Bombay High Court
Shri David K.N. vs Shri S.R. Chaubey (Chaturvedi) on 27 February, 2003
Equivalent citations: 2003(4)BOMCR612, 2003 A I H C 2879, (2003) 4 MAHLR 148, (2003) 2 RENCJ 440, (2003) 3 ALLMR 511 (BOM), (2003) 4 RECCIVR 103, (2003) 3 CIVILCOURTC 569, (2003) 2 RENCR 362, (2004) 1 RENTLR 71, (2003) 4 BOM CR 612
Author: R.M.S. Khandeparkar
Bench: R.M.S. Khandeparkar
JUDGMENT R.M.S. Khandeparkar, J.
1. Heard learned advocates for the parties. Perused the record. Rule, By consent, Rule is made returnable forthwith.
2. The petitioner challenges the judgment and order dated 7.9.2002 passed by the Appellate Bench of Small Causes Court, Mumbai in Appeal No. 14 of 2001. By the impugned Judgment the appeal filed by the petitioner against the decree of eviction dated 30.11.2000 in the suit bearing RAE & R Suit No. 258/814 of 1992 has been dismissed. The challenge to the impugned judgment and decree of eviction is on the ground that the decree has been obtained without proper and valid service of notice of demand of arrears of rent as is otherwise required to be served under Section 12(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (herein after called as "the said Act") as precondition for the filing of the suit for eviction of a tenant on the ground of default in payment of rent and, therefore, the impugned judgment and decree for eviction is bad in law.
3. Upon hearing the learned advocates for the parties and perusal of record, it is apparent that both the courts below have arrived at the concurrent findings regarding service of the notice under Section 12(2) of the said Act. However, it is the contention of the petitioner that the said findings are perverse inasmuch as they are not borne out from the record, besides being contrary to the materials on record. Taking through the records, the learned advocate for the petitioner submitted that it was a specific case pleaded by the petitioner in his written statement that no notice as alleged by the respondent was ever received by the petitioner and the said fact was stated on oath by the holder of Power of Attorney who was examined by the petitioner on his behalf before the trial Court. The fact that the petitioner was out of station from the year 1990 to 1992 was brought on record by the respondent himself in the course of cross examination of the holder of Power of Attorney of the petitioner and the said fact was neither denied nor disputed by the respondent. Being so, there was no occasion for service of notice upon the petitioner either in the month of October 1990 as is otherwise claimed by the respondent in relation to the registered notice or in the month of March or April 1991 which is claimed by the respondent on the ground that the notice under certificate of posting as well as pasting of notice on the door of the premises. To make good the submission on behalf of the petitioner, the learned advocate for the petitioner has relied upon the following decisions :- (1) Laimani Ramnath Tiwari v. Bhimrao Govind Pawar, 2001 (2) All MR 415; [2] Narayan Ganpat Bhoite v. Smt. Rampyari Suchitram Gupta since deceased through heirs Hariprasad Surajbaily Gupta and Ors., 2001(3) Mh. L.J. 234; [3] Hajrabhai Abdul Gani v. Abdul Latif Azizulla and Anr, ; [4] Anil Kumar v. Nanak Chandra Verma, ;
[5] B.S. Mahajan since deceased by his heirs and legal representative v. Chapsey R. Mistry; ; [6] Pannalal Shivlal Mutha v. Mangilal Ganpatdas Agarwal, 1987 Mah. R.C.J. 729; [7] Meghji Kanji Patel v. Kundanmal Chamanlal Methani, ; [8] Oza Kumbhar Naran Ala v. Mehta Nanalal Jethbhai, 1987, Mah. R.C.J. 541 and [9] Chhedi Lal v. Munna Sardar, AIR 1983 Allahabad 274.
4. On the other hand, it is sought to be contended by the learned advocate for the respondent that considering the fact that the petitioner was not available at the site, the notice was also affixed to the door in the presence of a person who was found occupying the suit premises at the relevant time and also considering the same there is due compliance of the provisions of Section 106 of the Transfer of Property Act, 1882 as far as service of notice is concerned, and therefore, no fault can be found with the findings arrived at by the courts below regarding service of notice. Besides considering the provisions of Section 28 of the Bombay General Clauses Act, 1904 there is a presumption about the service of notice sent by registered post as the same was returned with the postal remark unclaimed. Reliance is sought to be placed in the decision of the learned Single Judge to this Court in P.A. Kowli v. Narayan Jagannath Mahale, reported in 1981 Mh. L.J. 355 and of the Apex Court in M/s. Madan and Co. v. Wazir Javir Chand, .
5. The points which arise for consideration are:
What is the mode of service of notice which is required to be issued by the landlord to the tenant under Section 12(2) of the said Act? In case there are various modes available for service of notice, then is it at the option of the landlord to choose anyone of such modes? Is there any sequence to be observed while exploring different modes of service of notice ? Whether the findings arrived by the Courts below on the issue of service of notice are perverse and require interference? If so, what do the materials on record reveal about the service of notice?
6. Section 12(2) of the said Act provides that no suit for recovery of possession shall be instituted by a landlord against tenant on the ground of non-payment of the standard rent or permitted increased due, until the expiration of one month next after notice in writing or the demand of the standard rent of permitted increases has been served upon the tenant in the manner provided in Section 106 of the Transfer of Property Act, 1882. Apparently, the service of notice demanding arrears upon the tenant is a precondition for initiating suit for recovery of possession on the ground of non-payment of rent, in terms of the provisions of law contained in Section 12(2) of the said Act. The said section also prescribes that service of notice should be in the manner" provided in Section 106 of the Transfer of Property Act, 1882. Section 106 of the Transfer of Property Act provides that every notice under the said 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 the residence, or if such tender or delivery is not practicable, affix to a conspicuous part of the property. Obviously, Section 106 of the Transfer of Property Act, 1882 provides two types of mode of service viz by sending notice by post or by tendering or delivering notice personally to the addressee, being one of the mode of service and in case such service is not practicable, then by affixing the notice on conspicuous part of the property. Needless to say that the property has to be one which is the subject matter of the dispute. Indeed, the same is the ruling of the Allahabad High Court in Chhedi Lal case sought to be relied upon by the learned advocate for the petitioner. While dealing with the provisions of Section 106 of the Transfer of Property Act, 1882 and more particularly regarding the mode of service of notice by tendering or delivering personally to the addressee or his family members and also regarding service of notice by affixing to the door of the house, it was observed thus:-
"So far as this mode of service is concerned the words within brackets in Section 106, T. P. Act, namely, "if such tender or delivery is not practicable are of significance. These words refer back to the words " or be tendered or delivered personally to such party, or to one of his family or servants at his residence."
Service by affixation of a notice under Section 106, T.P. Act, to a conspicuous part of the property let out is permissible only if tender or delivery of such notice personally to the tenant or to one of his family or servants at his residence is not practicable."
Indeed the law on this point is well settled, besides being that bare reading of Section 106 of the transfer of Property Act, 1882, reveals that question of service by affixation can arise only when the tender of delivery of notice either by post or by tendering or delivering the same personally to the addressee is found to be impracticable.
7. Before considering the rival contentions it will be also appropriate to scan through the judgments which are sought to be relied upon by the parties. In M/s. Madan & Co. case the Apex Court while dealing with the provisions regarding the service of notice in relation to the claim of arrears by landlord under Jammu and Kashmir Houses and Shops Rents Control Act, 1966 has observed thus:-
"The proviso to Clause (1) of Section 11(1) of the J & K Houses and Shops Rent Control Act 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 this 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 Section 27 of the General Clauses Act. Under the rules of the post office, the letter is to be delivered to the addressee of 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 and the addressee. The difficultly is where the postman calls at the address mentioned and is unable to contact the addressee or a person authorised to 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 enquiries 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 to the responsibilities of serving the summons of a Court under Order 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. If we interpret the provision as requiring that the letter must have been actually delivered to the addressee, we would be virtually rendering it a dead letter. The letter cannot be served where, as in this case, the tenant is away from the premises for some considerable time. Also, as addressee can easily avoid receiving the letter addressed to him without specifically refusing to receive it. He can so manipulate matters that it gets returned to the sender with vague endorsements such as not found", "not in station, "addressee has left and so on, it is suggested that a landlord, knowing that the tenant is away from station for some reasons, could go through the motions of posting a letter to him which he knows will not be served. Such a possibility cannot be excluded. But as against this, if a registered letter addressed to a person at his residential address does not get served in the normal course and is returned, it can only be attributed to the addressee's own conduct. If he is staying in the premises, there is no reason why it should not be served on him. If he is compelled to be away for some time, all that he has to do is to leave necessary instructions with the postal authorities either to detain the letters addressed to him for some time until he returns or to forward them to the address where he has gone, or to deliver them to some other person authorised by him. In this situation, we have to chose the more reasonable, effective, equitable and practical interpretation and that 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, we think, 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."
The above ruling by the Apex Court was delivered in a case where the statutory provisions in J & K, Houses and Shops Rent Control Act specifically provide not only for service of notice by landlord on tenant but also used expression like receipt of such notice by tenant." Applying the said ruling to a situation where the provision of law speaks only of sending of letter by registered post or tendering or delivering the notice personally to the party, one will have to conclude that the moment a letter is sent by registered post disclosing correct address of the addressee, on return of such letter to the sender, apparently disclosing postal nothings of refusal or unclaimed by the addressee, presumption under Section 28 of the Bombay General Clause Act would inevitably arise in relation to the service of such notice upon the addressee. It is to be borne in mind that even in a situation where the statutory provision speaks of requirement of receipt of the letter to conclude the service of notice upon addressee, the Apex Court after taking into consideration the procedure which is followed for the purpose of service of registered letter by post office has held that "Endorsement on letters returned by post office to the sender, like not bound or addressee has left would amount to service, certainly similar such endorsement in case of service of notice in terms of Section 106 of the Transfer of Property Act would also lead to the presumption about the service of such notice in view of the provision contained in Section 28 of the Bombay General Clauses Act.
8. In Anil Kumar case the Apex Court has ruled that:-
"In our opinion there could be no hard and fast rule on that aspect.
Unchallenged testimony of a tenant in certain cases may be sufficient to rebut the presumption but if the testimony of the tenant itself is inherently unreliable, the position may be different. It is always a question of fact in each case whether there was sufficient evidence from the tenant to discharge the initial burden."
Apparently the Apex Court in Anil Kumar's case also has taken some view as was in Madan & Co.'s case. In relation to presumption arising under Section 28 of the Bombay General Clauses Act which is in para materia with Section 27 of the General Clauses Act, only thing which has been clarified in Anil Kumar's case is in a given case unchallenged testimony of a tenant may also be sufficient to rebut the presumption but that would depend on the facts of each case and, where the testimony of the tenant in such case is not inherently unreliable. Obviously where a tenant wants to rebut the presumption arising under Section 28 of the Bombay General Clause regarding registered notice upon the tenant, it is necessary for the tenant to deny and establish the fact of non-service of the notice. Needless to say that the circumstances in each case may differ and, accordingly those circumstances will have to be brought on record by the tenant revealing hollowness in the case of landlord regarding service of notice and, only thereupon presumption can be said to be rebutted. In other words, mere statements that "I have not received the notice sent to me" or that "notice allegedly sent was never received by me" or the like by themselves would not rebut the presumption. The facts leading to the conclusion about improbability of impracticability of service of notice inspire of endorsement to the contrary will have to be brought on record by the tenant in order to rebut the presumption. Otherwise provisions in Section 28 of the Bombay General Clauses Act itself would be rendered meaningless and as is observed by the Apex Court in Madan & Co's case a tenant can always create a situation where by he may be able to return the letter without actually refusing the same. it is pertinent to note that while considering all the possibilities of creating such situation by the tenant the Apex Court has also taken into consideration the fact that the landlord can also take undue advantage of absence of tenant in the suit premises by sending notice during the period of the absence of tenant in the suit premises and, thereby plead the service of notice and, as the Apex Court has observed that "if a registered letter addressed to a person at his residential address does not get served in normal course and is returned, it can only be attributed to addressee's own conduct. This observation has been followed by further observation that in case a tenant wants to be out of station, he has to make necessary arrangement to receive correspondence reaching his residential address in his absence and if he fails to make such arrangement, he cannot blame the landlord for having sent such a letter during his absence.
9. The learned single Judge of this Court in P.A. Kowli's case while dealing with the similar issue and necessity of producing positive evidence by tenant to rebut the presumption under Section 28 of the Bombay General Clauses Act in relation to the service of notice has observed thus:-
"Now, it is common knowledge and under the postal rules, if an addressee of a registered article is not found or is not available during delivery time when the postman goes to deliver articles, then an intimation of such a registered letter or article addressed to the addressee is left. As to in what manner such intimation should be given either oral or in writing, may vary. There is no evidence in the present case that an oral or written intimation was given. But it does not mean thereform, that no intimation was given considering that a presumption exists that official acts are done in due course of business. An intimation could or would be either oral or written. If an intimation therefore, was received by the addressee of the article and the addressee does not take steps to receive that article, either by giving an authority to any other person to receive that article, or himself arranging to proceed to that office and obtain delivery of the article and the article is returned, the only conclusion on the basis of the endorsement would be, that the addressee refuses to accept the article."
Reading the decision in P.A. Kowli's case along with the decision of the Apex Court in M/s. Madan & Co.'s case it is evident that apart from the presumption which arises in terms of the provisions contained in Section 28 of the Bombay General Clauses Act regarding service of notice, when notice is sent by registered post disclosing the correct address of the addressee thereon, when such letter is returned to the sender with endorsement by the postal authority either as "refused" or as "not claimed", by the addressee, the conclusion that is to be drawn is that either the letter was actually tendered or refused by the addressee or inspire of an intimation having been received from the post office in whose local jurisdiction the premises in occupation of the tenant are situated, no steps were taken by the tenant to collect the said letter from the post office. It is not the duty of the landlord to keep track of the tenant and to find out whether the tenant is actually residing or available at the premises in his occupation where the letter is to be addressed. It is obligatory on the part of the tenant to make arrangement for receipt of any correspondence which he may receive in case he is going to be out of station for any period of time. Having been out of station, the tenant is not entitled to make any grievance of his absence of non-receipt of correspondence on account of his absence in the suit premises and, that is the ratio of the decision of Apex Court in M/s. Madan & Co.'s case which is also the ratio of the decision by learned Single Judge in P.A. Kowli's case.
10. Another learned Single Judge of this Court in Hajrabi Abdul Gani's case while dealing with the similar issue has observed that:-
"The law is well settled that the presumption of service under Section 27 of the General Clauses Act, Section 28 of the Bombay General Clauses Act, and under Section 114 of the Evidence Act is a rebuttable presumption that the notice was delivered to the addressee or that on being delivered, it was refused by the addressee. Where a notice is sent to a defendant by registered post and the cover containing the same returned with the postal endorsement "refused", undoubtedly it is for the defendant to adduce evidence to satisfy the Court that the same was not tendered to him. But once the defendant does so by making statement on oath and adducing other evidence, unless such denial is found to be prima facie incorrect, the onus will shift to the plaintiff.
It has been further observed that:-
"In the absence of such evidence, the statement of the defendant made on oath remains uncontroverted which would amount to rebuttal of the presumption of service."
Apparently the learned Single Judge has not ruled that a mere statement on oath of denial or receipt of notice would suffice to rebut the presumption. On the contrary the ruling specifically says that "by making statement on oath and adducing other evidence." Evidently considering the decision and observations of the Apex Court in Madan & Co's case as well as in Anil Kumar's case, it is necessary for the tenant to place relevant facts on record which would shift onus upon the plaintiff to prove the delivery or tender of notice to the tenant.
11. Similar are the observations by another learned single Judge of this Court in Narayan Bhoite's case wherein he has observed that:-
"as the copy of the notice of demand was duly sent to the Defendants at their correct address of the suit premises, which is evident from the Certificate of Posting Exhibit A Collectively, and as the same has not been returned to the sender by the Dead Letter Office of the Postal Department, there is no reason why such a presumption as regards service of notice of demand in favour of the plaintiff would not be justifiable."
12. As far as decision of learned Single Judge in Meghji Patel's case is concerned, undoubtedly the learned Single Judge therein has observed that though sending of letter by registered post raises presumption of delivery of letter, the presumption would stand rebutted on the statement on oath by the addressee that such a letter was not tendered to him. Apart from the fact that the observation were made in particular facts of the case, as a general proposition of law, it stands no more good law in view of the decision of the Apex Court in M/s. Madan & Co.'s case. Being so the decision in Meghji Patel's case if of no help in the case in hand.
13. The decision in B.S. Mahajan's case is clearly distinguishable on facts. Therein, the facts disclosed that the tenant was residing in a building adjoining the suit premises and the landlord-plaintiff had sufficient knowledge about the same and the landlord deliberately chose not to serve the notice upon the defendant at the place where he was residing. In those facts, it was observed that mere postal remarks about absence of the addressee would not give rise to any presumption in favour of the landlord regarding service of notice". Apparently the tenant in the case had led necessary evidence regarding ulterior motive of the landlord to send letter at the place where the tenant was not residing and with full knowledge that the tenant was residing at a place other than the suit premises.
14. The decision of the learned Single Judge in pannalal Mutha's case is to the effect that the presumption would stand rebutted, if the addressee enters the witness box and says that no notice or letter was over tendered to him but it is no more good law in view of the decision of the Apex Court n M/s. Madan & Co.'s case (supra).
15. The decision of the Gujarat High Court in Oza Kumbhar's case also is not in tune with the decision of the Apex Court in M/s. Madan & Co.'s case (supra) inasmuch as that the Gujrat High Court has held that "once the tenant has deposed on oath that he had not refused the service of notice and that he was not in the town at the time when he is alleged to have refused the service of notice, as well as that the postman who has made the endorsement admits that he does not know the defendant, and that no attempt was made in the Court to see that the postman identifies the defendant as the person to whom he had tried to serve the notice, the presumption of service would stand rebutted. This finding is contrary to the observations made by the Apex Court in M/s. Madan & Co.'s case (supra). It is primarily for the tenant to disprove or rebut the presumption arising under Section 28 of Bombay General Clauses Act and only there upon the question of examining the postman or identifying the party at the instance of the landlord can arise. The question of identification of the party for the purpose of proof of endorsement of service under Section 106 of the Transfer of Property Act does not arise, as such a service can be effected not only on the addressee himself but even on anyone of his family members and even on his servant who is found residing in the suit premises. Besides, the onus of examining the postman lies upon the addressee in order to rebut the presumption under Section 28 of Bombay General Clauses Act. The Apex Court in Basant Singh and Anr. v. Roman Catholic Mission has clearly held that:-
"Once it is proved that summons were sent by registered post to a correct and given address, the defendants' own conduct becomes important....The defendant did not appear and no evidence whatsoever, on his behalf, has been led to rebut the presumption in regard to service of summons sent to him under registered post with acknowledgement due.....He could have examined the postman, who would have been the material witness and whose evidence would have bearing for proper adjudication. He has failed to discharge the onus cast upon him by the statute."
16. As regards the decision in Lalmani Tiwari's case, obviously the same was delivered in the peculiar set of facts. The learned Single judge of this Court therein has, after nothing the observations of the lower appellate Court made on analyses on the record, held thus:-
"The landlord has stated in deposition at Exh. 39 that according to him, the notice was refused by the deft., because it was not returned to him. Thus his statement that the notice was received by the tenant is inferential. The tenant has categorically denied on oath in his deposition at Exh. 60 that he had received the notice sent under postal certificate or had refused to claim the notice sent by regd. post. The cross examination of deft, on this point is brief".
In those circumstances the learned Single Judge has proceeded to observe that:-
"In my view, no exception can be taken to the conclusion reached by the appellate Court that in absence of clear endorsement of refusal it is not possible to presume that notice has been duly served on the Respondent tenant."
Admittedly, there was no clear endorsement of refusal of notice coupled with the fact that the case of the plaintiff/landlord regarding service of notice was not based on any such material on record which can sufficiently lead to the presumption as provided under Section 28 of the Bombay General Clauses Act, and it was only on the basis of the inferences sought to be drawn by the landlord regarding service of notice that the landlord was seeking to claim presumption specified under Section 28 of the Bombay General Clauses Act, and the same was rightly refused. Undisputedly in relation to the decision of the Apex Court in Anil Kumar's case a contention was sought to be raised before the learned Single Judge that the appellate Court therein has stated that it is sufficient for the tenant to deny the receipt of the notice on oath in order to rebut the presumption of service under Section 28 of the Bombay General Clauses Act. Bare reading of the judgment discloses that the learned Single Judge had no occasion to deal with the said contention in view of the facts of that case. In any case, the contention does not hold any water as in Anil Kumar's case (supra) the Apex Court has not held or observed that mere statement on oath by a tenant about denial of receipt of letter or notice would rebut the presumption under Section 27 of the Indian General Clauses Act or under Section 28 of the Bombay General Clauses Act. On the contrary, the Apex Court has clearly held that there is no hard and fast rule as regards the material which is required to rebut the presumption and in given case even unchallenged testimony may be sufficient to rebut the presumption, unless the testimony is found to be inherently unreliable. The Apex Court has nowhere held that mere testimony on oath of denial of service would lead to conclusion that the presumption arising under Section 28 of the Bombay General Clauses Act regarding service of notice would stand rebutted. It is well settled that a decision is that it decides and not what follows from it. The ratio of the decision is to be understood by referring to the point for consideration arising in the case and judicial pronouncement in relation to the said point.
17. Reverting to the facts of the case in hand, the learned advocates on both the sides have extensively referred to the evidence on record in support of their contentions. Referring to the statement of holder of Power of Attorney of the petitioner that the petitioner did not receive any notice as alleged to have sent by the respondent and the statement in his cross examination by respondent that the petitioner was out of station from 1990-92, it was vehemently contended on behalf of the petitioner that there was no occasion for the petitioner to receive notice alleged to have been sent by the respondent either in the month of October 1990 or March/April 1991. Whereas the learned advocate for the respondent referring to the same testimony has contended that, the said witness had no knowledge about the receipt or refusal of the notice sent by the petitioner. As in the course of cross examination the witness has stated that. "The defendant might be knowing about the said notice and, further referring to the testimony or respondent, it has been contended that even assuming that registered notice was not received by the petitioner, he was duly served by affixation of notice and the said statement had not been challenged by the petitioner.
18. In fact, as far as the contention of the petitioner about his absence in the premises and therefore absence of occasion to receive notice and, on that count presumption being rebutted, a complete answer is to be found in the decision of Apex Court in M/s. Madan & Co.'s case (supra). Mere absence of the tenant in the premises cannot rebut the presumption arising under Section 28 of the Bombay General Clauses Act. It is for the tenant to make necessary arrangement to receive the notice addressed to him in his absence at the suit premises and, failure on the part of tenant in that regard cannot enure to his benefit to contend that on account of his absence at the premises, the presumption of service would stand rebutted. It is further to be noted that postal endorsement is not of refusal to receive but to the effect that the letter was not claimed. In other words, there was presumption not only regarding service of the notice but also regarding intimation of a letter having been received in the post office addressed to the tenant and failure to collect the same by the tenant as he was found absent in the premises at the time when postman approaches the premises to deliver the same. The presumption regarding intimation would arise under Section 114 of the Evidence Act, as it is observed by the Apex Court, it is a general practice for the postman to intimate either orally or in writing about the letter having been received in the post office addressed to the tenant when the tenant is found absent in the premises at the time when the postman approaches to serve the same. Undisputedly, there was no such efforts made by the petitioner either to receive the notice at the address sent to him during his alleged absence nor any explanation forthcoming as to why arrangement was not made to collect the letter from the postal authorities on intimation thereof. Being so, the presumption of service has not been rebutted.
19. As regards service of affixation on door as already observed above, the same is permissible when actual service by tendering notice to the tenant or by registered post is not practicable. In that case, once a letter is received with postal endorsement that it was not claimed by addressee, it is obvious that though the presumption of service may arise under Section 28 of the Bombay General Clauses Act, the actual service was not practicable as far as the landlord is concerned. The legal presumption arising from postal endorsement is different from the understanding of the factual situation to the landlord or understanding of the landlord regarding service of notice, and in that connection if the landlord makes another attempt to serve the notice by affixation of such notice to the suit premises and the same is effected in presence of any witness of factum of affixation at the door otherwise is established, the same can be considered as good service of notice in terms of Section 106 of Transfer of Property Act, and therefore service by affixation in the case in hand cannot be found fault with. In any case, the presumption arising from service of notice having not been rebutted, the concurrent findings arrived at by the Courts below regarding service of notice do not warrant interference in writ jurisdiction. The petition, therefore, fails and is hereby dismissed. Rule is discharged with no order as to costs.