Lalmani Ramnath Tiwari vs Bhimrao Govind Pawar
2001 Latest Caselaw 56 Bom

JUDGMENT

A. M. Khanwilkar, J.

1. By this writ petition under Article 227 of the Constitution of India, the Petitioner seeks to challenge the judgment of the 5th Additional District Judge, Thane, dated 19th November, 1988 in Civil Appeal No. 48 of 1987.

2. Briefly stated the Petitioner-landlord instituted a suit against the Respondent-tenant for eviction and possession of the suit premises along with arrears on the ground that the Respondent-tenant had committed default and was in arrears for more than 6 months within the meaning of Section 12(3)(a) of the Bombay Rent Act.

3. The short question that arises in the present writ petition is that whether the suit notices Exhibits 40 and 47 dated 6.6,1981 were duly served on the Respondent-tenant? This question assumes relevance in view of the mandatory requirement of Section 12 of the Bombay Rent Act which postulates that no suit for recovery of possession could be instituted by the landlord against the tenant on the ground of non-payment of standard rent or permitted increases due until the expiration of one month next after thenotice in writing of the demand of standard rent or permitted increases has been served upon the tenant in the manner provided in Section 106 of the Transfer of Property Act, 1882.

4. The Petitioner-landlord went to the Court with a specific case that the suit notices were sought to be served on the Respondent tenant by two modes viz. by registered post and by under certificate of posting. Insofar as notice sent by registered post is concerned the record indicates that the same was returned back with postal remarks "not claimed"; whereas the notice sent by under certificate of posting was not received back by the Petitioner-landlord for which reason it is contended that it should be presumed that the said notice must have been received by the Respondent-tenant. The Respondent-tenant on the other hand has denied service of any notice by either of the aforesaid modes. In backdrop of the rival stand the matter has been adjudicated by the Courts below.

5. The Trial Court was pleased to decree the suit against the Respondent by holding that the suit notice was duly served on the Respondent and inspite of service he failed to tender the rent within one month or raise any dispute regarding standard rent and thus was liable to be evicted within the meaning of Section 12(3)(a) of the Rent Act. This conclusion has been reversed by the lower Appellate Court in the impugned judgment. The lower Appellate Court has held that neither the notice sent by registered post nor through under certificate of posting can be said to be duly served, for there being no circumstance to presume that service has been effected on the Respondent-tenant. Having held that the suit notice was not duly served on the Respondent-tenant the Appellate Court proceeded to reverse the decree, since, in its view, rightly no suit could be maintained against the tenant on the ground of non-payment of rent unless the tenant is duly served with the suit notice and given an opportunity to tender rent and/ or raise dispute regarding standard rent within one month from the date of service.

6. The learned Counsel for the petitioner has strenuously- contended that the Court below was wrong in reversing the decree and upsetting the finding of fact of valid service of the suit notice. In his submission, notice sent by registered post, though returned with postal endorsement as "not claimed", should be treated as duly served. In support of his submission he relies on provisions of Section 106 of the Transfer, of Property Act read with Section 27 of the General' Clauses Act as well as Section 114 of the Evidence Act. In the first place, the learned Counsel contends that Section 12 of the Bombay Rent Act mandates that notice should be sent, but the mode of its service is to be found from the provisions of Section 106 of the T. P. Act. According to him, it is enough for the landlord to send the notice by post, which can be by way of registered post or through under certificate of posting or even by ordinary post, having regard to later part of Section 106 of the Transfer of Property Act. The Counsel for the Respondent however countered this submission by relying on the decision of this Court as well as of the Apex Court. According to him mere sending of the notice by registered post and that too when the same has been returned with postal endorsement "not claimed" it cannot be presumed that notice has been validly served on the Respondent-tenant. With regard to the notice sent through under certificate of posting, the learned Counsel for the petitioner relies on the same provisions of the Transfer of Property Act, the General Clauses and as well as the Evidence Act to contend that - having regard to the fact that the petitioner had adduced evidence to indicate that notice was handed over to the post office for being delivered to the Respondent-tenant and the fact that the address mentioned on the envelope was complete address of the Respondent and the Respondent-tenant having admitted the same being complete address coupled with the fact that the Respondent has been receiving correspondence on the said address; it should be presumed that the notice sent by this mode has been duly received by the Respondent. Even this submission has been countered by the Counsel for the Respondent by placing reliance on the decision of this Court to which reference will be made a little later. According to him this Court has already considered the principle involving the service of notice by both the aforesaid modes and has taken a view that no presumption can be drawn that service has been effected and it is enough for the tenant to merely, deny the factum of service; and once the tenant denies on oath and unless the denial is found to be prima facie incorrect; the burden will be shifted on the plaintiff to prove to the contrary. Reliance has been placed mainly on the decisions of this Court in B. S. Memo/cm since deceased by his heirs and legal representatives v. Chapsey R. Mtstry, Meghji Kanji Patel v. Kundanmal Chamanlal Mehtant, Hajrabi Abdul Gani v. Abdul Latif Azizulla and Anr., and that of the Apex Court in Anil Kumar v. Nanak Chandra Verma.

7. In view of the rival submissions I would first proceed to deal with the service of notice sent by registered post. The packet sent by registered post, undisputedly, has been received back by the Petitioner with postal endorsement "not claimed". The contention raised on behalf of the Petitioner that endorsement not claimed should be treated to be one of refusal by the Respondent is totally misplaced. There is marked distinction between expression "not claimed" and "refused". In case of endorsement of "refused" there can be no dispute that the Court can legally presume that service has been duly effected on the addressee. However, the said legal presumption cannot apply to a case where the envelope has been returned with postal endorsement "not claimed". In this situation the non-delivery of the envelope can be due to variety of reasons, but surely other than refusal. The service can be said to be effected only when there is a positive evidence that it is actually served through the modes permissible In law or even when the addressee refuses to accept the same; but in no case, if the packet is returned with postal endorsement "not claimed", can the Court presume that service has been effected on the addressee.

8. Inso far as the contention raised on behalf of the Petitioner that in view of the provisions of section 27 of the General Clauses Act and under 114 of the Evidence Act, this issue is no more res - integra. This Court in decision of the said decision, has observed thus :-

Para 6 :

"The law is well settled that the presumption of service under Section 27 of the Indian General Clauses Act. Section 28 of the Bombay General Clauses Act, and under Section 114 of the Indian Evidence Act is a rebuttable presumption that the notice was delivered to the addressee or that on being delivered, it was refused by the addressee. Where a notice is sent to a defendant by registered post and the cover containing the same is returned with the postal endorsement "refused", undoubtedly it is for the defendant to adduce evidence to satisfy the Court that the same was not tendered to him. But once the defendant does so by making statement on oath, and adducing other evidence, unless such denial is found to be prima facie incorrect, the onus will shift to the plaintiff. It would for the plaintiff in such a situation to prove the contrary by examining the postman who tendered the letter containing the notice to the defendant or by adducing some other evidence. In the absence of such evidence, the statement of the defendant made on oath remains uncontroverted which would amount to rebuttal of the presumption of service. However, as held by the Supreme Court in Anil Kumar v. Nanak Chandra Verma, there could be no hard and fast rule in this regard. It would depend on the facts and circumstances of each case. Unchallenged testimony of a tenant in certain cases may be sufficient to rebut the presumption unless such testimony itself is Inherently unreliable."

9. The learned Counsel for the petitioner however made unsuccessful attempt In distinguishing the abovesald judgment that it would not apply to a situation where notice is sent through under certificate of posting. I am afraid, this submission is totally devoid of merits as the principle enunciated by this Court would fully apply even to service sought to be effected by under certificate of posting. Even if this Court was to distinguish the above judgment for the reasons indicated by the Counsel for the petitioner, however, another judgment of this Court has undoubtedly dealt with this aspect of the matter. In the said judgment the Court was not only concerned with the notice sent by registered post but also copy of the notice sent under certificate of posting. While considering similar arguments in para 8 of the said decision, this Court observed thus :

Para 8 "So far as serving by registered post is concerned, admittedly, the packet has come back with the various postal remarks enumerated hereinabove. Mr. Damle then referred to the fact of the notice having been sent by ordinary post and having not been received back, placing reliance on the presumption that it must have been received by the addressee thereof; but Mr. Damle fairly conceded that this presumption was not an irrebutable presumption. Mr. Abhyankar in this context invited my attention to the decision which underlines that the presumption in question was not irrebutable, clarifies that It is undoubtedly for the defendant to satisfy the Court that the letter was not tendered to him and goes on to say that on a statement on oath by the addressee that such letter was not tendered to him the same stands rebutted, on the question of the manner of rebuttal, the said Judgments states "But the defendant can only do so by making a statement on oath. This must usually remain un controverted, unless the postman, who tendered the letter to him, is summoned and makes a statement that he tendered the cover containing the summons to the defendant and after cross-examination, his evidence is believed. If the plaintiff does not summon the postman, the statement on oath of the defendant remains un controverted and, in such a case there is sufficient ground for setting aside the ex-parte decree."

It would be relevant to point out that the aforesaid judgment of this Court not only deals with the efficacy of service through under certificate of posting but also notice sent by ordinary post.

10. In my view the arguments advanced on behalf of the petitioner are squarely covered by the aforesaid decisions. The Counsel for the Respondent rightly relies on the decision of the Apex Court to contend that it is enough for the tenant to deny the receipt of notice on oath which can be treated as sufficient rebuttal to the presumption of service. It is not necessary to multiply authorities on this proposition although the Counsel for the Respondent has relied on about 10 decisions which includes the abovesaid decision of the Apex Court.

11. In my view, the law, as culled out from the aforesaid decisions, is well settled. Thus, applying the same to the facts of the present case it would be clear that the service of notice allegedly sent by registered post and/or by under certificate of posting has not been proved to be duly served on the Respondent tenant. This undoubtedly is a question of fact; and has been answered by final fact finding Court in favour of the Respondent. The Appellate Court after analyzing the evidence on record has observed thus:

The landlord has stated in deposition at Exh. 39 that according to him, the notice was refused by the defendant because it was not returned to him. Thus his statement that the notice was received by the tenant is inferential. The tenant has categorically denied on oath in his deposition at Exh. 60 that he had received the notice sent under postal certificate or had refused to claim the notice sent by registered post. The cross-examination of defendant on this point is brief. It shows that the defendant admitted the address mentioned on the packet to be correct. He stated that he used to receive correspondence on that address. However, no questions were put to the defendant about his availability at his residence on the various dates on which postman appears to have attempted to deliver the packets. It is not unlikely that the appellant was indeed not present at his home when the postman sought to effect delivery. There is no endorsement on the packet Exh. 43 to the effect that appellant had refused to receive the packet. Though, there would be a presumption that the postman must have made correct endorsement on the envelope while discharging his duties as public servant. In the absence of clear endorsement of refusal, this presumption would not be presumption sufficient to lead to the further presumption that tenant was aware of the contents of the notice which he allegedly refused to accept. In any case denial of receipt of notice by the tenant on oath, unimpeached in the cross-examination rebutted presumption of any respect of service of notice by registered post or the consequences of refusal to receive a postal packet."

In my view, no exception can be taken to the conclusion reached by the Appellate Court that in absence of clear endorsement of refusal it is not possible to presume that notice has been duly served on the Respondent tenant. The Appellate Court has rightly observed that denial of receipt of the suit notice by tenant on oath remained unimpeached in the cross-examination.

12. Insofar as the Petitioner's claim that notice has been duly served which was sent through under certificate of posting, even this aspect has been duly scrutinized by the lower Appellate Court and the conclusion reached by the Appellate Court, in my view, is in conformity with the principle enunciated by this Court in the abovesaid decisions. The Appellate Court has observed thus :

".... One may recall the mode in which articles are sent under certificate of posting. The article is tendered at the counter of the post office Instead of being dropped in a letter box. A form bearing address on which the article was to be delivered is also submitted along with the letter. This form bears requisite postage stamp. The postal official receiving the packet, returns the form after cancelling the postage stamp affixed thereon. Thus, the postal authorities only certify that a postal packet has been received by them for delivery to the addressee mentioned on the packet. The certificate of posting does not guarantee that the postal packet tendered for delivery bear complete address of the sender or that the address of the sender mentioned on the packet is correct. It is not unlikely that the sender may mention only his name on the postal packet or address, which is incomplete. In that case, if the postman fails to deliver the articles to the addressee, it would not be possible for the postman to return the article to the sender. Thus, simply because the landlord has not received the article back, he cannot presume that the article was tendered to the tenant. No such presumption can be drawn particularly in fact of denial by the defendant on oath that he received any such article."

In my view no fault can be found with the aforesaid conclusion reached by the Appellate Court even with regard to the question of service of notice by under certificate of posting mode, for no evidence has been adduced by the Petitioner to prove to the contrary.

13. For the aforesaid reasons the present writ petition should fail and the same is dismissed with no order as to costs. Rule stands discharged.