Mrs. Surender Bala & Another vs M/S. Sandeep Foam Industries P. ...
2000 Latest Caselaw 329 Del

ORDER

S.K. Agarwal, J.

1. This appeal is directed against judgment and decree dated 27th March, 1999 passed by the court of Mrs. Manju Goel, Additional District Judge, Delhi dismissing the appellant/plaintiff's suit for possession and damages against the respondent/defendant holding that the service of notice terminating the tenancy was not proved.

2. Facts giving rise to this appeal briefly are: that appellants filed a suit against the respondent for recovery of possession of the premises No. C-772, New Friends Colony, New Delhi (hereinafter referred to as suit premises) along with its fittings and fixtures and for recovery of damages, alleging therein that plaintiff No.1 as the owner of the suit premises and plaintiff No. 2 as the owner of the fittings and fixtures provided therein and they had, by two agreements dated 10th August, 1993, leased out the Ground Floor of the suit premises for purposes on a monthly rent of Rs. 8,000/- and fittings and fixtures attached in the suit premises on a monthly rent of Rs. 4,000/- for a period of three years; the agreements provided that the lease would stand automatically terminated on 9th August, 1996 and shall not be extended thereafter.

3. Appellant No.1 sent a notice dated 9th December, 1993, under section 106 of the Transfer of Property Act, 1882 through her lawyer, terminating the tenancy of the respondent w.e.f. 31.1.94 claiming damages @ Rs.10,000/- per month for use and occupation of the suit premises after the termination of the lease; and for recovery of Rs.1,05,000/- towards the damages caused to the premises due to the illegal construction and additions and alterations in the suit premises by the respondent. The Respondent filed a written statement contesting the suit disputing and denying the material averments made in the plaint. The service of notice dated 9th December, 1993, was also denied.

4. On the basis of the pleadings, the trial court framed the following issues :-

1. Is the suit barred by order 2 Rule 2 CPC ?

2. Was the defendant served with a notice of termination of tenancy ? If not, to what effect ?

3. Was the notice of termination of tenancy valid ?

4. Is the plaintiff entitled to damages for use and occupation ? If so, at what rate and for what period ?

5. Are the plaintiffs entitled to any amount towards damages allegedly caused to the suit property by the defendants ?

6. To what relief of any is the plaintiff entitled ?

5. PW-1, Mrs. Rita Roy, appeared as General Attorney for Plaintiffs No.1 and 2, She proved General Power of Attorney executed by her mother (plaintiff No.1) and her sister (plaintiff No. 2) as exhibit PW-1/1 and exhibit PW-1/2; original perpetual lease of the suit premises exhibit PW-1/3 and original completion certificate exhibit PW-1/4. She stated that appellants had let out to the respondents ground floor of the suit premises with the fittings and fixtures to the defendants @ Rs. 8,000/- and Rs. 4,000/- per month respectively, that the tenants had agreed not to make any additions and alterations in the suit premises without their consent in writing. Since the lease agreements between the plaintiffs and the respondent sought to be proved were objected to, the same were marked as 'A' and 'B' respectively, with a note that question of exhibiting documents will be decided at the later stage. She claimed that on 28th August, 1993 respondent made extensive additions and alterations causing damages to the suit property but restricting her claim, for damages to Rs.1,05,000/- only. She also proved, a copy of the notice to quit given by appellants to the respondent exhibited PW-1/7; postal receipts vide which the notice was sent exhibit PW-1/8. Certificate/letter from the Post Office regarding the service of the said notice on the defendant, exhibit PW-1/9. Mode of proof of this document also was objected; she claimed that the defendant was unauthorisedly occupying the suit premises from 1.2.94 and was liable to use and occupation charges pay @ Rs.20,000/- per month for the premises and Rs.10.000/- for the fittings and fixtures. In the cross examination she admitted the power of attorneys in her favour exhibits PW-1/2 were executed on 30.6.97 by the plaintiffs and the premises in dispute were rented out to the respondent out on 10th August, 1993; she denied the suggestion that the notice dated 9th December, 1993 was not served upon the defendants.

6. DW-1 Mr. Raj Narain Bagle, Managing Director of the respondent, while rebutting the allegations, stated that "no notice dated 9th December, 1993 was ever served upon them by the plaintiffs and that the defendant could not receive any notice sent in the name of "Sandeep Foam Pvt. Ltd." However, he admitted in cross-examination that the registered office of the defendant is at 45-B/2, site No.4, District Sahibabad, U.P. and the address was correctly mentioned at the notice, exhibit PW-1/7. He denied the suggestion that the notice PW-1/7 was received by the defendant company.

7. On the basis of the above evidence, trial court vide impugned judgment and decree held that appellants have failed to prove the service of the notice dated 9th December, 1993 exhibit PW-1/7 terminating the tenancy on the respondent. Issue No. 2 was thus decided against appellants and in favour of the respondent. Since findings on the other issues raised in the suit depended upon the proof of valid termination tenancy by the said notice, findings on these issues were not recorded by the trial court and the suit was dismissed by the impugned judgment and decree.

8. We have heard learned counsel for the parties and have been taken through the record.

9. Learned counsel for the appellant argued that the trial court erred in not raising presumption with regard to the service of notice merely on the ground that there was no proof that the envelope containing the letter was not received back undelivered and there was no postal acknowledgment due proved on record. It was argued that learned trial court ought to have raised the presumption under section 27 of the General Clause Act, 1897 and also under section 114(f) of the Evidence Act. Reliance was placed on Apex Court decisions in Harcharan Singh Vs. Shiv Rani & Ors., AIR 1981 SC 1284; Madan & Co. Vs. Wazir Jaivir Chand , and Shimla Development Authority & Ors. Vs. Santosh Sharma (Smt.) & Anr. .

10. Admittedly, in this case, the tenancy was for a period of more than a year. The premises were rented out for residential purposes; the lease agreements marked A and B were not registered therefore, the tenancy in law had to be construed as the tenancy on month to month basis. Therefore, the tenancy could be validly terminated by a 15 days' notice ending with the end of the tenancy month, under section 106 of the Transfer of Property. There is no dispute in this regard. The question which is required to be determined in this appeal is as to whether the notice, Ex. PW-1/7 dated 9th December, 1993 stated to have been sent by appellants to the respondent was served on the respondent and whether a presumption of service of notice could be validly raised under the facts and circumstances of the case.

11. In order to appreciate the arguments of the parties section 27 of the General Clauses Act, 1897 is reproduced hereinbelow:-

"Meaning of Service by post. Where any Central Act or Regulation made after the commencement of this Act authorizes 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, prepaying 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".

12. There cannot be any dispute about the proposition of law that a presumption of due service can be raised if the document sought to be served is sent by properly addressing, prepaying and posting by registered post to the addressee and such presumption can be raised irrespective of the fact whether an acknowledgement due is received back from the addressee or not.

13. However, in the present case the facts are quite different. No evidence was adduced to the effect that the notice, Ex. PW-1/7 was actually sent through registered post; nobody was examined from the office of the lawyer and even PW-1 did not state that the notice dated 9th December, 1993 was sent by her or in her presence through registered post. Admittedly PW- 1. Mrs. Rita Roy, became attorney of the plaintiffs only on 30.6.97. There fore she could not possibly say anything about the notice sent on 9th December, 1993. Her evidence in this regard has to be treated as hearsay; no person from the post office was examined to state that notice was delivered at the address of the respondent; no acknowledgement due has been produced on record. Above all even the duplicate copy of the certificate issued by the postal authorities with regard to the alleged delivery of the notice stated to have been sent vide postal receipt No. 4564, marked as PW- 1/9 was not proved on record. It was ought to be proved through PW-1, Mrs. Roy. Method and manner of proof of the same was objected to on behalf of the respondent. Despite such objection appellant did not make any effort at any stage of the trial of the suit to get the said document proved in accordance with law by summoning appropriate witness. In fact, during the course of arguments it was conceded by learned counsel for the appellant that document marked as PW-1/9 has not proved in accordance with law and, therefore, it can be ignored from consideration. If Ex. PW-1/9 is ignored, in our considered view, there is hardly any evidence to prove that notice copy of which is Ex. PW-1/7 was in fact ever sent through registered post or was delivered to the respondent, more so when it was addressed in the wrong name. Admittedly, the correct name of the respondent is "M/s.Sandeep Foam Industries Private Limited". The notice is purported to have been sent in the name of "M/s.Sandeep Foam Private Limited". It is true on postal receipts complete addresses are rarely mentioned. The receipt issued by the postal authorities only carry the name of the addressee and the post office of destination. However, on request in writing postal authorities normally issue a certificate certifying that whether the document sent through registered post was or was not delivered to the addressee. In this case, such a certificate marked as PW-1/9 was not proved in accordance with law, in this case.

14. Now coming to cases cited by learned counsel for the appellant. the fact situation in Harcharan Singh's case (supra) was different. In that case in addition to the evidence of the party there was evidence of postman (Kund Ram PW2) who was examined to prove the fact that the registered letter containing the notice was tendered to the appellant and when he declined to accept the same the postman had made endorsement in his hand on the envelope "Refused. Returned to the sender". Under these circumstances it was held that the letter was duly served and delivered. Similarly in Madan & Co.'s case (supra) in addition to the other evidence there was categorical evidence of the postman and that there was no servant at the premises which were locked. The postman had further deposed that the enquiries in the neighbourhood revealed that the tenant was not living in the premises for the last few months. Under these circumstances, it was observed that the landlord did the best he could do to serve the tenant. Shimla Development Authority's case (supra) was a case in which a notice was sent by a Registry of the Supreme Court. Registered envelope was not received back, therefore, a presumption was raised under section 27 of the General Clauses Act, 1897.

15. As observed earlier we would like to reiterate that in the present case presumption under section 27 of the General Clauses Act, 1897 could have been raised, had any person from the office of the Advocate been examined to prove copy of the notice, Ex.PW-1/7 which was sent through registered post and was not received back and that the acknowledgement due was also not received back. Otherwise, the plaintiffs could have led some other evidence in this regard to show that the notice was sent by registered post and the same was not received back. In this case the evidence adduced is only hearsay. PW-1 was not the attorney of the plaintiffs when the notice was sent. None of the plaintiffs appeared in witness box. Certificate of the postal authorities regarding delivery of the notice was also not proved in accordance with law. If the said certificate is excluded from consideration there is no proof that any notice or letter was actually sent and if sent that the same was not returned undelivered.

16. Presumption under section 114(f) of the Evidence Act is on the same footing, as a presumption under section 27 of the General Clauses Act. Presumption under section 114(f) arises on proof the facts of posting of a letter in the ordinary post, whereas presumption under section 27 of the Act is with regard to the letter sent through registered post. There is no evidence of the notice having been sent through courier also, therefore the question of raising any presumption under section 114(f) of the Evidence Act also does not arise.

17. Before we part with the judgment we would like to observe that when appellants desired to prove the duplicate copy of the certificate No. 3/68/9394 of the post office dated 23rd March, 1994 marked as PW-1/9 certifying that the letter sent vide postal receipt No. 4564 dated 13.12.93 was not received back and was duly delivered, the method and manner of proof was objected to by learned counsel for the defendant/respondent. The objection was not decided by the trial court immediately. The objection with regard to the proof of such vital documents could not and ought not to have been kept pending. Had the objection been decided by the trial court at an early stage of the proceedings, the plaintiff appellant might have taken recourse to remedial measures for proving the said document in accordance with law. Even appellants did not ask that the objection with regard to proof be decided in the first instance. Keeping the objections pending and deciding the same only at the time of delivering final judgment, was not appropriate. Such a practice has to be depreciated.

18. For the foregoing reasons we find no merit in the appeal. The appeal. The same is dismissed with no order as to costs.