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TMI Blog2003 (2) TMI 552X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of a tenant on the ground of default in payment of rent and, therefore, the impugned judgment and decree for eviction is bad in law. 3. Upon hearing the learned advocates for the parties and perusal of record, it is apparent that both the courts below have arrived at the concurrent findings regarding service of the notice under Section 12(2) of the said Act. However, it is the contention of the petitioner that the said findings are perverse inasmuch as they are not borne out from the record, besides being contrary to the materials on record. Taking through the records, the learned advocate for the petitioner submitted that it was a specific case pleaded by the petitioner in his written statement that no notice as alleged by the respondent was ever received by the petitioner and the said fact was stated on oath by the holder of Power of Attorney who was examined by the petitioner on his behalf before the trial Court. The fact that the petitioner was out of station from the year 1990 to 1992 was brought on record by the respondent himself in the course of cross examination of the holder of Power of Attorney of the petitioner and the said fact was neither denied nor disputed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... What is the mode of service of notice which is required to be issued by the landlord to the tenant under Section 12(2) of the said Act? In case there are various modes available for service of notice, then is it at the option of the landlord to choose anyone of such modes? Is there any sequence to be observed while exploring different modes of service of notice ? Whether the findings arrived by the Courts below on the issue of service of notice are perverse and require interference? If so, what do the materials on record reveal about the service of notice? 6. Section 12(2) of the said Act provides that no suit for recovery of possession shall be instituted by a landlord against tenant on the ground of non-payment of the standard rent or permitted increased due, until the expiration of one month next after notice in writing or the demand of the standard rent of permitted increases has been served upon the tenant in the manner provided in Section 106 of the Transfer of Property Act, 1882. Apparently, the service of notice demanding arrears upon the tenant is a precondition for initiating suit for recovery of possession on the ground of non-payment of rent, in terms of the provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... delivering the same personally to the addressee is found to be impracticable. 7. Before considering the rival contentions it will be also appropriate to scan through the judgments which are sought to be relied upon by the parties. In M/s. Madan Co. case the Apex Court while dealing with the provisions regarding the service of notice in relation to the claim of arrears by landlord under Jammu and Kashmir Houses and Shops Rents Control Act, 1966 has observed thus:- The proviso to Clause (1) of Section 11(1) of the J K Houses and Shops Rent Control Act insists that before any amount of rent can be said to be in arrears, a notice has to be served through post. All that a landlord can do to comply with this provision is to post a prepaid registered letter (acknowledgment due or otherwise) containing the tenant's correct address. Once he does this and the letter is delivered to the post office, he has no control over it. It is then presumed to have been delivered to the addressee under Section 27 of the General Clauses Act. Under the rules of the post office, the letter is to be delivered to the addressee of a person authorised by him. Such a person may either accept ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be served on him. If he is compelled to be away for some time, all that he has to do is to leave necessary instructions with the postal authorities either to detain the letters addressed to him for some time until he returns or to forward them to the address where he has gone, or to deliver them to some other person authorised by him. In this situation, we have to chose the more reasonable, effective, equitable and practical interpretation and that would be to read the word served as sent by post , correctly and properly addressed to the tenant and the word receipt as the tender of the letter by the postal peon at the address mentioned in the letter. No other interpretation, we think, will fit the situation as it is simply not possible for a landlord to ensure that a registered letter sent by him gets served on, or is received by, the tenant. The above ruling by the Apex Court was delivered in a case where the statutory provisions in J K, Houses and Shops Rent Control Act specifically provide not only for service of notice by landlord on tenant but also used expression like receipt of such notice by tenant. Applying the said ruling to a situation where the provision of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e upon the tenant, it is necessary for the tenant to deny and establish the fact of non-service of the notice. Needless to say that the circumstances in each case may differ and, accordingly those circumstances will have to be brought on record by the tenant revealing hollowness in the case of landlord regarding service of notice and, only thereupon presumption can be said to be rebutted. In other words, mere statements that I have not received the notice sent to me or that notice allegedly sent was never received by me or the like by themselves would not rebut the presumption. The facts leading to the conclusion about improbability of impracticability of service of notice inspire of endorsement to the contrary will have to be brought on record by the tenant in order to rebut the presumption. Otherwise provisions in Section 28 of the Bombay General Clauses Act itself would be rendered meaningless and as is observed by the Apex Court in Madan Co's case a tenant can always create a situation where by he may be able to return the letter without actually refusing the same. it is pertinent to note that while considering all the possibilities of creating such situation by the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... art from the presumption which arises in terms of the provisions contained in Section 28 of the Bombay General Clauses Act regarding service of notice, when notice is sent by registered post disclosing the correct address of the addressee thereon, when such letter is returned to the sender with endorsement by the postal authority either as refused or as not claimed , by the addressee, the conclusion that is to be drawn is that either the letter was actually tendered or refused by the addressee or inspire of an intimation having been received from the post office in whose local jurisdiction the premises in occupation of the tenant are situated, no steps were taken by the tenant to collect the said letter from the post office. It is not the duty of the landlord to keep track of the tenant and to find out whether the tenant is actually residing or available at the premises in his occupation where the letter is to be addressed. It is obligatory on the part of the tenant to make arrangement for receipt of any correspondence which he may receive in case he is going to be out of station for any period of time. Having been out of station, the tenant is not entitled to make any grievance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s no reason why such a presumption as regards service of notice of demand in favour of the plaintiff would not be justifiable. 12. As far as decision of learned Single Judge in Meghji Patel's case is concerned, undoubtedly the learned Single Judge therein has observed that though sending of letter by registered post raises presumption of delivery of letter, the presumption would stand rebutted on the statement on oath by the addressee that such a letter was not tendered to him. Apart from the fact that the observation were made in particular facts of the case, as a general proposition of law, it stands no more good law in view of the decision of the Apex Court in M/s. Madan Co.'s case. Being so the decision in Meghji Patel's case if of no help in the case in hand. 13. The decision in B.S. Mahajan's case is clearly distinguishable on facts. Therein, the facts disclosed that the tenant was residing in a building adjoining the suit premises and the landlord-plaintiff had sufficient knowledge about the same and the landlord deliberately chose not to serve the notice upon the defendant at the place where he was residing. In those facts, it was observed that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s clearly held that:- Once it is proved that summons were sent by registered post to a correct and given address, the defendants' own conduct becomes important....The defendant did not appear and no evidence whatsoever, on his behalf, has been led to rebut the presumption in regard to service of summons sent to him under registered post with acknowledgement due.....He could have examined the postman, who would have been the material witness and whose evidence would have bearing for proper adjudication. He has failed to discharge the onus cast upon him by the statute. 16. As regards the decision in Lalmani Tiwari's case, obviously the same was delivered in the peculiar set of facts. The learned Single judge of this Court therein has, after nothing the observations of the lower appellate Court made on analyses on the record, held thus:- The landlord has stated in deposition at Exh. 39 that according to him, the notice was refused by the deft., 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervice of notice would stand rebutted. It is well settled that a decision is that it decides and not what follows from it. The ratio of the decision is to be understood by referring to the point for consideration arising in the case and judicial pronouncement in relation to the said point. 17. Reverting to the facts of the case in hand, the learned advocates on both the sides have extensively referred to the evidence on record in support of their contentions. Referring to the statement of holder of Power of Attorney of the petitioner that the petitioner did not receive any notice as alleged to have sent by the respondent and the statement in his cross examination by respondent that the petitioner was out of station from 1990-92, it was vehemently contended on behalf of the petitioner that there was no occasion for the petitioner to receive notice alleged to have been sent by the respondent either in the month of October 1990 or March/April 1991. Whereas the learned advocate for the respondent referring to the same testimony has contended that, the said witness had no knowledge about the receipt or refusal of the notice sent by the petitioner. As in the course of cross examinat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le when actual service by tendering notice to the tenant or by registered post is not practicable. In that case, once a letter is received with postal endorsement that it was not claimed by addressee, it is obvious that though the presumption of service may arise under Section 28 of the Bombay General Clauses Act, the actual service was not practicable as far as the landlord is concerned. The legal presumption arising from postal endorsement is different from the understanding of the factual situation to the landlord or understanding of the landlord regarding service of notice, and in that connection if the landlord makes another attempt to serve the notice by affixation of such notice to the suit premises and the same is effected in presence of any witness of factum of affixation at the door otherwise is established, the same can be considered as good service of notice in terms of Section 106 of Transfer of Property Act, and therefore service by affixation in the case in hand cannot be found fault with. In any case, the presumption arising from service of notice having not been rebutted, the concurrent findings arrived at by the Courts below regarding service of notice do not warr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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