JUDGMENT Hon’ble Mrs. Poonam Srivastava, J.—Heard Sri A.K. Tiwari, learned counsel for the petitioner and Sri M.M.D. Agrawal, counsel for the contesting respondent. 2. The dispute relates to a shop situated at Chimara Road Kasba Jaswant Nagar, Pargana Saifai, District Etawah, which was let out at monthly rent of Rs. 300/- per month. The landlord/respondent sent a notice dated 20.8.1996 demanding arrears of rent and terminating tenancy on the ground that shop in dispute is 1994 construction and, therefore, U.P. Act No. 13 of 1972 is not applicable. After expiry of the period of notice, the instant suit for eviction was instituted, which was contested by the petitioner. He denied allegation in his written statement and his stand was that previously there was a shop having Tin shade covered on four sides by Tattar and bamboos on the same land where the present shop is standing. 3. The tenant’s submission was that previously he was paying rent to the landlord at the rate of Rs. 40/- per month. Affidavits were exchanged. Oral evidence was also led. The petitioner examined himself as DW-1 and Sakir Hussain DW-2. The respondent adduced his oral evidence as PW -1. 4. Trial Court was of the view that Rent Control Act is not applicable and since the tenancy was determined by means of notice, an order of eviction was passed. S.C.C. Revision No. 5 of 2007, Zahid Hussain v. Ram Swaroop Gupta was preferred in the Court of the Additional District Judge/Special Judge (SC/ST Act), Etawah, which stood dismissed vide judgment and order dated 28.5.2009. 5. First submission of the counsel for the petitioner is that since the petitioner was admittedly a tenant of a roofed structure constituted by a Tin shade and Tattar for a very long time, finding of the Courts below that U.P. Act No. 13 of 1972 is not applicable is against the law and his tenancy could not be terminated simplicitor by mean of a notice under Section 106 Transfer of Property Act. 6. It is argued next by the counsel for the petitioner that there was no service of notice. He has clearly denied service in his written statement as well as statement on oath during the proceedings and, therefore, no presumption could be drawn against him under the Evidence Act regarding service. On the basis of this argument, finding of the Court below is emphatically challenged. He has clearly denied service in his written statement as well as statement on oath during the proceedings and, therefore, no presumption could be drawn against him under the Evidence Act regarding service. On the basis of this argument, finding of the Court below is emphatically challenged. Statement of DW-1 is annexed as Annexure 6 to the writ petition. 7. The counsel for the petitioner has tried to draw my attention to his assertion that a registered notice sent by U.P.C. was never served on him and he had not refused such a notice at any point of time. Neither paper No. 17-Ga, a registered notice was sent to him nor did he return in collusion with postman. Receipt of notice by U.P.C. was also specifically denied. While rejecting this submission, the Court below placed reliance on a decision of Lucknow Bench of this Court reported in 1986 ACJ 769, Sagar v. Additional District Judge, Lucknow and others, wherein it was held that if notice is returned with an endorsement of “refusal” then service will be deemed to be sufficient. The revisional Court also recorded this finding and confirmed finding of the Judge, Small Cause Court on 28.5.2009. 8. It is also contended by the counsel for the tenant/petitioner that an application under Section 30(1) of U.P. Act No. 13 of 1972 was filed on 11.7.1996 for depositing rent but wrong statement was given by the plaintiff in the Court. Learned counsel for the petitioner has placed his written statement, which was filed in S.C.C. Suit. The written statement is annexed as Annexure 2 to the writ petition. The tenant is not a defaulter but advanced rent was deposited under Section 30 (1) of the Act in misc. case No. 70 of 1996 w.e.f. 1.4.1996 to 31.3.2001 and, therefore, he is entitled to benefit of Section 20 (4) of the Act. 9. The counsel for petitioner has placed reliance on a decision of this Court; Kesto Chandra Chatterjee v. Chandra Pal Singh and others, 1981 ARC 281 in support of his argument that defendant/tenant in his written statement as well as subsequently in his statement on oath has categorically denied having refused to accept or serve any notice and also that on the date of alleged “refusal”, he was regularly attending his office, then burden to prove service shirt on the side who claims sufficient service. In the instant case, since there is specific rebuttal at the initial stage itself and presumption cannot be raised against him. Learned counsel has also relied upon decision of Gujarat High Court; Oza Kumbhar Noran Ala v. Meta Nanalal Jethabhai and others, AIR 1960 Guj 5 wherein it was held that evidence regarding “refusal” of notice must be very clear and convincing as it entails drastic consequences and, therefore, it becomes duty of the Court that there is a very clear and convincing evidence about service by “refusal”. 10. Reliance has been placed by the learned counsel on a decision of the Apex Court; Anil Kumar v. Nanak Chandra Verma, AIR 1990 SC 1215 wherein it was held that bare statement of tenant on oath denying tender and refusal to accept delivery is not sufficient to rebut presumption. I am unable to understand as to how this case helps the petitioner since in paragraph 2 of the said decision, it is clearly ruled that : “In our opinion there could be no hard and fast rule on that aspect. Unchallenged testimony of a tenant in certain cases may be sufficient to rebut the presumption but if the testimony of the tenant itself is inherently unreliable, the position may be different. It is always a question of fact in each case whether there was sufficient evidence from the tenant to discharge the initial burden.” 11. I have given a careful consideration to the argument advanced by the counsel for petitioner and also perused the two judgments of the Courts below, there is a concurrent finding of fact after analysis of evidence that landlord had given a notice. The trial Court and revisional Court had come to a definite conclusion for the reasons that petitioner though stated that he did not receive any notice but further had gone one step ahead that he had tendered rent by money order. Post office receipts were also submitted by landlord in support of the contention that registered notice as well as notice by U.P.C. was sent. 12. The tenant/petitioner admitted in his statement that address written on the notice is correct address and he is living at the same address. Besides, landlord had never demanded rent but tenant/petitioner used to tender rent personally then what was occasion for him to send rent by money order is a little perplexing. 12. The tenant/petitioner admitted in his statement that address written on the notice is correct address and he is living at the same address. Besides, landlord had never demanded rent but tenant/petitioner used to tender rent personally then what was occasion for him to send rent by money order is a little perplexing. Besides, the Courts below have categorically recorded findings that though tenant admits that he had tendered rent by money order in the year 1996 but receipt 30-Ga/6 annexed in support of this contention, if accepted then stamp of post office affixed is dated 24.5.1996 and, therefore, it is very clear that subsequent receipts 30-Ga/1 to 30-Ga/4 are all around for the month of July, 1996. Message endorsed on the money order form is admitted by tenant that it is not in his handwriting and he does not even remember that who was the person, who had written message on the form, therefore, deduction arrived at by the Courts below regarding service of notice as well as subsequent deposit under Section 30(1) of the Act, cannot be interfered by this Court. 13. There is yet another important aspect, first assessment of shop in question by Nagar Mahapalika is of the year 1994. This has been admitted by tenant that previously it was a Tattar with tin shade; meaning thereby it was temporary structure, which was completely dismantled and Pukka roofed structure was constructed in the year 1993-94, therefore, finding of the two Courts below that Act No. 13 of 1972 is not applicable, is also not liable to be interfered by this Court. 14. Learned Counsel has also placed reliance on a decision of this Court; Vinod Kumar Rastogi v. VIIth Additional District and Sessions Judge, Allahabad and others, 2003 (2) ARC 377, wherein it was held that in the event Rent Control Act is not applicable then suit for ejectment can be filed and decreed after termination of tenancy under Section 106 of the Transfer of Property Act even though tenant may not be defaulter and no relief regarding payment of rent have been claimed in the suit. 15. However, in the instant case admittedly, tenant is a defaulter and his tenancy was terminated by a valid notice under Section 106 of the Transfer of Property Act. Obviously, Rent Control Act is not applicable, therefore, suit has rightly been decreed. 16. 15. However, in the instant case admittedly, tenant is a defaulter and his tenancy was terminated by a valid notice under Section 106 of the Transfer of Property Act. Obviously, Rent Control Act is not applicable, therefore, suit has rightly been decreed. 16. Submission of the learned counsel regarding benefit of Section 114 of T.P. Act is also not acceptable. In the case of Bhupendra Singh v. Additional District Judge/Special Judge (Anti-Corruption) Dehradun and others, 1994 (2) ARC 472, it was held that benefit of Section 114 of Transfer of Property Act cannot be given to a tenant in absence of any express agreement for forfeiture. Since a definite date is available in assessment register, date mentioned therein has to be relied upon. 17. The Apex Court in the case of M/s Madan & Co. v. Wazir Javir Chand, 1989 (2} ARC 381, was of the opinion that : “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, there is no reason why it should not be served on him. If he is compelled to be away for some time, all that he has to do is to leave necessary instructions with the postal authorities either to detain the letters addressed to him for some time until he returns or to forward them to the address where he has gone or to deliver them to some other person authorised by him". 18. The Apex Court has laid down principle in the case of Har Charan Singh v. Shiv Rani and others, AIR 1981 SC 1284 that it cannot be said that before knowledge of the contents of notice could be imputed the sealed envelope must be opened and read by the addressee or when the addressee happens to be an illiterate person the contents should be read over to him by the postman or someone else. Such things do not happen when the addressee is determined to decline to accept the sealed envelope. 19. Section 27 of the General Clauses Act, 1897 raises presumption that service shall be deemed to have effected to whom communication is sent must be taken to have known the contents of document sought to be served upon him. 20. Such things do not happen when the addressee is determined to decline to accept the sealed envelope. 19. Section 27 of the General Clauses Act, 1897 raises presumption that service shall be deemed to have effected to whom communication is sent must be taken to have known the contents of document sought to be served upon him. 20. The Full Bench of this Court in the case of Ganga Ram v. Smt. Phulwati, 1970 ALJ 336, in paragraph 4, 13 and 24 held that : “4. Whenever a notice for ejectment under Section 106 of the Transfer of Property Act is attempted to be served on a tenant by means of a registered post, giving the correct address of the tenant, but is received back with an endorsement “not met” or "refused”, the question arises as to what presumptions can safely be drawn regarding the service of notice where the actual proof of service is wanting. 13. Section 106 of the Transfer of Property Act provides for a mode of service of the notice and, therefore, the provisions of Section 27 of the General Clauses Act, shall apply and once it is established that a registered notice was delivered at the receiving post office containing the correct address of the tenant, a presumption of law can be made that the notice has been served on the addressee. 24. It is not the duty of the plaintiff to prove that the defendant, after having received notice, had actually read it and understood its contents. Similarly, where the registered envelope contains a correct address of the tenant and the addressee either cannot be met or refuses to take notice, there appears to be no reason why the notice should not be deemed to have been properly served on the addressee”. 21. I have taken into consideration arguments advanced by both the parties as well as decisions cited and also the fact that the two Courts had come to a conclusion that Act No. 13 of 1972 is not applicable. It is undisputed that Pakka construction was made in the year 1993-94 and till then there was tin shade surrounded by Tattar. I have taken into consideration arguments advanced by both the parties as well as decisions cited and also the fact that the two Courts had come to a conclusion that Act No. 13 of 1972 is not applicable. It is undisputed that Pakka construction was made in the year 1993-94 and till then there was tin shade surrounded by Tattar. Admittedly, this was dismantled and thereafter construction of the shop was done right from foundation stage and first assessment was also in the said year, therefore, contention of the counsel for petitioner that since he was in occupation since a very long time and it was covered structure, Act No. 13 of 1972 is applicable and he is entitle for its benefit, is without any force. 22. It is also correct that tenancy was terminated under Section 106 of Transfer of Property Act and thereafter the suit was instituted. Notice was received. Assuming contention of the counsel for petitioner that tenant was not a defaulter and he had deposited the entire money even then in such a situation ejectment after service of notice is inevitable. So far a registered notice was sent at the correct address and it is also admitted that petitioner resides at the said address and endorsement of “refusal” was there, in such circumstances burden shifts on tenant to establish that endorsement is wrong by means of cogent evidence and also give reasons as to why “refusal” written on the notice is not correct. The Courts below have also recorded finding that the petitioner is a defaulter. Therefore, I do not see any reason to interfere with the question of fact in exercise of jurisdiction under Article 226 of the Constitution of India. 23. In the end, learned counsel submits that petitioner may be allowed some time to vacate the premises in question. 24. The petitioner is allowed six months’ time to vacate the premises in question from today i.e. on or before 31.1.2010 without any objection. Till then he shall continue to pay damages at the prevalent rate. 25. Learned counsel for the petitioner shall ensure that petitioner files an undertaking before the trial Court within three weeks from today mentioning that vacant possession shall be handed over to landlord on or before 31.1.2010. 26. Till then he shall continue to pay damages at the prevalent rate. 25. Learned counsel for the petitioner shall ensure that petitioner files an undertaking before the trial Court within three weeks from today mentioning that vacant possession shall be handed over to landlord on or before 31.1.2010. 26. In the event of default on the part of petitioner in filing an undertaking before the trial Court within three weeks from today and default in payment of damages at the prevalent rate, liberty of six months for vacating the premises in question shall come to an end. 27. For the reasons discussed above, the writ petition is dismissed. ———