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TMI Blog2001 (1) TMI 1017X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion could be instituted by the landlord against the tenant on the ground of non-payment of standard rent or permitted increases due until the expiration of one month next after the notice in writing of the demand of standard rent or permitted increases has been served upon the tenant in the manner provided in Section 106 of the Transfer of Property Act, 1882. 4. The Petitioner-landlord went to the Court with a specific case that the suit notices were sought to be served on the Respondent tenant by two modes viz. by registered post and by under certificate of posting. Insofar as notice sent by registered post is concerned the record indicates that the same was returned back with postal remarks not claimed ; whereas the notice sent by under certificate of posting was not received back by the Petitioner-landlord for which reason it is contended that it should be presumed that the said notice must have been received by the Respondent-tenant. The Respondent-tenant on the other hand has denied service of any notice by either of the aforesaid modes. In backdrop of the rival stand the matter has been adjudicated by the Courts below. 5. The Trial Court was pleased to decree the sui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s been validly served on the Respondent-tenant. With regard to the notice sent through under certificate of posting, the learned Counsel for the petitioner relies on the same provisions of the Transfer of Property Act, the General Clauses and as well as the Evidence Act to contend that - having regard to the fact that the petitioner had adduced evidence to indicate that notice was handed over to the post office for being delivered to the Respondent-tenant and the fact that the address mentioned on the envelope was complete address of the Respondent and the Respondent-tenant having admitted the same being complete address coupled with the fact that the Respondent has been receiving correspondence on the said address; it should be presumed that the notice sent by this mode has been duly received by the Respondent. Even this submission has been countered by the Counsel for the Respondent by placing reliance on the decision of this Court to which reference will be made a little later. According to him this Court has already considered the principle involving the service of notice by both the aforesaid modes and has taken a view that no presumption can be drawn that service has been eff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that on being delivered, it was refused by the addressee. Where a notice is sent to a defendant by registered post and the cover containing the same is returned with the postal endorsement refused , undoubtedly it is for the defendant to adduce evidence to satisfy the Court that the same was not tendered to him. But once the defendant does so by making statement on oath, and adducing other evidence, unless such denial is found to be prima facie incorrect, the onus will shift to the plaintiff. It would for the plaintiff in such a situation to prove the contrary by examining the postman who tendered the letter containing the notice to the defendant or by adducing some other evidence. In the absence of such evidence, the statement of the defendant made on oath remains uncontroverted which would amount to rebuttal of the presumption of service. However, as held by the Supreme Court in Anil Kumar v. Nanak Chandra Verma, there could be no hard and fast rule in this regard. It would depend on the facts and circumstances of each case. Unchallenged testimony of a tenant in certain cases may be sufficient to rebut the presumption unless such testimony itself is Inherently unreliable. 9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gment of this Court not only deals with the efficacy of service through under certificate of posting but also notice sent by ordinary post. 10. In my view the arguments advanced on behalf of the petitioner are squarely covered by the aforesaid decisions. The Counsel for the Respondent rightly relies on the decision of the Apex Court reported in AIR1990SC1215 to contend that it is enough for the tenant to deny the receipt of notice on oath which can be treated as sufficient rebuttal to the presumption of service. It is not necessary to multiply authorities on this proposition although the Counsel for the Respondent has relied on about 10 decisions which includes the above said decision of the Apex Court. 11. In my view, the law, as culled out from the aforesaid decisions, is well settled. Thus, applying the same to the facts of the present case it would be clear that the service of notice allegedly sent by registered post and/or by under certificate of posting has not been proved to be duly served on the Respondent tenant. This undoubtedly is a question of fact; and has been answered by final fact finding Court in favour of the Respondent. The Appellate Court after analyzing t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the above said decisions. The Appellate Court has observed thus : .... One may recall the mode in which articles are sent under certificate of posting. The article is tendered at the counter of the post office Instead of being dropped in a letter box. A form bearing address on which the article was to be delivered is also submitted along with the letter. This form bears requisite postage stamp. The postal official receiving the packet, returns the form after cancelling the postage stamp affixed thereon. Thus, the postal authorities only certify that a postal packet has been received by them for delivery to the addressee mentioned on the packet. The certificate of posting does not guarantee that the postal packet tendered for delivery bear complete address of the sender or that the address of the sender mentioned on the packet is correct. It is not unlikely that the sender may mention only his name on the postal packet or address, which is incomplete. In that case, if the postman fails to deliver the articles to the addressee, it would not be possible for the postman to return the article to the sender. Thus, simply because the landlord has not received the article back, he can ..... X X X X Extracts X X X X X X X X Extracts X X X X
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