Allahabad High Court
Smt. Vandana Gulati vs Gurmeet Singh Alias Mangal Singh on 8 January, 2013
Equivalent citations: AIR 2013 ALLAHABAD 69, 2013 (2) ALL LJ 628, (2014) 1 CURCC 89, (2013) 2 ADJ 281 (ALL), 2013 (2) ADJ 281, (2013) 1 ALL RENTCAS 819, (2014) 1 CIVLJ 195, (2013) 119 REVDEC 789, (2013) 96 ALL LR 896, (2013) 2 ALL WC 1143
Author: Pankaj Mithal
Bench: Pankaj Mithal
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved Case :- CIVIL REVISION No. - 517 of 2012 Petitioner :- Smt. Vandana Gulati Respondent :- Gurmeet Singh Alias Mangal Singh Petitioner Counsel :- Kauslendra Singh Chauhan,B.N. Agrawal Respondent Counsel :- Atul Dayal Hon'ble Pankaj Mithal,J.
The Small Causes Court Suit of the landlord in respect of house No.18/182A, Kursawan, Kanpur Nagar, on the strength of the notice of demand and determination of tenancy dated 02.02.07 has been decreed by the court below vide judgment and order dated 06.08.12.
The tenant has challenged the aforesaid judgment and order in this revision on a very limited point that the notice determining tenancy was not sent to her at her residential address and therefore, no presumption of its service would arise so as to legally determine her tenancy.
I have heard Sri B.N. Agarwal, learned counsel for the tenant revisionist and Sri Atul Dayal, learned counsel appearing for the respondent landlord, who agreed for the final disposal of the revision at the stage of admission itself.
The court below under point for determination No.2 held that the tenant was sent a notice under Section 106 of the Transfer of Property Act, 1882 (hereinafter referred to as the Act) determining his tenancy which is a valid notice deemed to be duly served upon her.
The submission of Sri B.N. Agarwal, in this regard is twofold that the notice was not sent at the residential address of the tenant and that the endorsement of not claimed/not met on the envelope would not amount to service of the notice.
The lease of an immovable property is determinable in the manner provided under Section 111 of the Act. It inter alia vide clause (h) provides that a lease of immovable property stands determined on the expiration of notice to determine the lease, or to quit, or of the intention to quit the lease property.
Section 106 of the Act lays down that a lease of immovable property other than for agricultural or manufacturing purposes, shall be a lease from month to month which shall be determinable by either of the parties by giving 15 days notice, which in its applicability to the State of U.P. stand amended to a period of 30 days.
A conjoint reading of Section 111(h) and Section 106 of the Act makes it clear that a lease of an immovable property is determinable by a notice of 30 days.
Section 106(4) of the Act provides for the manner in which a notice determining a lease has to be given. It reads as under:
(4)Every notice under sub-section(1) 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.
A plain reading of the aforesaid provision would indicate that it mandates that a notice determining lease must fulfill the following conditions:
(i) it must be in writing;
(ii) it must be signed by or on behalf of the person giving it;
(iii) it must either be sent by post to the party who is intended to be bound by it; or
(iv) it must be tendered or delivered personally to such party or to one of his family members or servants at his residence; or
(v) if such tender or delivery is not practicable, by affixing it at some conspicuous part of the property.
Sub section 4 of Section 106, not only, provides for a notice determining lease to be in writing and signed by the person giving it but that such a notice must be sent to the person concerned either by post or by tendering or delivering it personally or to one of his family members or servants. The tendering or delivering of notice personally to the person or to one of his family members or servants has to be at his place of residence for the obvious reason that during the day time, on a working day, a person is rarely to be found at his residence, as he is supposed to be at his working place/office rather than at home. The sending of notice by post is not qualified. It may be sent by post to the party concerned at his known address whether it happens to be his official or residential address. At the office address/business place a family member or servant of the person concerned is rarely to be found. Therefore, the legislature has deliberately not provided for serving notice by delivering it to any family member or the servant of the person concerned if it is sent at his official address.
The words "at his residence" used in sub section (4) of Section 106 of the Act qualifies tendering or delivering notice personally or to the family member or servants and not to sending of notice by post. This necessarily means that a notice by post can be send to the person concerned either at his residential or official address.
In Dharam Pal Tyagi Vs. Anil Kumar 1986(2) ARC 121 which has been relied upon by Sri B.N. Agarwal, the court dealing with the presumption of service of notice under Section 106 of the Act remanded the matter pointing out the difference between presumption of fact of service of notice arising under Section 114(f) of the Indian Evidence Act, 1872 and presumption of law arising under Section 27 of the General Clauses Act, 1897 which is rebuttable. It is not an authority on the point that a notice under Section 106 of the Act has to be sent by post to the party concerned at his residential address only.
In view of the above, it is concluded that a notice under Section 106 of the Act can be sent in two ways i.e. by post or by tendering or delivering it personally. In tendering or delivering it personally it can be served upon a family member or a servant of the person concerned at his place of residence. In contrast, the notice sent by post can be addressed either at office or the residence.
In the above situation, the notice sent to the tenant at her official/business address would not stand vitiated.
Section 114 of the Indian Evidence Act, 1872 provides that the court may presume existence of certain facts, namely, where a letter is shown to have been posted in the common course of business and in the manner provided it may be presumed to have been served in the usual course unless interrupted by disturbance.
Section 27 of the General Clauses Act, 1872 explains the meaning of service by post. It provides that where any document is required to be served by post, its service shall be deemed to be affected by properly addressing, prepaying and posting it to the person concerned by registered post unless contrary is proved.
The above provision of the Indian Evidence Act, 1872 raises a presumption of fact and that of Section 27 of the General Clauses Act, 1897 a presumption of law. The cumulative effect of both the above provisions is that a letter/notice sent by registered post to the person concerned at the proper address shall be deemed to be served upon him in the due course unless contrary is proved.
A Full Bench of this Court in Gangaram Vs. Phoolwati AIR 1970 Allahabad 446 (FB), inter alia, laid down that Section 106 of the Act provides for modes of service of notice and one of the mode being sending of notice by post, the provisions of Section 27 of the General Clauses Act, 1897 shall apply and if it is proved that a notice was sent by registered post in an envelope containing correct address of the tenant a presumption of law can be made that the notice had been served on the addressee. The Full Bench further accepted the view as expressed by their Lordships of this Court in an earlier decision to the effect that a notice sent by registered post and received back with the endorsement 'refused' would be presumed to be served in view of Section 27 of the General Clauses Act, 1897 and that such a presumption though rebuttable, the postman need not be examined to prove the endorsement, rather it is the duty of the person rebutting the presumption to lead evidence that the notice was not served upon him.
Even the Supreme Court in Puwada Venketeswara Rao Vs. Chidemana Venkata Ramana AIR 1976 SC 869 observed that where a notice by registered post is returned with endorsement 'refused' it is not always necessary to produce the postman who tried to affect the service.
In Har Charan Singh Vs. Shiv Rani and others AIR 1981 SC 1284 it was held that when a registered envelope is tendered by postman to the addressee and he refuses to accept it, presumption of due service arises and in such cases knowledge of the contents of the letter can always be imputed to the addressee.
The Apex Court in Anil Kumar Vs. Nanak Chandra Verma AIR 1990 SC 1215 held that a bare statement of a tenant on oath denying receipt of the notice or that he has not refused to accept its delivery, is not sufficient to rebut the presumption of service which arises under Section 27 of the General Clauses Act, 1897 over ruling the decisions in Shiv Dutt Singh Vs. Ram Dass AIR 1980 Alld. 280 and Jagat Ram Khullar & another Vs. Battu Mal AIR 1976 Delhi 111 to the effect that bare settlement of tenant denying service of notice was sufficient to rebut the presumption.
In Barindra Kumar Baruha Vs. ADJ, Allahabad 1999(2) ARC 651 it was held that if a registered letter sent on the correct address is received back with the endorsement of refusal, no postman is required to be produced to prove its actual delivery or the presumption which arises in law.
Even in the case of Basant Singh and another Vs. Roman Catholic Mission AIR 2002 SC 3557 it was held that a bald statement that registered letter was not tendered to him without any material evidence in support would not be sufficient to rebut the presumption of law regarding service of letter.
A Division Bench of this Court in Ram Nath & others Vs. Angan 1984(2) ARC 290 held that where a registered envelope with correct address of the tenant is posted and the tenant refuses to take notice or it is returned with the endorsement "not met" the notice shall be deemed to have been properly served upon him and the landlord is not required to examine the postman.
The above view is fulfilled by the observations of the Supreme Court in M/s Madan and Co. Vs. Wazir Jaivir Chand AIR 1989 SC 630 wherein it was remarked that when the postman is unable to deliver the letter/notice on repeated attempts either on account of the addressee 'not found' not in station, addressee is 'left or not met' the presumption of service arises as it is not possible for a landlord to ensure that the registered letter/notice sent by him is actually received by the tenant.
In the light of the above legal position, the argument that the endorsement "not claimed/not met" is not sufficient to prove deemed service of the notice cannot be accepted, particularly when there is no evidence to rebut the presumption of service which arises both on fact and law.
Accordingly, I am of the opinion that none of the points canvassed by Sri B.N. Agarwal on behalf of the tenant regarding validity or the service of the notice have any force and are rejected.
The revision lacks merit and the order impugned is not worth revising. It is accordingly dismissed with no order as to costs.
The tenant is allowed time up to 31st March, 2013 to vacate the premises in dispute subject to the usual conditions of payment of entire arrears and damages as decreed by the court below within a period of one month from today and subject to clearance of damages for future occupation on monthly basis on or before the time of handing over peaceful vacant possession at the same rate as awarded by the court below.
Order Date :- 8.1.2013 piyush