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TMI Blog2015 (8) TMI 1557X X X X Extracts X X X X X X X X Extracts X X X X ..... ddress to which the envelopes containing the notices were addressed, are correct addresses. The Respondents have also admitted that they normally receive their correspondence at such address. There is material on record which establishes that the notices were indeed sent by R.P.A.D. and U.C.P. There is no evidence led by the Respondents either by way of examination of postman or otherwise to establish that such notices were not served. The Appeal Court, in such circumstances, was not right in holding that a bald statement that the notices were not served, suffice to rebut the statutory presumption. The Appeal Court, has already recorded the findings of fact that the Respondents were clearly in arrears in the payment of rent for a period of in excess of six months. Such findings have not been challenged by the Respondents. For all these reasons, the impugned Judgments and Decrees are liable to be set aside. This Civil Revision Application is allowed. - Civil Revision Application No. 139 of 2007 - - - Dated:- 7-8-2015 - M.S. Sonak, J. Mr. Anil Kumar Patil for Applicant. Mr. S. G. Deshmukh for Respondents. ORAL JUDGMENT : 1. This Civil Revision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt in the case of Basant Singh and Another Vs. Roman Catholic Mission [(2002) 7 Supreme Court Cases 531], there was no necessity for examining the postman. Mr. Patil submitted that, in fact, this is a case where the Respondents have led no evidence whatsoever to rebut the statutory presumption. 5. Mr. S. G. Deshmukh, learned Counsel for Respondents, submitted that two Courts, on the basis of material on record, have returned a concurrent findings of fact that there was no effective service of notice under Section 12(2) of the Rent Act. The service of such notice under Section 12(2) of the Rent Act is mandatory and without the same, there cannot be a decree for eviction on the ground that arrears in payment of rent. Mr. Deshmukh placed reliance on the decision of this Court in the case of The New India Assurance Co. Ltd. Versus Smt. Nasibunnisa Mohd. Israr Khan and others [Civil Application No.1979 of 2011 in First Appeal (Stamp) No.13185 of 2011, dated 14th October 2011.] to submit that notice which is returned with remark 'unclaimed' cannot be regarded as good service. In exercise of jurisdiction under Section 115 of the CPC, there is no scope to reappreciate evide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... will be revealed that Section 22(1)(a) prohibits the institution of any suit or proceeding for obtaining any decree or order for eviction of an occupier from any building or land in a slum area or for recovery of any arrears of rent or compensation from any such occupier, or for both, except with the previous permission in writing of the Competent Authority. Section 22(1)(b) provides that no person shall except with the previous permission in writing of the Competent Authority when any decree or order is obtained in any suit or proceeding instituted before such commencement for the eviction of an occupier from any building or land in such area or for recovery of any arrears of rent or compensation from such occupier, or for both, execute such decree or order. Thus, by Subsection (1)(a) of Section 22 the institution of the suit after the commencement of the said Act is prohibited. The premises come under the Act as a result of the declaration under Section 4 of the said Act, and therefore, from the date of declaration, institution of suit is prohibited. However, in the present matter, admittedly the suit was instituted when the Act was not applicable. Therefore, the suit as filed w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as such ever received. The third mode adopted by the Applicant was pasting of the notice upon conspicuous portion of the suit premises i.e. main door of the suit premises. 11. On the aspect of pasting of the notice on conspicuous portion of the suit premises, although, this is a mode contemplated by Section 106 of the TP Act, Mr. Deshmukh is right that the two Courts, upon appreciation of the evidence on record, have held that such affixation is not proved. In the exercise jurisdiction under Section 115 of the CPC, it would, therefore, be difficult to reverse this findings of fact. However, as regards service by R.P.A.D. and U.C.P. is concerned, there are certain statutory presumptions arising out of the provisions contained in Section 27 of the General Clauses Act, 1897 read with 114 of the Indian Evidence Act, 1872. No doubt, such presumptions are rebutable, but the onus of rebutting the same shall be upon the addressee provided certain basic predicates stand satisfied. 12. The material on record amply establishes that the notices were sent to the Respondents at their correct address. In fact, the Respondents, in the course of their evidence, have admitted this aspect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39;s case (supra). Mere absence of the tenant in the premises cannot rebut the presumption arising under section 28 of the Bombay General Clauses Act. It is for the tenant to make necessary arrangement to receive the notice addressed to him in his absence at the suit premises and, failure on the part of tenant in that regard cannot enure to his benefit to contend that on account of his absence at the premises, the presumption of service would stand rebutted. It is further to be noted that postal endorsement is not of refusals to receive but to the effect that the letter was not claimed. In other words, there was presumption not only regarding service of the notice but also regarding intimation of a letter having been received in the post office addressed to the tenant and failure to collect the same by the tenant as he was found absent in the premises at the time when postman approaches the premises to deliver the same. The presumption regarding intimation would arise under section 114 of the Evidence Act, as it is observed by the Apex Court, it is general practice for the postman to intimate either orally or in writing about the letter having been received in the post office add ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... returning it to the sender. However, he has neither the power nor the time to make enquiries regarding the whereabouts of the addressee; he is not expected to detain the letter until the addressee chooses to return and accept it; and he is not authorised to affix the letter on the premises because of the assessee's absence. His responsibilities cannot, therefore, be equated to those of a process server entrusted with the responsibilities of serving the summons of a Court under O. V of the C.P.C. The statutory provision has to be interpreted in the context of this difficulty and in the light of the very limited role that the post office can play in such a task. If we interpret the provision as requiring that the letter must have been actually delivered to the addressee, we would be virtually rendering it a dead letter. The letter cannot be served where, as in this case, the tenant is away from the premises for some considerable time. Also, an addressee can easily avoid receiving the letter addressed to him without specifically refusing to receive it. He can so manipulate matters that it gets returned to the sender with vague endorsements such as not found , not in station , ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the presumption arising under Section 27 of the General Clauses Act and Section 114 of the Indian Evidence Act in matters of service of notice by landlord to the tenant. However, this Court, taking note of the distinction made in between the responsibility of the process server and the postman and in the context of the specific provision contained in Order V Rule 9(5) of the CPC, had held that the principles in the two situations differ. Accordingly, the decision in the case of The New India Assurance Co. Ltd. Versus Smt. Nasibunnisa (supra), far from assisting Mr. Deshmukh, endorses the settled position in law that presumption under Section 27 of the General Clauses Act read with Section 114 of the Indian Evidence Act will arise in case of service of notice by a landlord upon his tenant. 17. Even in the context of service of summons sent by registered post to the correct and given address of the Defendant, the Hon'ble Apex Court, in the case of Basant Singh and Another Vs. Roman Catholic Mission (supra), has held that once it is proved that summons was duly served by registered post to the correct and given address, the Defendant's own conduct assumes importance. Whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is a case where the onus of proof was incorrectly and in any case excessively cast upon the Applicant landlord. The presumption arising out of Section 27 of the General Clauses Act and Section 114 of the Indian Evidence Act was not allowed its full play. As noted earlier, the Respondents have admitted in the course of their evidence that the address to which the envelopes containing the notices were addressed, are correct addresses. The Respondents have also admitted that they normally receive their correspondence at such address. There is material on record which establishes that the notices were indeed sent by R.P.A.D. and U.C.P. There is no evidence led by the Respondents either by way of examination of postman or otherwise to establish that such notices were not served. The Appeal Court, in such circumstances, was not right in holding that a bald statement that the notices were not served, suffice to rebut the statutory presumption. The Appeal Court, has already recorded the findings of fact that the Respondents were clearly in arrears in the payment of rent for a period of in excess of six months. Such findings have not been challenged by the Respondents. For all these reasons ..... X X X X Extracts X X X X X X X X Extracts X X X X
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