Andhra HC (Pre-Telangana)
M.A. Ghani vs P. Rami Reddy on 19 December, 2002
Equivalent citations: 2003(2)ALD801, 2003(3)ALT120
JUDGMENT C.Y. Somayajulu, J.
1. Respondent, who is the landlord of the plaint schedule property, filed OS No. 3853 of 1987 on the file of the Court of V Assistant Judge, City Civil Court, Hyderabad, seeking eviction of the appellant from the plaint schedule property after giving notice to quit under Section 106 of Transfer of Property Act. Appellant filed a written statement, inter alia, contending that the notice to quit is not valid. The Trial Court, accepting the contention of the appellant that there is no proper notice to quit, dismissed the suit. Aggrieved thereby, the respondent preferred AS No. 147 of 1989. The learned I Additional Special Judge for SPE & ACB Cases-cum-Additional Chief Judge, City Civil Court, Hyderabad, who heard the appeal had by the judgment under appeal, allowed the same and directed eviction of the appellant from the plaint schedule property. Hence this second appeal by the defendant in the suit.
2. The only point for consideration in this appeal is whether there is valid service of the notice to quit on the appellant?
3. The main contention of Sri V. Srinivas, learned Counsel for the appellant, is that since notice to quit sent by the respondent to the appellant by registered post, admittedly, was not served on the appellant, the mere fact that the postman made an endorsement on the registered notice that the appellant is continuously absent from 24-3-1987 to 31-3-1987 is not and cannot be said to be a valid service of notice on the appellant. It is his contention that as per Section 106 of Transfer of Property Act notice to quit can be served on the tenant by different modes and so respondent could have, as per the said Section, served the notice on any of the members of the family or the servants of the appellant, if he [appellant] was not available, and since the respondent did not even contend that he tendered or tried to tender the notice to quit on any of the members of the family of the appellant or his servants, the alleged affixture of notice to quit to the door of the house of the appellant is not and cannot be a valid notice to quit under Section 106 of Transfer of Property Act. It is his contention that mere production of a photograph showing affixture of notice to a door cannot be treated as an affixture of the notice to the door of the demised premises, where the appellant is living. It is his contention that the decisions relied on by the first Appellate Court have no application to the facts of this case, and so the reversing judgment of the first Appellate Court is liable to be set aside.
4. Second part of Section 106 of Transfer of Property Act reads:
"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 properly."
Therefore, it is clear that the landlord can follow any of the modes of service mentioned in Section 106 of Transfer of Property Act, and need not resort to all the modes of service of notice to quit as mentioned therein. In this case respondent admittedly sent the notice to quit by registered post, and therefore there was no need for him to tender or deliver the notice to quit personally on the appellant or any of the members of his family or servant at his residence, or affix the same to a conspicuous part of the property. The requirement of the Section is to send the notice 'by post', and not necessarily by registered post. But in this case the notice [Ex.A2] was in fact sent by registered post and so Section 27 of the General Clauses Act, which reads:
"27. Meaning of service by post :--Where any Central Act or regulation made after the commencement of this Act, authorises or requires any document to be served by post, whether the expression "serve" or either of the expression "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 effect at the time at which the letter would be delivered in the ordinary course of post"
applies to the notice sent by the respondent to the appellant under Section 106 of Transfer of Property Act. Ex.A2 notice is addressed to "MA. Ghani S/o. Mohd. Khaja, aged 30 years, Occupation: Business, Tenant in one room of premises No. F20 (EWS), Block-3, A.P. Housing Board, Yakutpura, Hyderabad." In this appeal the appellant, in the grounds of appeal described himself as 'M.A. Ghani S/o. Mohd. Khaja, aged 37 years, Business, Tenant in one room of premises GF-20 (EWS), Block-3, A.P. Housing Board, Yakutpura, Hyderabad'. So, there can be no two opinions that Ex.A2 notice was addressed to the correct residential address of the appellant. The postal receipt and the envelope show also establish that the notice to quit was sent by registered post and the postman made an endorsement on the envelope that the addressee was absent from 24-3-1987 to 31-3-1987 for seven days.
5. In view of Section 114 of Evidence Act, the endorsement on the envelope, made by the postman who is a public servant discharging his official duty, can be presumed to be true. The contention of the learned Counsel for the appellant that since the respondent failed to adduce evidence to show that the postman made efforts to serve the notice on some of the members of the family of the appellant in his house or the servant in the house of the appellant by the postman, even if appellant was absent it cannot be said that there was a valid service of notice to quit on the appellant, cannot be accepted. As stated earlier in view of Section 114 of Evidence Act a presumption can be drawn that the endorsement made by the postman that appellant was absent is true. Therefore it is for the appellant to establish that he was available and that the endorsement made by the postman is not correct. But there is no such evidence on record.
6. If the contention of the learned Counsel for appellant that unless there is evidence to establish that the postman attempted to deliver the notice on one of the members of the family or the servant of the addressee, the presumption under Section 27 of General Clauses Act cannot be drawn, cannot be accepted. If such contention is accepted it leads to disastrous results, and in fact renders Section 27 of General Clauses Act redundant. It should not be forgotten that letters and parcels would be sent by registered post only with a view to see that they are delivered only to the addressee and not to anybody else in the house. So a postman is under no obligation to tender or deliver the mail sent by registered post to any person other than the addressee. If the addressee of the registered mail is absent for seven days the same would be returned to the sender, and a presumption of service on the addressee, therefore, can be drawn under Section 27 of General Clauses Act. Therefore a person who wants to absent himself for a week or more would usually make arrangement to receive registered mail addressed to him by somebody else on his behalf of by sending a letter of authorization to the postmaster authorizing delivery of the registered etc., mail addressed to him, to a person named by him. A person who absents himself without making an alternate arrangement to receive the registered etc., mail addressed to him, in his absence, has to reap the consequence for his lapse, because a Postman is neither expected to nor is authorized to tender the registered etc., mail to a person other than the addressee or the person authorized by him.
7. If the contention of the learned Counsel for appellant is accepted unscrupulous persons can easily avoid receipt of registered letters etc., by managing to be away from the house at the time of visit of the postman or can instruct the members in the house to inform the postman that he is away. In this case since the notice to quit was in fact sent by registered post and since the same was returned unserved for the continuous absence of the appellant for seven days by virtue of Section 27 of the General Clauses Act, read with second part of Section 106 of the Transfer of Property Act, it has to be taken that there is a valid service of notice under Section 106 of Transfer of Property Act on the appellant.
8. The contention that the decision relied on by the first Appellate Court do not apply to the facts of this case, has no force. Though Madan and Co. v.
Wazir Jaivir Chand, , arises under the provisions of Jammu and Kashmir Houses and Shops Rent Control Act, the point for determination in that case was whether letter sent by post was validly served on the addressee or not. Taking into consideration the Rules of Post Office, which lay down that a letter is to be delivered to the addressee or the person authorized by him, and also the fact that those Rules do not prescribe detailed procedure regarding delivery of registered letters, when the postman is unable to deliver the letter on his first visit, and also the fact that the postman is not expected to make enquiries regarding the whereabouts of the addressee, and the fact that he [the postman] is not expected to retain the letter until the addressee chooses for return or accept it, and also the fact that he [the postman] is not authorized to affix the letters to the door in the absence of the addressee, taking the aid of Section 27 of General Clauses Act, the Supreme Court raised the presumption of due service of notice. In Green View Radio Service v.
Laxmi Bai Ramjee, 1991 (1) APLJ 17 (SC), the Supreme Court held that if notice is by registered post with acknowledgment due to correct address it is valid service of notice. The ratio in the above two decisions applies on all fours to the facts of this case because respondent sent the notice by registered post acknowledgment due, to the correct address of the appellant, and the same was returned due to the absence of the appellant for a continuous period of seven days. Therefore I find no grounds to interfere with the finding of the first Appellate Court that there is a valid service of notice to quit on the appellant. The point is answered accordingly.
9. In view of my finding on the point for consideration and since no other point is raised in this appeal. I find no merits in this Second Appeal and hence the same is dismissed. No costs.