Madras High Court
R. Jayachandran vs Soletti Lakshmana Chettiar Trust, ... on 16 August, 1989
Equivalent citations: (1989)2MLJ452
JUDGMENT Bellie, J.
1. This is a tenant's second appeal. The suit for eviction and arrears of rent against him was dismissed by the trial Court but the first appellate Court decreed the suit.
2. The plaintiff is Soletti Lakshmanan Chettiar Trust represented by its Managing Trustee N.k.Sreeramulu Chetti. The plaintiff filed the suit alleging that the defendant, appellant herein, is a tenant in its premises on a monthly rent of Rs. 45 and he executed a tenancy agreement in 1971; he fell in arrears and there was a rent arrears of Rs. 630; a notice of termination was issued to him and inspite of the demand he is not vacating. Hence the suit.
3. The defendant admitted the tenancy; but however contended that it was a yearly tenancy, and he further contended that he did not execute any tenancy agreement as alleged. He also contended that the tenancy is governed by Madras Buildings (Lease and Rent Control) Act and therefore the suit is not maintainable. He further con-tended that there is no valid notice of termination as required under Section 106 of the Transfer of Property Act.
4. It appears that during the pendency of the suit the arrears claimed has been paid. What remained was only the prayer for eviction. The trial Court (District Munsif Court, Sholinghur) held that the suit is maintainable. It further held that the tenancy is a yearly one; and then held that there is no valid notice of termination of tenancy. It accordingly dismissed the suit.
5. On appeal by the landlord, the first appellate Court (Subordinate Judge, Vellore) held that the tenancy is a monthly one and that there was valid notice of termination. Hence it decreed the suit.
6. Mr.G.Ravisankar, learned Counsel for the appellant-tenant reiterates the plea that there was no valid notice of termination. While urging this plea he would submit that the tenancy is a yearly one and not monthly one as held by the first appellate Court. I find there is absolutely no substance in this submission and that is clear from a mere look at Exs.B.l and B.2 rent receipts. Each of them show that a sum of Rs. 540 has been received being the total rent for 12 months (note one year). It is common case that rent was Rs. 45 per mensem. This also only indicates that the tenancy was a monthly one. Of course in Ex.A.l rent agreement it is stated that the tenancy is for one year, but it also reads that the rent is payable every month. Therefore there is absolutely no difficulty in holding that the tenancy was only a monthly one.
7. Whether it is a monthly tenancy or yearly tenancy, in both cases it appears there is no proper notice of termination. According to the landlord it sent a notice of termination in Ex.A.4 postal cover but that has been returned by the postman after six days with an endorsement "not found" made on each of the six days, and this would amount to service of notice to the defendant-tenant. According to the tenant no notice was served on him and he had no knowledge of any notice having been sent to him by the plaintiff-landlord.
8. The question now arises is. The fact that the landlord has sent a notice in Ex.A.4 cover and that cover has been sent back after six days by the postman with an endorsement "not found" made on each of the six days would amount to service of notice on the tenant. Mr.M.N.Padmanabhan, learned Counsel for the plaintiff-landlord contends that it has not been disputed that the notice in a registered cover has been sent to the correct address of the tenant and this gives a presumption in law that notice has been served on the tenant. Learned Counsel elaborated this argument of his, but I could not agree with him. The learned Counsel reads out Section 106 of the Transfer of Property Act and submits that this section prescribes different modes of service of notice, one of them being sending by post. Then he argues that under Section 27 of the General Clauses Act and Section 114 of the Evidence Act a presumption arises that when notice is sent by post that has reached the addressee, and when that presumption is not rebutted it must be held that notice has been served. So arguing the learned Counsel relies on a Division Bench decision of this Court in A.B.Kadiappa Nadar v. V.K.R. Amirthavalavan-dammal and Anr. . It is true that when a notice is sent by post a presumption arises in law that the notice has reached the addressee. But when the postal cover itself has come back such presumption goes. Similarly when the addressee refutes that he received any notice sent in a postal cover, then also there cannot be any such presumption, and it is for the sender to prove service pf notice. In the said decision relied on by the learned Counsel also notice was sent by post and it returned with an endorsement "not found". On this basis alone the High Court did not hold that the notice was served on the tenant, but held so on some other finding of fact by the Additional District Judge and his deduction therefrom. It has been pointed out by the High Court that the Additional District Judge has said that the landlord has stated in the petition for eviction that a notice had been sent to the tenant on a stated date and the tenant want only to evade to receive the notice and therefore the notice was returned to him with ah endorsement 'not found', and this the tenant has not repudiated, and that the tenant had not denied before him that he was a businessman carrying on business every day. And then it is pointed out that the Additional District Judge has stated that it was difficult for him to believe that there was no tender of notice. The Division Bench then proceeds to state that, "We do not wish to lay down as an inflexible rule that, whereas a letter contained a proper address, it necessarily followed that the addressee had notice of it even when it was returned with the endorsement 'not found'." Therefore the decision relied on by the learned Counsel cannot be taken to have laid down a general rule, and that decision had been rendered on the facts of that case. In our case there is no such finding given or statement made by any of the Courts below as in the case in A.B.K.Kaliappa Nadar v. V.k.R. Amirthavalavandammal and Anr. .
9. Mr.M.N.Padmanabhan, however would state that the tenant has deposed that he used to be in the suit shop and whenever he is not there his men will be there and therefore it cannot be believed that the tenant had no knowledge that notice has been sent to him. I do not agree. On this alone, without anything further, it cannot stated that he knew that a notice had been sent to him. The notice has been sent in a closed postal cover. The endorsement is 'not found'. It is not the landlord's case that the tenant has manoeuvred with the postman to send back the notice with the endorsement "not found".
10. Mr.G.Ravisankar, learned Counsel for the tenant would produce a decision of a single Judge of this Court in "C.M.K.Ramu Mudaliar v. Manthamani Natarajan and Anr. (1979)1 M.L.J.346 wherein also the postal cover containing notice was sent back with an endorsement "not found". In that decision the learned Judge has ruled that, In my view, the endorsements in the postal cover are enough in themselves to rebut the presumption laid down by Section 27 of the General Clauses Act.
From the discussion above, I am clearly of the view that it cannot be held that there was valid service of notice of termination on the tenant. Therefore the judgment of the first appellate Court cannot be upheld as correct The result is, that judgment is set aside and the judgment of the trial Court dismissing the suit is upheld. There will be no order as to costs.