JUDGMENT - R.K. JOSHI, J.:---The original tenant Gopikishan Sitaram has approached this Court impugning the correctness of the order made by the learned Assistant Judge, Nanded, in Civil Appeal No. 32 of 1970, who in turn confirmed the order of the Rent Controller, Nanded, directing the Petitioner to vacate the suit premises within 60 days of his order dated 16-2-1970. 2. The few facts necessary for the disposal of this application stated briefly are that the opponent is a landlord owing property bearing House No. 346 situate at Gokul Nagar, Nanded. It was leased out to the petitioner as a tenant on monthly basis, the agreed rent being Rs. 40/- per month. The landlord terminated the tenancy by a notice dated 4-8-1969 and claimed possession mainly on the grounds of default, bona fide requirement for personal use and occupation, nuisance and repairs and reconstruction of the property leased which could not be carried out without the tenant vacating the premises. 3. The petitioner-tenant stoutly denied the various grounds on which possession claimed and asserted further that as a matter of fact he had remitted Rs. 200/- by money order for the arrears of rent, but it was refused. The earlier attempts to clear the arrears were proved abortive because of the defiant attitude adopted by the landlord. On the point of notice he made a categorical statement that he never received any notice nor was any such notice refused by him. The alleged evasion of the service of notice in the plaint, submitted the petitioner, was imaginary and he put him to the strict proof thereof. 4. The learned Rent Controller framed as many as eight issues covering the various grounds and in particular Issue No. 7 related to the service of the notice terminating the tenancy and its validity. On the question of wilful default, bona fide requirement and the building being in need of extensive repairs, he was with the landlord although he repelled the other grounds. Point No. 7 about the issuance of notice and its service was answered in the affirmative. Consequently he made an order for possession. Against this order the tenant preferred Civil Appeal No. 32 of 1970. On the three turning points of default, bona fide requirement and repairs to the building, he concurred with the learned Rent Controller. Point No. 7 about the issuance of notice and its service was answered in the affirmative. Consequently he made an order for possession. Against this order the tenant preferred Civil Appeal No. 32 of 1970. On the three turning points of default, bona fide requirement and repairs to the building, he concurred with the learned Rent Controller. The point of notice was also agitated before him and the learned Assistant Judge took the view that the tenancy was only terminated by a legal and valid notice. Therefore, he dismissed the appeal. 5. Mr. Chaudhari for the applicant, on taking me through the relevant evidence, tried to make out a case for the tenant that the default was not wilful and also attempted to assail the findings on the point of the house being in need of extensive repairs or that the repairs could not be carried out without the tenant vacating the premises, as well as bona fide requirements. But these are questions of facts and there being a concurrent findings, they call for no interference, nor could I come across any material irregularity to disturb them in his revision. 6. There remains the last and most important point about the notice, its service and validity. Before dwelling on the various objections raised by Mr. Chaudhari, it would be worth-while to make a pausing reference to the exact averments contained in the pleadings of the parties. In paragraph 11 of the application made to the Rent Controller, the landlord alleged that he had issued a notice by registered post on the 4th of August, 1969 terminating the tenancy by the end of the said month. The notice was refused by the tenant and this would be evident from the endorsement of the post-man which bears the date 5-8-1969. Proceeded the petitioner to add that the opponent purposely evaded the service of the notice knowing fully the contents thereof. The next statement is most significant and it reads thus : "As such date 5-8-1969 and expiry date of notice 1.9.1969 are the dates of cause of action". The contentions taken in the written statement are equally eloquent. The tenant denied to have been presented with any notice from the landlord on 5th August, 1969 or to have been sent to him by registered post or that it was refused by him. The contentions taken in the written statement are equally eloquent. The tenant denied to have been presented with any notice from the landlord on 5th August, 1969 or to have been sent to him by registered post or that it was refused by him. The imputed evasion of service of notice was also denied and he made a grievance that the date of the termination tenancy given as 1-9-1969 was also not admitted by him. 7. These are the proceedings arising out of the Hyderabad Houses (Rent, Eviction and lease) Control Act, 1954. A landlord desirous of getting possession on one of the grounds enumerated in one of the sections like 12 onwards, has to make an application to the Rent Controller. Section 24 of the Act prescribes a procedure. In so many words is lays down that for making enquiries under this Act, the Controller shall follow as nearly as possible the procedure laid down in the Code of Civil Procedure, 1908 for the regular trial of the suits. Therefore, it would be obvious that the provisions contained in the Civil Procedure Code would govern such a trial. 8. Now, what the landlord has done in the instant case is only to enclose with the petition a list of documents. Only one document has been filed and it has been described as "original notice dated 4-8-1969". Along with the list is filed an unopened inland letter dispatched by registered post and addressed to Gopikishan Sitaram (the tenant). It was signed by Mr. D.G. Kulkarni, Advocate, Nanded, on 4th August, 1968. On the reverse there is an endorsement refused dated 5th August, 1968. Probably it is made by some post-man who was never cited nor examined. Then there is another endorsement to the effect "refused and returned to the sender." The acknowledgment receipt bears no postal mark any other endorcement. Probably that may not be the practice of the postal department. Why I am making a mention of these details is that one of the points raised by Mr. Chaudhari during the course of his arguments was that such an acknowledgement could be inserted at any time and it cannot necessarily be said that the notice was dispatched under registered post with acknowledgment due. 9. As observed just now, the Rent Controller is expected to follow the various provisions contained in Civil Procedure Code. Chaudhari during the course of his arguments was that such an acknowledgement could be inserted at any time and it cannot necessarily be said that the notice was dispatched under registered post with acknowledgment due. 9. As observed just now, the Rent Controller is expected to follow the various provisions contained in Civil Procedure Code. Order XIII, Rule 1 speaks of the documentary evidence to be produced at first hearing. It lays down that the parties or their pleaders shall produce, at the first hearing of the suit, all the documentary evidence of every description in their possession or power, on which they intend to rely and the Court shall receive the documents so produced. Rule 2 deals with the effect of non-production of documents on or before the first day of hearing and gives the Court some discretion to the Court to receive the documents provided it is satisfied about the late production. Rule 3 deals with rejection of irrelevant document. Then comes the important Rule 4. It requires the Court to endorse on every document which has been admitted in evidence and to mark it as an exhibit. The Court has to initial the documents so admitted and they are required to be exhibited. In the light of these statutory provisions the objection raised by Mr. Chaudhari requires to be answered. 10. The evidence was virtually of a word against a word. The landlord made a bald statement that he had issued a notice to the tenant. He did not even suggest remotely that it was issued through the Advocate Mr. Kulkarni, that it was sent by registered post, that it was returned to him with an endorsement of refusal by the postal authorities and it was the same notice which he had enclosed with the list of documents; nor did he make any attempt to file an office copy of the said notice. In the cross-examination it was hinted to him that no notice was issued to the tenant, but this suggestion was turned down. The learned Advocate who issued the notice did not step into the witness box, nor did he file the office copy. No attempt was made to examine the post-man who had made the endorsement, or any officer from the post-office to testify to the issue of the notice and the refusal by the tenant on tender to him. The learned Advocate who issued the notice did not step into the witness box, nor did he file the office copy. No attempt was made to examine the post-man who had made the endorsement, or any officer from the post-office to testify to the issue of the notice and the refusal by the tenant on tender to him. As against this, the tenant made an equally emphatic statement that he did not receive any notice. No doubt he had referred to it as a private notice to distinguish it from the Rent Controller notice. Next in the context of his earlier statement which has a bearing on the Rent Controllers notice, this statement conveys that he never received any notice alleged to have been issued to him terminating his tenancy and on this statement there is no cross-examination. 11. Mr. Chaudhari for the tenant has raised a three-fold objection. Although in the Act there is no provision similar to the one contained in section 12 of the Bombay Rent Act or under the provisions of the Transfer of Property Act relating to the issuance of a notice terminating his tenancy, this Court has taken the view that a notice is a must and the landlord cannot obtain possession without termination of the tenancy. This view has been taken by the Division Bench in case of (Messrs Jalna Consumers Co-operative Society Ltd. v. Hiralal Girdharilal)1, 74 Bom.L.R. 762. The Division Bench considered the full Bench ruling of the Madras High Court as well as of Andhra Pradesh High Court which has dealt with the same question falling under the Hyderabad Rent Control Act and dissented from the Madras High Court ruling. Bound as I am by this Division bench ruling, I am inclined to hold that notice terminating the tenancy is necessary before the landlord can obtain possession from the tenant under section 16 of the Act. 12. The 2nd point raised by Mr. Chaudhari was that a copy of the notice was not produced along with the list of documents. The tenant could not get an idea as to what this inland letter, which is not opened even to this date, really contained. Thirdly, he submitted that the bears endorsement of refusal, in view of the evidence given by the parties, cannot be taken as valid service in the absence of the evidence of the post-man. The tenant could not get an idea as to what this inland letter, which is not opened even to this date, really contained. Thirdly, he submitted that the bears endorsement of refusal, in view of the evidence given by the parties, cannot be taken as valid service in the absence of the evidence of the post-man. In support of his contention he has cited a couple of authorities which need a reference. 13. In the first instance Mr. Chaudhari strongly relied certain observations in (Vaman Vithal Kulkarni v. Khanderao Ramrao Sholapurkar)2, 37 Bom.L.R. 376.. In that case also possession of certain lands was claimed and the tenancy was required to be terminated under the Bombay Land Revenue Code. The notice was sent by registered post and on one of the parties sought to be bound by it. The service was attempted to be established by falling back upon the endorsement of refusal made by the post-man. Speaking for the Court Sir Beaumont, C. J. observed on page 384 : "In fact the refusal was not proved, as the postman who took the letter and brought it back was not called. But in any case, even if the refusal had been proved, I would not be prepared to hold that a registered letter tendered to the addressee and refused and brought back unopened, was well-served. There are, I know, some authorities in this Court to the contrary, but it seems to me impossible to say that a letter has been served so as to bring the contents to the notice of the person to whom the letter is addressed, if the agent for service states that in fact the notice was not served, although the reason may have been that the addressee declined to accept it. One cannot assume that because an addressee declines to accept a particular sealed envelope he has guessed correctly as to its contents. Many people in this country make a practice of always refusing to accept registered letters, a practice based, I presume, on their experience that such documents usually contain something unpleasant." Strongly relying on these observations and on emphasizing the fact that it was issued by a learned Advocate, it cannot be inferred, even if it were to be held that the endorsement of refusal is proper, that the tenant came to know or guessed correctly the contents of this notice. Even to this day the contents lie in obscurity. No one knows whether it really pertains to the termination of tenancy in respect of these premises and whether it validly complies with the provisions of law. The burden of proving all these facts is on the landlord and unless he convinces the tenancy was validly terminated, as observed in 74 Bom.L.R. 763, the landlord would not be entitled to possession. These observations support Mr. Chaudhari a good deal. But this view seems to have been shaken considerably by the subsequent Division Bench authorities of this very Court. It is further worthy to note that the learned Chief Justice was aware of the contrary decisions of this very Court on the point and also of certain observations made in the case of (Harihar Banerji v. Ramshahi Roy)3, 21 Bom.L.R. 522 P.C. 14. On the other hand Mr. Godhamgaonkar for the landlord strongly relied upon the cases of (Meghji Kanji Patel v. Kundanmal Chamanlal Mehtani)4, 70 Bom.L.R. 253, decided by Nain, J. and (Lala Jugalkishor Jodhalal v. The Bombay Revenue Tribunal)5, 60 Bom.L.R. 1075. In the first case the summons in a summary suit in the Court of Small Causes at Bombay was issued by registered post. The writ of summons sent to the petitioner before the High Court was returned unserved through the postal department with an endorsement refused. As the petitioner remained absent at the date of hearing, an ex parte decree came to be passed. The petitioner urged before the High Court that the endorsement by the postal authorities merely raises a rebuttable presumption. As the petitioner had made a statement on oath that the summons was never tendered to him at any time, His Lordship held that it was sufficient to rebut the presumption raised. The ratio was that "sending of a letter by registered post merely raises a rebuttable presumption that the letter was delivered to the addressee. In a case where the addressee makes a statement on oath that such a letter was not tendered to him, the presumption stands rebutted." The necessity of examining the postman or the effect of his non-examination was not considered. But it appears from the trend of the subsequent authorities that in all cases where there is evidence alliunde it is not necessary to examine the postman. But it appears from the trend of the subsequent authorities that in all cases where there is evidence alliunde it is not necessary to examine the postman. This aspect was considered in greater details in the earlier case of Lala Jugalkishore, decided by the Division Bench. Justice Tambe, speaking for the Court, ruled that whether the postman in such a case is examined or not, the endorsement of refusal is sufficient to raise a presumption of service, but this presumption is one of fact. It is not obligatory on the Court to raise it and the Court may refuse to raise it if the evidence on record of the circumstances of the case raise any doubt, e.g., the address has tendered evidence to the effect that the letter was never tendered to him and he had never refused it or that at the material time the addressee was absent from his usual place of residence, or at the material time disturbed conditions prevailed. While dealing with these aspects, reference was made to the Privy Council case in Harihar v. Ramsashi, referred to earlier, and also to the provisions contained in section 16 of the Indian Evidence Act as well as General Clauses Act. The Privy Council in Harihars case observed : "......If a letter properly directed, containing a 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. That presumption would appear to Their Lordships to apply with still greater force to letters which the sender has taken the precaution to register......" With respect I may point out that these observations although referred to in the earlier case in 37 Bom.L.R. 371 do not appear to have been considered at great length, nor is there any reference to the provisions contained in section 16 of the Indian Evidence Act, or the General Clauses Act and the postal rules. In the subsequent Division Bench ruling of this Court in Lala Jugalkishores case, on 1082 a detailed reference is made to the postal rules on the subject. In the subsequent Division Bench ruling of this Court in Lala Jugalkishores case, on 1082 a detailed reference is made to the postal rules on the subject. With reference to the rules it has been pointed out that when there is an endorsement of refusal by the department, it means that the addressee refused to sign the acknowledgement receipt. In the absence of any evidence to the contrary, there is no reason why the presumption should not be drawn that the aforesaid regular course of business was followed by postal authorities when an acknowledgement-due letter is received back by the sender with an endorsement refused even if the author of the endorsement refused is not examined as witness in the case. This detailed discussion which I am disposed to follow with great respect seems to shake the authority of the observations in the earlier ruling of the learned Chief Justice John Beaumont, to a considerable extent. The presumption, as has been now consistently held, would arise, but it would be one of fact. It is not obligatory on the Court to raise it and in a given case the Court may even refuse to raise if the evidence and the circumstances justify the same. 15. In this context I may point out that this authority in Vaman v. Khanderao was cited before the learned Assistant Judge, but without making any reference to other decisions of our High Court, the learned Assistant judge preferred to follow the Allahabad view which runs counter to the view taken in 60 Bom.L.R. 1075. I wish the learned Assistant judge had not launched on such an enterprise while dealing with the legal aspects when the law so far as this High Court is concerned, seems to be now well-settled. 16. Ultimately we come to the finding as to whether the presumption has been rebutted or holds good in favour of the landlord. I have already made a reference to the relevant evidence and without recounting I am constrained to observe that the presumption stands rebutted. It was heavily upon the landlord to convince the Court when he produced this notice to lead evidence that he had instructed an Advocate to issue such a notice, that this notice contained no other material except the termination of the tenancy now in question, or at least he should have filed an office copy of the said notice. It was heavily upon the landlord to convince the Court when he produced this notice to lead evidence that he had instructed an Advocate to issue such a notice, that this notice contained no other material except the termination of the tenancy now in question, or at least he should have filed an office copy of the said notice. When in particular the tenant makes a categorical denial of the imputed service to him as well as the contents thereof, the burden on the shoulders of the landlord would be still heavier. under these odds, it would have been better if the landlord had examined the postman also to convince the Court that as a matter of fact he tapped the door of the tenant and the tenant refused to accept this notice. No attempt appears to have been made to get this inland letter opened when the evidence was being recorded either by the Rent Assistant Judge, Nanded. A bald submission of the landlord has been denied by the tenant. It is not a case of bare word against word, but there strong circumstances, which cause a burden on the landlord to convince the Court about the issuance of the notice, its contents and the presumptive service. No one knows even to this day whether the contents validly terminate the notice. Under these singular circumstances, I am of opinion that there has been a material irregularity in the trial and under the exercise of revisional powers of this Court of findings on this issue will have to be set aside. 17. To overcome these gross lacunae it was submitted by Mr. Godhamgaonkar before me that the record and proceedings be sent back to the Rent Controller with a direction that the inland letter be opened, its contents be brought to the notice of the tenant and both the sides be given an opportunity to lead fresh and further evidence. This is not a case in which both the parties were oblivious of the legal requirements or of their respective stands. There attention was rivetted by drawing a specific issue by both the courts. To accede to such request at this stage would amount to nothing but to give an opportunity to the landlord to fill in the gaps in his evidence or to patch up the weaknesses of his case. There attention was rivetted by drawing a specific issue by both the courts. To accede to such request at this stage would amount to nothing but to give an opportunity to the landlord to fill in the gaps in his evidence or to patch up the weaknesses of his case. This is not the object of section 26 of the Hyderabad Rent Act. 18. In the result the application is allowed. The rule is made absolute. No order as to costs. -----