Andhra HC (Pre-Telangana)
Ravi Raghuramayya vs Koneru Rama Tulasamma on 10 March, 2004
Equivalent citations: 2004(5)ALD35, 2004(4)ALT526
JUDGMENT P.S. Narayana, J.
1. Ravi Raghuramaiah, the unsuccessful defendant being aggrieved by the reversing judgment and decree made in A.S. No. 8/2000 on the file of Senior Civil Judge, Gajuwaka, setting aside the judgment and decree made in O.S. No. 336/99 on the file of Junior Civil Judge, Gajuwaka, had preferred the present Second Appeal.
2. Shri D.V. Sitaram Murthy, Counsel representing the appellant had pointed out the following substantial questions of law:
(1) Whether the lower Appellate Court was justified in drawing presumption under Section 114 of the Indian Evidence Act, 1872 and Section 27 of the A.P. General Clauses Act with reference to service of quit notice by the Postman when the Postman was examined as P.W.2 and his evidence was on record.
(2) Whether the Court below was justified in declaring Section 14 of the Indian Post Office Act, 1898 as not mandatory.
(3) Whether the landlady had not waived her right in view of the acceptance of amounts.
The learned Counsel while elaborating his submissions would maintain that the presumption available in relation to service of notice is only a rebuttable presumption and when the Postman was examined as P.W.2 and his evidence was not trustworthy the Court of first instance was justified in dismissing the suit and the Appellate Court had totally erred in reversing the well considered judgment of the learned Junior Civil Judge, Gajuwaka. The Counsel also would maintain that in the facts and circumstances of the case when the alleged service was not done in accordance with the statute, then it should be taken that there was non-service and hence the landlady is bound to fail. The Counsel made certain submissions in relation to Section 14 of the Indian Post Office Act, 1898 and had taken this Court through the evidence of P.W. 2 as well. The Counsel also had pointed out certain niceties to be examined in the case of quit notice and would contend that in the light of the facts and circumstances it should be taken that there was no service of notice. The learned Counsel also contended that inasmuch as the rents had been accepted subsequent to the issuance of notice, it should be taken that the landlady had waived her right to seek the relief of eviction. The learned Counsel placed reliance on Ram Dayal v. Jawala Prasad, AIR 1966 All. 623, Sharad v. Vishnu, and Surajmull v. Samadarshan, , in this regard.
3. Per contra Sri V. Ravinder Rao, Counsel representing the respondent/ landlady had pointed out to the refusal endorsement and also had taken this Court through Section 14 of the Indian Post Office Act, 1898 and had explained that at any stretch of imagination the said provision cannot be held to be mandatory and inasmuch as refusal had been recorded, the evidence of P.W. 2 is clear and categorical. The Counsel also would maintain that when a presumption is available, though a rebuttable presumption, the mere fact that the Postman was further examined cannot dilute the rigor of availability of the presumption in favour of the landlady. The Counsel no doubt had stated that after determination, towards damages without prejudice to her contentions, the landlady had encashed the demand drafts and definetly it would not amount to waiver. The Counsel had explained relating to realization of the amount after filing of the suit. At any rate, the Counsel would contend that this defence is taken only with a view to prolong the litigation. Reliance also was placed on Saladi Srirama Murthy v. K. Swaminaidu, , Ram Shree v. Khadija Bibi, , State of Madras v. K.N. Shanmugha Mudaliar, (1976) 2 SCC 406, Ram Autar v. Savitri Devi, and P. Lakshmanchandji v. V.V.S.R. Murthy, 1976 (2) An.WR 110.
4. Heard both the Counsel and perused the findings recorded by the Court of first instance and the findings recorded by the Appellate Court.
5. Smt. Koneru Rama Tulasamma, the landlady filed a suit O.S. No. 802/97 on the file of II Additional District Munsif, Visakhapatnam which was numbered as O.S. No. 336/99 on the file of Junior Civil Judge, Gajuwaka as against Sri Ravi Raghuramayya, the defendant in the said suit, for the relief of eviction and for damages for use and occupation. Though the suit was originally numbered as O.S. No. 802/97 on the file of II Additional District Munsif, Visakhapatnam in view of bifurcation of jurisdiction the same was transferred and renumbered as O.S. No. 336 of 1999 on the file of Junior Civil Judge, Gajuwaka. The brief averments in the plaint are as follows:
Plaintiff is the absolute owner of the building bearing Door No. 16-242/1 situate in Gajuwaka, Visakhapatnam and the same is the self-acquired property of the plaintiff. It was pleaded that the plaintiff purchased a vacant site under a registered sale deed dated 26-4-1974. Subsequently she constructed a building consisting of ground floor in the year 1984 and later first and second floors were added in the year 1994 and the building bears Door No. 16-242 and the said building is situated besides State Bank of India, Gajuwaka. The western side portion consists of a big hall in the ground floor of the said building which is let out to the defendant. It was pleaded that the defendant approached the plaintiff in or about November, 1991 and requested him to let out the plaint schedule property for carrying on business in sale of foot-wear in the name and style of Venkateswara Shoe Stores. After due negotiations the same was let out initially on a rent of Rs. 1,100/-per month and the tenancy was from calendar month to calendar month. It was agreed that the rent is payable before 10th of every month in advance to Smt. K. Varalakshmi who is the only daughter of the plaintiff. It was also pleaded that there was no written lease deed between the plaintiff and the defendant. The plaintiff accordingly handed over the schedule property to the defendant for doing business in the sale of footwear. The schedule property is provided with electricity supply and there is a sub-meter installed in the plaint schedule property and electricity charges were payable every month, exclusive of the rent, as per the meter reading along with the rent every month. The daughter of the plaintiff who was residing in the second floor of the same building was accordingly collecting rents from the defendant and the defendant also was obtaining receipts for the rent paid by him. Later the rent was enhanced to Rs. 1,200/- per month, then to Rs. 1,300/- and later to Rs. 1,400/-. It was further pleaded by the plaintiff that her only daughter Smt. Varalakshmi had grown up sons and they are doing business in paper conversion in a small ante room which is situated behind the plaint schedule premises in the name and style of Kalyani Enterprises and the said room is a very small and is also having no road facing it. The grandsons of the plaintiff Sunil and Sasanka intended to develop their business as the income from the paper conversion business is hardly sufficient for living. Therefore they went to open a retail stationery shop in addition to the business that is being carried on by them on the rear side of the plaint schedule building. The premises in their occupation at present is neither sufficient nor suitable to open a shop room. The plaintiff requested the defendant several times to vacate and handover the possession of the property to her and the defendant went on postponing the issue and failed to accede to the request of the plaintiff. Being left with no other alternative the plaintiff got issued legal notice dated 14-12-1996 thereby determining the tenancy of the defendant with effect from 1-1-1997 and demanded him to vacate the plaint schedule property. However the defendant refused to receive the notice and the same was returned to the plaintiff with an endorsement dated 23-12-1996 to the effect "Refused-Hence returned to sender". However the defendant for reasons best known to him filed a caveat petition wherein he alleged that a sum of Rs. 10,000/- was paid as advance which is totally false. No advance as such was paid by the defendant as alleged and defendant also later got issued a legal notice defendant 11-4-1997 enclosing two demand drafts both dated 7-4-1997 for Rs. 1,400/-towards rent for the months of February and March, 1997. The question of payment of rents after 31-1-1997 does not arise as the tenancy was determined with effect from 31-1-1997 and the defendant is no longer a tenant. Therefore the plaintiff will encash the demand draft towards part of the damages for use and occupation without prejudice to her right to seek for additional amount only after filing the suit. Thus the encashment of the demand draft after filing of the suit does not amount to waiver of the quit notice and the right of the plaintiff to seek for eviction of the defendant and recovery of vacant possession of the plaint schedule property. The plaint schedule property is non-residential in nature and is situate in a very busy and commercial locality and the rents in that area are very high and hence the plaintiff is claiming damages at the rate of Rs. 3,000/- per month from January, 1997 to April, 1997 and hence the suit.
6. The appellant herein/defendant filed a written statement denying all the allegations. It was further pleaded that Varalakshmi is the daughter of the landlady/ plaintiff and she has two sons who are doing business in paper conversion in a room which is sufficient for such type of business and the business of the defendant is purely footwear and chappals and in the ordinary course of foot-wear business it must be abutting the road which the plaintiff and her daughter are fully aware and this defendant is paying Rs. 1,400/- per month and previously the entire area was in Gajuwaka Panchayat and recently it was amalgamated to Gajuwaka Municipality and the rent of Rs. 1,400/- per month is too much for a footwear business in that locality and it is not true to say that the plaintiff requested several times to vacate and handover possession of the property to her and the defendant had been postponing to do so and consequently a legal notice to quit was sent to the defendant determining the tenancy of the defendant with effect from 31-1-1997 and demanded him to vacate the plaint schedule property and deliver the same on the following day. It is absolutely falst to say that the defendant had refused to receive the notice and the same was returned to the plaintiff's Counsel with an endorsement dated 23-12-1996 to the effect 'Refused'. The defendant never refused any registered lawyer's notice particularly the said notice referred to in the plaint and the quit notice referred to above is not a proper and valid quit notice and the suit is liable to be dismissed on account of improper and invalid quit notice. The demand drafts were received and the rents for the months of February and March, 1997 shall not be treated or appropriated towards the alleged damages for use and occupation of the schedule shop room and as submitted by the defendant the alleged quit notice was not valid in the eye of law and as such the amounts covered by drafts have to be treated as rents "payable to the schedule shop room. After encashment of the amounts covered by the said drafts, the plaintiff had waived the right of eviction and the claim of damages from the defendant and the plaintiff is put to strict proof of the same. The said Varalakshmi received the advance of Rs. 10,000/- and the shop is situated in old Gajuwaka area abutting the road having up and downs and that previously there was a police complaint lodged by the defendant on 8-11-1992 when the balcony portion of the shop premises was high handedly demolished with the support of her henchmen and put up steps causing utmost inconvenience and also the regular business was run down on account of the acts of the plaintiff and her people high handedly middling with the peaceful possession and enjoyment of the shop premises by the defendant and the plaintiff is not entitled to claim Rs. 3,000/- per month with effect from January, 1997 to April, 1997.
7. On the strength of the pleadings of the parties, the following Issues were settled by the Court of first instance:
(1) Whether the defendant is liable to vacate the schedule property?
(2) Whether the plaintiff is entitled for the damages. If so at what rate?
(3) To what relief ?
On behalf of the plaintiff/landlady, P.W.I to P.W.3 were examined and Exs.A-1 and A-2 were marked. Likewise, on behalf of the appellant/defendant, D.W.I was examined and Exs.B-1 to B-6 were marked. The Court of first instance on appreciation of oral and documentary evidence ultimately dismissed the suit without costs. Aggrieved by the same, the plaintiff/landlady had carried the matter by way of Appeal A.S. No. 872000 on the file of Senior Civil Judge, Gajuwaka and the Appellate Court at Para 10 had framed the following Points for consideration:
(1) Whether there is valid service of quit notice on the respondent herein?
(2) Whether the respondent is liable to vacate the schedule premises?
(3) Whether the appellant herein is entitled for the damages. If so, at what rate?
(4) To what relief?
and ultimately had arrived at the conclusion that the findings recorded by the Court of first instance are not sustainable and accordingly the judgment and decree of the Trial Court were set aside granting the tenant four months time to vacate the premises. The future mesne profits from the date of suit till the date of delivery of vacant possession of the plaint schedule premises to the plaintiff/landlady were directed to be ascertained on a separate application under Order 20, Rule 12 of the Code of Civil Procedure and further directed that the amounts received under two demand drafts dated 7-4-1997 for Rs. 1,400/- each enclosed with legal notice dated 11-4-1997 have to be appropriated towards damages for use and occupation from 1-2-1997 to 1-4-1997 at the agreed rate of rent. Aggrieved by the same, the appellant herein had preferred the present Second Appeal.
8. Service of quit notice and waiver are the twin grounds of attack by the appellant/ defendant. On the aspect of waiver, in the decision referred in Ram Dayal v. Jawalal Prasad (supra), the Allahabad High Court held as hereunder:
"Once it is found that the rent for a period subsequent to the notice to quit was accepted by the plaintiff-landlord it is that circumstance alone which has to be taken into consideration for finding out whether by so accepting the rent the plaintiff intended that the relationship of landlord and tenant should subsist between the parties. That the defendant was unable to satisfy the Court by his evidence affirmatively, that there was an agreement arrived at for continuing the tenancy, is immaterial. It is not the diligent prosecution of the suit which is material in judging whether the plaintiff as landlord intended to continue the tenancy of the defendant. What is material is the acceptance of rent by him for a period subsequent to the notice to quit.".
However, in the decision referred in P. Lakshmanchandji v. V.V.S.R. Murhty (supra), it was held that mere acceptance of rent by the landlord after notice to quit by itself does not constitute waiver and that there must be evidence to show the act of lessor to treat the lease as subsisting. The same view was expressed in Ravula Rama Krishna v. Shaik Mahboob Basha, . The acceptance of demand drafts cannot constitute waiver since the latter aspect specified supra was not established and even otherwise the demand drafts were accepted towards damages for use and occupation and hence the ground of waiver raised by the appellant is bound to fail.
9. The most crucial question which was argued in elaboration was in relation to service of quit notice on the appellant/ defendant. In the decision referred in Sharad v. Vishnu (supra) it was held by Bombay High Court at paras 6, 7, 8 and 10 as hereunder:
"I agree with the said decision of the Allahabad High Court. Thus, there cannot be any irrebuttable presumption in favour of the proper service of notice simply because the notice had been sent as required by Section 27 of the General Clauses Act.
The result, therefore, is that presumption would arise in favour of the landlord if he has complied with the provisions of Section 27 of the General Clauses Act. However, that presumption would be rebuttable and if the contrary proof is given, the landlord will not be able to bank upon the presumption for the purpose of contending that the tenancy of the defendant should be treated as validly terminated simple because the notice was sent.
In the present case, the landlord (plaintiff) has made a statement in the witness-box that the acknowledgement receipt was received by him through post and it bore the signature of the defendant's wife. I have already discussed the findings that have been recorded by the Trial Court with respect to this evidence. The Trial Court has held that the defendant's wife was not at Nagpur during the relevant period. In spite of this position, the Trial Court has come to the conclusion that the notice would be presumed to have been received by the defendant. Mr. Somalwar urged that the presumption would still continue to be operative in favour of the plaintiff even though the Trial Judge has recorded a finding that the defendant's wife has not signed the acknowledgement receipt. He relied upon the decision of the Assam High Court in Saligram Rati Chunnilal Bahadur and Company v. Abdul Gani, AIR 1953, Assam 206. In that case the plaintiff-landlord received back an acknowledgement duly signed through post. However, at the stage of evidence, the plaintiff had not examined the postal peon for the purpose of proving that the acknowledgement has been signed by the defendant. Assam High Court came to the conclusion that such sort of evidence was not necessary particularly when the acknowledgement duly signed was received by the plaintiff through post. It appears that in that case the defendant had not specifically alleged that he had not received the notice. There was a sort of technical difficulty that the acknowledgement receipt was not proved as the postal peon was not examined. In another case relied upon by Mr. Somalwar reported in Roshan v. Purushottam Lal, AIR 1955 All, 287, the main controversy was as to whether a notice refused by the tenant, can be said to have been duly served on account of such refusal and it was held that there would be a valid service of notice as it was tendered and refused by the addressee. The Patna High Court has also considered this question about presumption in Matadin Sharma v. Upendra Sharma, , wherein it is laid down that where notice under Section 106 is properly addressed and sent by registered post, it would be presumed that the service of the notice has been legally effected and that the mere fact that the physical delivery of notice was made to a person other than the addressee would not be of any consequence and would not affect the presumption of proper service. But it cannot be forgotten that in that very case, it is laid down that the presumption arising in favour of the plaintiff is not a irrebuttable presumption and that the concerned party can lead evidence to rebut the presumption.
In my opinion, the plaintiff would be entitled to have the presumption in his favour only if there is no positive evidence about the service or absence of service one way or the other. But if the plaintiff has led evidence about the service of notice through the defendant's wife and if that case is disproved by the defendant, it will not be open for the plaintiff to say that the service of notice should be treated as proved on account of the presumption that might arise by sending the notice by registered post."
In the decision referred in Surajmull v. Samadarshan (supra) at paras 9 to 12 it was held:
"Moreover, the notice of ejectment, on the opposite party's own case, was served by three processes : (i) by registered post; (u) under certificate of posting; and (iii) by personal service. So far as service by registered post is concerned, the postal peon's return is "left". The Tribunals below, however, have accepted the same as good service on the authority of a decision of this Court, reported in Sita Nath Mondal v. Soleman Molla, 51 Cal.WN 650.
In our view, this is erroneous as the said decision has already been explained and practically explained away or overruled by a Bench decision of this Court reported in Hare Krishna Das v. Hahnemann Publishing Co. Ltd. 70 Cal. W.N. 262. Indeed the word "left" itself shows that there was no tender, and, unless there was a tender to the addressee, on no conceivable principle, can service by registered post be accepted as good service. The service by registered post, in the instant case, must, therefore, be rejected.
As regards personal service, this has been sought to be proved by an employee of the solicitor's firm. According to the said employee, he went to the disputed premises and not having found anybody authorized to receive the petitioner's notice, the proprietors or partners of the petitioner firm or the persons in charge of the same not being there, he affixed the said notice to the entrance of the disputed premises. It is significant to note that the peon book entry, which has been exhibited for this purpose, discloses that the alleged report of the peon was written at the bottom of the page, while the entry of delivery of the said peon is to be found in the middle. This feature ought to have attracted the attention of the Tribunals below but it does not appear to have been considered by them at all. It also appears that there was no attempt to find out the petitioner's representatives or agents before affixing the notice, as aforesaid. In such circumstances, the alleged personal service cannot be accepted as good service in law.
In the context of the postal peon's report, again, that the addressee was not to be found at the address, strengthened by the report of the peon who was alleged to have effected the personal service, as aforesaid, to the same effect, the instant case is hardly a case, where the presumption arising under certificate of posting, should be given effect. In this view we would hold that this service, also of the notice of ejectment has not been established, with the result that no valid service of the notice of ejectment has been proved in the instant case."
In the decision referred in Ram Shree v. Khadija Bibi (supra), it was held:
"Where after a lapse of time the Postman deposed about the tender and refusal of the letter by the addressee but could not identify her, the endorsement held did not lose effect. No adverse inference could be drawn since it did not mean that he had not gone to the place of the addressee or that it had not been refused by her."
No doubt, strong reliance was placed on the decisions referred in Sharad v. Vishnu and Surajmull v. Samadarashan (supra) and a stand was taken that in the facts and circumstances, the Appellate Court should have confirmed the judgment and decree of the Trial Court and reversing the same is bad in law.
10. It is no doubt true that presumption in favour of service of notice is a rebuttable presumption. Much comment was made about the evidence of P.W. 2 and reliance also was placed on Section 14 of the Indian Post Office Act, 1898 and the said provision reads as hereunder:
Post Office marks prima facie evidence of certain facts denoted:
In every proceeding for the recovery of any postage or other sum alleged to be due under this Act in respect of a postal article,
(a) the production of the postal article, having thereon the official mark of the Post Office denoting that the article has been refused or that the addressee is dead or cannot be found, shall be prima facie evidence of the fact so denoted, and
(b) the person from whom the postal article purports to have come, shall, until the contrary is proved, be deemed to be the sender thereof.
In the decision referred in Saladi Srirama Murthy v. K. Swami Naidu (supra), it was held at paras 8 to 11 as hereunder:
"Then the question that arises for consideration is whether ExA-4 notice is valid. It was sent by registered post by the plaintiff to the defendant on February 25, 1972. The registered letter was returned to the plaintiff with an endorsement of the Postman that the addressee was avoiding to take delivery of notice. The various endorsements made on Ex.A-4 by the Postman show that the addressee (defendant) was not available for service of notice on several occasions as mentioned therein whenever the Postman went to him to serve the notice. Ultimately on March 9,1972, he returned the letter with an endorsement that the addressee was avoiding to take delivery of notice. In that notice, the plaintiff called upon the defendant to vacate the premises by March 22, 1972. The Lower Appellate Court held that the endorsement "avoiding to take delivery" did not amount to refusal to receive the notice. Therefore, it was held that there was no valid service of notice.
Under Section 114 Indian Evidence Act, the presumption would be that a letter posted by the sender would reach the addressee in usual course. Once a letter has been delivered to the Post Office, it is presumed to have been delivered to the addressee under Section 27 of the General Clauses Act. There is no dispute that Ex. A-4 registered letter was delivered to the Post Office on February 25, 1972 for the purpose of service to the addressee (defendant). It was returned with an endorsement dated March 9,1972 that the defendant had been "avoiding to take delivery.".
The defendant who got himself examined as D.W.1 admitted in his evidence that the Postman had no enmity with him. Ex.A-4 contained number of endorsements made by the Postman prior to March 9, 1972 that the addressee was not available. In such circumstances, the question to be considered is whether the failure on the part of the plaintiff to examine the Postman would be fatal. As pointed out by the Supreme Court in Puwada Venkateswara Rao v. Chidamana Venkata Ramana, :
"It is not always necessary in such cases to produce the Postman who tried to effect service. The denial of service by a party may be found to be incorrect from its own admissions or conduct.."
Constructing the expression "served through post", the Supreme Court pointed out in Madan and Company v. Wazir Jaivir Chand, ;
"..., 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, mere is no reason why it should not be served on him. If he is compelled to be away for sometime, all that he has to do is to leave necessary instructions with the postal authorities either to detain the letters addressed to him for sometime until he returns or to forward them to the address where he has gone, or to deliver them to some other person authorized by him. In this situation, we have to choose 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.
Thus, when a letter had been sent by post correctly and properly addressed to the defendant, the tender of the letter by the Postman at the address mentioned in the letter shall be treated as receipt of the letter by the addressee. It is not the case of the defendant that either the address of the defendant was not correctly mentioned on the letter or that it was not sent by registered post. When the letter was sent by registered post correctly and properly addressed to the defendant it would be presumed that the Postman had tendered the letter at the address mentioned interest letter. From the various endorsements made by the Postman on Ex. A-4 letter, it is evident that the defendant was away from the premises for considerable time and he did not make any alternative arrangement by authorizing some other person to receive the letter on his behalf. In such circumstances, it cannot be deemed that the letter was not tendered to the defendant by the Postman. When the Postman tenders the letter at the address mentioned in the letter, it is for the addressee residing at that address to take delivery of the letter. If the addressee makes himself scarce for considerable time at the address given in the letter and where he normally resides he cannot raise a plea that the letter has not been tendered to him and therefore, it cannot be treated as service."
In the decision referred in Ravula Rama Krishna v. Shaik Mahboob Basha (supra), it was held at paras 11 and 12 as hereunder:
"He has next tried to contend that Ex.A-4 notice is not a valid quit notice as contemplated under Section 106 of the Transfer of Property Act as it is not specifically mentioned therein that the lease was being terminated by the end of January, 1985 and that it was merely alleged in that notice that the tenant shall vacate the premises and such mere demand to vacate is not sufficient to fulfil the requirements of Section 106 of the Act. He has also tried to rely upon the above said decision of Allahabad High Court reported in Ahmad Ali v. Jamal Uddin, , in this regard. It is observed in that decision that a notice terminating the tenancy may include a demand for possession, but a notice only demanding possession cannot be interpreted as a notice terminating the tenancy. It is seen from a perusal of the observations in para-3 of the said decision that it is specifically mentioned therein that where it is clear from the notice that the landlord did not intend to terminate the tenancy on the date on which he gave notice, the mere fact (hat the notice also required the tenant to deliver possession at the end of 30 days would not mean that the tenancy was terminated on the date of the notice. In the present case, the intention of the respondent was made clear in Ex. A-4 that he requires the appellant to vacate the premises by the end of January, 1985 and that in case he fails to do so, necessary legal action will be taken against him. In view of such specific intention which is made clear by the respondent, Ex. A-4 notice is to be considered as a valid notice to quit even though specific words of termination of the tenancy were not used in that notice. It will be useful in this connection to refer to the observations made in another decision of the Allahabad High Court reported in Sushila Devi v. Manohar Lal (AIR 1985 Allahabad 178). It is observed therein that if an intention of terminating the tenancy can be clearly discerned by construing the words used in the notice as a whole, the mere fact that the expression that the tenancy was being terminated is not used, would not render the notice invalid. In the said case also, as in the present case, it was mentioned in the notice that the tenant should vacate the shop and put the landlord in possession of the property on the expiry of the particular period of tenancy, and it was sought to be contended by the tenant that the notice was not a valid notice to quit as there was no specific mention about the termination of the tenancy by using such words. After referring to the various earlier decisions of the same Court including the Division Bench decision reported in Abdul Jaleel v. Haji Abdul Jaleel , the decision reported in Budh Sen v. Rahiman and the decision of the Patna High Court reported in Mohammad Idris Mian v. Doman Sah , it is observed by His Lordship that a notice to quit need not be worded with the accuracy of quit and that if the intention to terminate the tenancy is clearly made out, such notice is a valid notice to quit. The observations of Supreme Court in the decision reported in Bhagabandas v. Bhagawandas , make the point clear in this regard. In that case also it was mentioned in the quit notice that the tenant shall vacate the house and deliver possession to the landlord within the specified period and that in case of such failure, the tenant will be treated as a trespasser from the specified date. The specific terminology of terminating the tenancy was not used in that particular case also. In those circumstances, it is observed by their Lordships in para-3 of the judgment:
"Now it is settled law that a notice to quit must be construed not with a desire to find faults in it, which would render it defective, but it must be construed res magis valent quam pereat, "The validity of a notice to quit", as pointed out by Lord Justice Lindley, L.J. in Sidebotham v. Holland (1895) 1 QB 378, "ought not to turn on the splitting of a straw". It must not be read in a hypercritical manner, nor must its interpretation be affected by pedagogic pendantism or over refined subtlety, but it must be construed in a common sense way."
In view of the fact that the tenant in that case also was specifically required to vacate the premises and in view of the fact that he was also to be treated as a trespasser in case he fails to vacate, it was observed by their Lordships that the notice was a valid notice to quit as the intention of the Landlord was made clear in that notice that he contemplated determination of the tenancy by the specified date. Therefore, the lower Courts rightly treated Ex. A-4 notice as a valid quit notice as contemplated under Section 106 of the Transfer of Property Act under which the respondent chose to terminate the tenancy by the end of January, 1985, and it cannot be considered as invalid on the ground that the specific terminology required to terminate the tenancy was not used in the notice.
The learned Counsel for the appellant has next tried to attack the validity of Ex.A-4 quit notice contending that it was not personally served upon the appellant who is tenant, as contemplated under Section 106 of the Transfer of Property Act; that it was issued only as a reply to Ex.A-3 notice and was served only on the advocate for the appellant and that such service is not a valid service and such notice is, therefore, invalid and cannot have the effect of terminating the tenancy. But, this contention is also without substance. Both the lower Courts have discussed this aspect with reference to such contention of the appellant in detail and rightly negatived the same in view of the provisions of Section 106 of the Transfer of Property Act as well as the observations made by various High Courts on such aspect. Section 106 of the Transfer of Property Act specifically provides that in the case of a lease from month to month it is terminable on the part of either lessor or lessee by fifteen days notice expiring with the end of a month of the tenancy and every such notice 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 members or servants at his residence or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property. It is clear from such provisions of Section 106 and the language used in it that personal service of the notice on the tenant is not indispensable or mandatory and that where it is not possible to serve such notice personally on the party who is intended to be bound by it, it is permissible to serve such notice on one of his family members or even on servants at his residence and also by affixture to a conspicuous part of the property and such mode of service is also valid and authorized by law. In enacting such provisions, it is clear that the intention of the landlord must be to specifically bring the quit notice to the notice of the tenant either by personal service or by some other acceptable mode of service when personal service is not possible. In the present case, when Ex. A-3 notice was issued by the appellant through his advocate to the respondent, the respondent got issued Ex. A-4 reply through his advocate to the advocate of the appellant specifically demanding payment of arrears of rent as well as eviction of the appellant from the premises. It is also clear from Ex.A-5 rejoinder issued on behalf of the appellant by his advocate that Ex.A-4, a copy of which, was also marked to the appellant, was in fact, taken to the notice of the appellant who as evidently informed about it by his advocate. Therefore, the purpose and object as contemplated under Section 106 of the Transfer of Property Act that the quit notice as contemplated should be taken to the notice of the tenant, is achieved and as such, it is not open to the appellant to contend that Ex.A-4 quit notice is not a valid notice as it was addressed only to his advocate. In the decision to Bombay High Court reported in Sohansingh v. Nuhar, , a similar situation arose where the validity of the quit notice which was addressed to the advocate of the party was questioned on the ground that such notice addressed to the lawyer is not invalid where such lawyer is not shown- to have no authority to receive the same. In the present case the lawyer who got issued ExA-3 on behalf of the appellant had authority to receive the reply from the respondent and Ex.A-4 was issued by the respondent through his advocate to the advocate of the appellant who also subsequently issued Ex.A-5 rejoinder on behalf of the appellant. Therefore, the advocate for the appellant was having sufficient authority to receive such notice on behalf of the appellant and as such Ex.A-4 cannot be said to be invalid on the ground that it was not personally served on the appellant. It is no doubt, true that it was observed in the said decision that a copy of the notice addressed to the lawyer was also addressed to and served on the party also besides service on the advocate. In the present case it is mentioned in Ex.A-4 notice that a copy of the notice was also marked to the appellant though there is no evidence to show that such copy was in fact served on him even though it was served on his advocate. But, such circumstance will not detract from the validity of Ex.A-4 inasmuch as service on the advocate is to be considered as a valid service on the party as the advocate was having the authority to receive such notice on behalf of the appellant. The learned Counsel for the appellant has tried to contend that service of notice on the advocate who is only an agent of the party is not contemplated under Section 106; that what is required by the Section must be done in that manner and in no other manner; that the law requires personal service on the party and that service on the advocate cannot, therefore, be valid service. He also tried to rely upon the decisions of the Supreme Court reported in S.T. Commissioner, U.P. v. Parson Tools and Plants, Kanpur, and Sri Mandir Sita Ramji v. Governor of Delhi, , in support of such contention. But, these decisions cannot be said to be of any assistance for such contention inasmuch as Section 106 of the Transfer of Property Act itself contemplates, as already stated above, service of notice even on the other family members as well as the servants of the tenant and also service by affixture when personal service is found not possible. He has also tried to rely upon the decision of this Court reported in M. Satyanarayana v. S. Veerabhadra Swamy, 1983 (3) ALT 625, in support of his contention that Ex.A-4 notice was not validly served as specifically contemplated under Section 106 of the Transfer of Property Act. In the said case the quit notice was sent by telegram and it was not a notice in writing and signed by the landlord. Under such circumstances, it was observed by the Court that since the telegraphic notice sent to the tenant does not contain the signature of the landlord, it does not satisfy the requirements of Section 106 of the Transfer of Property Act, as the mode of service prescribed under the said section does not contemplate such notice by telegram. But, such observations made with regard to the validity of the notice sent by telegram cannot be made applicable to the facts of the present case in which it is clearly found that service on the advocate will amount to service on the party. In view of all these circumstances, the lower Courts rightly negatived the contention of the appellant that Ex. A-4 is not a valid notice to quit as it was served only on the advocate of the appellant, and there are no valid reasons to interfere with such findings of the lower Courts."
In the decision referred in State of Madras v. K.N. Shanmugha Mudaliar (supra) the Apex Court also had expressed the same view on the availability of presumption relating to service of quit notice under Section 114 of the Indian Evidence Act, 1872. The main grievance ventilated by the learned Counsel representing the appellant/defendant is that inasmuch as the presumption available relating to the service of quit notice being a rebuttable presumption, when once evidence in relation thereto had been adduced and the evidence of P.W.2 was found to be not trustworthy, then, the effect of presumption available under Section 114 of the Indian Evidence Act, 1872, is diluted and in view of the same, especially in the light of Section 14 of the Indian Post Office Act, 1898, it cannot be said that the service of quit notice on appellant/defendant had been established by the plaintiff in accordance with law. Virtually the stand taken by the appellant/defendant is that though without letting any further evidence on the aspect of service of quit notice presumption is available, when once the evidence is let in, the plaintiff would be placed in an inferior position, no doubt, in the event of the Court arriving at a conclusion that such evidence cannot be believed or the same is not trustworthy. I had given my anxious consideration to the evidence available on record in general and the evidence of P.W.2 in particular. It is pertinent to consider the conduct of the appellant/defendant also in this regard. The Appellate Court had recorded a finding at para-23 that the plea that he was not available at the relevant point of time since he had been to Tirupati was not taken and hence this said stand taken by the appellant/defendant cannot be believed. Apart from this aspect of the matter, the Appellate Court had discussed the evidence of P.W.I to P.W.3 and Ex.A-1 - lawyer's notice, Ex.A-2 - returned cover and the evidence of D.W.I and Exs.B-1 to B-6 and had recorded findings in detail giving reasons why the appellate Court was inclined to reverse the judgment and decree of the Court of first instance, P.W.1 deposed about the case. Equally, D.W.I also had deposed his case. The crucial evidence on which much comment was made is in relation to the evidence of P.W.2. P.W.2 had deposed that he had been working as Postman since 1984 at Gajuwaka Post Office and there were 10 Postmen in the said Post Office and since 1992 onwards he has been distributing letters near Srikanya Theatre area and the writing on the reverse of Ex.A-2 postal cover was that of himself on 18-12-1996, 19-12-1996 and 20-12-1996 and he went to the said address on the cover and he was informed that the addressee was not available and on 23-12-1996 again he had gone to the address to serve but the cover was refused and hence he endorsed "refused" on the cover and hence returned to the sender. P.W.2 also deposed that he had handed over the cover to the Branch Clerk and the same was noted in the Register by the Clerk. The said Register would be kept for 18 months and thereafter the same will be destroyed by the Head Office. In cross-examination, certain questions relating to postal Rules and Regulations were put to this witness and no doubt P.W.2 deposed that he endorsed as "refused" and he cannot recollect the situation what exactly happened even by seeing the endorsement and he does not remember that on 23-12-1996 the defendant was out of station and instead of endorsing the same he simply endorsed as "refused" and it is true that as per rule they can use the rubber stamp. However he stated that only the postman who got permission from Postal Superintendent can use the rubber stamp. He specifically denied that the endorsement made on the cover is a false one and other suggestions also had been specifically denied.
11. The Appellate Court had appreciated the evidence of P.W.2 in proper perspective and also had arrived at the conclusion that what had been specified under Section 14 of the Indian Post Office Act, 1898 cannot be said to be mandatory and there is no enmity at all as between P.W.2 and the appellant/defendant and in the said circumstances there is no reason to disbelieve the evidence of P.W.2. Hence, the stand taken by the appellant/defendant that this witness is not a trustworthy witness and hence the rebuttable presumption available in favour of the respondent/plaintiff relating to service of quit notice is further watered down by the evidence of P.W.2, cannot be accepted and on the contrary the same was well strengthened by examining P.W.2. Definitely, by examining P.W.2, the respondent/plaintiff cannot be placed in a worse position. In this view of the matter, the Appellate Court had arrived at the correct conclusion. All the other factual findings recorded by the Appellate Court in detail also need no disturbance at the hands of this Court and the said findings are hereby confirmed.
12. Hence, it is needless to say that the Second Appeal is devoid of merit and the same shall stand dismissed, with costs. However, inasmuch as the appellant/ defendant is running a shop, six months time is granted to vacate the premises.