Alok Kumar Kaushik vs O.P.Shah And Another
2017 Latest Caselaw 5235 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Judgment Reserved on  18.09.2017
 
                                       Judgment Delivered on  09.10.2017
 

 
Court No. - 7
 

 
Case :- S.C.C. REVISION No. - 253 of 2017
 
Revisionist :- Alok Kumar Kaushik
 
Opposite Party :- O.P.Shah and another
 
Counsel for Revisionist :- Anil Tiwari
 
Counsel for Opposite Party :- Kunal Ravi Singh, Manjari Singh
 

 
Hon'ble Surya Prakash Kesarwani,J.

1. Heard Sri Anil Tiwari, learned counsel for the defendant-revisionist and Sri Rahul Jain, holding brief of Sri Kunal Ravi Singh, learned counsel for the plaintiffs-respondents.

2. This revision under Section 25 of the Provincial Small Cause Courts Act, 1887, has been filed praying to set aside the judgment and decree dated 31.8.2016, in SCC Case No.19 of 2008 (O.P. Shah and another Vs. Alok Kumar Kaushik), passed by the Special Judge (E.C. Act)/Additional District Judge, Ghaziabad.

Facts

3. Undisputedly, the plaintiffs-respondents are the owner and landlord of the House No.2/416, Chiranjeev Vihar, Ghaziabad, in which the defendant- revisionist was inducted as tenant w.e.f. 10.10.2004. According to the defendant-revisionist, the tenancy was orally made for a period of eight years on a monthly rent of Rs. 2500/- for one year and thereafter Rs.2600/- per month. According to the plaintiffs-respondents, the tenancy was only for ten months. It was alleged by the plaintiffs-respondents that the defendant-revisionist has a residential plot in the vicinity of the disputed house and he took the disputed house on rent on the undertaking that he shall get his house constructed over his plot and shall vacate the disputed house within ten months. On the allegation that despite service of notice, the house, was not vacated and the defendant-revisionist defaulted in payment of rent, a SCC case No.19 of 2008 (O.P. Shah and another Vs. Alok Kumar Kaushik) was filed by the plaintiffs-respondents on 27.5.2008. The defendant-revisionist filed the written statement. Parties led their evidences and thereafter the aforesaid SCC case was decided on merit by the impugned judgment dated 31.8.2016 whereby the defendant-revisionist has been directed to vacate the disputed house within two months and to handover its vacant and peaceful possession to the plaintiffs-respondents and also to pay arrears of rent amounting to Rs.54000/-.

4. Aggrieved with this judgment, the defendant-revisionist has filed the present revision.

Submissions:

5. Sri Anil Tiwari, learned counsel for the defendant-revisionist submits as under:

i) In the notice dated 2.11.2007, the plaintiffs-respondents have alleged receipt of rent from the defendant-revisionist only for 18 months out of 42 months since October 2004, whereas in the second notice dated 6.2.2008 they alleged receipt of rent for 21 months out of 36 months, and, claimed the arrears till January 2008 to be Rs.54,600/- while in the plaint he alleged the arrears to be of 21 months. Thus, the plaintiffs-respondents himself was not certain about the alleged period of arrears of rent.

ii) The plaintiffs-respondents have admitted the payment of arrears of rent in cash for the month of January, February, and March 2008 and also admitted payment of rent through a money order for the period of 10.4.2010 to 10.5.2010. Thus, the receipt of rent in cash and even the receipt of rent subsequent to the notice or filing of the suit has been admitted by the plaintiffs-respondents and, therefore, the continuation of tenancy can not be questioned as the notice to quit stood waived.

iii) The determination of rent in the impugned judgment @ Rs.2600/- per month and arrears accordingly, is perverse inasmuch as the defendant-revisionist has proved the fact that for one year the rent was Rs.2500/- per month. This fact has been proved by paper No.126 C i.e. the bank pass book which shows that for certain months payments of rent were made by Cheque of Rs.2500/- each.

iv) There was no valid service of notice inasmuch as according to their own case of the plaintiffs-respondents the first notice dated 2.11.2007 was returned unserved. The second notice dated 6.2.2008 sent by registered post was also returned unserved. The alleged acknowledgement filed by the plaintiffs-respondents was a manipulated paper which could not be proved by them. The service of notice dated 6.2.2008 by U.P.C.(Under Postal Certificate) is not a valid service. Thus, in the absence of any valid service of notice terminating the tenancy and demanding arrears of rent, the aforesaid SCC Case itself was not entertainable. No presumption can be drawn for service of notice allegedly sent by U.P.C.

v) There was no valid termination of tenancy by the plaintiffs-respondents and no finding has been recorded by the court below regarding termination of tenancy. The termination of tenancy w.e.f. 16.3.2008 could not be proved by the plaintiffs-respondents.

vi) The determination of arrears of rent for 21 months @ Rs.2600/- per month is based on surmises and presumption, and, contrary to evidences on record. Arrears could not be proved by the plaintiffs-respondents.

6. Sri Rahul Jain, holding brief of Sri Kunal Ravi Singh, learned counsel for the plaintiffs-respondents submits as under:

i) Even if for argument's sake, it is assumed that the rent for one year was Rs.2500/- per month still it shall not make any difference or shall not adversely effect the case of the plaintiffs-respondents inasmuch as the default in payment of rent has been intimated and claimed by the plaintiffs-respondents by notice dated 2.11.2007 and 6.2.2008. By this time the arrears of rent against the defendant-revisionist was for 21 months and not for the entire period of tenancy which commenced from 10.10.2004.

ii) The paper No.126-C i.e. the bank pass book filed by the defendant-revisionist alleging payment of rent, does not prove that the defendant-revisionist has paid entire month to month rent regularly or there was no arrears of rent. The payment of entire monthly rent could not be proved by the defendant-revisionist by any evidence, except payment of rent for some period which itself was admitted by the plaintiffs-respondents. The case of plaintiffs-respondents was that only for 21 months, the defendant-revisionist has defaulted in payment of rent. The defendant-revisionist could not file any evidence to prove that he has paid rent for the defaulted 21 months.

iii) The plaintiffs-respondents have sent notices dated 2.11.2007 and 6.2.2008 both to the defendant-revisionist on his correct residential address as well as on his office/chamber address in Civil Court Compound, Ghaziabad. The Postman had gone number of times at both the addresses and every time a remark was put that either the revisionist was not available or the premises was locked. In such a situation, the service of notice sent by registered post at the correct address would be deemed sufficient in view of the law laid down by Hon'ble Supreme Court in the case of M/s. Madan and Co. Vs. Wazir Jaivir Chand AIR 1989 SC 630 (para 5).

iv) Service of notice by U.P.C., under the facts and circumstances of the case; shall be presumed sufficient more so in view of the law laid down by this court in the case of Rais Ahmad Vs. Special Additional District Judge, Saharanpur and others 1997 (2) ARC 190 (para 7).

Prior to issuance of notification dated 23.2.2011 by the Government of India discontinuing the "certificate of posting", the service of notice by certificate of posting shall be a valid service. Under the circumstances, since the notice through registered post and also through U.P.C. dated 6.2.2008 were simultaneously sent and at that time the certificate of posting was a valid mode of sending notice and as such the service of notice through U.P.C., in the event of non- return of notice; shall be presumed in law. Till 31.1.2011 'Certificate of Posting' was a valid mode of communication in view of Gazette Notification No.58 (E) dated 31.01.2011 and Circular of Director (P O & I) dated 23.2.2011.

v) In paragraphs 8 and 15 of his plaint of Injunction Suit no.178 of 2007 the defendant-revisionist himself admitted the availability of his residential plot in the vicinity of the disputed house and expressed his need of the disputed house to complete construction over his vacant plot. Stating the same cause, the defendant-revisionist took the disputed house on rent in October 2004 for ten months but has neither vacated it so far nor paid rent for 21 months.

vi) Findings recorded in the impugned judgments are findings of fact based on consideration of relevant evidences on record and, therefore, it can not be interfered with either merely for reason that another view is possible or that some other view could have been taken by the court below on the basis of evidence on record.

vii) Even if tenancy is assumed to be for eight years as alleged by the defendant-revisionist, yet the tenancy has expired by efflux of time and as such the eviction of the defendant-revisionist by the impugned judgment, is wholly justified and can not be interfered..

7. In reply to the submission of learned counsel for the plaintiffs-respondents, Sri Anil Tiwari, learned counsel for the defendant-revisionist submits that the questions/arguments which were not raised before the court below can not be raised at this stage. The judgment of this court in the case of Rais Ahmad (supra) relied by the plaintiffs-respondents is contrary to the provision of Section 27 of the U.P. General Clauses Act, 1897 and as such this judgment has no precedence value.

Discussion and Findings:

8. I have carefully considered the submissions of learned counsel for the parties and perused the record.

9. Submissions made by learned counsel for the parties give rise to the following questions for determination:

(i) Whether under the facts and circumstances of the case, there was a valid service of notice upon the defendant-revisionist terminating the tenancy and demanding arrears of rent ?

(ii) Whether the courts below have lawfully determined the arrears of rent for 21 months @ Rs.2600/- per month, total Rs. 54600/- ?

QUESTION NO.1

10. The defendant-revisionist is an Advocate practising at Civil Court, Ghaziabad. It is undisputed that plaintiffs-respondents are the owner and landlord of House No.2/416, Chiranjeev Vihar, Ghaziabad, in which the defendant- revisionist is the tenant. There is no dispute of landlord-tenant relationship between the plaintiffs-respondents and defendant-revisionist. According to the plaintiffs-respondents, the disputed house was let out to the defendant-revisionist for ten months w.e.f. 10.10.2004 at the monthly rent of Rs.2600/- whereas according to the defendant-revisionist, the said house was let out to him by the plaintiffs-respondents by an oral agreement for eight years w.e.f. 10.10.2004 at a monthly rent of Rs.2500/- for the first year and thereafter on monthly rent of Rs.2600/-. On account of default in payment of rent, a notice dated 2.11.2007 under Section 106 of the Transfer of Property Act, 1882 was sent by the plaintiffs-respondents to the defendant-revisionist terminating the tenancy and demanding arrears of rent. The said notice was sent by registered post on the correct residential address as well as Chamber address being Chamber No.658, Civil Court Compound, Ghaziabad.

11. The aforesaid notice was returned unserved with the remark of the postman mentioning several dates on which he went at the addressee's place but either he had not met or the door was locked. Thereafter the plaintiffs-respondents sent another notice dated 6.2.2008 by registered post as well as under certificate of posting at the residential address as well as at the Chamber address of defendant-revisionist mentioning the address correctly. The notice sent under certificate of posting was not received back. However, the notice sent through registered post was returned by the postman with the same remark that he visited on 8.2.2008, 9.2.2008, 11.2.2008, 12.2.2008, 13.2.2008 and 14.2.2008 at the residential address and on 7.2.2008, 8.2.2008, 9.2.2008, 11.2.2008, 12.2.2008, 13.2.2008, 14.2.2008 and 15.2.2008 at the Chamber address of the defendant-revisionist but every time either he had not met or the door was locked. The envelops containing notice sent by registered post as aforementioned bearing remark of the postman, were filed in evidence by the plaintiffs-respondents as paper No.60-C and 61-C. There is no dispute that notices were sent at the correct address. An acknowledgment bearing signature of the defendant-revisionist being paper No.59-C was also filed in evidence. Considering facts and evidences on record. the court below recorded a finding of fact that the notice terminating the tenancy sent under the certificate of posting evidenced by postal receipt dated 6.2.2008 being paper No.12-C was duly served upon the defendant-revisionist. The court below has also recorded a finding of fact based on paper No.59-C that notice was duly served upon the defendant-revisionist. The defendant-revisionist simply denied his signature on the acknowledge (paper No.59-C) yet he had not even moved any application for report of handwriting expert although during pendency of the case he moved several applications for other purposes. These findings of fact recorded by the court below regarding service of notice upon the defendant-revisionist are based on consideration of relevant material and evidences on record. The aforesaid finding also does not suffer from any error of law, in view of the law laid down by Hon'ble Supreme Court in various judgments.

12. In the case of M/s. Madan and Co.(supra) Hon'ble Supreme Court held that if a registered letter addressd to a person at his residential address, does not get served in normal course and is returned, it can only be attributed to the addressee's own conduct. If he is staying in the premises, there is no reason why it should not be served on him. If he is compelled to be away for some time, all that he has to do is to leave necessary instruction with the postal authorities either to retain the letters addressed to him for some time until he returns or to forward them to the address where he has gone or to deliver them to some other person authorised by him. In this situation, the interpretation would be to read the words "served" as "sent by post", correctly and properly addressed to the tenant, and the word "receipt" as the tender of the letter by the postal peon at the address mentioned in the letter. The law laid down by Hon'ble Supreme Court in paragraph 5 of the judgment in the case of M/s. Madan and Co.(supra) is reproduced below:

We are of opinion that the conclusion arrived at by the courts below is correct and should be upheld. It is true that the proviso to Clause (i) of Section 11(1) and the proviso to Section 12(3) are intended for the protection of the tenant. Nevertheless it will be easy to see that too strict and literal a compliance of their language would be impractical and unworkable. The proviso insists that before any amount of rent can be said to be in arrears, a notice has to be served through posts. All that a landlord can do to comply with this provision is to post a prepaid registered letter (acknowledgement due or otherwise) containing the tenant's correct address. Once he does this and the letter is delivered to the post office, he has no control over it. It is then presumed to have been delivered to the addressee Under Section 27 of the General Clauses Act. Under the rules of the post office, the letter is to be delivered to the addressee or a person authorised by him. Such a person may either accept the letter or decline to accept it. In either case, there is no difficulty, for the acceptance or refusal can be treated as a service on, and receipt by, the addressee. The difficulty is where the postman calls at the address mentioned and is unable to contact the addressee or a person authorised to receive the letter. All that he can then do is to return it to the sender. The Indian Post Office Rules do not prescribe any detailed procedure regarding the delivery of such registered letters. When the postman is unable to deliver it on his first visit, the general practice is for the postman to attempt to deliver it on the next one or two days also before returning it to the sender. However, he has neither the power nor the time to make enquiries regarding the whereabouts of the addressee; he is not expected to detain the letter until the addressee chooses to return and accept it; and he is not authorised to affix the letter on the premises because of the assessee's absence. His responsibilities cannot, therefore, be equated to those of a process server entrusted with the responsibilities of serving the summons of a Court under Order V of the C.P.C. The statutory provision has to be interpreted in the context of this difficulty and in the light of the very limited role that the post office can play in such a task. If we interpret the provision as requiring that the letter must have been actually delivered to the addressee, we would be virtually rendering it a dead letter. The letter cannot be served where, as in this case, the tenant is away from the premises for some considerable time. Also, an addressee can easily avoid receiving the letter addressed to him without specifically refusing to receive it. He can so manipulate matters that it gets returned to the sender with vague endorsements such as "not found", "not in station", "addressee has left" and so on. It is suggested that a landlord, knowing that the tenant is away from station for some reasons, could go through the motions of posting a letter to him which he knows will not be served. Such a possibility cannot be excluded. But, as against this, if a registered letter addressed to a person at his residential address does not get served in the normal course and is returned, it can only be attributed to the addressee's own conduct. If he is staying in the premises, there is no reason why it should not be served on him. If he is compelled to be away for some time, all that he has to do is to leave necessary instructions with the postal authorities either to detain the letters addressed to him for some time until he returns or to forward them to the address where he has gone or to deliver them to some other person authorised by him. In this situation, we have to chose the more reasonable, effective, equitable and practical interpretation and that would be to read the words "served" as "sent by post", correctly and properly addressed to the tenant, and the word "receipt" as the tender of the letter by the postal peon at the address mentioned in the letter. No other interpretation, we think, will fit the situation as it is simply not possible for a landlord to ensure that a registered letter sent by him gets served on, or is received by, the tenant.

(Emphasis supplied by me)

13. The facts of the present case show that the postal peon visited at the residential address as well as at the Chamber address of the defendant-revisionist on several days to deliver the registered envelop and return thereof is attributed to the defendant-revisionist's own conduct. It is undisputed that he is staying in the house at the address on which the notices were sent by registered post and under certificate of posting. It is also undisputed that the defendant-revisionist is a practising Advocate in Civil Court, Ghaziabad and at his correct Chamber address also the notices were sent by registered post and on several dates the postal peon visited his Chamber in the Civil Court compound, Ghaziabad. If he is staying at the given address and/or if he is practicing Advocate in Civil Court, Ghaziabad occupying the Chamber in Civil Court compound, Ghaziabad, then there is no reason why the notices could not be served on him. It is not the case of the defendant-revisionist that he had gone somewhere for sometime. Even if he was away for sometime, it was necessary for him to leave necessary instructions with the postal authorities either to retain the letter addressed to him for some time until he returns or to deliver them to some other person authorised by him. Under the circumstances the law laid down by Hon'ble Supreme Court in the case of M/s. Madan and Co.(supra) as aforequoted is squarely applicable.

14. The plaintiffs-respondents sent notices through registered post and simultaneously also under certificate of posting. As per provisions of Rule 195 of the Indian Post Office Rules 1933 'Certificate of Posting' is granted to the public to afford an assurance that letters and other Articles for which no receipts are granted by the post office and entrusted to servants or messengers for posting have actually been posted. The said mode of communication has been discontinued by the postal department vide Gazette Notification No.58 (E) dated 31.01.2011 by deleting Rule 125. A Circular in this regard was also issued by the Director (P O & I) by letter No.2-4 by DG Post letter NO.2-4/2008-PO, dated 23.2.2011 as was placed before this Court by learned counsel for the plaintiffs-respondents. In the case of Rais Ahmad (supra) (para 7) this Court considered the question of service of notice and relying upon the decisions in the case of Smt. Kanak Lata Ghose Vs Amal Kumar Ghosh, AIR 1970 Calcutta 328 and Shashi Kumar Vs. Dharam Pal Sharma AIR 1981 Delhi 169, held that normally there is also presumption of service of notice sent under certificate of posting.

15. In the case of M/s. Indo Automobiles Vs. M/s. Jai Durga Enterprises & others, 2008(8) SCC 529 (para 8) Hon'ble Supreme Court held that the High Court was not justified in holding that service of notice could not be found to be valid where the notices were sent by registered post and also under certificate of posting but because of endorsement of Postman the service was held to have not been effected.

16. In the case of Samittri Devi and another Vs. Sampuran Singh 2011(3) SCC 556 (paras 29 and 30), Hon'ble Supreme Court held that it will all depend on the facts of each case where the presumption of service of a notice sent under postal certificate should be drawn. It is true that the presumption would apply with greater force to letters which are sent by registered post, yet, when facts so justify, such a presumption is expected to be drawn even in a case of a letter sent under postal certificate.

17. In the present set of facts, on account of default in payment of rent and also on account of expiry of the term of tenancy; the plaintiffs-respondents were seriously pursuing the matter terminating the tenancy of the defendant-revisionist and for recovery of arrears of rent amounting to Rs.54600/-. They sent repeated notices both at the residential address and Chamber address by registered post and also simultaneously under certificate of posting. The evidence being paper no.60-C and 61-C shows that they sent the notices at the residential address of the defendant-revisionist as well as at his Chamber address in Civil Court Compound, Ghaziabad. There is no dispute that the plaintiffs-respondents correctly mentioned the addresses of the defendant-revsionist on the envelops sent by registered post and under certificate of posting. The postman visited to deliver the registered envelops containing the notice, to the defendant-revisionist at his residential address and also Chamber address on several dates. Under the circumstances and also for the reasons recorded in preceding paragraphs no. 11,13 and 14 and the law laid down by Hon'ble Supreme Court as discussed in preceding paragraphs no. 12,14,15 and 16, I have no hesitation to hold that the facts of the present case fully justify a presumption to be drawn for valid service of notice upon the defendant-revisionist whereby the tenancy of the defendant-revisionist was terminated and arrears of rent were demanded.

18. The judgment in the case of Fakir Mohd. (Dead) by LRs. Vs. Sita Ram 2002 (1) SCC 741 (para 11) relied by learned counsel for the defendant-revisionist is distinguishable on the facts of the present case inasmuch as in the said case the tenant had sent notices only Under Certificate of Posting and took the stand that since no mode of service has been specified in the provision and, therefore, tenant was justified in sending the notice in writing under certificate of posting. On that fact it was observed that a presumption arising under Section 114 of the Evidence Act is a permissive presumption which the Court may or may not draw depending on the facts and circumstances of a particular case. The case of State of Maharashtra Vs. Rashid B. Mulani 2006 1 SCC 407 (para 17) relied by learned counsel for the defendant-revisionist, also does not support his case. In the aforesaid decision, the controversy relating to the Prevention of Corruption Act 1947 was involved and on the facts of that case Hon'ble Supreme Court adviced the Postal Department to evolve some procedure whereby record in regard to the issuance of certificate is regularly maintained showing the serial number, date, senders name and addressee's names, to avoid misuse and in the absence of such record, a certificate of posting may be of a very little assistance. On the facts of the present case this Court has found that there were sufficient reasons to presume valid service of notice sent by the plaintiffs-respondents. Similarly, the judgment in the case of V.N. Bharat Vs. Delhi Development Authority and another 2008 (17) SCC 321 regarding presumption of service of notice under Section 27 of the General Clauses Act 1897, does not help the defendant-revisionist inasmuch it has been found in the present set of facts by the court below on the basis of evidences on record that the notice was served upon the defendant-revisionist.

QUESTION NO.2

19. As per own case of the defendant-revisionist, the rent for the period after one year of the commencement of tenancy was Rs.2,600/- per month. The case of the respondent-plaintiff was that agreed rate of rent was Rs.2,600/- per month which he proved. The defendant-revisionist could not produce any evidence that arrears of rent of 21 months were paid by him. The court below considered the question of rate of rent and arrears in detail and based on relevant material, recorded the findings of fact regarding arrears of rent for 21 months @ Rs.2600/- per month. This finding being a finding of fact based on relevant material on record can not be interfered in revisional jurisdiction under Section 25 of the Provincial Small Cause Court Act 1887. Hence on this point also the revision deserves to be dismissed.

20. In view of the above discussion, I do not find any merit in this Revision. Consequently, Revision is dismissed. Interim order is vacated.

Order Date :- 09.10.2017/vkg