JUDGMENT Raising a short controversy with regard to the validity of service of notice by refusal under Section 106 of the T.P. Act, the present revision is at the instance of tenant of a shop. 2. S.C.C Suit No.1 of 1991 was instituted by the opposite parties herein for recovery of arrears of rent amounting to Rs.11,350/-, damages, pendente lite and future, and ejectment of the defendant, who is applicant herein, in respect of a shop described at the foot of the plaint with the allegations that the shop in question is a 'new construction' within meaning of Section 2 of the U.P. Act No.13 of 1972 and that the tenancy has been determined by means of notice dated 8.1.1991 served by refusal on 12.1.1991. It was further pleaded that the shop in question was constructed in the year 1983 and was assessed to tax by the municipal authorities with effect from 1st of April, 1985 and as such the provisions of the U.P. Act No.13 of 1972 are not applicable. The rent was claimed at the rate of Rs.1,200/- per month excluding the house tax and water tax. The arrears of rent was claimed since May, 1990. 3. The suit was contested on a number of pleas such as the provisions of the U.P. Act No.13 of 1972 are applicable, the rate of rent is Rs.250/- per month, there is no arrears of rent and that the notice determining the tenancy was never refused by the defendant. 4. On the basis of the pleadings of the parties, as many as six issues were framed by the trial court. It has held that the rate of rent is Rs.250/- per month and not Rs.1200/-, the provisions of the U.P. Act No.13 of 1972 are not applicable as the disputed shop is a 'new construction', the tenant is in arrears of rent since May, 1990 and his tenancy has been terminated validly by the notice which has been validly served on him, by the judgment and decree dated 29th of May, 2001. 5. The legality and validity of the aforesaid judgment has been questioned in the present revision only on the point that the notice under Section 106 of the T.P. Act is not valid and that it was not validly served on the defendant. 5. The legality and validity of the aforesaid judgment has been questioned in the present revision only on the point that the notice under Section 106 of the T.P. Act is not valid and that it was not validly served on the defendant. Sri P.N. Saxena, the learned senior counsel for the applicant has not challenged the other findings on issue Nos. 1, 2, 3 and 5. The findings recorded thereon stand confirmed and, thus, have attained finality. 6. The only surviving issue in the present revision is with regard to the validity of the notice and its service on the defendant tenant. The learned senior counsel in support of the revision submits that the notice was addressed at the shop's address and it was not sent at the residential address of the defendant tenant. The service of notice was denied by the defendant tenant. In such a situation since the postman to prove the alleged endorsement of refusal of notice has not been examined, the court below was not justified in holding that the notice has been validly served on the defendant. In contra, Sri P.K. Jain, the learned senior counsel appearing along with Sri K.A. Qayyum, advocate, submits that so far as question of validity of notice is concerned, the same was not pleaded nor urged before the trial court. Question of validity of notice, even if there is some invalidity, shall be deemed to have been waived by the defendant; as it was not raised at the earlier stage of litigation. Even otherwise also, there is no legal infirmity in the said notice. As regards the question of service of notice by refusal is concerned, it is established on record that the defendant tenant pleaded alibi and he has failed to establish the same. The finding recorded by the court below regarding the service is essentially a finding of fact in the given case, as such no interference under Section 25 of the Provincial Small Causes Court Act in the present revision, is called for. 7. Considered the respective submissions of the learned counsel for the parties and perused the record. The notice to quit is dated 8th of January, 1991 being Paper No.66 Ka, addressed to Prop. Satish Trading Company, Khunipur (Kauwadaha), Shahar, Gorakhpur. Its acknowledgment receipt is Paper No.66C 2. 7. Considered the respective submissions of the learned counsel for the parties and perused the record. The notice to quit is dated 8th of January, 1991 being Paper No.66 Ka, addressed to Prop. Satish Trading Company, Khunipur (Kauwadaha), Shahar, Gorakhpur. Its acknowledgment receipt is Paper No.66C 2. There is an endorsement of postman on the notice that he offered it to the addressee on 9th of January, 1991, 10th of January, 1991 and 11th of January, 1991, but was refused. Ultimately, it was returned on 11th of January, 1991. The defendant in his pleading and the statement as well, has denied any such refusal of the said inland letter and came out with the case that he was out of station and had gone to District Madhubani to attend his ailing grandfather on 7th of January, 1991 who died on 9th of January, 1991. The said plea has been found to be bogus by the trial court. The trial court has discussed the evidence on record in great detail and has reached to the conclusion that the defendant tenant has failed to prove that he was out of station on the material dates. He could not substantiate the plea that his grandfather expired on 9th of January. To reject the plea of the defendant, the trial court has considered the number of attending facts and circumstances. It has taken into consideration that there is no evidence on record to show that either the grandfather was ailing or died as alleged by the defendant tenant; nor there is any evidence to show that he was not present in District Gorakhpur for the period 7.1.1991 to 13.1.1991. The tenant has not stated that he had any dispute with the postman. The trial court has given valid and cogent reasons for not believing the story of the defendant tenant and it has rightly discarded the same. It has reached to a definite conclusion that the defendant tenant had knowledge of the notice and that is the reason he purchased stamp paper on 14.1.1991 to create evidence in support of his plea of alibi. It has considered the matter in great detail. No attempt was made by the learned senior counsel for the applicant to point out any error legal or factual in the appreciation of evidence done by the trial court. It has considered the matter in great detail. No attempt was made by the learned senior counsel for the applicant to point out any error legal or factual in the appreciation of evidence done by the trial court. No attempt at all was made to challenge this part of judgment rejecting the plea of the defendant tenant that he was not available at Gorakhpur to refuse the registered notice sought to be served by the postman. He could submit only this much that since the defendant tenant has disputed the endorsement of refusal made by the postman, the court below was not justified in drawing the presumption of due service of notice on the defendant. The said argument on the facts of the present case, is devoid of any substance. 8. So far as legal position is concerned, the same has been set at rest by a Full Bench decision of this Court in Ganga Ram Vs. Smt. Phoolwati 1970 AWR 198. In this case it has been held that when a registered article or registered letter is handed over to an accepting or receiving post office, it is the official duty of the postal authorities to make delivery of it to the addressee. While delivering a letter to an accepting and receiving post office it is reasonably expected that in normal course it would be delivered to the addressee. This is the official and normal function of the post office and taking into consideration the manner in which the post office deals with the registered letters, the endorsement on the notice "refused" strengthens the presumption that an attempt was made to deliver the notice to the addressee. It has been further held that it is not a duty of the plaintiff to prove that the defendant, after receiving the notice, had actually read it and understood its contents. Taking into consideration the judgment of the Privy Council in the case of Harihar Banerjee Vs. Ram Shashi Roy: AIR 1918 Privy Council 105, it has been held in paragraph 29 of the judgment that the fact that the notice was returned back to the sender with an endorsement "Refused" does not dislodge the presumption that the registered notice has reached the addressee. On the other hand, it strengthens the presumption that the notice has reached the addressee. It could not be delivered to him because he refused to accept it. On the other hand, it strengthens the presumption that the notice has reached the addressee. It could not be delivered to him because he refused to accept it. Ultimately, the Full Bench answered the question no.2 in negative by holding that it is not incumbent on the plaintiff to prove the endorsement of refusal on the notice sent by the registered post by producing the postman or other witnesses in case the defendant denies the service on him. Noticeably, the ratio laid down in the above Full Bench decision has been approved by the Apex Court in Har Charan Singh Vs. Shiv Rani and others: AIR 1981 SC 1284 . 9. In view of the above authoritative pronouncement, it is not necessary to burden this judgment by multiplying the authorities. Suffice it to say that the matter has been examined in great detail by a Learned Single Judge in Virendra Singh Chandel Vs. Gopal Krishan Verma and others : 2007 (3) ARC 693, a decision relied upon by the learned counsel for the opposite parties, holding that mere denial of service by a tenant is not sufficient to rebut the presumption of due service of notice on him, if the registered article was sent at the correct address. More to say, in the present case, the defendant tenant came out with the plea of alibi which he failed to substantiate it. The trial court discussed the respective pleas of the parties and has found that the presumption of due service of notice has not been rebutted by the defendant tenant in the present case. The said finding is essentially a finding of fact and does not require any inference under Section 25 of the Provincial Small Causes Court Act. 10. Strong reliance was placed upon a judgment of this Court in Dharampal Tyagi Vs. Anil Kumar 1986 (2) ARC 121 in support of the plea that the notice is invalid as it was not addressed to his residential address but was sent to shop's address.by the learned senior counsel for the tenant (paragraphs 9 and 10 in particular). On the facts, it may be noted that there the notice was sent not at the address of the applicant's residence but was sent at the address of the shop where he was carrying on his business. It was not a case of 'service by refusal'. On the facts, it may be noted that there the notice was sent not at the address of the applicant's residence but was sent at the address of the shop where he was carrying on his business. It was not a case of 'service by refusal'. The service of notice was sought to be proved with the postal receipt indicating that a letter was sent by registered post to the tenant. In the said postal receipt the shop number has not been mentioned. A copy of the letter written on behalf of Senior Superintendent of Post Offices in reply to the complaint on behalf of the plaintiff about non-receipt of acknowledgment was relied upon. The facts of that case are given in detail in paragraphs 4 and 6 of the report. Evidently, the ratio laid down therein is not of universal application as the case was decided on its peculiar facts. It was not a case of refusal of notice by a tenant. This being so, the said case has hardly any application to the facts of the present case. Moreover, the said judgment has been distinguished by a Learned Single Judge in the case of Virendra Singh Chandel Vs. Gopal Krishan Verma (supra). The said decision has no application and is distinguishable on facts. In that case on the registered envelope the house number of tenant was not mentioned. In that case also, the parties placed reliance upon the Full Bench decision in Ganga Ram Vs. Smt. Phoolwati (supra), but it has distinguished on the facts as found therein. The matter was restored back by remanding the case to the trial court. 11. Reference was made to Section 106 of the T.P. Act to buttress the above submission. For the sake of convenience, the relevant portion of the said section is reproduced below:- " ................................................................ 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 delivered personally to such party, or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property." 12. The argument that in view of the above provision every notice has to be sent necessarily at the address of the tenant is misconceived. Sending of the notice by post to a party who is intended to be bound by it, does not require that it should be sent at his residence. On a plain reading of the aforesaid provision, it is evident that the word 'or' has been used before the words "and either be sent by post to the party who is intended to be bound by it". When the mode of service of notice is other than post, the same can be served on one of the family members of tenant/lessee at the residence of the lessee. To put it differently, when the mode of service through post is resorted, the law does not require that the notice should be sent at the residential address of the tenant. 13. The last case relied upon by the learned senior counsel for the applicant is Smt. Bachchi Devi and another Vs. Ist Addl. District Judge and others :1983 (1) ARC 849. Paragraph no.3 of the judgment is relevant and is reproduced below:- "It cannot be disputed that once opposite party stated on oath that no notice was served on her the presumption that arose in law in favour of petitioner stood rebutted. The burden of proving service shifted on him to prove by producing the overseer of the postal department and in case he failed to do so and evidence of her son was not sufficient to establish that notice was refused by opposite party, it cannot be held that the revising authority committed error of law in setting aside the finding of the trial court. Learned counsel for vehemently argued that the revising authority being a court of limited jurisdiction, should not have appreciated the evidence. According to him if he found that trial court mis-directed itself in regarding the finding then he should have remanded it to the trial court for recording fresh finding after considering evidence on record. The finding of trial court has been quoted earlier. To say the least it cannot be considered to be a finding of fact which could be accepted by a court of revision. Moreover, revising authority had not appreciated the evidence. He had set aside the order of trial court as no evidence was brought on record. The finding of trial court has been quoted earlier. To say the least it cannot be considered to be a finding of fact which could be accepted by a court of revision. Moreover, revising authority had not appreciated the evidence. He had set aside the order of trial court as no evidence was brought on record. On behalf of petitioner discharging the burden of that lay on her to establish that notice on opposite party was served. As she failed to discharge the burden, the inference drawn by revising authority cannot be said to suffer from any error of law." 14. It may be noticed that attention of the Court was not invited to the Full Bench decision of this Court in the case of Ganga Ram (supra) and that of the Apex Court in the case of Har Charan Singh (supra). Therefore, it should be read and understood subject to ratio of the cases referred to above. Even otherwise also, there are other cases such as Anil Kumar Vs. Nanak Chandra Verma AIR 1990 S.C. 1215 and Gujrat Electricity Board and another Vs. Atmaram Sungomal Poshani AIR 1989 S.C. 1433 to the effect that it is presumption of service of a letter sent under registered cover, if the same is returned back with the postal endorsement that the addressee refused to accept the letter under registered cover. The presumption is rebuttable, but the burden to rebut lies on the party challenging the factum of service. 15. In view of the above discussion, it is held that the notice dated 8th of January, 1991 was validly served on the defendant tenant by refusal on 12th of January, 1991. The finding recorded by the trial court is perfectly justified and calls for no interference. 16. Question of validity of notice cannot be raised, if not raised earlier, for the first time before a revisional court. There is no averment in the written statement with regard to the invalidity of the notice in question. It has been held that once the validity of the notice has not been questioned in the written statement, the plea cannot be incorporated even through amendment therein. Reference can be made to Gauri Shanker Vs. M/s. Hindustan Trust (Pvt.) Limited and others AIR 1972 S.C. 2091 and Parwati Bai Vs. Radhika JT 2003 (5) SC 34. 17. It has been held that once the validity of the notice has not been questioned in the written statement, the plea cannot be incorporated even through amendment therein. Reference can be made to Gauri Shanker Vs. M/s. Hindustan Trust (Pvt.) Limited and others AIR 1972 S.C. 2091 and Parwati Bai Vs. Radhika JT 2003 (5) SC 34. 17. Following the aforesaid decisions it has been held in Ram Niwas (since deceased) Vs. Ist A.D.J., Moradabad 2007 (2) ARC 291 that a plea of invalidity or infirmity of the notice under Section 106 of T.P. Act should be raised specifically and at the earliest state in the written statement failing which the same cannot be raised for the first time in the revision. 18. In view of the above discussion, the question of validity of the notice sought to be raised by the learned counsel for the applicant has got no substance. 19. There is no merit in the revision. The revision is dismissed. 20. Time to vacate the disputed accommodation is granted up to 31st of December, 2009 provided the applicant furnishes an undertaking on affidavit before the trial court within a period of one month that he will hand over the peaceful vacant possession of the disputed accommodation on or before 31st of December, 2009 and deposits the entire arrears of rent and damages for the use and occupation of the disputed accommodation at the decreed rate up to 31st of December, 2009 within the aforesaid period. If the applicant fails to vacate the disputed accommodation on or before 31st of December, 2009 he shall be liable to pay the damages at the enhanced rate that is @ Rs.5,000/- per month w.e.f. 7.6.2001, the date on which the stay order was passed, till the date of actual delivery of possession.