IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY, THE FIFTEENTH DAY OF MARCH TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE K.C. BHANU SECOND APPEAL No.435 OF 2010 Between: Mr. Vikas Agarwal .....APPELLANT AND Mr. R. Maheswara Naidu ....RESPONDENT The Court made the following: THE HON'BLE SRI JUSTICE K.C. BHANU SECOND APPEAL No.435 OF 2010 JUDGMENT: This Second Appeal, under Section 100 of the Code of Civil Procedure, 1908, is directed against the Judgment, dated 18.01.2010, in A.S.No.232 of 2009 on the file of the Chief Judge, City Civil Court, Hyderabad, whereunder and whereby, the Judgment and Decree, dated 26.06.2009, in O.S.No.2275 of 2007 on the file of VIII Additional Senior Civil Judge, (Fast Track Court), City Civil Court, Hyderabad, was confirmed. 2. Appellant herein is the defendant in the Original Suit and the respondent herein is the plaintiff in the Original Suit. For better appreciation of facts, the parties are hereinafter referred to as arrayed before the trial Court. 3. The brief facts that are necessary for disposal of the present appeal may be stated as follows: The plaintiff filed the Original Suit for eviction of the defendant and damages, pleading that he is the owner of the plaint schedule property; that the schedule premises was let out to the defendant for eleven months on a monthly rent of Rs.38,600/- for residential purpose, under the rental agreement dated 26.11.2005; that the defendant was irregular in paying the rents and failed to pay the rent from May 2007 till the date of filing of the suit, and even after expiry of the lease period also, the defendant failed to vacate the schedule premises and therefore, the plaintiff issued legal notices on 05.09.2007 and 14.09.2007 calling upon the defendant to vacate and hand over the vacant possession of the schedule premises as the same was also required for his personal occupation; and that the said notices were returned with an endorsement that no such person is available in the said address. Hence, the suit. 4. The defendant filed written statement admitting taking of the suit schedule premises on lease from the plaintiff vide lease agreement, dated 26.11.2005, but stating that he was paying the rents @ Rs.16,500/- by way of cheque and balance amount by way of cash; that after the expiry of the lease period in October, 2006, the plaintiff agreed for extension of the lease for further period of three years at the same rate; that the defendant has filed O.S.No.1389 of 2007 on the file of IV Senior Civil Judge, City Civil Court, Hyderabad, for perpetual injunction against the plaintiff; that the notices dated 05.09.2007 and 14.09.2007 issued by the plaintiff under Section 106 of the Transfer of property Act, 1882, are not maintainable; and that the said notices were sent after a long gap of expiry of the lease period under lease agreement in the month of October, 2006. 5. The trial Court after considering the evidence available on record, clubbed both the suits filed by the defendant and plaintiff and decreed the suit filed by the plaintiff vide Common Judgement, dated 26.06.2009, and ordered for eviction of the defendant from the suit schedule premises within two months. On appeal the Judgment and Decree passed by the trial Court was confirmed by the appellate Court. Hence, the present second appeal. 6. Learned counsel for the appellant raised only one substantial question of law, whether the notice under Section 106 of the Transfer of property Act, 1882, has been served on the different tenant, and contended that if the notice has been sent to the wrong address then it can be said to be not a proper service under Section 27 of the General Clauses Act, 1897 (for short, “the Act”) and hence, prays to set aside the impugned Judgment. 7. On the other hand, learned counsel for the respondent sought to sustain the impugned Judgment. 8. Section 27 of the Act reads as follows: “Where any [Central Act] or Regulation made after the commencement of this Act authorises or requires any document to be served by post, where the expression “serve” or either of the expressions “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, pre-paying 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.” From the perusal of the above provision, it is clear that presumption of due service can be raised if the document sought to be served is sent by properly addressing, pre paying and posting by register post to the addressee and unless contrary is proved, it could be presumed that the letter reached its destination. Then burden shifts to the addressee to show that the address on the postal registered letter is not correct and that he had no knowledge about the notice. A plea has been taken by defendant that postal authorities made wrong endorsement. It is for the defendant to establish that the endorsement made by postal authorities is incorrect. Admittedly, the postal authorities made an endorsement on the registered cover stating that no such person is available in the said address. 9. It is not in dispute that the address of defendant mentioned on the registered letter is correct. It is not in dispute that the defendant is residing in the same house to which the registered letter was addressed. The burden of proof is on the defendant to show that the endorsement made by the postal authorities that ‘the addressee was not available’ is incorrect. That evidence is lacking. Therefore, none of the findings of both the courts below is shown to be perverse or contrary to law. The findings are based upon the proper appreciation of evidence available on record. Hence, there is no substantial question of law involved in the appeal so as to admit the same. 10. Accordingly, the Second Appeal is dismissed at the stage of admission. However, considering the fact that the children of the defendant are students, reasonable time may be granted to him for vacating the suit schedule property. Considering the facts and circumstances, four months’ time from the date of receipt of a copy of this order is given to vacate the premises. Further, it is brought to the notice of this Court that the arrears of rent are not paid to the landlord. The same has to be paid to the landlord by the defendant and he shall continue to pay the rent till the date of vacating the suit schedule premises. There shall be no order as to costs. _______________ K.C. BHANU, J March 15, 2010 MD/YVL