Allahabad High Court
Smt. Jaswant Kaur vs Additional District Judge Court No.1 ... on 28 March, 2017
Equivalent citations: AIR 2018 (NOC) 92 (ALL), AIR 2018 (NOC) 92 (ALL.) (LUCKNOW BENCH), 2017 (6) ALJ 199, (2017) 136 REVDEC 642, (2017) 123 ALL LR 104, (2017) 5 ALL WC 5052, (2017) 4 CIVLJ 872, (2017) 176 ALLINDCAS 940 (ALL), (2017) 5 ADJ 72 (ALL)
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Reserved Court No. - 18 Case :-S.C.C. REVISION No. - 154 of 2015 Revisionist :-Smt. Jaswant Kaur Opposite Party :-Additional District Judge Court No.1 Faizabad And Ors. Counsel for Revisionist :-Manish Kumar Counsel for Opposite Party :-Vimal Mishra, S. K. Mehrotra Hon'ble Attau Rahman Masoodi,J.
Heard Sri Manish Kumar, learned counsel for the revisionist and Sri S.K.Mehrotra as well as Sri Vimal Mishra, learned counsel who have put in appearance on behalf of opposite parties no.2 and 3.
This civil revision filed under Section 25 of the Provincial Small Causes Courts Act, 1887 has questioned the correctness of judgment and decree rendered by Additional District Judge, Court No.1, Faizabad in S.C.C Suit No.09 of 2011 whereby suit for eviction and arrears of rent coupled with damages filed by the revisionist was dismissed, specifically deciding issue no.4. against the revisionist and in favour of the respondents/tenants.
Briefly stated, background of the case proceeds in the light of a lease agreement dated 19.11.2007 which created tenancy rights for a period of five years extendable on the mutual consent of the parties. The rent in the lease agreement was stipulated as Rs.6000/-per month. As per the stand taken by the revisionist-landlord, the respondents/tenants committed default in making payment of rent as well as house tax as a result whereof notice was sent to the respondents on 27.06.2011 through speed post on correct residential address as mentioned in the alleged agreement which was duly stamped and posted and thus service of notice though refused to be accepted by the addressee as per postal endorsement though being sufficient was not complied with, as a result, suit of above description was filed.
According to the revisionist notice sent to the respondents was duly served on 29.07.2011 and non compliance of notice sent to the respondents gave rise to S.C.C Suit No.9 of 2011 which was instituted before the court below on 29.08.2011. Summons of the suit instituted before the court below were issued to the respondents and on deeming the service of notices/summons sufficient, record reveals that the proceedings went ahead ex-parte. The suit for eviction was decreed ex-parte on 20.12.2011 against the respondents and a decree for realization of arrears of rent and taxes was also passed.
The ex-parte judgment and decree dated 20.12.2011 was sought to be set aside by filing an application on the ground that summons were not duly served, therefore, the ex-parte decree/judgment passed by the court below may be set aside and that the respondents/defendants be permitted to put forth their defence so as to contest the proceedings.
The court below by judgment dated 29.04.2013 allowed the application filed by the respondents under Order IX Rule 13 CPC subject to payment of Rs.1000/- towards the cost within a period of 15 days. This order passed by the court below was not challenged and the suit proceedings progressed thereafter with due participation of the respondents.
It may be noted that the plaint filed by the revisionist had primarily based his case of re-entry upon the rented property on the stipulations contained in lease agreement dated 19.11.2007 but the respondents in absence of the said agreement being registered denied creation of tenancy through written agreement altogether. The respondents however accepted their status as tenants and ownership of the revisionist was also not disputed in the written statement filed by them.
Though the creation of tenancy under a written agreement was denied but the commencement of tenancy, rate of rent etc. was admitted from the same date on which agreement was alleged to be entered between the parties. This position does give an indication as if the stand of denial adopted by the tenant was taken in order to defeat the term of five years tenancy as per the agreement which was unregistered.
The respondents/tenants took a categorical stand that conditions mentioned in an unregistered agreement are not enforceable as per the provisions of Section 91 of the Indian Evidence Act read with section 49 of the Registration Act 1908, hence notice issued by the revisionist was of no consequence.
It is not in dispute that the lease agreement of which a photocopy was filed before the court below was an unregistered document. Thus the conditions mentioned therein for the purposes of determination of tenancy became unenforceable and determination of tenancy would thus turn on the scope of Section 106 of Transfer of Property Act, inasmuch as, a notice under a written agreement would only be valid where the agreement stipulating tenancy for more than one year was registered.
From the pleadings set out, the trial court framed as many as five issues. The decision of present revision turns virtually on the validity of notice issued under Section 106 of the Transfer of Property Act, 1882 which for ready reference is extracted below:--
"106. Duration of certain leases in absence of written contract or local usage- In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months' notice; expiring with the end of a month of the tenancy; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by thirty days' notice expiring with the end of a month of tenancy.
Every notice under this section must be in writing, signed by or on behalf of the person giving it and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property."
Now adverting to the question of notice issued by the revisionist on 27.06.2011, it is gathered that the said notice was sent to the respondents by speed post. The destination of notice on reaching at the correct address was redirected to the place where the respondents were said to be carrying on ready-made garments business. The redirected address was mentioned as "Fashion Point Readymade Garments, Kanak Chitra Mandir, Chowk, Faizabad". The notice on being tendered at the above address as evident from the postal endorsement was refused to be accepted.
The question that crops up for consideration is as to whether the notice sent by speed post on 27.06.2011 was at all served upon the respondents and as to whether there can be any presumption of service of notice in terms of Section-27 of General Clauses Act read with section 114 of the Indian Evidence Act.
Learned counsel for the revisionist while arguing the matter has candidly pointed out that the manner of sending a notice by post is well defined in the day to day course of business. It is argued that a notice sent through speed post is no less than a notice sent by registered post for the reason that Indian Post Office Act 1898 under Section 3 and 14 clearly provide as to how delivery of a registered article is carried out through postal services.
In short the submission is that in absence of any dispute as to the correctness of address and other formalities of a valid notice, scope for doubting the service did not arise and declining to grant the benefit of presumption on the mere rebuttal of opposite party denying service is perverse, thus the impugned judgment assailed before this Court is liable to set aside and the S.C.C suit deserves to be decreed in favour of the revisionist.
Learned counsel for the revisionist in order to support the above submission has also relied upon two decisions reported in 2007 (6) SCC 555 and AIR 1990 SC 2156. Laying emphasis on the aforesaid two judgments it is argued that once the conditions for sending notice by post are duly complied with by the revisionist, there was no reason for the court below to have denied the benefit of presumption of notice under Section-27 of the General Clauses Act, 1897 read with Section 114 of the Indian Evidence Act.
Refuting the arguments advanced by learned counsel for the revisionist, Sri S. K. Mehrotra assisted by Sri Vimal Mishra, learned counsel for the respondents has argued that a notice sent through post is always open to rebuttal by the addressee and once there is a denial of service of notice, the burden of proof shifts upon the sender to prove that the notice was actually served to the addressee. To substantiate the argument that the addressee is merely required to deny service, reliance was placed upon the judgment reported in 1986 volume 4 LCD Pg. 304 ( Sager vs. Vth Additional District Judge, Lucknow and others).
Having regard to the submissions put forth by learned counsel for the parties, a passage from the judgment cited before this Court reported in AIR 1990 SCC 2158 (Sohan Lal and Ors. vs. State of Rajasthan) would be relevant and the same is extracted below:--
"Thus in our view the presumption of sersvice of a letter sent by registered post can be rebutted by the addressee by appearing as witness and stating that he never received such letter. If the acknowledgement due receipt contains the signatures of the addressee himself and the addressee as a witness states that he never received such letter and the acknowledgement due does not bear his signature and such statement of the addressee is believed then it would be a sufficient rebuttal of the presumption drawn against him. The burden would then shift on the plaintiff who wants to rely on such presumption to satisfy the court by leading oral or documentary evidence to prove the service of such letter on the addressee. This rebuttal by the defendant of the presumption drawn against him would of course depend on the veracity of his statement. The court in the facts and circumstances of a case may not consider such denial by the defendant as truthful and in that case such denial alone would not be sufficient. But if there is nothing to disbelieve the statement of the defendant then it would be sufficient rebuttal of the presumption of service of such letter or notice sent to him by registered post."
Section 106 (4) Transfer of Property Act, 1882 apart from other modes permits service of notice through post. Thus, once the determination of tenancy is permissible by sending a notice by post, law would require the courts to construe the language of Section-106 of the Act in a pragmatic manner. Sending of notice by post fell for consideration before a three judges bench of the Apex Court in the case reported in 2007(6) SCC pg. 555 wherein, the court has provided a guidance as to how the service of postal notice is to be construed. Paras 12,13 and 14 of the above mentioned judgment being relevant are extracted below:-
"Para (12) Therefore, the moot question requiring consideration is in regard to the implication of Section 114 of the Indian Evidence Act, 1872 insofar as the service of notice under the said proviso is concerned. Section 114 of the Indian Evidence Act, 1872 reads as follows:
"114 - Court may presume existence of certain facts.- The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events human conduct and public and private business, in their relation to the facts of the particular case. Illustrations The Court may presume-
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(f)That the common course of business has been followed particular cases;
Para (13) According to Section 114 of the Act, read with illustration (f) thereunder, when it appears to the Court that the common course of business renders it probable that a thing would happen, the Court may draw presumption that the thing would have happened, unless there are circumstances in a particular case to show that the common course of business was not followed. Thus, Section 114 enables the Court to presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business in their relation to the facts of the particular case. Consequently, the court can presume that the common course of business has been followed in particular cases. When applied to communications sent by post, Section 114 enables the Court to presume that in the common course of natural events, the communication would have been delivered at the address of the addressee. But the presumption that is raised under Section 27 of the G.C. Act is a far stronger presumption. Further, while Section 114 of Evidence Act refers to a general presumption, Section 27 refers to a specific presumption. For the sake of ready reference, Section 27 of G.C. Act is extracted below:
"27.Meaning of service by post. -Where any Central Act or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether 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."
Para (14)Section 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. This Court has already held that when a notice is sent by registered post and is returned with a postal endorsement refused or not available in the house or house locked or shop closed or addressee not in station, due service has to be presumed. [Vide Jagdish Singh Vs. Natthu Singh ; State of M.P. Vs. Hiralal & Ors. and V.Raja Kumari Vs. P.Subbarama Naidu & Anr. ] It is, therefore, manifest that in view of the presumption available under Section 27 of the Act, it is not necessary to aver in the complaint under Section 138 of the Act that service of notice was evaded by the accused or that the accused had a role to play in the return of the notice unserved.
In the present case, the benefit of presumption under Section-27 of the General Clauses Act was not extended to the revisionist solely on the ground that the notice though sent by speed post on a correct address can not be equated with a notice by registered post, therefore, benefit of presumption under Section-27 of the Act was denied.
In so far as the question of sending notice is concerned, undisputedly the envelope containing the notice was correctly addressed and the notice was re-directed to a place where the respondents were carrying on business. Notice by speed post is no less than a notice by registered post for the reason that it is quicker mode of service available in the developed urban areas. The only distinction is that a registered letter is handed over to the addressee alone whereas a letter by speed post can be received by any person present at the address. The respondents have not disputed the address mentioned on the envelop, therefore, denial of presumption in favour of the revisionist under Section 27 of the General Clauses Act is clearly perverse.
In the present case, the residential address mentioned on the envelop containing notice is undeniably the correct address of respondents from where the notice was re-directed to their correct business place as mentioned above but what is disputed here is that the postal endorsement was falsely made by the postman in collusion with the revisionist and her son. It is significant to note that service of summons of the suit and execution proceedings was likewise denied by the respondents although the notice was affixed. Insofar as service of notice by speed post is concerned, it is clear beyond doubt that the article on payment of due postal stamp is registered and booked for delivery through a quicker mode of service at the address mentioned on the envelop. Thus refusal recorded by the postman was unquestionable.
The service by speed post for the reason recorded above is to be read as if the notice was sent by registered post. The statutory presumption under Section 27 of the General Clauses Act in relation to a postal service i.e. speed post was thus bound to be construed as if the notice was sent by registered post. The mode of service adopted by the revisionist being unquestionable hence the benefit of Section 114 also becomes available even if the article was not sent by registered post in its rigid sense.
Thus looking to the compliance of requirements as provided under Section 106 (4) of the Transfer of Property Act, the notice sent by speed post was bound to be presumed to have been served by virtue of Section-27 of the General Clauses Act read with Section 114 of the Indian Evidence Act, 1872 even if it was not sent by registered post. In other words notice through speed post ought to have been read as if the same was sent through registered post inasmuch as the article is booked for delivery at the place of addressee without there being any material distinction.
In the instant case, denial of presumption and accepting the rebuttal of service by the court below is not only perverse but has resulted into miscarriage of justice. That being so, interference in the exercise of revisional jurisdiction vested in this court by virtue of Section 25 of the Provincial of Small Causes Court Act is permissible and the law laid down by the apex court in the case reported in (2014) 9 SCC Pg. 98 would rather help and shall not be a bar. The presumption of service ought to have been construed in favour of the revisionist and a contrary finding recorded by the Court below is thus set aside. The rebuttal of service though it is open to be proved on the basis of evidence, but in the present case the own oral evidence of the tenants would not be decisive unless it is established doubtlessly that the postal endorsement was collusive and the notice remained unserved. This aspect of the matter requires consideration and it is open to the respondents to prove the same.
In the result, revision is allowed and the impugned judgment is hereby set aside. The court below is directed to re-consider the above aspect of the matter in the light of evidence, if any. The proceedings shall be concluded not later than a period of six months.
No order as to cost.
Order Date :- March 28, 2017 Shahnaz