Dharampal Tyagi v. Anil Kumar — 1986 DIGILAW 289 (ALL)

JUDGMENT N.D. Ojha, J. - This is a Defendants' civil revision u/s 25 of the Provincial Small Cause Courts Act against the judgment and decree dated 18th February, 1986 passed by the Vlth Additional District Judge, Ghaziabad in SCC suit No. 27 of 1985. The facts necessary for the decision of this Civil Revision are that the Plaintiff-Respondent is the landlord of shop No. 76 Nav Yug Market, Ghaziabad and the applicant is its tenant on a monthly rent of Rs. 400/- that a sum of Rs. 200/- was the unpaid rent for the period ending 4th March, 1984 that thereafter no rent had been paid by the applicant and after setting off the amount paid in advance a total sum of Rs. 4640/- was due against the applicant. According to the Plaintiff-Respondent the Defendant was also liable to pay electricity charges and Rs. 1000/- was payable by him on that account. He also claimed damages after the date of the termination of tenancy at the rate of Rs. 800/- per month. In regard to his claim for ejectment the case of the Plaintiff-Respondent further was that the provisions of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act) were not applicable. The suit was contested by the applicant. He asserted that there was no relationship of landlord and tenant between the parties, that the Act was applicable to the shop in question and that the assertion of the Plaintiff-Respondent that the applicant was in arrears of rent or electricity charges was erroneous. He also denied service of any notice u/s 106 of the Transfer of Property Act upon him. The parties produced evidence in support of their respective cases and on a consideration thereof the court below decreed the suit for ejectment as also for realisation of arrears of rent amounting to Rs. 4640/- and electricity charges amounting of Rs. 1000/-. A decree for damages for use and occupation at the rate of Rs. 800/- per month was also passed. It is this decree against which the present revision has been preferred. 2. 4640/- and electricity charges amounting of Rs. 1000/-. A decree for damages for use and occupation at the rate of Rs. 800/- per month was also passed. It is this decree against which the present revision has been preferred. 2. As regards the findings on issues 1, 2 and 3 namely whether the relationship of landlord and tenant was established between the parties ; whether the provisions of the Act are applicable to the shop in question ; and whether the Defendant had committed default in payment of the amounts claimed by the Plaintiff-Respondents, suffice it to point out that the findings in this regard recorded by the court below are essentially findings of fact based on appraisal of evidence and nothing has been brought to my notice so as to justify interference with those findings in the present civil revision. 3. As regards the decree for damages at the rate of Rs. 800/- per month, however, it has been asserted by counsel for the applicant and in my opinion rightly, that decree for damages at the aforesaid rate could be justified only if the decree for ejectment is maintained, and in case the suit for ejectment is dismissed, the Plaintiff-Respondent will be entitled not to any decree lor damages but only to a decree for rent at the agreed rate of Rs. 400/- per month. 4. In regard to the finding of the trial court on issue so. 3 namely, whether the tenancy of the Defendant-applicant has been legally terminated u/s 106 of the Transfer of Property Act, it has been urged by counsel for the applicant that no notice u/s 106 of the Transfer of Property Act was proved to have been served on the applicant. Consequently no decree for ejectment could have been passed against him. In this connection reliance for the Plaintiff-Respondent, has been placed mainly on four documents apart from the deposition of the Plaintiff made before court below. Copies of these four documents have been filed in the present revision by the parties along with affidavits. Consequently no decree for ejectment could have been passed against him. In this connection reliance for the Plaintiff-Respondent, has been placed mainly on four documents apart from the deposition of the Plaintiff made before court below. Copies of these four documents have been filed in the present revision by the parties along with affidavits. These four documents are: (1) copy of the notice u/s 106 of the Transfer of Property Act, dated 13th March, 1985 ; (2) copy of the postal receipt dated 13th March, 1985 indicating that a letter was sent by register post to Dharampal, proprietor M/s. Bharat Property Dealer, Navyug Market, Ghaziabad (3) copy of receipt indicating that letter was sent under certificate of posting on 13th March, 1985 addressed to Duarampal, proprietor, M/s Bharat Property dealer, Navyug Market, 1st floor Ghaziabad l4; copy of letter dated 26th July, 1985 written on behalf of Senior Superintendent of Post Offices, Ghaziabad Division addressed to Sri Rameshwar Dayal, Advocate, Civil Court, Ghaziabad in reply to his complaint on behalf of the applicant about non-receipt of the acknowledgment due form in regard to the notice dated 13th March. 19o5 sent to the applicant by Registered post under postal receipt No. 1432 dated 13th March, 1985. 5. It was urged by counsel for the applicant that on the face of an unequivocal assertion by the applicant that the notice dated 13th March, 1985 was never brought to him for service by any postman nor was it served on him the court below committed an error of law in decreeing the suit for ejectment on the finding that the said notice had been served on the applicant. For the Plaintiff-Respondent, on the other hand, it was urged by his counsel that in view of the documents referred to above, there was a presumption u/s 27 of the General Clauses Act of service of nonce on the applicant, particularly when the letter of the Senior Superintendent of Post Offices clearly stated that the letter sent under postal receipt No. 1432 dated 13th March, 1985 was delivered to the addressee on i5th March, 1985. 6. Having considered the respective submissions made by counsel for the parties on this point I am inclined to agree with the submission made by counsel for the applicant on the material on record placed before me. 6. Having considered the respective submissions made by counsel for the parties on this point I am inclined to agree with the submission made by counsel for the applicant on the material on record placed before me. It is true, as has "been urged by counsel for the Respondent, that the applicant had admitted in i is deposition that his correct address was Dharampal, proprietor M/s Bharat Property Dealer. 77 Navyug Market 1st floor Ghaziabad and that the copy of the notice dated 13th March. 1983 u/s of the Transfer of Property Act indicates that it is this address which was mentioned in the notice. However, copy of the postal receipt indicates that the address of the applicant stated therein is not the full address. The number of the building, namely, 77 and the description of the shop in question being on the first floor is not to be found in the said copy In his deposition the Respondent has not stated that the registered letter containing the notice u/s 106 of the Transfer of Property Act sent to the applicant under postal receipt No. 1432 aforesaid contained the full address of the applicant. In this connection mv attention was invited by counsel for the Respondent to paragraph 17i of the Posts and Telegraphs Manual Vol. VI which inter alia provides that if an article presented for registration was found to be in order a receipt should be prepared in which the name of the addressee and the post office of the destination should be entered in their places provided in the prescribed form. On this basis it was urged t at the official who registered the notice under postal receipt No. 1432 was not-bound to enter the full address of the addressee in the receipt issued to the Respondent and consequently the Respondent should not be allowed to suffer of this score Even if that be so the Respondent should have by other evidence particularly of the person who actually got the letter registered proved that the letter which was registered actually contained the full address. As pointed out above, this was, however, not done in the instant case. As such, on the facts of the instant case it is not possible to draw a presumption of service ot the aforesaid notice on the applicant u/s 27 of the General Clauses Act. 7. As pointed out above, this was, however, not done in the instant case. As such, on the facts of the instant case it is not possible to draw a presumption of service ot the aforesaid notice on the applicant u/s 27 of the General Clauses Act. 7. The matter can be looked into from another angle. Even if for the sake of argument it may be accepted that a case has been made out for raising the presumption u/s 27 of the General Clauses Act, it is still difficult on the material on record placed before me to record a finding that the notice u/s 106 of the Transfer of Property Act has been served on the applicant in the manner contemplated by the said section. The letter of the Senior Superintendent of Post Offices which is indeed the sheet anchor of the Respondents' case indicates that the matter was got inquired and it was revealed that the article under reference had been delivered to the addressee on 15th March, 1985. Section 3 of the Post Office Act, 1989 reads: (c) " the delivery of a postal article at the house or office of the addressee, or to the addressee or his servant or agent or other person considered to be authorised to receive the article according to the usual manner of delivering postal articles to the addressee, shall be deemed to be delivery to the addressee. 8. In the instant case it has not been disputed before me on behalf of the Respondent that the address on which the notice u/s 10b o the Transfer of Property Act is said to have been sent to the applicant was not the address of his residential house but was the address of the shop where the applicant was carrying on his business. In view of the definition in this behalf contained in Section 3 even if it is accepted as stated in the letter of the Senior Superintendent of Post Offices that the registered letter was delivered to the addressee, it does not rule out the possibility of the said letter being delivered not to the applicant personally but to some 'servant or agent or otter person considered to be authorised to receive the article according to the usual manner of delivering postal articles to the addressee'. The said delivery shall be deemed to be delivery to the addressee. The said delivery shall be deemed to be delivery to the addressee. The said letter of the Senior Superintendent of Post Offices does not conclusively prove that the registered letter containing the notice u/s 106 of the Transfer of Property Act - as served to the applicant personally. Section 106 of the Transfer of Property Act inter alia provides: Every notice under this section 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 deliered personally to such party, or to one of his family members or servants, at his reside] ce, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property. In Ranjit Singh v. Nirbhaynand 1970 ALJ 455 which was a case ot refusal of a notice, it was held in paragraph 11 of the report: Now the question is whether endorsement of refusal on the notices Exs. 12 and 13 can raise the presumption of service. The Advocate-General contends that they cannot. To my mind the contention is well-founded. While scanning the second paragraph of Section 106, Transfer of Property Act it has already been seen that the notice can be vicariously served by tendering or delivering to one of Ranjit Singh's family or servants at his residence. It is also admitted by the Plaintiff-Respondent in his plaint that 29, 1'iatapura is the shop and not the residence of the Appellant. Law requires that vicarious service can be made only at the residence and cot at any other place. It is, therefore, evident that Exs. 12 and 13 do not fulfill the requirements of Section 106 of the Transfer of Property Act. 9. Law requires that vicarious service can be made only at the residence and cot at any other place. It is, therefore, evident that Exs. 12 and 13 do not fulfill the requirements of Section 106 of the Transfer of Property Act. 9. In view of the law laid down in the aforesaid decision even if the registered letter containing the notice dated 13th March, 1985 sent not at the address of the applicant's residence but sent at the address of the shop where he was carrying on his business was sieved on a servant or agent of the applicant and not personally on him it would be deemed to have been delivered to the addressee within the meaning of Section 3 of the Post Office Act but it will still not be a sufficient service of the said notice as contemplated by Section 106 of the Transfer of Property Act. Evidence on the point as to whom the said notice was delivered, namely, whether it was delivered to the applicant personally or to any of his servant or agents is lacking in the instant case. On this ground also, therefore, it is not possible to take the view that the notice u/s 106 of the Transfer of Property Act has been proved to have been served on the applicant. 10. Counsel for the applicant then placed reliance on the receipt indicating that on 13th March, 1985, a letter was sent to the applicant under certificate of posting and that the said letter contained the full address of the applicant. According to him a presumption could be raised on its basis that notice u/s 106 of the Transfer of Property Act was served on the applicant. According to him a presumption could be raised on its basis that notice u/s 106 of the Transfer of Property Act was served on the applicant. As regards this submission, reference may be made to a Full Bench decision of this Court in Ganga Ram v. Phulwati 1970 AWR 198 wherein pointing out the difference between the presumption of law u/s 27 of the General Clauses Act and the presumption of fact u/s 114 of the Evidence Act it was held In our opinion the only difference between such a presumption of law u/s 27 of the General Clauses Act and a presumption of fact u/s 114 of the Indian Evidence Act is that in the former case a presumption has got to be made by the Court, while in the latter case, i. e., u/s 114 of the Indian Evidence Act it may or may not be made according to the facts and circumstances of each case. However, even a presumption of law is rebuttable unless it is made unrebuttable by some provision of law. A presumption of law to be raised u/s 27 of the General Clauses Act has not been made unrebuttable. Even if the submission of the counsel for the applicant is accepted in this behalf, only a presumption of fact can be raised u/s 114 of the Evidence Act on the basis of the notice alleged to have been sent under certificate of posting if necessary facts and circumstances are proved. It does not permit rhe raising of presumption of law u/s 27 of the General Clauses Act. Whether or not such a presumption of fact on the basis of the notice alleged to have been sent under certificate of posting deserves to be made is a question which can be gone into only by the trial court which is the fact finding authority in this behalf and not in the present revision where an error of law alone will justify interference with the order of the court below. In the instant case a perusal of the judgment sought to be revised does not indicate that the court below raised any presumption of fact specifically u/s 114 of the Evidence Act. In the instant case a perusal of the judgment sought to be revised does not indicate that the court below raised any presumption of fact specifically u/s 114 of the Evidence Act. In view of the foregoing discussion I am of opinion that the service of notice u/s 106 of the Transfer of Property Act on the basis of evidence on record of the case brought to my notice has not been established. I am further inclined to take the view that the ends of justice require that the issue in regard to the service of notice u/s 106 of the Transfer of Property Act on the applicant deserves to be decided afresh by the court below by permitting the parties to produce such further oral as well as documentary evidence as they like. No error in the findings of the court below on issues 1 to 3 having been brought to my notice, it will not be necessary for the court below to decide those three issues afresh. It la, however, made clear that decree for damages at the rate of Rs. 800/-would be possible to be passed by the court below only if the suit for ejectment is again decreed. If, on the other hand, the suit for ejectment is to be dismissed no decree for damages at the rate of Rs. 800/- per month but only a decree for rent at the agreed rate of Rs. 800/- per month can be passed. 11. In the result this revision succeeds and is allowed. The judgment and decree of the court below dated 18th February 1976 are set aside. 12. Counsel for the parties has made a statement that their respective clients shall appear before the District Judge, Ghaziabad on 31st March, 1986 with a certified copy of this judgment. In this view of the matter it would not be necessary for the District Judge to issue any further notice to the parties. The District Judge shall decide the suit afresh in pursuance of this order himself or transfer the same to some officer other than the officer who decided it by decree dated 18th February 1986. The suit shall be decided expeditiously and if possible within a month from 31st March, 1986. In the circumstances of the case however, the parties shall bear their own costs. 13. The suit shall be decided expeditiously and if possible within a month from 31st March, 1986. In the circumstances of the case however, the parties shall bear their own costs. 13. Certified copies of this judgment may be supplied to counsel for the parties on payment of necessary charges within three days.