Smt. Kalawati Singh @ Kalyani vs Smt. Shanti Lata And 2 Ors.
2019 Latest Caselaw 3967 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 58
 
Case :- MATTERS UNDER ARTICLE 227 No. - 7583 of 2016
 
Petitioner :- Smt. Kalawati Singh @ Kalyani
 
Respondent :- Smt. Shanti Lata And 2 Ors.
 
Counsel for Petitioner :- Chandra Bhan Gupta
 
Counsel for Respondent :- Rakesh Kumar,R.P. Tiwari
 
Hon'ble Dr. Yogendra Kumar Srivastava,J.

1. Heard Sri Chandra Bhan Gupta, learned counsel for the petitioner and Sri R.P. Tiwari, learned counsel appearing for the respondents.

2. The present petition seeks to challenge the order dated 21.5.2008 passed by the Judge, Small Causes Court, Kanpur Nagar in S.C.C. Suit No. 382 of 2004 (Smt. Shanti Lata and another Vs. Smt. Kalawati) whereby the suit for eviction and arrears of rent was decreed. The order dated 4.5.2011 passed by the Additional District Judge, Court No. 2, Kanpur Nagar in S.C.C. Revision No. 65 of 2008, filed there against which was dismissed, has also been sought to be challenged.

3. Briefly stated the facts of the case are that after service of notice sent by registered post on 21.8.2004 asking the tenant-respondent to pay the arrears of rent and vacate the premises, a suit for eviction and arrears of rent was instituted which was registered as S.C.C. Suit No. 382 of 2004 before the Judge, Small Causes Court, Kanpur Nagar.

4. The plaint case was that the accommodation in question i.e. House No. 135 MIG, Block B, Panki, Kanpur Nagar was occupied by the defendant- tenant from 1994 at the rate of monthly rent of Rs. 600/-. The said accommodation was purchased by the plaintiffs by means of the sale deed dated 20.4.2004, and in view of the fact that the accommodation in question had been constructed after 1998, the provisions of U.P. Act No. 13 of 1972 were not applicable. Upon the defendant-tenant having committed default in payment of rent and taxes, a notice was sent by registered post on 21.8.2004 asking him to pay arrears of rent and vacate the premises, and upon expiry of thirty days notice the suit was filed.

5. The contention of the defendant-tenant was that the premises in question were allotted to the original owner Smt. Pushpa Rani in the year 1982, and the sale deed was executed in her favour by the Kanpur Development Authority on 16.9.1998, thereafter Smt. Pushpa Rani sold the premises to one Rajendra Kumar on 23.11.1998 and subsequently the plaintiff-landlord purchased the premises from the aforementioned Rajendra Kumar. It was asserted that the premises in question having been allotted to the original owner in the year 1982 the provisions of U.P. Act No. 13 of 1972 were applicable and hence the suit was not maintainable. It was also contended that the entire amount towards arrears of rent etc. had been deposited before the first date of hearing and in view of the same, the defendant-tenant was entitled to the benefit of Section 20 (4) of the U.P. Act No. 13 of 1972. Upon consideration of the pleadings of the parties, the following issues were framed.

1. Whether the notice given by the plaintiffs to defendant was a valid notice, through which the plaintiffs terminated the tenancy of the defendant ?

2. Whether the provisions of U.P. Act No. XIII of 1972 were applicable to the disputed accommodation ?

3. Whether the defendant is entitled to get the benefit of compliance of Section 20 (4) of U.P. Act XIII of 1972 ?

4. Whether the defendant is entitled to get the benefit of Section 114 of the T.P.Act?

5. Whether the plaintiff is entitled to get any relief ?

6. Counsel for the petitioner has confined his submissions in the present petition to the issue with regard to the applicability of the provisions of the U.P. Act No. 13 of 1972 to the premises in question, and to the issue with regard to the validity of the notice in terms of which the tenancy of the tenant was terminated.

7. As regards the issue with regard to the applicability of the U.P. Act No. 13 of 1972 to the premises in question, the courts below have recorded concurrent findings of fact on the basis of the evidence on record to come to the conclusion that the original owner had entered into occupation over the premises in question in the year 1988, which fact is admitted to the parties, and in view of the provisions contained under Explanation I (a) to Section 2 the premises in question would be exempt from the operation of the U.P. Act No. 13 of 1972.

8. Counsel for the petitioner has raised a plea that the allotment of the house in question having been made in favour of the original owner in the year 1982 it could not be said that the premises were exempt from the operation of the Act. Counsel for the respondent has argued that the date of allotment would be of no consequence and in terms of the statutory provisions, the relevant date would be the date of occupation of the premises.

9. In order to appreciate the rival contentions the statutory provision as contained under Explanation I to Section 2 of the U.P. Act No. 13 of 1972 may be adverted to. The relevant statutory provision is being extracted below :-

"2. Exemptions from operation of Act.--(1) Nothing in this Act shall apply to--

***

(2) Except as provided in sub-section (5) of Section 12, sub-section (1-A) of Section 21, sub-section (2) of Section 24, Sections 24-A, 24-B, 24-C or sub-section (3) of Section 29, nothing in this Act shall apply to a building during a period of ten years from the date on which its construction is completed:

Provided that where any building is constructed substantially out of funds obtained by way of loan or advance from the State Government or Life Insurance Corporation of India or a bank or a cooperative society or the Uttar Pradesh Avas Evam Vikas Parishad, and the period of repayment of such loan or advance exceeds the aforesaid period of ten years then the reference in this sub-section to the period of ten years shall be deemed to be a reference to the period of fifteen years or the period ending with the date of actual repayment of such loan or advance (including interest), whichever is shorter.

Provided further that where construction of a building is completed on or after April 26, 1985 then the reference in this sub-section to the period of ten years shall be deemed to be a reference to a period of [forty years] from the date on which its construction is completed.]

Explanation I.--For the purposes of this section,--

(a) the construction of a building shall be deemed to have been completed on the date on which the completion thereof is reported to or otherwise recorded by the local authority having jurisdiction, and in the case of building subject to assessment, the date on which the first assessment thereof comes into effect, and where the said dates are different, the earliest of the said dates, and in the absence of any such report, record or assessment, the date on which it is actually occupied (not including occupation merely for the purposes of supervising the construction or guarding the building under construction) for the first time:

Provided that there may be different dates of completion of construction in respect of different parts of a building which are either designed as separate units or are occupied separately by the landlord and one or more tenants or by different tenants;"

10. The provision under the Explanation I to Section 2 of the U.P. Act No. 13 of 1972 has been considered in catena of judgments, some of which may be gainfully referred to.

11. In Vinod Kumar Vs. Naresh Chandra Sharma (since deceased) and others1, this Court held as follows :-

"7. A careful perusal of section 2 (2) and its explanation shows that four different dates for the purpose of determination as to whether the newly constructed building is exempted or not have been given therein which are as follows:-

a. the date on which the completion of the building is reported to the local authority.

b. the date on which the completion of building is otherwise recorded by the local authority having jurisdiction.

c. the date on which the assessment of property tax is first made.

d. in the absence of any such report/record or assessment, the date on which the building was actually occupied.

8. The Explanation further provides that, in a case where for the first three categories the dates are available then the earliest of three dates will be the date of completion of the building. The fourth date i.e. the date of occupation will be the date of completion of building only in case, where the first three dates are not available.

9. Deeming clause as contained in the Explanation to section 2(2) has been interpreted by this Court in the case of Madan Mohan Sharma Vs. Ashok Kumar Kaushik reported in 2013 (1) ADJ 313 wherein placing reliance upon the judgment of the Apex Court in Om Prakash Vs. Dig Vijendrapal Gupta, AIR 1982 SC 1230 it has been held that the date of occupation can be taken to be the date of completion of construction only where there was no report or record of the completion of the construction or no assessment thereof. In a case where the date of first assessment is available, only that would be the date of completion of the construction and the date of occupation of building during the period anterior to the first assessment was of no significance whatsoever."

12. In the case of Amrit Prasad Singhal Alias Banshi Wale Vs. Bal Kishan Gupta2, it was held as follows :-

"9. In my considered opinion, the Explanation I-A to Section 2 (2) is relevant for the purposes of the case. This explanation among other things provides that in the absence of any report, record or assessment, the date on which, the accommodation was actually occupied, would be deemed to the date on which the construction of the building was completed."

13. In the case of Rajeev Kumar alias Happi Vs. Rohit Khosala and others3, it was observed as under :-

"9. From perusal of Section 2 (2) of the Act read with Explanation (I) and the law laid down by Hon'ble Supreme Court in the case of Sudha Rani Garg (supra), it is evident that the Explanation (I) to Section 2 (2) of the Act provides for four different dates for determining the date of completion of building in four categories. Firstly, when the completion of building is reported to the local authority. Secondly, when the completion of building is otherwise recorded by the local authority. Thirdly, when the first assessment of building comes into the effect and fourthly when it is actually occupied. The explanation further provides that in case for the first three categories the dates are available then earliest of the three dates will be the date for completion of the building and in case the first three dates are not available, then the date under the fourth category will be the date on which construction of the building shall be deemed to have been completed."

14. The provisions contained under Explanation I to Section 2 of the U.P. Act No. 13 of 1972 fell for consideration before the Supreme Court in the case of Sudha Rani Garg (Smt.) Vs. Jagdish Kumar (Dead) and others4, and it was held as follows :-

"7. The Explanation provides for four different dates for determining the date of completion of building. The dates are:

(1) When the completion of the building is reported to the local authority.

(2) When the completion of the building is otherwise recorded by the local authority.

(3) When the first assessment of the building comes into effect.

(4) When it is actually occupied.

8. The Explanation further provides that in case for the first three categories the dates are available then the earliest of the three dates will be the date of completion of the building and in case the first three dates are not available, then the fourth date will be the date on which construction of the building shall be taken to have been completed.

9. Explanation I is a deeming provision.

"The word ''deemed' is used a great deal in modern legislation. Sometimes it is used to impose for the purposes of a statute an artificial construction of a word or phrase that would not otherwise prevail. Sometimes it is used to put beyond doubt a particular construction that might otherwise be uncertain. Sometimes it is used to give a comprehensive description that includes what is obvious, what is uncertain and what is, in the ordinary sense, impossible."

[Per Lord Radcliffe in St. Aubyn (L.M.) v. Attorney General (No. 2) [(1951) 2 All ER 473 : 1952 AC 15 (HL)] , p. 498 F-G.]

10. "Deemed", as used in statutory definitions

"to extend the denotation of the defined term to things it would not in ordinary parlance denote, is often a convenient device for reducing the verbiage of an enactment, but that does not mean that wherever it is used it has that effect; to deem means simply to judge or reach a conclusion about something, and the words ''deem' and ''deemed' when used in a statute thus simply state the effect or meaning which some matter or thing has -- the way in which it is to be adjudged; this need not import artificially or fiction; it may simply be the statement of an undisputable conclusion" (per Windener,J. in Hunter Douglas Australia Pty. v. Perma Blinds [(1970) 44 Aus LJR 257] ).

11. When a thing is to be "deemed" something else, it is to be treated as that something else with the attendant consequences, but it is not that something else (per Cave, J. in R. v. Norfolk County Court [(1891) 60 LJQB 379 : 65 LT 22] ).

12. "When a statute gives a definition and then adds that certain things shall be ''deemed' to be covered by the definition, it matters not whether without that addition the definition would have covered them or not." (Per Lord President Cooper in Ferguson v. McMillan [1954 SLT 109] .)

13. Whether the word "deemed" when used in a statute established a conclusive or a rebuttable presumption depended upon the context. (See St. Leon Village Consolidated School Distt. v. Ronceray [(1960) 23 DLR (2d) 32] .)

14. "I ... regard its primary function as to bring in something which would otherwise be excluded." (Per Viscount Simonds in Barclays Bank v. IRC [1961 AC 509 (HL)] .)

15. "Deems" means "is of opinion" or "considers" or "decides" "and there is no implication of steps to be taken before the opinion is formed or the decision is taken". [See R. v. Brixton Prison (Governor), ex p Soblen [(1962) 3 All ER 641 : (1963) 2 QB 243 : (1962) 3 WLR 1154 (CA)] , All ER p. 669 C.] (See Ali M.K. v.State of Kerala [(2003) 11 SCC 632 : 2004 SCC (L&S) 136] .)"

15. From a plain reading of the Explanation I to Section 2 of the U.P. Act No. 13 of 1972 and the law laid down in the case of Sudha Rani Garg (supra) it is clear that the Explanation provides for four different dates for determining the date of completion of building : (i) when the completion of the building is reported to the local authority; (ii) when the completion of the building is otherwise recorded by the local authority; (iii) when the first assessment of the building comes into effect; and (iv) when it is actually occupied.

16. In terms of the aforementioned Explanation I it is further provided that in case for the first three categories the dates are available then the earliest of the three dates will be the date of completion of the building and in case the first three dates are not available, then the fourth date will be the date on which construction of the building shall be taken to have been completed.

17. The legal position in this regard has also been considered in a recent judgment of this Court in the case of Shekhar Vs. Harishankar Azad (since deceased) and others5.

18. Explanation I to Section 2, thus clearly indicates that the construction of a building shall be deemed to have been completed on the date on which the completion thereof is reported to or otherwise recorded by the local authority having jurisdiction, and in the case of building subject to assessment, the date on which the first assessment thereof comes into effect, and where the said dates are different, the earliest of the said dates, and in the absence of any such report, record or assessment, the date on which it is actually occupied (not including occupation merely for the purposes of supervising the construction or guarding the building under construction) for the first time.

19. In the instant case, it is admitted to the parties that the date of completion of the building in question as also the date of first assessment is not on the record and as such in absence of any report, record or assessment the date on which the building in question was actually occupied becomes relevant. The building in question, in the present case, was occupied by the first owner in the year 1988, which fact is not disputed by the petitioner-tenant and in view thereof the building clearly stands exempt in view of the aforementioned Explanation 1 to Section 2 (2) of the U.P. Act No. 13 of 1972.

20. The provisions of the U.P. Act No. 13 of 1972 having been held to be inapplicable the issue with regard to the entitlement of the tenant to get the benefit of compliance of Section 20 (4) would not be relevant or of any no consequence.

21. Counsel for the petitioner has sought to assail the validity of the notice by asserting that the notice had not been served upon him. As regards the issue with regard to the validity of service of notice, the courts below have taken note of the fact that the plaintiff-landlord had sent a registered notice on 21.8.2004 asking the defendant-tenant to pay arrears of rent and vacate the premises. The factum of the notice having been sent by registered post at the correct address has not been disputed by the defendant-tenant, and accordingly, as per the settled legal position, the postal endorsement of refusal would lead to the inference of a presumption of service of notice.

22. It is legally well settled that if a notice is sent by landlord to the tenant by registered post and the acknowledgment is received back by the landlord with the postal endorsement of refusal by the addressee, presumption of service would have to be drawn against the tenant unless the tenant proves otherwise by adducing cogent evidence.

23. In this regard reference may be made to the judgment in the case of Green View Radio Service Vs. Laxmibai Ramji & Anr.6 wherein it was held as follows:-

"3. In this connection, we may also point out that the provisions of Section 106 of the Transfer of Property Act require that notice to quit has to be sent either by post to the party or be tendered or delivered personally to such party or to one of his family members or servants at his residence or if such tender or delivery is not practicable, affixed to a conspicuous part of the property. The service is complete when the notice is sent by post. In the present case, as pointed out earlier, the notice was sent by the plaintiff's advocate by registered post acknowledgement due. The acknowledgement signed by the party was received by the advocate of the plaintiff. Thus in our view the presumption of service of a letter sent by registered post can be rebutted by the addressee by appearing as witness and stating that he never received such letter. If the acknowledgement due receipt contains the signatures of the addressee himself and the addressee as a witness states that he never received such letter and the acknowledgement due does not bear his signature and such statement of the addressee is believed then it would be a sufficient rebuttal of the presumption drawn against him. The burden would then shift on the plaintiff who wants to rely on such presumption to satisfy the court by leading oral or documentary evidence to prove the service of such letter on the addressee. This rebuttal by the defendant of the presumption drawn against him would of course depend on the veracity of his statement. The court in the facts and circumstances of a case may not consider such denial by the defendant as truthful and in that case such denial alone would not be sufficient. But if there is nothing to disbelieve the statement of the defendant then it would be sufficient rebuttal of the presumption of service of such letter or notice sent to him by registered post."

24. This Court, in the case of Brij Nandan Gupta Vs. III Additional District Judge, Rampur & Anr.7 placing reliance upon the judgment in Anil Kumar Vs. Nanak Chandra Verma8 has held that in case of notice sent by registered post and the endorsement of postman that notice was refused by the tenant, a bare denial of service by the tenant would not be sufficient to rebut the presumption of service of notice. The observations made in the case of Brij Nandan Gupta (supra) are as follows:-

"21. Similarly, if a notice has been sent by landlord by registered post and it is received back with an endorsement made by an official of Post Office namely Postman that it was refused by the addressee, presumption of service upon addressee shall be drawn unless the tenant prove that the letter was never offered to him by the Postman and endorsement made thereon is not correct. The tenant's bare denial would not be sufficient in such a case and he will have to prove his case by adducing relevant evidence. Such denial can be by making statement on oath and in such case onus would shift on the landlord to prove that refusal was by the tenant which he can show by summoning the postman and adducing his oral evidence. However, this is one aspect of the matter. Sometimes from the conduct of tenant or other circumstances, his denial even if on oath, can justifiably be disproved by the Court without having Postman examined. There is no hard and fast rule on this aspect as observed by the Apex Court in Anil Kumar Vs. Nanak Chandra Verma, AIR 1990 SC 1215."

25. In Samittri Devi & Anr. Vs. Sampuran Singh & Anr.9 it was held that notice having been sent under certificate of posting and a copy of the notice alongwith certificate of posting having been produced before the court, in the absence of any allegation that the certificate was wrongly procured, a presumption that notice was duly served would be drawn.

26. Again, in the case of C.C. Alavi Haji Vs. Palapetty Muhammed & Anr.10 in the context of a notice sent under Section 138 proviso of the Negotiable Instrument Act, 1881 it was held that when a notice is sent by registered post and is returned with the postal endorsement of refusal, due service has to be presumed. The observations made in the aforementioned judgment are as follows:-

"13. According to Section 114 of the Act, read with Illustration (f) thereunder, when it appears to the court that the common course of business renders it probable that a thing would happen, the court may draw presumption that the thing would have happened, unless there are circumstances in a particular case to show that the common course of business was not followed. Thus, Section 114 enables the court to presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business in their relation to the facts of the particular case. Consequently, the court can presume that the common course of business has been followed in particular cases. When applied to communications sent by post, Section 114 enables the court to presume that in the common course of natural events, the communication would have been delivered at the address of the addressee. But the presumption that is raised under Section 27 of the GC Act is a far stronger presumption. Further, while Section 114 of the Evidence Act refers to a general presumption, Section 27 refers to a specific presumption. For the sake of ready reference, Section 27 of the GC Act is extracted below:

"27. Meaning of service by post.--Where any Central Act or Regulation made after the commencement of this Act authorises or requires any document to be served by post, whether the expression ''serve' or either of the expression ''give' or ''send' or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post."

14. Section 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. This Court has already held that when a notice is sent by registered post and is returned with a postal endorsement "refused" or "not available in the house" or "house locked" or "shop closed" or "addressee not in station", due service has to be presumed. (Vide Jagdish Singh v. Natthu Singh [(1992) 1 SCC 647 : AIR 1992 SC 1604]; State of M.P. v. Hiralal [(1996) 7 SCC 523] and V. Raja Kumari v. P. Subbarama Naidu [(2004) 8 SCC 774 : 2005 SCC (Cri) 393] .) It is, therefore, manifest that in view of the presumption available under Section 27 of the Act, it is not necessary to aver in the complaint under Section 138 of the Act that service of notice was evaded by the accused or that the accused had a role to play in the return of the notice unserved."

27. In Harcharan Singh Vs. Shivrani & Ors.11 a three-Judge Bench held that notice sent by landlord to tenant by properly addressing, prepaying and posting by registered post, amounts to the proper service of notice and tenant's refusal to accept it would imply his knowledge of its contents. The observations made in this regard are as follows:-

"7. Section 27 of the General Clauses Act, 1897 deals with the topic-- "Meaning of service by post" and says that where any Central Act or Regulation authorises or requires any document to be served by post, then unless a different intention appears, the service shall be deemed to be effected by properly addressing, prepaying and posting it by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post. The section thus raises a presumption of due service or proper service if the document sought to be served is sent by properly addressing, prepaying and posting by registered post to the addressee and such presumption is raised irrespective of whether any acknowledgment due is received from the addressee or not. It is obvious that when the section raises the presumption that the service shall be deemed to have been effected 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. Similar presumption is raised under illustration (f) to Section 114 of the Indian Evidence Act whereunder it is stated that the court may presume that the common course of business has been followed in a particular case, that is to say, when a letter is sent by post by prepaying and properly addressing it the same has been received by the addressee. Undoubtedly, the presumptions both under Section 27 of the General Clauses Act as well as under Section 114 of the Evidence Act are rebuttable but in the absence of proof to the contrary the presumption of proper service or effective service on the addressee would arise. In the instant case, additionally, there was positive evidence of the postman to the effect that the registered envelope was actually tendered by him to the appellant on November 10, 1966 but the appellant refused to accept. In other words, there was due service effected upon the appellant by refusal. In such circumstances, we are clearly of the view, that the High Court was right in coming to the conclusion that the appellant must be imputed with the knowledge of the contents of the notice which he refused to accept. It is impossible to accept the contention that when factually there was refusal to accept the notice on the part of the appellant he could not be visited with the knowledge of the contents of the registered notice because, in our view, the presumption raised under Section 27 of the General Clauses Act as well as under Section 114 of the Indian Evidence Act is one of proper or effective service which must mean service of everything that is contained in the notice. It is impossible to countenance the suggestion that before knowledge of the contents of the notice could be imputed the sealed envelope must be opened and read by the addressee or when the addressee happens to be an illiterate person the contents should be read over to him by the postman or someone else. Such things do not occur when the addressee is determined to decline to accept the sealed envelope. It would, therefore, be reasonable to hold that when service is effected by refusal of a postal communication the addressee must be imputed with the knowledge of the contents thereof and, in our view, this follows upon the presumptions that are raised under Section 27 of the General Clauses Act, 1897 and Section 114 of the Indian Evidence Act."

28. The burden to rebut the presumption of service of notice sent under registered cover, is on the the party who seeks to challenge the factum of service. In this regard reference may be held to the judgment in the case of Gujrat Electricity Board & Anr. Vs. Atmaram Sungomal Poshani12 :-

"8. There is presumption of service of a letter sent under registered cover, if the same is returned back with a postal endorsement that the addressee refused to accept the same. No doubt the presumption is rebuttable and it is open to the party concerned to place evidence before the court to rebut the presumption by showing that the address mentioned on the cover was incorrect or that the postal authorities never tendered the registered letter to him or that there was no occasion for him to refuse the same. The burden to rebut the presumption lies on the party, challenging the factum of service. In the instant case the respondent failed to discharge this burden as he failed to place material before the court to show that the endorsement made by the postal authorities was wrong and incorrect. Mere denial made by the respondent in the circumstances of the case was not sufficient to rebut the presumption relating to service of the registered cover..."

29. Following the aforementioned judgment this Court in Jhabul Ram Vs. District Judge, Ballia & Ors.13has held as under:-

"8. The courts below have categorically found that on behalf of the petitioner there was only bald denial in respect of the endorsement of refusal upon the registered cover containing the notice. The denial was not supported by any, further material. Mere denial of refusal on the part of the addressee of registered cover is not enough to rebut the presumption of service upon him. If the letter under registered cover returned back with a postal endorsement that the addressee refused to accept the same, there is a rebuttable presumption of service. The presumption of service can be rebutted by producing material to show that the endorsement of refusal was wrong. Dealing with the question of presumption with regard to service of a letter sent under registered cover, the Hon'ble Supreme Court, in its decision rendered in the case of Gujrat Electricity Board v. Atam Ram 1989 (59) FLR 474 (SC), has ruled thus:

"There is presumption of service of a letter sent under registered cover, if the same is returned back with a postal endorsement that the addressee refused to accept the same. No doubt the presumption is rebuttable and it is open to the party concerned to place evidence before the court to rebut the presumption by showing that the address mentioned on the cover was incorrect or that the postal authorities never tendered the registered letter to him or that there was no occasion for him to refuse the same. The burden to rebut the presumption lies on the party, challenging the factum of service. In the instant case the respondent failed to discharge this burden as he failed to place material before the court to show that the endorsement made by the postal authorities was wrong and incorrect. Mere denial made by the respondent in the circumstances of the case was not sufficient to rebut the presumption relating to service of the registered cover."

9. Bald denial of the petitioner could not absolve him from the burden of rebutting the presumption of service of notice arising from the endorsement by the postal authorities on the registered cover containing the notice. The courts below did not commit any error, muchless an error apparent on the face of record, in holding that the notice in question was duly served on the petitioner."

30. The legal position with regard to the presumption of notice in a case of postal endorsement of refusal has been summarized in a recent judgment of this Court in Dinesh Chand Gupta Vs. Mahatma Ghandi Girls Post Graduate College, Firozabad14.

31. Following the aforementioned authorities it may be concluded that the notice having been sent through registered post at the correct address of the tenant and the same having been received back with the postal endorsement of refusal would raise a presumption of service of notice, and in case of default it would be for the addressee to lead the evidence and prove the contrary, and in case he fails to do so, the legal presumption would go against him and would remain unrebutted unless there is other material to show otherwise.

32. In view of the aforesaid proposition of law the finding of fact recorded by the courts below with regard to service of notice having been validly served cannot be faulted with.

33. The service of notice having been held to be valid and the tenancy having been terminated in terms of the said notice, the courts below have held that the provisions of Section 111 (h) of the Transfer of Property Act had been complied with, and the provisions of Section 111 (g) being not attracted, the issue with regard to the tenant being entitled to get benefit of Section 114 of the Transfer of Property Act, was answered in the negative.

34. In view of the aforementioned facts, the building in question having been held to be outside the purview of the U.P. Act No. 13 of 1972, the tenant having been held to have defaulted in payment of rent, the notice to quit having been held to have been sent by registered post at his correct postal address and the postal endorsement of refusal leading to the inference of service, the judgment of the trial court decreeing the suit and also the judgment of the revisional court affirming the decree cannot be said to be erroneous.

35. No other point has been argued by counsel for the petitioner.

36. The power of superintendence conferred under Article 227, is to be exercised most sparingly and within the parameters which have been summarized in the case of Shalini Shyam Shetty and another Vs. Rajendra Shankar Patil15 and also in the case of Radhey Shyam and another Vs. Chhabi Nath and others16.

37. The learned counsel for the petitioner has not been able to point out any material error or illegality in the orders impugned which may warrant interference by this Court in exercise of its supervisory jurisdiction.

38. The petition is devoid of merits and is accordingly dismissed.

Order Date :- 2.5.2019

Pratima

(Dr.Y.K.Srivastava,J.)