RSA No.3628 of 2008(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3628 of 2008(O&M) Date of decision: 28.11.2008 Meena Rani ......Appellant Versus Gurmukh Singh ......Respondent CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG * * * Present: Mr. V.K. Gupta, Advocate for the appellant. * * * This is defendant's second appeal challenging the judgment and decrees of the Courts below whereby the suit of the plaintiff- respondent by way of ejectment of the defendant from the demised premises along with arrears of rent at the rate of Rs.300/- per month, has been decreed and the defendant has been directed to hand over the possession of the demised premises to the plaintiff-respondent within a period of three months from the date of judgment and decree of the Lower Appellate Court. Briefly, the facts of the case are that the plaintiff inducted the defendant as tenant in the demised premises, in March,1994 at a monthly rent of Rs.500/- excluding water and electricity charges. There was a condition that rent will be increased at the rate of Rs.100/- per financial year. According to the agreed conditions, the defendant paid rent at the rate of Rs.600/- P.M in the year 1995-96, at the rate of Rs.700/- P.M in the year 1996-97 and so on. Lastly, he paid rent at the rate of Rs.1000/- for the month of March, 2000. Thereafter, he stopped paying the rent from RSA No.3628 of 2008(O&M) 2 April, 2000 till the filing of the suit. The plaintiff terminated tenancy of the defendant by giving him a notice under section 106 of the Transfer of Property Act (for short “T.P. Act”) dated 16.8.2004 which was sent through UPC as well as under registered cover, directing him to deliver vacant possession of the demised premises within a period of 15 days failing which he would liable to pay mesne profits at the rate of Rs.2,000/- per month from the date his tenancy is terminated. The notice sent through registered post was received back by the counsel for the plaintiff with the remarks “unclaimed” whereas a notice sent through UPC was not received back. After the expiry of the period of notice the plaintiff is entitled to mesne profits but the defendant had neither delivered the vacant possession of the demised premises nor paid the arrears of rent amounting to Rs.66,000/-. The refusal of the defendant to hand over the vacant possession of the demised premises and to pay arrears of rent etc., resulted in filing of the suit. Upon notice, the defendant appeared and filed written statement admitting the tenancy of one room, but according to him the rate of rent was Rs.300/- per month. He has regularly paid the rent till the institution of the suit and thereafter, also he was ready to pay the rent but the plaintiff refused to accept the same. No notice as alleged was received by the defendant, so question of paying any mesne profits at the rate of Rs.2,000/- per month and to hand over the possession to her, does not arise. He is not aware about the handing over copy of the notice to her counsel Ms. Harbans Kaur as her counsel has already gone abroad. In the absence of service of the notice the tenancy cannot be terminated. After denying other averments of the suit, it has been prayed that suit of the plaintiff be dismissed. Both the parties led oral as well as documentary evidence in RSA No.3628 of 2008(O&M) 3 support of their respective pleas. After hearing the counsel for the parties and going through the record, the trial Court allowed the ejectment petition and the plaintiff was held entitled to the possession of the demised premises. The plaintiff was also held entitled to recovery of rent at the rate of Rs.1,000/- per month from April, 2000 till filing of the suit and damages at the same rate from the date of filing the suit till vacation of the demised premises. Aggrieved from the same, the defendant filed an appeal. The Additional District Judge, Mohali vide his judgment and decree dated 9.8.2007 found no merit in the appeal. However, while dismissing the appeal, the rate of rent was reduced from Rs.1000/- per month to Rs.300/- per month and the appellant was directed to hand over possession of the demised premises to the respondent within a period of three months from the date of judgment and decree failing which the appellant was liable to pay interest on the arrears of rent at the rate of 10% per annum. Still not satisfied, the defendant has filed the present appeal challenging the judgment and decrees of the Courts below. Learned counsel for the appellant has vehemently argued that the plaintiff-respondent has not stepped into the witness box and only his general power of attorney was examined who was not able to depose and prove anything. It was further argued by the learned counsel that no notice was ever received by the appellant, therefore, the judgment and decrees of the Courts below are erroneous and are liable to be set aside. I have heard learned counsel for the appellant and have perused the record. I find no force in the arguments raised by the learned counsel for the appellant. So far as the contention of the learned counsel that evidence of the attorney who appeared in this case on behalf of the RSA No.3628 of 2008(O&M) 4 respondent cannot be read, is concerned, the same is without any merit because in this case there is nothing which was in the personal knowledge of the respondent-landlord and which could not be the knowledge of his attorney who appeared in the case. Moreover, in this case attorney is none-else but the real son of the respondent. Moreover, he has been cross-examined by the counsel for the appellant and there is nothing in his cross-examination that he has not given reply to any question. Further this objection was never taken by the counsel for the appellant in the trial Court, therefore, the contention of the learned counsel that attorney cannot appear on behalf of the respondent, is without any merit so far as this case is concerned. The second contention of the appellant is also without any merit. While rejecting this contention, the Lower Appellate Court observed as under: “It is admitted that the appellant is tenant under the respondent in the demised premises. According to the landlord-respondent, he terminated the tenancy by issuing a notice under Section 106 of the T.P. Act. According to him, he sent notice through UPC as well as through registered cover. But notice sent through registered cover was received back with the report of “unclaimed” whereas notice sent through UPC was not received back and as such there is presumption under the law that the notice was served upon the appellant as the same was sent at her correct address. He has proved copy of the notice Ex.P-1/2, post receipt Ex.P- 1/3, UPC receipt Ex.P-1/4, envelop along with A.D which was received back with the report as unclaimed Ex.P-1/5 and reply to the application under Order 39 Rules 1 & 2 RSA No.3628 of 2008(O&M) 5 CPC which was filed in a suit filed by Meena Rani against the respondent with which copy of the legal notice was attached. Although the appellant has denied the service of the notice through registered A.D upon her but she has neither pleaded nor proved that the address mentioned on the envelop Ex.P-1/5 is wrong or that she is not residing in the house where this envelop containing notice sent under Section 106 of the T.P. Act, was addressed. It is settled law that when any such notice is sent through registered post at a correct address then service of the notice is presumed. Moreover, in this case it is the appellant who has not received/claimed the registered cover as a result of which the postal authorities returned the same with the remarks “unclaimed”. Therefore, report of unclaimed is as good as report of refusal. Thus, the appellant has intentionally not received the registered cover Ex.P-1/5. Therefore, in these circumstances it cannot be said that notice was not served upon the appellant. Of course, the presumption regarding service of the notice is rebuttable but in this case the appellant has failed to lead any cogent or reliable evidence to rebut that presumption. Therefore, I am of the view that the learned trial Court has rightly held that notice Ex.P-1/5 was duly served upon the appellant.” From the perusal of the above, it is clearly established that the Courts below have recorded a concurrent finding of fact that the plaintiff- respondent has sent the notice through registered cover and UPC which RSA No.3628 of 2008(O&M) 6 were not received back and as such, there is a presumption under the law that the notice was served upon the appellant as the same was sent at her correct address. It is not the case of the appellant that the address mentioned on the envelop Ex.P-1/5 is wrong or that she is not residing in the house where this envelop containing notice sent under Section 106 of the T.P. Act, was addressed. Moreover, in this case registered cover was returned by the postal authorities with the remarks “unclaimed”. Thus, the appellant has intentionally not received the registered cover Ex.P-1/5. Therefore, the report of unclaimed is as good as the report of refusal and the notice under Section 106 of the T.P Act is presumed to be received. Of course, the presumption regarding service of the notice is rebuttable but in this case the appellant has failed to lead any cogent or reliable evidence to rebut that presumption. Thus, I find no illegality or infirmity in the judgment and decrees of the Courts below. No substantial question of law arises in this appeal. Dismissed. November 28, 2008 (RAKESH KUMAR GARG) ps JUDGE