WP1875-95 (1) agk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.187 OF 1995 Laxman Yeshwant Ghatge (deceased) Yeshwant Lakshman Ghatge & Ors .. Petitioners versus Narayan Bhaguram More .. Respondent Mr.Indrajeet R. Kulkarni for the petitioners. Mr.R.S.Apte for the respondent. CORAM : A.S.OKA, J. DATE : 16th September 2010. JUDGMENT: . Heard learned counsel appearing for the petitioners and learned senior counsel appearing for the respondent. The petitioners are the legal representatives of the original plaintiff and the respondent is the defendant. The defendant is a tenant of the plaintiff in respect of room No.3 in a chawl more particularly described in the plaint. The said Room No.3 is hereinafter referred to as “the suit premises”. The case of the plaintiff is that by advocate’s notice dated 24th May WP1875-95 (2) 1978 the defendant was called upon to pay arrears of rent and the tenancy of the defendant was determined and he was called upon to hand over possession of the suit premises. The case made out in the plaint is that notice was sent by Registered Post A.D which came back with the endorsement that an intimation was posted as the defendant was not found. A copy of the notice sent under certificate of posting came back with the remark “refused”. It was contended that third copy of the notice was pasted on the outer door of the suit premises. Another allegation made in the plaint is that the defendant secured suitable alternative accommodation and is not interested in the suit premises. The plaintiff also pleaded the ground of bona fide and reasonable requirement. 2. The suit was contested by the defendant by contending that there was no service of notice. The trial Court held that notice was duly served and that the defendant was in arrears of rent from 1st September 1977 and was therefore a defaulter. The trial Court also held that ground of acquisition of suitable residence has been proved. An appeal was preferred by the defendant before the appeal bench of the Court of Small Causes. The Appellate Court held that there was no service of notice of demand and therefore decree could not have been passed on the ground of arrears of rent. The Appellate Court, therefore, reversed the decree on the ground of arrears of rent. The Appellate Court also held that the ground of acquisition of suitable residence has not been proved. WP1875-95 (3) 2 The learned counsel appearing for the petitioner submitted that notice was sent by two recognized modes. One by Registered Post A.D and the other was under certificate of posting. He pointed out that there are two remarks on the envelope sent by Registered Post A.D that the defendant was not found and intimation of the letter was given to the defendant. He submitted that a copy of the notice sent under certificate of posting is returned with the remark “refused”. He placed reliance on section 27 of the General Clauses Act, 1897 and submitted that in view of presumption created by section 27, the burden was on the defendant to adduce evidence and to prove that he has not received notice. He submitted that on plain reading of the evidence adduced by the defendant, the said presumption has not been rebutted. He invited attention of the Court to the finding recorded by the trial Court on this aspect. He submitted that Appellate Court could not have taken into consideration affidavit of the postman filed for the purposes of hearing of interim notice. He submitted that this was a fit case where presumption under section 27 of the General Clauses Act ought to have been invoked and service of notice ought to have been held as proved in as much as the defendant did not discharge the burden of adducing evidence for the purposes of rebutting the presumption. He, therefore, submitted that this was a fit case where demand notice was served and no compliance was made by the defendant and therefore, the decree for possession must follow. WP1875-95 (4) 3 I have given careful consideration to the submissions. I have perused the record and notes of evidence. In the examination-in-chief, the plaintiff has clearly stated that notice was received by the defendant. He has not deposed about affixing of a copy of the notice on the suit premises. The defendant stepped into witness box. He denied to have received the demand notice or a copy of the demand notice and specifically disputed the case of affixing a copy of the demand notice. 4 It must be noted here that on the postal envelope containing a copy of the notice sent under posting certificate, there is a remark “refused” which bears the date 29th May 1978. As observed by the Appellate Court, there appears to be overwriting in the date and even in the remark “refused”. Perusal of the envelope sent by the Registered Post A.D shows that apart from remarks of 23rd May, 25th May and 27th May, there is a remark dated 29th May 1978 regarding an intimation given to the defendant. Apart from the fact that there is an overwriting on the endorsement on the envelope sent under certificate of posting, remark “refused” made on 29th May 1978 is completely contrary to and inconsistent with the remark on the envelope sent by Registered Post A.D. If on 29th May 1978 the defendant had refused the envelope sent under certificate of posting, the same remark ought to have appeared on the envelope sent by the Registered Post A.D. WP1875-95 (5) But the remark on the said envelope is that intimation has been posted which presupposes that the defendant was not available when the envelope was tendered. These important aspects have been duly considered by the Appellate Court and has rightly observed that the remarks on both the postal envelopes cannot be reconciled and therefore it was hazardous to invoke presumption. It is true that the learned Judge could not have considered the affidavit of the postman filed by the defendant in Misc. Notice. The postman was not examined at the time of trial. Perhaps the limited significance of reference to the affidavit of the postman was that at the time of hearing the Misc. Notice, the affidavit of postman was filed. But, the plaintiff did not make any effort to examine the postman at the time of hearing of the suit. Thus, the finding of fact is that on plain reading of the endorsements on both the envelopes, the presumption of service which is rebuttable presumption stands rebutted. There is a statement on oath by the tenant that he was not served with the notice. There is no attempt made by the plaintiff to examine the postman especially when the remarks made on envelopes could not be reconciled. 5 Thus, there is a finding of fact that service of demand notice have not been proved. The said finding of fact is based on evidence on record and it is not possible to interfere with the said finding of fact in writ petition under Article 227 of the Constitution of India. No argument is advanced on the other ground of WP1875-95 (6) eviction. 6 Hence, there is no merit in the petition and the same is dismissed. Rule is discharged with no orders as to costs. (A.S.OKA, J)