Shareef Qureshi but there was no such order available on record which may have allowed such an amendment. Thus, according to Mr. Srivastava, the burden lay heavily upon the plaintiff to prove that notice got delivered at the correct address and to the addressee to render it as an effective service of notice.

6. It is next submitted that notice was claimed to be served on 8th December, 1982 and the suit came to be instituted on 6th January, 1983, which also showed that a complete hide and seek game was being played at the end of the plaintiff-respondent. It is submitted that for these very reasons only that plaintiff did not appear into the witness box hence there was no burden to discharge regarding service of notice was effected.

7. Per contra, it is argued by Mr. Tiwari, learned counsel for the respondents that notice was got duly served upon Mohd. Shareef Qureshi, who was popularly known as Qureshi Mistri being mechanic of refrigerator. It is further submitted that even in the plaint the address given was only Itwariganj, District Jhansi, upon which address the summons were issued and defendant appeared and filed written statement. He submits that in the entire written statement there was no stand taken that address given in the plaint was incorrect or incomplete. The only denial was qua service of notice on 10th December, 1982.

8. It is next submitted that if defendant could receive summons upon the address given in the plaint as Mohalla- Itwariganj, District Jhansi, it would be taken that notice was duly sent upon a correct address and got served.

9. Having heard learned counsel for the respective parties and having perused the records, what I find there to be a very crucial document of cross-examination of D.W.-2 by the plaintiff Ratan Lal in which he admitted that his father was a mechanic of refrigerator although he refused to acknowledge signature of his father on paper No.- 55C. It is a fact that no expert opinion was sought for upon the disputed signature at the end of defendant who denied signature. What is further interesting to notice that defendant witness admitted signature of his father on vakalatnama and stated that no post sent on the given address could have ever reached despite the fact that summons were got duly served upon the same address given in the plaint. He only insisted that address on notice was incorrect. On the face of cross-examination it appears that D.W.- 2 was absolutely lieing as the written statement was filed in the case after service of summons on the given address of the defendant in plaint, which was only "Mohalla - Itwariganj". The Court has returned a finding to the effect that plaintiff discharged his duty by producing the notice and to prove service thereof at the given address in the plaint, however, in rebuttal defendant failed to bring any document on record to demonstrate that notice was not got duly served. The point of address does not find merit for the reason that it is the same address upon which the summons were issued in the suit which got duly served.

10. Thus to allege that the plaintiff failed to discharge his duties cannot be accepted. The law is well settled on the point. Once the registered envelop is sent on the given address of a noticee then there is a presumption to be raised regarding registered notice duly sent and served. This presumption is of course, rebuttable but a mere denial would not suffice the requirement of rebuttal. It was the duty of the defendant to prove by placing cogent material that service of notice was in fact not effected upon.

11. Mr. Srivastava, learned counsel for the petitioner could not dispute that tenant respondent had put in appearance by filing vakalatnama and written statement after receiving summons from the Court on the same address which was given in the plaint.

12. Mr. Srivastava would equally not dispute that defendant Mistri was the person who could have denied the same but was not alive to appear and D.W.-2, who put in appearance could not place any cogent material to dispute the service of notice.

13. In the circumstances, therefore, both the questions raised on behalf of the petitioner to question the judgment and decree do not merit.

14. Petition thus is devoid of merits and is, accordingly, dismissed. Order Date :- 7.2.2025 Atmesh ATMESH KESARI High Court of Judicature at Allahabad

affirming the said judgment and decree. Petitioners have also questioned the order dated 30th September, 2022, whereby Judge Small Causes Court decided issue No.- 2 in favour of the landlord- respondents.

3. Two fold arguments have been advanced by Mr. Arvind Srivastava, learned counsel for the petitioners: firstly, that no service of notice was ever affected upon the defendant - petitioner; and secondly, the plaintiff failed to discharge the burden qua factum of service of notice so as to maintain the suit for eviction.

4. In support of his submissions so advanced as above, Mr. Srivastava, learned counsel for the petitioners has taken the Court to the document of notice which according to him, was addressed to one Qureshi Mistri whereas the name of tenant petitioner was Mohd Shareef Qureshi inasmuch as the address given on the envelop of the notice was only Mohalla- Itwariganj, District - Jhansi, whereas the correct address was House No.- 163, Itwariganj District Jhansi.

5. It is submitted that in the plaint the name also was written as Qureshi Mistri which came to be subsequently amended as Mohd. Shareef Qureshi but there was no such order available on record which may have allowed such an amendment. Thus, according to Mr. Srivastava, the burden lay heavily upon the plaintiff to prove that notice got delivered at the correct address and to the addressee to render it as an effective service of notice.

6. It is next submitted that notice was claimed to be served on 8th December, 1982 and the suit came to be instituted on 6th January, 1983, which also showed that a complete hide and seek game was being played at the end of the plaintiff-respondent. It is submitted that for these very reasons only that plaintiff did not appear into the witness box hence there was no burden to discharge regarding service of notice was effected.

7. Per contra, it is argued by Mr. Tiwari, learned counsel for the respondents that notice was got duly served upon Mohd. Shareef Qureshi, who was popularly known as Qureshi Mistri being mechanic of refrigerator. It is further submitted that even in the plaint the address given was only Itwariganj, District Jhansi, upon which address the summons were issued and defendant appeared and filed written statement. He submits that in the entire written statement there was no stand taken that address given in the plaint was incorrect or incomplete. The only denial was qua service of notice on 10th December, 1982.

8. It is next submitted that if defendant could receive summons upon the address given in the plaint as Mohalla- Itwariganj, District Jhansi, it would be taken that notice was duly sent upon a correct address and got served.

9. Having heard learned counsel for the respective parties and having perused the records, what I find there to be a very crucial document of cross-examination of D.W.-2 by the plaintiff Ratan Lal in which he admitted that his father was a mechanic of refrigerator although he refused to acknowledge signature of his father on paper No.- 55C. It is a fact that no expert opinion was sought for upon the disputed signature at the end of defendant who denied signature. What is further interesting to notice that defendant witness admitted signature of his father on vakalatnama and stated that no post sent on the given address could have ever reached despite the fact that summons were got duly served upon the same address given in the plaint. He only insisted that address on notice was incorrect. On the face of cross-examination it appears that D.W.- 2 was absolutely lieing as the written statement was filed in the case after service of summons on the given address of the defendant in plaint, which was only "Mohalla - Itwariganj". The Court has returned a finding to the effect that plaintiff discharged his duty by producing the notice and to prove service thereof at the given address in the plaint, however, in rebuttal defendant failed to bring any document on record to demonstrate that notice was not got duly served. The point of address does not find merit for the reason that it is the same address upon which the summons were issued in the suit which got duly served.

10. Thus to allege that the plaintiff failed to discharge his duties cannot be accepted. The law is well settled on the point. Once the registered envelop is sent on the given address of a noticee then there is a presumption to be raised regarding registered notice duly sent and served. This presumption is of course, rebuttable but a mere denial would not suffice the requirement of rebuttal. It was the duty of the defendant to prove by placing cogent material that service of notice was in fact not effected upon.

11. Mr. Srivastava, learned counsel for the petitioner could not dispute that tenant respondent had put in appearance by filing vakalatnama and written statement after receiving summons from the Court on the same address which was given in the plaint.

12. Mr. Srivastava would equally not dispute that defendant Mistri was the person who could have denied the same but was not alive to appear and D.W.-2, who put in appearance could not place any cogent material to dispute the service of notice.

13. In the circumstances, therefore, both the questions raised on behalf of the petitioner to question the judgment and decree do not merit.

14. Petition thus is devoid of merits and is, accordingly, dismissed. Order Date :- 7.2.2025 Atmesh ATMESH KESARI High Court of Judicature at Allahabad