JUDGMENT-A short question survives in this petition and that is, with regard to the service of the notice upon the tenant-respondent. 2. A few facts which need to be stated, a part of which however, have now ceased to be in controversy are that, on 24-1-1964, the landlord-petitioner sent a notice to his tenant asking him to deliver possession and quit, as the tenant had defaulted in payment of rent. The agreed rent was Rs. 6.97. The tenant was in arrears at the time of the notice for the period 1st June 1963 to December 1963. 3. According to the landlord, he sent a notice by registered post on the 24th January 1964, which was returned to him with an endorsement "not claimed". The landlord however says, that he did not merely stop by sending a notice by Registered Post, but, also took the precaution of tendering that notice to the tenant personally and upon refusal, pasted it on the house of the tenant on 28-1-1964. He says, however, that he also sent a notice by ordinary post under certificate of posting. 4. The tenant claimed that he did not receive any notice from the landlord neither by Registered Post nor by way of any tender nor any notice was pasted. 5. On 4-3-1965, after service of summons of the suit upon him, he filed an application for fixation of Standard Rent under section 11. He does not seem to have followed that application with an application for fixation of interim rent, nor does he seem to have deposited any rent or costs at the time of the making of the application though, it is an admitted position, that the tenant deposited all rent in arrears and costs. It is not known as to when and how, he deposited those costs and rent. 6. In the Standard Rent proceedings, the rent was ultimately reduced by a small sum of 7 paise and fixed at Rs. 6.90. The trial Court however dismissed the plaintiff's suit on the short ground that notice as contemplated under section 12 was not served upon the tenant. The Appellate Court agreed with that finding and hence this petition. 7. 6. In the Standard Rent proceedings, the rent was ultimately reduced by a small sum of 7 paise and fixed at Rs. 6.90. The trial Court however dismissed the plaintiff's suit on the short ground that notice as contemplated under section 12 was not served upon the tenant. The Appellate Court agreed with that finding and hence this petition. 7. Shri Kamat who appeared for the petitioner, contended that, in view of the position of law under section 12, sub-section (3) (a), a tenant cannot reserve the making of application for fixation of standard rent, where there is a dispute between him and the landlord as to what is the standard rent, up to the date of filing his written statement. According to him, the law is now settled that in order that a tenant should be given protection under section 12, and section 12 (3) (b) should be attracted, a tenant must raise dispute of standard rent within a period of one month from the date of service of notice and not reserve the raising of such dispute till the filing of written statement. 8. Though this contention of Shri Kamat is correct, it seems to me that the real question to be decided in the present case is, whether any notice was received or served upon the tenant as contemplated under section 12. If it is found that no notice was served or received by the tenant, then the' suit itself is not maintainable and if in such a case standard rent application is filed within 30 days from the date of the receipt of the summons, it will be possible to say that, that is sufficient compliance. the summons itself amounting to a notice of a claim for arrears of rent by the landlord .where no notice in fact, is found to have been served by the landlord. Therefore, the only question which really arises for determination in this case is, whether the tenant was served with a notice. 9. In this behalf, the landlord relied upon two circumstances in this Court to contend that this notice must have been served upon the tenant. Those circumstances are, the sending of the registered packet of the notice on the 24th, coupled with the endorsement thereon and the sending of the notice under certificate of posting on 29-1-1965. 9. In this behalf, the landlord relied upon two circumstances in this Court to contend that this notice must have been served upon the tenant. Those circumstances are, the sending of the registered packet of the notice on the 24th, coupled with the endorsement thereon and the sending of the notice under certificate of posting on 29-1-1965. If on the basis of those two pieces of evidence and documents it is held that the tenant must be deeme6i to have been served with a notice, then it follows that in the present case, the respondent-tenant has no defence and the suit against him must be decreed. 10. In coming to the conclusion that the notice was not served upon the tenant, the Courts below seem to have been unduly weighed and concerned with the landlord's evidence with regard to the tender and pasting. Both the Courts relied on a finding that the evidence of the landlord in regard to tender and refusal to accept the notice, as also with regard to the pasting of the notice was not sufficient, conflicting and therefore not acceptable. That does not however mean an end of the case. 11. With regard to the notice sent by Registered post, the endorsement "not claimed" was construed as not amounting to refusal and did not mean that the notice was sent, tendered and refused. With regard to the evidence in respect of notice sent under certificate of posting, the Appellate Bench of the Small Causes Court, came to the conclusion that the presumption which arises in favour of the landlord under section 114 of the Indian Evidence Act, by sending a letter Under Certificate of Posting, was displaced by the positive evidence led by the tenant. 12. Taking the second part of the case first. it seems to me that the Appellate Bench of the Small Causes Court clearly misread the evidence, and read in the evidence what was not there. The landlord stated in his evidence that be sent the notice under certificate of posting and also produced the necessary certificate of posting. The tenant did not say anything in his evidence in the examination-in-chief with regard to non receipt of any such letter sent to him as the certificate of posting Ex. A says on 29-1-1964. The tenant does not say that on 30th or on 31st, he received no letter through post. 13. The tenant did not say anything in his evidence in the examination-in-chief with regard to non receipt of any such letter sent to him as the certificate of posting Ex. A says on 29-1-1964. The tenant does not say that on 30th or on 31st, he received no letter through post. 13. His evidence on the other hand is, that he leaves his residence at 7 a. m. and returns at about 6 p. m. and therefore, during the ordinary times of delivery the tenant is not at his residence. He then says, that his son is always present at his residence, but, goes to school between 12.30 p. m. and 6 p. m. It is not known whether there are any other persons of the tenant's family who are in the house during the course of the day. The tenant did not examine his son to say that before he went to school on any day namely, 30th or 31st, no letter was tendered. As pointed out, no other person was examined. 14. Nevertheless, the Appellate Bench of the Small Causes Court came to the conclusion that the tenant has given "positive evidence". It is not understood as to what, under the circumstances and state of evidence to which I have referred, the Appellate Bench of the Small Causes Court meant by saying that the tenant bas led positive evidence. Before the Appellate Bench, reliance was placed upon a decision in Babulal v. Purushottam Joshi1 in which it was observed that, "the law presumes that the letters sent under certificate of posting must be deemed to have been received by the addressee unless the addressee by positive evidence shows that he had not received them." (Emphasis supplied) The decision does not say what is positive evidence. But, it is plain that what is positive evidence depends upon the circumstance of each case. In the present case for instance, positive evidence would be, apart from the statements of the tenant who during the course of ordinary times of delivery was not present, the evidence of his son, the evidence of other members of his family to say that no letter was ever delivered on 30th or 31st January such evidence is not forthcoming. It was contended that in his cross-examination, he had stated that no letter was received by him. It was contended that in his cross-examination, he had stated that no letter was received by him. He means really that he does not know if any letter was received or was not informed of receipt of any letter. No person who could have said so is examined. In the absence of such evidence, it was a clear error on the part of the court below to hold that there was "positive evidence". The presumption which is raised under section 114 of the Evidence Act, is not therefore displaced at all. It must in the circumstances be held that, the notice was received by the tenant through ordinary post. 15. It must also be held in the present case, that the tenant has refused the registered packet which was sent to him. The only endorsement which bas been construed by the courts below, is the endorsement "not claimed:' Now the meaning of the words or expression "not claimed" has not been construed. It seems to me that the expression is tantamount to refusal. Where an intimation about the article is received and the article is not received or no effort to receive that article is made and the article is not claimed when it is available for being claimed, it amounts to a deliberate neglect or refusal to receive that article. What the courts below did not consider further were, the endorsements made by the postman on the envelope which are to the following effect;- "Not found in delivery time." This endorsement was made first on the 25th January, was repeated again on the 28th and also on the 29th. Now, it is common knowledge and under the postal rules, if an addressee of a registered article is not found or is not available during delivery time when the postman goes to deliver articles, then an intimation of such a registered letter or article addressed to the addressee is left. As to in what manner such intimation should be given either oral or in writing, may vary. There is no evidence in the present case that a11 oral or written intimation was given. But, it does not mean there from, that no intimation was given considering that a presumption exists that official acts are done in due course of business. An intimation could or would be either oral or written. There is no evidence in the present case that a11 oral or written intimation was given. But, it does not mean there from, that no intimation was given considering that a presumption exists that official acts are done in due course of business. An intimation could or would be either oral or written. If an intimation therefore, was received by the addressee of the article and the addressee does not take steps to receive that article, either by giving an authority to any other person to receive that article, or himself arranging to proceed to that post office and obtain delivery of the article and the article is returned, the only conclusion on the basis of the endorsement would be, that the addressee refuses to accept the article. The endorsement or presumption of refusal to receive, cannot merely be drawn on the basis of the endorsement "refused". It can also be drawn, and where circumstances permit and where an endorsement of this kind appears in the present case also, that the addressee refused to accept the notice. If the addressee refuses to accept the notice, then the question will be answered by weighing the evidence and upon preponderance of evidence and probabilities. In the present case, in view of what I have held above, it must be held that the tenant-defendant received the notice in fact, which was sent to him by ordinary post, and that he had refused the registered packet of notice. If that finding is reached, it follows that the tenant has no defence to the suit. 16. The petition must therefore be allowed. The orders passed by the courts below are set aside and the plaintiff's suit is decreed with costs. Rule made absolute. Respondent to pay the costs to the petitioner. Petition allowed.