1970 (3) TMI 172 - HC - Benami Property

Summary

Issues Involved
1. Whether a notice under Section 3 of the U.P. (Temporary) Control of Rent and Eviction Act, even if combined with a notice under Section 106 of the Transfer of Property Act, has to be served on the tenant personally.
2. Whether it is incumbent on the plaintiff to prove the endorsement of refusal on the notice sent by registered post by producing the postman or other evidence in case the defendant denies service on him.
3. Whether in the circumstances of the present case the Courts below were right in raising the presumption under Section 114 of the Evidence Act in favor of the landlord.

Detailed Analysis

Issue 1: Personal Service of Notice
The court examined whether a combined notice under Section 3 of the U.P. (Temporary) Control of Rent and Eviction Act and Section 106 of the Transfer of Property Act must be served personally on the tenant. The court concluded that a combined notice is permissible under law and a presumption under Section 27 of the General Clauses Act has to be made in respect of a notice under Section 106 of the Transfer of Property Act. Consequently, the demand of rent under Section 3 of the U.P. Act III of 1947, if included in the same notice, must also be deemed to have been served on the tenant. The court thus answered in the negative, stating that even a notice of demand deemed or presumed to have been served on a tenant will be considered "service upon him of notice of demand."

Issue 2: Proof of Endorsement of Refusal
The court considered whether the plaintiff must produce the postman or other evidence to prove the endorsement of refusal on the notice sent by registered post if the defendant denies service. The court referred to the relevant provisions of the Post Office Act and the rules framed thereunder, which indicate that endorsements made by postmen are official acts performed in the discharge of their duties. The court held that it is not incumbent on the plaintiff to produce the postman to prove the endorsement of refusal. The presumption of service can be made under Section 114 of the Indian Evidence Act and Section 27 of the General Clauses Act. Therefore, the court answered this issue in the negative.

Issue 3: Presumption of Service
The court examined whether the courts below were right in raising the presumption under Section 114 of the Evidence Act in favor of the landlord. The court noted that when a registered article is handed over to a post office, it is the official duty of the postal authorities to make delivery to the addressee. The court stated that a presumption about due service of a notice can be made under illustrations (e) and (f) of Section 114 of the Indian Evidence Act and Section 27 of the General Clauses Act. The court also acknowledged that this presumption is rebuttable. The court thus answered in the affirmative, stating that the presumption regarding the service of such notice has also to be made under Section 27 of the General Clauses Act.

Conclusion
The court concluded by answering the three formulated questions as follows:
1. The requirement of personal service of notice under Section 3 of the U.P. (Temporary) Control of Rent and Eviction Act is not mandatory if the notice is deemed or presumed to have been served.
2. It is not necessary for the plaintiff to prove the endorsement of refusal by producing the postman or other evidence.
3. The courts below were correct in raising the presumption under Section 114 of the Evidence Act in favor of the landlord, and this presumption should also be made under Section 27 of the General Clauses Act.

The court directed that the papers of the appeal be laid before the learned single Judge for the decision of the appeal.