RSA No.3368 of 1986 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3368 of 1986 Date of Decision: 2.02.2010 Rama Nand ..Appellant Vs. Mulakh Raj & Anr. ..Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.Jaspal Singh, Advocate, for the appellant. Mr.Akshay Bhan, Advocate, for the respondent. --- 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in Digest? --- Vinod K.Sharma,J. This regular second appeal is directed against the judgment RSA No.3368 of 1986 2 and decree dated 6.9.1986 passed by the learned District Judge, Kurukshetra vide which suit filed by the plaintiff/appellant for possession was ordered to be dismissed. Briefly stated the facts of the case are that Teja Singh son of Harnam Singh was owner of the shop bearing No.366-A Ward No.9 Darra Kalan, Thanesar. Defendant was the tenant under him at the rate of Rs.350/- (Rupees three hundred and fifty only) per month as on 19.5.1981 i.e. the date of execution of the sale deed in favour of the plaintiff/appellant. It was claimed in the suit, that the defendant had not paid the arrears of rent w.e.f. 1.1.1980. Shop was said to be newly constructed shop, and the provisions of Haryana Urban (Control of Rent & Eviction) Act 1973 (hereinafter referred to as the Act) were not applicable. The plaintiff terminated the tenancy of the respondent by serving a notice under section 106 of the Transfer of Property Act. On the failure of the defendant-respondent to vacate the premises a notice was issued terminating his tenancy. Suit was contested by raising a plea that shop in dispute was not newly constructed shop, and that the Act was applicable. The plaintiff/appellant on earlier occasion had filed an eviction petition on the ground of non-payment of rent which was got withdrawn after depositing the rent. It was also claimed that rate of rent was Rs.100/- ((Rupees one hundred only) per month and not Rs.350/- (Rupees three hundred and fifty only). Arrears were said to have been paid to the previous owner up to 19.5.1981. Defendant showed his willingness to pay the rent. A plea was also taken that no valid notice terminating the tenancy was served upon the RSA No.3368 of 1986 3 defendant, therefore, the suit was said to be not maintainable. In the replication averments made in the plaint were reiterated and those of the written statement were denied. An application dated 3.10.1985 was placed on record showing that the rent petition was withdrawn. On the pleadings of the parties learned trial court framed the following issues:- 1. Whether the plaintiff is entitled to the possession of the shop, as alleged? OPP 2. Whether the plaintiff is entitled to recover Rs.9683.60P as arrears of rent? OPP 3. Whether the civil court has no jurisdiction? OPD 4. Whether the plaintiff is estopped from filing the present suit by his own act and conduct? OPD 5. Whether the present suit is barred by the principle of res judicata? OPD 6. Whether the plaintiff served the defendant with valid notice under section 106 T.P.Act, if no, its effect? OPD 7. Relief. On issue No.1 on appreciation of evidence, learned trial court held that the appellant was entitled to possession of the shop as defendant's tenancy was validly terminated by issuing notice under section 106 of the Transfer of Property Act. On issue No.2 learned trial court held that the rate of rent was only Rs.100/- (Rupees one hundred only) per month, and RSA No.3368 of 1986 4 decreed the claim of rent for Rs.840/- (Rupees eight hundred and forty only) only. On issue No.3, learned trial court was pleased to hold, that the parties by their conduct could not give jurisdiction to the court, and that the filing of rent petition by the plaintiff/appellant did not oust the jurisdiction of the civil court. It was held that building was new and the provisions of the Act, were not applicable. On issue No.4, learned trial court was pleased to hold that there could be no estoppel against the statute, and issue No.4 was accordingly decided against the defendant. Similarly plea of res judicata was not accepted. On issue No.5 learned trial court was pleased to hold that valid notice was issued. Issue No.6 was taken up with issue No.1, the learned trial court held that Section 106 of the Transfer of Property Act, provides a number of modes for delivery of notice and one of the modes is to serve the notice by post. Learned trial court was of the view that once mode of service by post was adopted, then the presumption of service followed not merely under section Section 27 of the General Clauses Act, but also under Section 114 of the Evidence Act to hold that letter posted on correct address had reached the addressee. The learned trial court, however, noticed that the said presumption was rebuttable. The learned court held that, the notices were sent to the defendant by way of registered post, as also by way of ordinary post Under the Certificate of Posting. Notices sent through registered post were RSA No.3368 of 1986 5 received back, with the report that the addressee was not present. Learned trial court found that the defendant led no evidence, to show that the address given on the notices was incorrect. Therefore, presumption was to follow that the defendant, had the notice of the proceedings. The learned trial court also held that only requirement under section 106 of the Transfer of Property Act was to dispatch the notice by post. No statutory duty was cast on the landlord to ensure that the notice was also duly served on the tenant. Learned trial court also held that the report on registered letter was that of “not present” but no presumption, therefore, can be drawn, that the defendant was absent, as defendant had not stated on oath that his shop was closed. The learned trial court, therefore, held that there was difference between the word 'left' and 'not present'. Plea of the respondent/defendant that 6 months' notice was required to terminate the tenancy, as it was a manufacturing unit, was not accepted in view of the fact that tenancy was monthly. The learned trial court, therefore, held that the service of notice stood proved and that the appellant was entitled to possession. Suit was accordingly decreed. The defendant preferred an appeal. Findings on issues No.1 and 6 were reversed by the learned lower appellate court, by recording the following findings: “9. It is not disputed that notices Ex.P.10 and Ex.P.11 under section 106 of the Transfer of Property Act sent by the landlord to the address of the tenants had been received back with the RSA No.3368 of 1986 6 postal reports which are not exactly decipherable. But the learned lower court had read them as “not present”. It is also in dispute that the two letters, one each to the two tenants, were put in the course of postal transmission under certificate of posting on 27.5.1982. Shri L.D.Madan, learned counsel for the respondent-landlord has vehemently argued that notices under certificate of posting were sent in regular course of business and presumption under section 114(f) of the Indian Evidence Act arises in their favour. Registered AD notices were received back undelivered. Referring to the provisions of Section 106 of the Transfer of Property Act he has argued that the same do not require that the notice was to be sent by registered post. He has fortified his above argument by following judgments:- i) Kirlosker Bros. Ltd. Indore Vs. Engineering Machinery Mart, Narsinghpur, MP, AIR 1982 Madhya Pradesh 75; ii) Moti Ram Vs. Baldev Krishan, 1979 PLR (Delhi) 69. iii) Jitendera Nath Dass Vs. Bijoy Lal Das, AIR 1976 Calcutta 478; iv) Babu Khan and others Vs. Nagar Mahapalika, Laknow, AIR 1972 Allahabad 111; v) Fitter Peera Saheb Vs. K.Balachandra Rao and Others, AIR 1972 Mysore 14; vi) Avisabeevi and another Vs. Aboobacker, AIR 1970 Kerala 231; RSA No.3368 of 1986 7 vii) Mrs. Achamma Thomas Vs. E.R.Fairman, AIR 1970 Mysore 77; and viii) The Abhovijan Tea Co. Private Ltd. Vs. The Agricultural Income Tax Officer Shillong & another, AIR 1966 Assam and Nagaland 84. 10. I have carefully examined all the above said judgments and am in respectful agreement of the vection laid down therein to the effect that Section 106 of the Transfer of Property Act does not say that notice must be sent by registered post or notice sent under certificate of posting would be illegal. It is further true that the words “sent by post” in Section 106 of the Transfer of Property Act do not mean” sent by registered post” alone. Section 27 of the general Clauses Act does not say that if an ejectment notice under section 106 of the transfer of property Act is sent by post, it must be sent by registered post alone. It is further true that although the presumption under section 27 of the General Clauses Act does not apply to a case of a letter posted under certificate of posting, the presumer section 114 (f) of the Indian Evidence Act would apply in such a case. But in none of these authorities it has been laid down that such a presumption is neither rebuttable nor the court was at liberty to see if such a presumption had been rebutted in view of the evidence on record and facts and circumstances of a particular case. RSA No.3368 of 1986 8 In Division Bench judgment rendered in B.L.Shrivastava Vs. M.M.L.Shridhar and others, AIR 1975 Madhya Pradesh 21 Their Lordships have been pleased to hold that the certificate of posting may give rise to the presumption that the letters were posted but no presumption can be drawn that they were received by addressee. Again in Om Parkash Vs. Dodewala Co-Op. Agricultural Service Society 1982 C.L.J. (Civil and cr.) 637 my Lordship Hon'ble Mr.Justice G.C.Mittal of our Hon'ble High Court have been pleased to hold that presumption of issue of notice under section 114 of the Indian Evidence Act attached to the certificate of posting was rebuttable. 11. Now on to the evidence of the parties. (PW 5) Ram Nath Clerk of the counsel has stated that vide postal receipts Ex.P.8 and Ex.P.9 he had put notices Ex.P.10 and Ex.P.11 in the course of registered postal transmission and that vide certificate of posting he had put another notice, copy whereof is Ex.P.13, in the course of ordinary postal transmission. When cross-examined he admitted that copy of the notice Ex.P.13, the original whereof was sent under certificate of posting does not bear any date. Rama Nand plaintiff appearing as (DW 6) has stated that he got notice for eviction issued, copy whereof was Ex.P.13, but in spite of the said notice the tenants did not vacated the shop. RSA No.3368 of 1986 9 Thus it is evident that he does not talk of the original, copy whereof is Ex.P.13, having been sent under certificate of posting. Ramesh Chander, one of the tenants, appearing as (DW 3), has stated that he did not receive any notice terminating the tenancy. He denied the suggestion that o n 27.5.82 he and his brother had refused acceptance of the inland envelopes Ex.P.10 and Ex.P.11 or that they had received any notice, copy whereof is Ex.P.13, under certificate of posting. The suggestion is inheritently incorrect. If notices Ex.P.10 and Ex.P.11, were put in the course of postal transmission on 27.5.82 how could the same be tendered for acceptance on the same day. Secondly, if notice, copy whereof is alleged to be Ex.P.13, was also put in the course of postal transmission, under certificate of posting Ex.P.12, on 27.5.82 how could the original thereof be delivered to the tenants on the same day. In any case the tenant has stoutly denied that any notice through registered post was tendered for acceptance to him or any notice under certificate of posting was received by him. I have no hesitation in holding that the presumption under section 114 (f) of the Indian Evidence Act attached to certificate of posting Ex.P.11 stood effectively rebutted. To my mind this is hardly a case where presumption arising under certificate of posting should be given effect. I, therefore, hold that the plaintiff has miserably failed to prove the service of a notice under section 106 of the Transfer RSA No.3368 of 1986 10 of Property Act on the tenants. 12. Sequelly findings of the learned curt below on issues No.1 and 6 are hereby reversed and instead it is held: Issue No.1:- That the plaintiff was not entitled to the possession of the shop; Issue No.6: That the plaintiff did not serve the defendants with valid notice under section 106 of the transfer of Property Act and, therefore he was not entitled to possession of the shop in dispute.” In view of the findings on issues No.1 and 6 the judgment and decree of the learned trial court was reversed and suit for possession was dismissed. Mr. Jaspal Singh, learned counsel appearing on behalf of the appellant raises the following substantial questions of law for consideration by this court:- 1. Whether a notice, which he received back with the remarks 'not present', in spite of number of visits can be presumed as duly served? 2. Whether the presumption of service of notice can be drawn on proof of dispatch of letter, on correct address? In support of the substantial questions of law, learned counsel for the appellant referred to the pleadings, as well as to the finding recorded by the learned trial court, to contend that two registered letters along with RSA No.3368 of 1986 11 one letter under Certificate of Posting was dispatched to the respondent/defendant on the correct address. The defendant except for denying the receipt of the notice, did not lead any other evidence to prove that he was not present, therefore, presumption is to be drawn that the defendant-respondent was duly served. In support of this contention learned counsel for the appellant, placed strong reliance on the judgment of Full Bench of Allahabad High Court in the case of Ganga Ram Vs. Smt Phulwati AIR 1970 Allahabad 446, wherein Hon'ble Allahabad High Court was pleased to lay down as under:- “18. It is not the duty of the plaintiff to prove that the defendant, after having received notice, had actually read it and understood its contents. Similarly, where the registered envelope contains a correct address of the tenant and the addressee either cannot be met or refuses to take notice, there appears to be no reason why the notice should not be deemed to have been properly served on the addressees. In the case of Harihar Banerji V. Ramshashi Roy, AIR 1918 PC 102 it was held that if a letter properly directed containing notice to quit is proved to have been put into the post office, it is presumed, that the letter reached its destination at the proper time according to the regular course of business of the post office and was received by the person to whom it was addressed. In the absence of proof to the contrary, it will be presumed that the RSA No.3368 of 1986 12 refusal had been made by the tenant to whom the registered letter was correctly addressed at the tune when the letter could be expected to reach him in the ordinary course. With great respect, and for the reasons given by us, we do not find it possible to agree with the views expressed in the above mentioned cases decided by the Bombay Madhya Bharat and Nagpur High Court.” Reading of this judgment would show that Hon'ble Full Bench of Allahabad High Court disagreed with the view taken by the Bombay, Madhya Bharat and Nagpur High courts wherein an unopened letter containing notice was received back by the sender, to hold that it would not be considered to be good service of notice. The learned Hon'ble courts have also held that the view that there could be no presumption, that endorsement of refusal was made by postman who was not examined. Such endorsement was inadmissible in evidence. Learned counsel for the appellant also placed reliance on the judgment of Madhya Pradesh High court in the case of Kirlosker Bros. Ltd. Indore Vs. Engineering Machinery Mart, Narsinghpur, MP, AIR 1982 Madhya Pradesh 75 to contend that on proof of the facts that letter containing a particular document is proved to have been put in post office, then it is presumed that letter sent through the post reached the addressee. This presumption is not confined to the presumption of letter being merely posted but extends to its receipt by the addressee at his destination, at the proper time according in the regular course of business of the post office. RSA No.3368 of 1986 13 This presumption was again held to be rebuttable. Learned counsel for the appellant also placed reliance on the judgment of Hon'ble Supreme Court in the case of M/s Madan and Co. Vs. Wazir Jaivir Chand AIR 1989 SC 630, wherein Hon'ble Supreme Court was pleased to lay down as under: “ It is true that the proviso to Cl. (i) of S.11(1) and the proviso to S.12(5) are intended for the protection of the tenant. Nevertheless it will be easy to see that too strict and literal a compliance of their language would be impractical and unworkable. The proviso insists that before any amount of rent can be said to be in arrears, a notice has to be served through post. All that a landlord can do to comply with the provision is to post a prepaid registered letter (acknowledgment due or otherwise) containing the tenant's correct address. Once he does this and the letter is delivered to the post office, he has no control over it. It is then presumed to have been delivered to the addressee under S.27 of the General Clauses Act. Under the rules of the post office, the letter is to be delivered to the addressee or a person authorised by him. Such a person may either accept the letter or decline to accept it. In either case, there is no difficulty, for the acceptance or refusal can be treated as a service on, and receipt by the addressee. The difficulty is where the postman calls at the address mentioned and is unable to contact the addressee or a person authorised to RSA No.3368 of 1986 14 receive the letter. All that he can then do is to return it to the sender. The Indian Post Office Rules do not prescribe any detailed procedure regarding the delivery of such registered letters. When the postman is unable to deliver it on his first visit, the general practice is for the postman to attempt to deliver it on the next one or two days also before returning it to the sender. However, he has neither the power nor the time to make inquiries 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.5 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. The more reasonable, effective, equitable and practical interpretation of the Proviso to S.11 (1)(i) would be to read the word “served” as “sent by post.” correctly and properly addressed to the tenant, and the word “receipt” as the tender of the letter by the postal peon at the address mentioned in the letter. No other interpretation will fit the situation as it is simply not possible for a landlord to ensure that a registered letter sent by him gets served on, or is received by, the tenant.” RSA No.3368 of 1986 15 Finally, learned counsel for the appellant referred to the judgment of the Hon'ble Supreme Court in the case of State of Punjab and others Vs. G.S.Gill and another (1997) 6 Supreme Court Cases 129. However, reliance on this judgment deserves to be noticed to be ignored, as Hon'ble Supreme Court in the case was interpreting the provisions of Order 15 Rule 1 of the Code of Civil Procedure and not the dispatch of letter. In sum and substance the contention of the learned counsel for the appellant was that once it was proved that two registered letters and one letter Under Certificate of Posting was dispatched, to the respondent at the correct address, the correctness of which was not disputed by the respondent, then in spite of return of letter, presumption of service is to be drawn. The finding of the learned trial court on issues No.1 and 6, therefore, is required to be upheld. Mr.Akshay Bhan, learned counsel for the defendant- respondent, on the other hand, supported the judgment, passed by the learned lower appellate court. His contention was that, the presumption of service of dispatch of letter is rebuttable. In the case in hand the presumption stood rebutted, by the suggestion made by the plaintiff/appellant himself, that the notice on dispatch was not accepted. It was also the contention of the learned counsel for the respondent, that presumption in this case stood rebutted by positive evidence i.e. carbon copy of the notice which was said to have been sent Under Certificate of Posting did not have any date, to draw presumption that any notice was in fact sent. RSA No.3368 of 1986 16 Learned counsel for the respondent placed reliance on the judgment of this court in the case of Sarpanch, Gram Panchayat, Village Choshgarh, District Gurgaon Vs. Smt. Tara Bai and Ors. 1992 (2) PLR 180 to contend that the presumption of notice stood rebutted in view of return of letters as unserved. This court in the case laid down as under: “5. The appellants filed an application on 31.5.1990 before the Commissioner for setting aside the ex parte order is liable to be set aside, because the appellants have not been served. The notices sent to the appellants on 8.1.1990 by registered post were also not served on the appellants. The said registered covers are o n the file of the case and it has been noted by the Postman on the said registered covers that the appellants could not be personally served as they were not found present in the village. Thus, the presumption that the appellants have been served has been rebutted by the report of the Postman.” Learned counsel for the respondent also placed reliance on the judgment of this court in the case of Puran Chand Vs. Shrimati Lajya Wati 1972 PLR 930, to content that the presumption of service stood rebutted, if the addressee makes a statement on oath that he never refused to accept the service of notice. Then it is on the sender to prove service. This court in the case of Puran Chand Vs. Shrimati Lajya Wati (supra) has been pleased to lay down as under: “ A notice was sent to the tenant under registered cover asking him to vacate the premises. The Registered Cover was RSA No.3368 of 1986 17 received back with the endorsement of the postman 'Refused, Retuned to sender'. It was stated by the tenant on oath that he neither received an notice nor he refused to accept the same. Held, the presumption that has arisen from the endorsement of the Postman on the back of the registered notice stands rebutted by the statement on oath of the tenant and that statement