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TMI Blog2019 (6) TMI 118X X X X Extracts X X X X X X X X Extracts X X X X ..... y, and the rate of rent was agreed at Rs. 3000/per month excluding the amount due towards house tax and water tax, and the tenant had defaulted in payment of rent from March 2000 to January 2001, hence the landlord had served a notice dated 06.03.2002 demanding arrears of rent and also terminating tenancy which was served on the tenant on 08.03.2002, and upon expiry of the notice period of thirty days a suit for eviction and arrears of rent was filed. 4. The suit was contested by the defendanttenant who filed his written statement wherein he admitted the factum of tenancy but according to him the agreed rate of rent was Rs. 1000/per month. It was also asserted that the tenancy started from December 2000 and the amount towards water tax and house tax was included in the rent itself. It was also stated that since there was no assessment of water tax and house tax over the building and the tenanted shop, the same was not paid. It was further pleaded that the tenancy was not for eleven month but was on month to month basis. It was further asserted that an advance of Rs. 1,00,000/had been paid by the tenant at the time of construction of the shop, and it was agreed between the parties ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould be adjusted on a monthly basis from the rent, and also there was no witness to the payment or to any agreement regarding adjustment of advance. The solitary evidence of the tenant (DW1) has not been held to be reliable, and the assertion with regard to the payment of advance or any agreement that the same was to be adjusted from the rent, has been held to have been not proved. 9. Further, taking into consideration that the tenant had not filed any receipt of rent regarding the period from the month of December 2000 upto the date of notice for termination of tenancy and demand of arrears, and also that he had not stated on oath that the amount towards arrears of rent and taxes were tendered by him to the landlord or were deposited under Section 20(4) of the U.P. Act No.13 of 1972, it was held that the tenant was in arrears of rent since December 2000 till the date of notice. It was also held not proved that any advance rent had been deposited by the tenant to the landlord. 10. As regards the issue relating to service of notice terminating tenancy, notice has been taken of the fact that the landlord had asserted that the notice dated 06.03.2002 terminating tenancy and demandi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nding that the notice in question had legally terminated the tenancy. 14. On the issue of the relief which the landlord was entitled to, the trial court has held the landlord to be entitled to receive rent at the rate of Rs. 1000/from 01.12.2000 upto 08.04.2002 alongwith house tax and water tax at the rate of 24% of annual rent for the said period and also that the landlord was entitled to get compensation for the unauthorized use and occupation of the disputed property at the rate of Rs. 1000/per month from 09.04.2002 till delivery of its vacant possession by the tenant to the landlord. 15. The suit was accordingly decreed with costs. 16. The parties are admittedly not at issue with regard to the findings returned by the trial court with regard to the rate of rent being Rs. 1,00,000/per month, the tenancy being on month to month basis, and the tenancy being regulated in terms of the provisions of U.P. Act No.13 of 1972, and also that the tenancy started from the month of December 2000. 17. On the point of default it is the case of the defendanttenant that he had paid an advance of Rs. 1000/at the time when the shop was being constructed, and it was agreed between the parties t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice on the shop address was personally served on the tenant and the acknowledgment receipt signed by the tenant was received by the landlord. 21. A defence sought to be taken by the defendanttenant is that the address on the notice was incomplete and it bears the seal of "Alok Cassettes Centre" whereas the address of the defendanttenant is "Alok Music Centre". The tenant has, however, not categorically denied his signatures on the acknowledgment receipt. This together with the fact that the notice had been sent by registered post, the trial court in view of the settled legal position has drawn a presumption of service of notice, and the said presumption having not been rebutted by the defendanttenant by leading any cogent evidence the notice has been held to be legally served on the tenant, and the finding returned in this regard also does not suffer from any perversity or illegality. 22. As regards the presumption of service of notice 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istered 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 Postma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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." 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State of Maharashtra (2010) 13 SCC 657. 30. Following the aforementioned judgment in the case of Gujrat Electricity Board (supra) this Court in Jhabul Ram Vs. District Judge, Ballia & Ors. 1994 (23) ALR 464 has 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 se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , containing a notice to quit, is proved to have been put into the post office, it is presumed that the letter reached its destination at the proper time according to the regular course of business of the post office, and was received by the person to whom it was addressed. That presumption would appear to their Lordships to apply with still greater force to letters which the sender has taken the precaution to register, and is not rebutted, but strengthened by the fact that a receipt for the letter is produced signed on behalf of the addressee by some person other than the addressee himself." 32. Counsel appearing for the revisionist has not been able to dispute the aforementioned legal proposition with regard to the presumption to be drawn in respect of a notice sent by registered post. 33. Lastly, placing reliance upon the provisions contained under Section 7 of the U.P. Act No.13 of 1972 it is sought to be contended that the liability to pay taxes is only in respect of the water tax, and the tenant would not be liable for payment of house tax. In view of clause (b) of Section 7 which provides that the liability to pay house tax would be to the extent of 25% of every enhancemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (as he then was) in Bell & Co. Ltd. v. Waman Hemraj [1937 SCC OnLine Bom 99 : (1938) 40 Bom LR 125 : AIR 1938 Bom 223], where the learned Chief Justice, dealing with Section 25 of the Provincial Small Cause Courts Act, observed: (SCC OnLine Bom paras 34) '3. ... The object of Section 25 is to enable the High Court to see that there has been no miscarriage of justice, that the decision was given according to law. 4. The section does not enumerate the cases in which the Court may interfere in revision, as does, Section 115 of the Code of Civil Procedure, and I certainly do not propose to attempt an exhaustive definition of the circumstances which may justify such interference; but instances which readily occur to the mind are cases in which the Court which made the order had no jurisdiction, or in which the Court has based its decision on evidence which should not have been admitted, or cases where the unsuccessful party has not been given a proper opportunity of being heard, or the burden of proof has been placed on the wrong shoulders. Wherever the Court comes to the conclusion that the unsuccessful party has not had a proper trial according to law, then the Court can interfere ..... X X X X Extracts X X X X X X X X Extracts X X X X
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