Case: MOHD. ASIF NASEER Vs. WEST WATCH COMPANY THROUGH ITS PROPERTIER

as required under Section 21 of the Rent Control Act, had been sent by the appellant (landlord) and received by the respondent (tenant), which is fully justified in law. Such finding of fact was duly affirmed by the Appellate Authority. In our view, such finding of fact (which was not merely a presumption of service based solely on notice having been sent under postal certificate), having been arrived at on the basis of valid reasons in the facts of the case, ought not to have been upset by the Writ Court. 16. Learned Counsel for the respondent-tenant has, in support of his submissions, relied on the decision of this Court in the case of Ram Suresh Singh vs. Prabhat Singh (2009) 6 SCC 681, which would not be of much relevance, as the same relates to a criminal trial where the issue of determining the age of juvenile was under consideration. The same was under the provisions of Juvenile Justice Act, where the Evidence Act was clearly applicable, which is not so in matters under the Rent Control Act, where evidence can also be led on affidavit. The other case of U.Sree vs. U.Srinivas (2013) 2 SCC 114, relates to Hindu Marriage Act, where also the Evidence Act is applicable. The question there was with regard to certain document, which had been filed and not proved. The same was filed without being accompanied by an affidavit, whereas in the case at hand, the receipt under certificate of posting was filed along with an affidavit, which is permissible under Section 34 of the Rent Control Act. The other case of Shiv Kumar vs. State of Haryana (1994) 4 SCC 445, relates to Industrial Disputes Act. In the said case, this Court held that in the facts of that case, where reliance was placed only on service under certificate of posting without any other circumstances and proof, there could be no presumption of service of notice. Reliance was placed on Rule 76 A(2) of the Industrial Rules which provided for a specific manner of service. Such is not the position in the present case, where the Act provides for notice to be given, without providing the manner in which it is to be given. As such, this case will also not be of direct relevance to the case at hand. 17. On the contrary, in the case of Sumitra Devi vs. Sampuran Singh (2011) 3 SCC 556, which has been relied upon by learned Senior Counsel for the Appellant, this Court has held that it will all depend on the facts of each case whether the presumption of service of notice sent under postal certificate should be drawn. It is true that as observed by the Privy Council in its above referred judgment, the presumption would apply with greater force to letters which are sent by registered post, yet, when facts so justify, such presumption is expected to be drawn even in the case of a letter sent under postal certificate. Considering the facts and circumstances of that case, this Court held the notice sent under certificate of posting to be sufficient service. In the case of Ranju vs. Rekha Ghosh (2007) 14 SCC 81, this court was considering a case where one months notice was to be given to the tenant for eviction. After considering the provisions of the relevant Tenancy Act, Transfer of Property Act and the Bengal General Clauses Act, it was held that clause (6) provides mere one months notice; in such event, the said notice can be served in any manner and it cannot be claimed that the same should be served only by registered post with acknowledgement due. In the facts of that case, it was held that service of notice sent under certificate of posting was sufficient. Similar is the case at hand, where the Act provides for that the landlord has given a notice…, without specifying the mode of such notice, and in the facts of the present case, notice sent under postal certificate has rightly been held to be proper service. While considering a case of service of notice under the Companies Act, this Court, in the case of V.S. Krishnan vs. Westfort Hi-Tech Hospitals (2008) 3 SCC 363, has held that service of notice sent under certificate of posting would be sufficient where there are materials to show that notices were sent, the burden is on the addressee to rebut the statutory presumption. 18. It may be so that mere receipt of notice having been sent under certificate of posting, in itself, may not be sufficient proof of service, but if the same is coupled with other facts and circumstances which go to show that the party had notice, the same could be held to be sufficient service on the party. In the present case, the law permits filing of a document (receipt of under certificate of posting in this case) to be filed along with an affidavit, which has been done so in this case. Further, there was clear admission of the respondent (tenant) that the appellant was his landlord (for which sale deed had been supplied to the tenant) and subsequent act of the respondent (tenant) depositing the rent under Section 30(1) of the Rent Control Act in the Court and other attending circumstances, as have been considered by the Prescribed Authority, would all clearly go to show that there was sufficient proof of service of notice, which finding of fact has been affirmed by the Appellate Authority, and we see no reason for the Writ Court to have unsettled such concurrent findings of fact. 19. Further, the Prescribed Authority as well as the Appellate Authority have given clear finding of fact that the hardship of the appellant (landlord) was greater than that of the respondent (tenant) and, thus, allowed the release application, which finding has not been specifically considered or categorically upset by the Writ Court. Such finding of fact also does not require any interference by this Court.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]10. From the perusal of the judgment of the High Court, it is clear that the primary reason for allowing the Writ Petition was that there could be no presumption of service of notice as required under the Proviso to Section 21(1)(a) of the Rent Control Act. The finding of the fact with regard to comparative hardship of the landlord being higher than that of the tenant, as recorded by the Prescribed Authority and the Appellate Authority, has not been disturbed by the High Court, except for a mere mention in passing in the later part of the judgment, which cannot be considered to have upset the finding of fact with regard to comparative hardship, as recorded by the Authorities12. From the perusal of the aforesaid Proviso to the said Section, it is clear that no particular mode of giving notice by the landlord to the tenant has been provided for, meaning thereby that the same could be given orally or in writing; and if in writing, it is not necessary that it should be sent only by registered post. What is required is that the landlord has given a notice in that behalf to the tenant13. The Prescribed Authority, while recording the finding that the tenant was given notice for eviction, has considered the various facts leading to the recording of such finding. It is not that the Prescribed Authority has drawn a presumption of the notice having been served merely because it was said to have been sent under certificate of posting. The Prescribed Authority has held that the respondent (tenant) while admitting the applicant as landlord had filed the application under Section 30(1) to deposit the rent in the Court . The Prescribed Authority recorded that it was after the notice had been sent in the year 2006 (on 25.07.2006) that an application under Section 30(1) of the Rent Control Act was filed by the respondent (tenant) in the year 2007 for deposit of rent in Court, after which, the suit was filed by the appellant in the year 2008. The said suit was admittedly after three years of the Sale Deed, which was executed on 29.10.2004. It was in this factual background that the Prescribed Authority held that the notice of six months required under Section 21 of the Rent Control Act was duly given by the landlord to the tenant before filing of the suit in the year 2008. The respondent-tenant had admitted the appellant as his landlord and filed an application to deposit rent in Court in the year 2007. It is not disputed that photocopy of the receipt dated 25.07.2006 of having sent the notice under certificate of posting was filed by the appellant (landlord) along with an affidavit before the Prescribed Authority; and the application of the respondent (tenant) for filing the carbon copy (instead of photocopy) of the receipt of under certificate of posting, was rejected by the Prescribed Authority on 21.04.2011, which Order had become final, as the same had not been challenged by the tenant and, thus, there was no occasion for the appellant to file the carbon copy of the receipt of under certificate of posting15. In view of the aforesaid, it is clear that evidence adduced on affidavit was admissible before the Prescribed Authority. In the facts of the present case, when the appellant (landlord) had filed the photocopy of the receipt of having sent the notice under certificate of posting, along with an affidavit, which was accepted by the Prescribed Authority, and coupled with the attending circumstances as noticed by the Prescribed Authority, a specific finding of fact was recorded that due notice, as required under Section 21 of the Rent Control Act, had been sent by the appellant (landlord) and received by the respondent (tenant), which is fully justified in law. Such finding of fact was duly affirmed by the Appellate Authority. In our view, such finding of fact (which was not merely a presumption of service based solely on notice having been sent under postal certificate), having been arrived at on the basis of valid reasons in the facts of the case, ought not to have been upset by the Writ CourtSuch is not the position in the present case, where the Act provides for notice to be given, without providing the manner in which it is to be given. As such, this case will also not be of direct relevance to the case at handSimilar is the case at hand, where the Act provides for that the landlord has given a notice…, without specifying the mode of such notice, and in the facts of the present case, notice sent under postal certificate has rightly been held to be proper service18. It may be so that mere receipt of notice having been sent under certificate of posting, in itself, may not be sufficient proof of service, but if the same is coupled with other facts and circumstances which go to show that the party had notice, the same could be held to be sufficient service on the party. In the present case, the law permits filing of a document (receipt of under certificate of posting in this case) to be filed along with an affidavit, which has been done so in this case. Further, there was clear admission of the respondent (tenant) that the appellant was his landlord (for which sale deed had been supplied to the tenant) and subsequent act of the respondent (tenant) depositing the rent under Section 30(1) of the Rent Control Act in the Court and other attending circumstances, as have been considered by the Prescribed Authority, would all clearly go to show that there was sufficient proof of service of notice, which finding of fact has been affirmed by the Appellate Authority, and we see no reason for the Writ Court to have unsettled such concurrent findings of fact19. Further, the Prescribed Authority as well as the Appellate Authority have given clear finding of fact that the hardship of the appellant (landlord) was greater than that of the respondent (tenant) and, thus, allowed the release application, which finding has not been specifically considered or categorically upset by the Writ Court. Such finding of fact also does not require any interference by this Court.