Allahabad High Court
Ram Babu vs Raj Kumar Singh on 15 November, 2022
Author: Ajit Kumar
Bench: Ajit Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 18 AFR Case :- MATTERS UNDER ARTICLE 227 No. - 7364 of 2015 Petitioner :- Ram Babu Respondent :- Raj Kumar Singh Counsel for Petitioner :- Anita Tripathi,Tripathi B.G. Bhai Counsel for Respondent :- Pankaj Agrawal,Pankaj Agarwal Hon'ble Ajit Kumar,J.
Heard Sri Tripathi B.G. Bhai, learned counsel for the petitioner and Sri Pankaj Agrawal, learned counsel for the respondent.
The tenant petitioner has sought to invoke supervisory jurisdiction of this Court under Article 227 of the Constitution questioning the judgment and order passed by the revisional court in SCC Revision under Section 25 of Provincial Small Cause Courts Act, 1887.
The petitioner is aggrieved against the order for there being no justification to reverse the judgment and order of the Trial Judge in SCC Suit No. 32 of 2005, wherein land lord respondent has been non suited on the ground that the service of notice was not effected upon the tenant so as to determine the tenancy, inasmuch as, the petitioner was not found to be in default of payment of rent and if he continued to deposit the rent in time, may be under Section 30 of U.P. Urban Buildings (Regulation of Letting and Eviction) Act, 1972, he would be entitled to protection under Section 20(4) of the said Act. So the bone of the contention between the parties qua maintainability of the suit and consequential entitlement of land to get the suit for ejectment decreed and on sufficiency of service of notice.
Learned counsel for the petitioner submitted that notice to determine tenancy was required to be personally served upon the tenant. He submitted that no body knew who was receipient woman, named Sapna. A mere acknowledgement with signature of the alleged receipient of notice would not suffice the need of service of notice. He submitted that once the acknowledgment was received by the land lord, he ought to have enquired as to who was woman named Sapna and whether she was member of the family or a resident of the place of address. Sapna, it was argued, having not been identified , the service would not be taken to be due service of notice personally upon the tenant petitioner.
Yet another argument advanced is that once the landlord refused rent, tenant was left with no other option but to deposit rent under Section 30 of Act No. 13 of 1972 and alleged notice having not been served upon him, he was not liable to offer any rent to the landlord respondent and considering the continued deposit even at the time of filing suit and even thereafter, he cannot be held to have default in payment of rent.
Learned counsel for the petitioner has relied upon the judgments in support of his arguments firstly in the case of Balloo Ram Bookseller v. Chhedi Lal, 1968 ALJ to assail that there has to be personal service of notice upon tenant and service upon a third party would do needful and then in the case of Shri Ram Mittal v. XIth Additional District Judge, Meerut and Others, wherein it was held that if the tenant was in four months default of water tax, does not exceed period of four months under Section 7 of the Act No. 13 of 1972 then petitioner would be entitled to payment under Section 20(4) of the Act No. 13 of 1972, inasmuch as , the deposit made under Section 30 of the Act No. 13 of 1972 will be taken into consideration while calculating the defendant's liability towards rent.
Per contra, it is submitted by learned counsel for the respondent landlord that the landlord had sent notice by registered post that was duly served upon a lady, named, Sapna at the address of the tenanted premises. The registry receipt in original, the acknowledgement received back in original and also the copy of the notice was filed before the Trial Court. It was argued before the Trial Court, therefore, that burden to establish service of notice under Section 106 of the Transfer of Property Act, 1882 to determine the tenancy, stood discharged and so onus shifted upon the tenant to prove that notice was not served upon to the member of the family, which he failed to discharge.
The further contention advanced by learned counsel for the respondent in defence on the point of default of payment of rent, is that after service of notice upon tenant, the tenant was required to again ask the land lord to accept the rent at a revised rate and if the land lord refused , he ought to have made the deposit under Section 20(4) of the Act No. 13 of 1972 in the Court itself. In this regard, he has relied upon the judgment of Full Bench in the case Gokaran Singh and Others (supra).
In support of this above argument, learned counsel for the respondent land lord has relied upon the judgment of this Court and the Supreme Court in the case of Rajendra v. Sanatan Dharam Intermediate College, 2008(70) AIR 61 (MANU/UP/1308/2007), Green View Radio Service v. Laxmibai Ramji and Others, AIR 1990 (SC) 2156 (MANU/SC/0378/1990, Gujarat Electricity Board and Others v. Atmaram Sungomal Poshani, AIR 1989 (SC) 1433 (MANU/SC/0200/1989, Ganga Ram v. Phulwati, AIR 1970 ALL. 446 (MANU/UP/0071/1970 and Gokaran Singh and Others v. 1st Additional District and Session Judge, Hardoi and Others, 2000 SCFRC 193 (MANU/UP/1528/2000).
Having heard learned counsel for the respective parties, I find that the core issue to be of service of notice to determine tenancy. In the event if the service of notice is held to be valid, it is then only question would crop up about sufficiency of deposit made under Section 30 of the Act No. 13 of 1972 and whether such deposits where to be taken for entitling the tenant to the statutory protection under Section 20(4) of the Act No. 13 of 1972.
The learned judge deciding the Small Cause Courts Suit of the land lord respondent held that though from the acknowledgement bearing paper no. 12-C that has been filed it is reflected that notice was served upon some woman, named Sapna, but it did not bear any date, nor plaintiff has explained as to whether Sapna was a member of the family of the tenant defendant and so service of notice was legally affected upon. The Trial Judge held that the defendant D.W.-1 having stated on oath that he has not received notice and that upon perusal of acknowledgement it does not show that it was personally served upon tenant, therefore, presumption would be raised that service of notice was not duly effected upon the defendant and thus non suited the plaintiff .
The suit was dismissed on yet another ground that the land lord having refused to accept rent, the tenant defendant rightly deposited the rent in Court and as far as the increased water and house taxes are concerned, he was not informed properly about any such increase by the Cantonment Board. Thus tenant having not received any notice regarding increase in the house and water taxes, petitioner could not be held in arrears of rent for not paying such taxes and would be entitled to protection under Section 20(4) of the Act No. 13 of 1972 for the regular deposit made under Sectin 30 of the Act No. 13 of 1972.
The land lord challenged the order before the Court had filed SCC Revision under Section 25 of the Act, 1887, which was allowed raising presumption that there was absolute proof of service of notice and it was duty upon the tenant defendant to have discharged his onus by proving non service of notice by leading cogent and convincing evidence, which he failed. The Court sitting in revision also found that tenant had absolute information about increase in the house and water tax from Rs. 84/- to Rs. 118/- and yet he sent moneyorder of Rs. 548/- only and when it was refused , he deposited rent at the same rate i.e. Rs. 584/- whereas he was required to deposit rent @ Rs. 618 /- w.e.f. 11.4.2002.
As far as sufficiency of notice is concerned, it was established before the trial court itself that acknowledgement of service of registered notice and the registry receipt alongwith copy of notice was filed before trial judge and acknowledgement did bear signature of a recipient Sapna, a woman. The question is as to whether burden stood discharged at the end of land lord once he filed registry receipt and acknowledgement along with the copy of the notice that was sent.
This controversy about discharge of burden at the end of land lord to raise presumption regarding service of notice may not detain this Court any longer because this controversy has already stood settled in a series of judgment cited by learned counsel for the respondent land lord.
The Full Bench judgment in the case of Ganga Ram (Supra) while dealing with service of notice sent under Section 106 of the Transfer of Property Act, 1882 vide paragraph 28 held thus:
"28. 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 refusal had been made by the tenant to whom the registered letter was correctly addressed at the time 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 abovementioned cases decided by the Bombay, Madhya Bharat and Nagpur High Courts."
(emphasis added) Finally the Court answered three questions framed as under:
"34. In view of what we have stated above, we proceed to answer as follows the three questions referred to the Full Bench:--
Question Our Reply
1. Whether a notice under S. 3 of the U. P. (Temporary) Control of Rent and Eviction Act, even if combined with a notice under S. 109 of the Transfer of Property Act, has to be served on the tenant personally?
1. The answer is in the negative. Even a notice of demand deemed or presumed to have been served on a tenant will be "service upon him of notice of demand".
2. Whether it is incumbent on the plaintiff to prove the endorsement of refusal on the notice sent by registered post by producing the postman or other evidence in case the defendant denies service on him ?
2. The answer is in the negative.
3. Whether in the circumstances of the present case the Courts below were right in raising the presumtion under S. 114 of the Evidence Act in favour of the landlord ?
3. The answer is In the affirmative. The presumption regarding service of such notice has also to oe made Under S, 27, General Clauses Act."
(emphasis added) In Green View Radio Service (supra), the Court held that service of notice was completed once it was sent by registered post and once the acknowledgement has been received bearing signature of the person receiving notice, then valid presumption shall be raised qua service of notice/ letter sent by registered post and so to be rebutted by tenant/ addressee by appearing as a witness and refusing signature and producing witness to corroborate his stand. This burden lies heavily upon the noticee. Vide paragraph 3, the Court held thus:
"3. In this connection, we may also point out that the provisions of Section 106 of the Transfer of Property Act require that notice to quit has to be sent either by post to the party or be tendered or delivered personally to such party or to one of his family members or servants at his residence or if such tender or delivery is not practicable, affixed to a conspicuous part of the property. The service is complete when the notice is sent by post. In the present case, as pointed out earlier, the notice was sent by the plaintiff's advocate by registered post acknowledgment due. The acknowledgment signed by the party was received by the advocate of the plaintiff. Thus in our view the presumption of service 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 acknowledgment due receipt contains the signatures of the addressee himself and the addressee as a witness states that he never received such letter and the acknowledgment 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."
(emphasis added) This Court in the case of Rajendra v. Sanatan Dharam (supra) vide paragraph 2 has relied upon the judgment of the Supreme Court wherein it was held that even if there was endorsement "not met" on the registered letter returned service of notice would be deemed sufficient.
In the case of Gujarat Electricity Board and Others (supra), the Supreme Court held that once presumption has been raised, the duty lies upon noticee to discharge burden regarding factum of service. Vide paragraph 3, the Court held thus:
" There is presumption of service of a letter sent under registered cover, if the same is returned back with a postal endorsement that the addressee refused to accept the same. No doubt the presumption is rebuttable and it is open to the party concerned to place evidence before the Court to rebut the presumption by showing that the address mentioned on the cover was incorrect or that the postal authorities never tendered the registered letter to him or that there was no occasion for him to refuse the same. The burden to rebut the presumption lies on the party, challenging the factum of service. In the instant case the respondent failed to dis- charge this burden as he failed to place material before the Court to show that the endorsement made by the postal au- thorities was wrong and incorrect. Mere denial made by ,the respondent in the circumstances of the case was not suffi- cient to rebut the presumption relating to service of the registered cover. We are, therefore, of the opinion that the letter dated 24.4.1974 was served on the respondent and he refused to accept the same. Consequently,the service was complete and the view taken by the High Court is incorrect. "
Thus from the above exposition of law regarding service of notice for determining the tenancy and the presumption being raised thereof, it is clear that the only duty of the landlord is to ensure that a registered notice is duly sent at the correct address and then if it is refused or returned for non availability of the noticee or that it has been served upon another person at the same address and was received on behalf of the noticee, service would be deemed sufficient for the purpose of raising presumption regarding service of notice.
This presumption is rebuttable provided of-course the noticee leads evidence to the effect that the person who has received notice was not in any manner related to him, nor such a person who received notice was authorized to receive notice and so if the notice was not handed over to the noticee after service or affixation upon the tenanted premises, then the presumption raised regarding service of notice would stand rebutted.
Learned counsel for the respondent submitted that notice was to be served personally under the Act and, therefore, service of notice would not be deemed sufficient and no presumption in respect of validity of notice could have been raised. The judgment that he has relied upon is of coordinate bench of this Court in the case of case of Balloo Ram Bookseller (supra) wherein the Court, I find, Court was dealing with the relevant provision as contained under Section 3 of the old Control of Rent and Eviction Act, 1947. It came to be concluded that the words ''service upon him' would mean personal service and would exclude the service either on servant or member of the family. The provision as such contained under Section 3(i)(a) of U.P. (Temp.) Control of Rent and Eviction Act, 1947 had used the words and expression notice of ''service upon him' but I do not find any such provision qua service of notice under the new Act of 1972. Moreover, it is a case of suit where service of notice has to be looked into with regard to Section 106 of the Transfer of Property Act, 1882 and exposition of law in that regard by series of judgments already referred to hereinabove. Furthere in view of the judgment and the answer to question no. 1 by Full Bench in Ganga Ram (supra) case, the law laid down in Balloo Ram (supra) with utmost respect I observe, is no more a good law.
In view of above, therefore, I do not find any fault with the judgment of the Court sitting in revision that looking to the papers of postal receipt and acknowledgement received and corrctness of address of noticee upon notice, a presumption can be validly raised regarding service of notice.
On a repeated querry being made to the learned counsel for the petitioner as to whether he led any evidence to dispute the identity of Sapna as a member of the family or as a strange person who could not have received notice in his behalf or whether he took plea that Sapna was not a member of the family or that he did not know who was Sapna who had received notice in his behalf , he has not been able to give any satisfactory reply. Even otherwise, I do not find any paper filed or available on record to show that he has been able to dispute identity of the woman Sapna nor, was he able to get the postman examined who served notice upon the woman, named Sapna.
In such above view, therefore, presumption regarding service of notice that validly raised could not be rebutted. Thus, the findings returned on the point of service of notice, returned by the court sitting in revision impugned herein this petition cannot be said to be suffering from any manifest error of law or fact so as to warrant any interference.
In view of above, therefore, the suit in question was clearly maintainable at the instance of the respondent land lord .
Now, the question arose as to whether deposit under Section 30 of the Act No. 13 of 1972 could have been taken to be sufficient enough to give protection to the petitioner under Section 20(4) of the Act No. 13 of 1972. From the perusal of the pleadings and discussion made both in the judgments of trial court as well as of appellate court, I find that plaintiff never offered any rent to the land lord after he received notice besides the deposits that he had been making under Section 30 of the Act No. 13 of 1972 since prior to the notice. I, further, noticed that even after receipt of service of notice of the suit while he presented his written statement or on any other date to be called as first date of hearing, he did not submit any rent in court as was claimed in the notice or in the plaint In the full bench judgment of this Court in the case of Gokaran Singh (supra), it has been clearly held that once notice has been sent and the land lord showed his willingness to accept rent while determining tenancy, it was incumbent upon the tenant to pay rent to the land lord directly and if he refused, in that event he would have to deposit rent in Court because in that circumstances, as was held in Indrasani's case, the rent shall be deemed to have been paid to the land lord. Vide paragraph 28, the full bench has held thus:
"In Indrasani's case (supra), it has been held that if the amount of rent at the correct rate is tendered by the tenant and the same is refused by the landlord, which covers to a particular period, tenant can not be held to be defaulter in respect there of. After refusal of the rent by the landlord, tenant is legally entitled to deposit the same in the Court under Section 30, but if thereafter, landlord serves notice of demand again at a higher rate, tenant need not tender the amount which has been deposited under Section 30 again but he will be under obligation to tender the amount of rent due at the correct or admitted rate of rent. Without tendering the said amount, the tenant will have no right to deposit the same under Section 30 of the Act."
Thus, legal position that emerges is that even if the tenant has been paying rent under Section 30 of the Act No. 13 of 1972, once he received notice, he should pay over rent to the land lord directly and if he refused, he should send money-order to him and then if the money-order is refused, he must make deposit under Section 20(4) of the Act No. 13 of 1972. To get the stautory protection, the tenant is required to deposit rent directly in Court on the first date of hearing alongwith advocate fee etc. as have been prescribed for under Section 20(4) of the Act No. 13 of 1972. Merely because tenant has been depositing rent under Section 30 of the Act No. 13 of 1972 since prior to the notice and continued to deposit under Section 30 of the Act No. 13 of 1972, such deposit as such would not suffice the requirement of law that is mandated as per relevant provisions nor, deposit made under Section 30 of the Act No. 13 of 1972, itself be a guarantee to the protection under Section 20(4) of the Act No. 13 of 1972. Section 20(4) of the Act No. 13 of 1972 requires deposit to be made in court itself where the case is going on. Nothing is reflected from the findings returned by the trial judge that any such deposit was ever made by the petitioner tenant so as to give him benefit of protection under Section 20(4) of the Act No. 13 of 1972. Thus findings returned by the trial judge was clearly unsustainable and the court below is justified in reversing the same.
In view of above, I do not find any merit in this petition. Petition Lacks merit and is accordingly dismissed with no order as to cost. Consigned to records.
Order Date :- 15.11.2022 Sanjeev