Sunday, 22 December 2019

Whether court can raise presumption that notice was duly served even if defendant denies his signature on acknowledgment?

Validity of notice cannot be raised in view of provisions of Section 106 of the T.P. Act since the suit in the present case was filed after expiry of fifteen days period of giving notice. Though the appellant-defendant has denied receipt of any such notice but AD Receipt Ex. 4 was produced on record bearing signature of Mukesh Kumar, the proprietor of appellant firm. Mere objection on behalf of defendant that the signature on AD Receipt were not of Mukesh Kumar is of no avail and the learned trial Court, in absence of any application for examining the signature on AD Receipt from FSL, rightly found the notice under Section 106 of the T.P. Act duly served and, thus, there is no force in the submissions of the learned counsel for the appellant defendant with respect to the validity of notice under Section 106 of the T.P. Act and the eviction decree has rightly been passed by the learned trial Court against the defendant-appellant.

12. A close scrutiny of above-quoted sub-section (4) of Section 106 of the T.P. Act makes it abundantly clear that law envisages notice under sub-section (1) in writing, signed by or on behalf of the person giving it, and either it be sent by post to the party, who is intended to be bound by it, or to be tendered or delivered personally to such party. The oral and documentary evidence, which was available on record in the matter, is clear and unequivocal showing written notice sent by respondent-plaintiff to appellant-defendant. The respondent-plaintiff has also produced acknowledgment receipt Ex. 4 bearing signature of Mukesh Kumar. During cross-examination, proprietor of the appellant firm, Mukesh Kumar, has very candidly admitted correct address of the addressee, but for denying his signature. Bare denial of the signature, without substantiating the same by cogent evidence, is not sufficient to dislodge presumption about service of notice. Therefore, both the Courts below have rightly invoked Section 27 of the General Clauses Act, 1897, which envisages that unless the contrary is proved, service shall be deemed to have been effected by properly addressing, prepaying and posting by registered post, a letter containing the notice.

IN THE HIGH COURT OF RAJASTHAN

S.B. Civil Second Appeal No. 186 of 2018

Decided On: 06.10.2018

 Mishra Electronics  Vs.  Jagdish Kumar Jat

Hon'ble Judges/Coram:
Pratap Krishna Lohra, J.

Citation: 2019(1) RCR(Rent) 7


1. Appellant-defendant, Mishra Electronics, has preferred this second appeal against impugned judgment & decree dated 24th of July, 2018, passed by Addl. District Judge No. 2, Nohar, District Hanumangarh (for short, 'learned first appellate Court'), dismissing its appeal and affirming judgment and decree dated 27th of November, 2014, passed by Sr. Civil Judge, Nohar, District Hanumangarh (for short, 'learned trial Court'), whereby the suit filed by respondent-plaintiff, for eviction and recovery of rent against appellant-defendant was decreed.

2. Scorning the checkered history of the case, the brief facts are that respondent-plaintiff, Jagdish Kumar, filed a suit against appellant-defendant firm for eviction and recovery of rent in respect of his shop situated near Shanker Talkies, Nohar purchased by him from its former owners in the year 2008. At the threshold, in the plaint, the grounds set out by the plaintiff for eviction were reasonable and bona fide necessity, default in payment of rent and dilapidated condition of the shop requiring reconstruction. The respondent-plaintiff also pleaded that appellant-defendant has not paid rent of the premises despite receiving notice dated 13.10.2009 in this behalf from him. In the plaint, it was also specifically averred that a notice under Section 106 of the Transfer of Property Act, 1882 (for short, 'Act') was given to the appellant-defendant on 28.10.2009 terminating tenancy with effect from 30.11.2009, which was received by the appellant-defendant on 29.10.2009. It is further alleged in the plaint that despite termination of tenancy w.e.f. 30.11.2009, possession of the suit shop was not handed over by the appellant/defendant.

3. The suit was contested by the appellant and a written statement was filed denying all the allegations. In the written statement, the appellant has averred that the suit shop was not of the ownership of predecessor in title of the respondent-plaintiff but was a joint property, in which one Omprakash s/o. Mahaveer Prasad was also a co-sharer, as such, the predecessor-in-title of the respondent-plaintiff had no right to sell the shop in question. Relationship of tenant and landlord with respondent-plaintiff in respect of suit shop was denied and the rate of rent of the shop in question was also disputed. Appellant-defendant also denied receiving any notice about purchase of shop by respondent plaintiff and becoming its owner, as such the respondent-plaintiff had no right to sent him notice terminating tenancy. Receipt of notice under Sec. 106 of the TP Act was also denied and the claim of mesne profit by respondent-plaintiff too was repudiated with a prayer for dismissal of the suit.

4. The learned trial Court framed three issues for determination and rival parties adduced their evidence. Respondent-plaintiff, Jagdish Kumar, himself appeared in the witness box and testified on oath and exhibited 7 documents to prove his case. On behalf of appellant, DW1 Mukesh Kumar and DW2 Mahesh Kumar appeared in the witness box for substantiating its defence and exhibited 9 documents. The learned trial Court, while deciding issue No. 1 about entitlement of respondent-plaintiff to get eviction of the appellant from the shop and to receive its possession, recorded its finding that respondent-plaintiff is entitled for a decree of eviction. Learned trial Court also partly decided issue No. 2 in favour of respondent-plaintiff and declared him entitled for receipt of arrears of rent amounting to Rs. 3,750 from the appellant-defendant by treating monthly rent @ Rs. 250. As regards issue No. 3, relating to mesne profit, the learned trial Court held the respondent-plaintiff entitled to mesne profit @ Rs. 250 till handing over of the actual physical possession of the shop to him. Thus, the learned trial Court decided all the issues in favour of respondent-plaintiff.

5. Being disdained by the judgment and decree of learned trial Court, appellant-tenant preferred first appeal before learned first appellate Court. The first appellate Court, vide its judgment and decree dated 24th of July 2018, upheld the judgment and decree passed by the learned trial Court. While recording its concurrence with the findings and conclusions of learned trial Court on each issue, the learned first appellate Court appreciated the evidence afresh in strict adherence of Order 41 Rule 31 CPC. This sort of situation entailed dismissal of first appeal of the appellant-defendant.

6. Learned counsel for the appellant has argued that respondent-plaintiff has miserably failed to prove his case inasmuch as he could not prove requisite grounds for eviction. Assailing the testimony of the plaintiff, learned counsel for the appellant would urge that his statements are absolutely vague and cryptic, and on the strength of those statements the grounds for eviction are not being fully proved in favour of respondent landlord. Learned counsel has contended that the ground for eviction, viz., title, has been misconstrued by both the Courts below and the same has not been thrashed out in the light of other facts and circumstances, which were pleaded and proved by the appellant. Making scathing attack on the statement of plaintiff about serving notice under 106 of the T.P. Act, learned counsel has argued that the respondent-plaintiff was not competent to serve such notice and the same was also defective. Learned counsel, therefore, strenuously urged that substantial questions of law are involved in the instant appeal, which require adjudication for reversal of the judgments and decrees of the Courts below.

7. Per contra, learned counsel for the respondent, would urge that no substantial question of law is involved in the instant appeal, as such, no indulgence can be granted to the appellant. Learned counsel for the respondent, has vehemently argued that the present case is a pure and simple case of concurrent finding of fact recorded by both the Courts below, and therefore, interference in the second appeal is not desirable. Learned counsel submits that both the Courts below, on appreciation of evidence and other materials available on record, recorded its definite finding that the appellant has defaulted in payment of rent and accordingly passed decree for arrears of rent against it as well allowed mesne profit to the respondent. Learned counsel, therefore, contends that said finding of fact cannot be tinkered with by exercising jurisdiction under Section 100 CPC.

8. Learned counsel for the respondent has urged that the notice sent under Section 106 of the T.P. Act is a valid one and the findings of fact recorded by learned trial Court are just warranting no interference in the second appeal. He has contended that the stand of the appellant in his written statement, coupled with the documentary evidence, was rightly taken note by both the Courts below in construing a valid ground for eviction. Learned counsel also contended that dispute about title of the suit premises raised by the appellant has been rightly thrashed out by both the Courts below while recording their unison finding on issue No. 1 in the backdrop of lis involved and in the light of facts and circumstances, which calls for no interference. With these submissions, learned counsel has argued that sans involvement of any question of law much less substantial question of law in the instant appeal same is liable to be thwarted.

I have heard the learned counsel for the rival parties and perused the impugned judgments of both the Courts below.

9. The main ground of challenge in the present appeal is about notice under Section 106 of the T.P. Act, sent by respondent plaintiff, and its validity for terminating the tenancy. Therefore, for thrashing out the lis involved in the matter, it would be apposite to quote Section 106 of the T.P. Act, which reads as under:

"106. Duration of certain leases in absence of written contract or local usage.--

(1) In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months' notice; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days' notice.

(2) Notwithstanding anything contained in any other law for the time being in force, the period mentioned in sub-section (1) shall commence from the date of receipt of notice.

(3) A notice under sub-section (1) shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under that sub-section, where a suit or proceeding is filed after the expiry of the period mentioned in that sub-section.

(4) Every notice under sub-section (1) 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."

10. In the instant case, notice terminating the tenancy given under Section 106 of the T.P. Act by the plaintiff-landlord, for eviction of the suit shop, is a legal one in view of the fact that respondent-plaintiff was purchaser of the suit shop, which was sold to him by its earlier owners, and the defendant has not denied his tenancy in the suit shop. His objection is only to the extent that in the predecessors-in-title of the respondent-plaintiff one co-sharer of the suit shop was not a party, but said co-sharer never raised any objection in respect of sale of the suit shop in favour of respondent-plaintiff, as such, his objection is not at all tenable. It is also noticed by both the learned Courts below that sale-deed of the disputed shop was executed in favour of respondent plaintiff by Mr. Santosh Kumar son of one of the cosharers, Omprakash, as Power of Attorney-holder of the remaining other co-sharers. Therefore, this argument is per se superfluous.

11. Validity of notice cannot be raised in view of provisions of Section 106 of the T.P. Act since the suit in the present case was filed after expiry of fifteen days period of giving notice. Though the appellant-defendant has denied receipt of any such notice but AD Receipt Ex. 4 was produced on record bearing signature of Mukesh Kumar, the proprietor of appellant firm. Mere objection on behalf of defendant that the signature on AD Receipt were not of Mukesh Kumar is of no avail and the learned trial Court, in absence of any application for examining the signature on AD Receipt from FSL, rightly found the notice under Section 106 of the T.P. Act duly served and, thus, there is no force in the submissions of the learned counsel for the appellant defendant with respect to the validity of notice under Section 106 of the T.P. Act and the eviction decree has rightly been passed by the learned trial Court against the defendant-appellant.

12. A close scrutiny of above-quoted sub-section (4) of Section 106 of the T.P. Act makes it abundantly clear that law envisages notice under sub-section (1) in writing, signed by or on behalf of the person giving it, and either it be sent by post to the party, who is intended to be bound by it, or to be tendered or delivered personally to such party. The oral and documentary evidence, which was available on record in the matter, is clear and unequivocal showing written notice sent by respondent-plaintiff to appellant-defendant. The respondent-plaintiff has also produced acknowledgment receipt Ex. 4 bearing signature of Mukesh Kumar. During cross-examination, proprietor of the appellant firm, Mukesh Kumar, has very candidly admitted correct address of the addressee, but for denying his signature. Bare denial of the signature, without substantiating the same by cogent evidence, is not sufficient to dislodge presumption about service of notice. Therefore, both the Courts below have rightly invoked Section 27 of the General Clauses Act, 1897, which envisages that unless the contrary is proved, service shall be deemed to have been effected by properly addressing, prepaying and posting by registered post, a letter containing the notice.

13. In Harihar Banerji & Ors. vs. Ramsashi Roy & Ors. [MANU/PR/0030/1918 : AIR 1918 PC 102], while examining the provisions for service of notice to quit under Section 106 of the T.P. Act, speaking for the Court, Atkinson, J. observed:

"Next and lastly as to the service of the notice to quit. Section 106 of the Transfer of Property Act, 1882, only requires that such a notice should be tendered or delivered to the party intended to be bound by it either personally or to one of his family or servants at his residence, or, if such tender or delivery be not practicable, affixed to a conspicuous part of the property. The personal tender or delivery may take place anywhere; the vicarious tender or delivery must take place at the residence of the person intended to be bound by the notice. In the case of joint tenants, each is intended to be bound, and it has long ago been decided that service of a notice to quit upon one joint tenant is prima facie evidence that it has reached the other joint tenants: Macartney vs. Crick (1805) 5 Esp. 196; Doe vs. Watkins (1806) 7 East, 551; Pollok vs. Kelly. (1856) 6 Ir. C.L.R. 367."
The Court finally held:

"The latest, clearest, and most conclusive authority upon the question of the sufficiency of the service or delivery of a notice to quit by post probably is the case of Gresham House Estate Co. vs. Rossa Grande Gold Mining Co. [1870] W.N. 119 There the defendants, who were sued for rent, contended that they had, before the rent accrued due, terminated their tenancy by a notice to quit enclosed in a letter which they had put into the post correctly addressed to the plaintiffs, and which, if delivered in due course, would have been received in time to determine the tenancy. The plaintiffs called evidence to show the letter had never been received. The learned judge presiding at the trial directed the jury that a notice to quit enclosed in a letter sent through the post was prima facie evidence that it had been received, and left to the jury the question whether it had, in fact, been received or not. The jury found it had been received. On a motion for a new trial on the ground of misdirection, the Court, consisting of Cockburn C.J., Blackburn, Mellor, and Hannen JJ., held that 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, and is not rebutted, but strengthened, by the fact that a receipt for the letter is produced signed on behalf of the addressee by some person other than the addressee himself.

The only one of the defendants who appeared as a witness admitted he had received through the post office the notice addressed to him. None of the other defendants appeared as witnesses to deny that they had received the notices properly addressed to them and properly posted. In their Lordships' view the evidence of delivery of the notices to quit to all the principal defendants was, under these circumstances, adequately and sufficiently proved, and constituted good service of them within the meaning of Sec. 106 of the Transfer of Property Act, 1882. They are therefore of opinion that the appeal fails upon both the points raised for decision and should be dismissed, and will humbly advise His Majesty accordingly. As they think that the erroneous mode in which the plaintiffs shaped their claims in the years 1906, 1907, and 1908 in the letters and litigation already referred to may have misled the defendants and brought about this appeal, they think the parties should be left to abide their own costs incurred in it."

The judgment of the Privy Council was subsequently followed by High Court of Allahabad in case of Baccha Lal vs. Lachman & Anr. (MANU/UP/0176/1938 : AIR 1938 All. 388) and Delhi High Court in case of Madanlal Seth vs. Amar Singh Bhalla [MANU/DE/0437/1980 : 18 (1980) DLT 427].

In a later decision, Supreme Court, in the matter of Harcharan vs. Shivrani & Ors. [MANU/SC/0564/1981 : (1981) 2 SCC 535], per majority, held:

"Section 27 of the General Clauses Act, 1897 deals with the topic-'Meaning of service by post' and says that where any Central Act or Regulation authorises or requires any document to be served by post, then unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting it by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post. The section thus arises a presumption of due service or proper service if the document sought to be served is sent by properly addressing, prepaying and posting by registered post to the addressee and such presumption is raised irrespective of whether any acknowledgement due is received from the addressee or not. It is obvious that when the section raises the presumption that the service shall be deemed to have been effected it means the addressee to whom the communication is sent must be taken to have known the contents of the document sought to be served upon him without anything more. Similar presumption is raised under Illustration (f) to Section 114 of the Indian Evidence Act whereunder it is stated that the Court may presume that the common course of business has been followed in a particular case, that is to say, when a letter is sent by post by prepaying and properly addressing it the same has been received by the addressee. Undoubtedly, the presumptions both under Section 27 of the General Clauses Act as well as under Section 114 of the Evidence Act are rebuttable but in the absence of proof to the contrary the presumption of proper service or effective service on the addressee would arise."
14. In the backdrop of peculiar facts and circumstances of the instant case, there is absolutely no hassle for invoking Section 27 of the General Clauses Act, and therefore, both the Courts below have rightly presumed service of notice to quit on the appellant-defendant. Otherwise also, presumption about service of notice to quit can be drawn under Illustration (f) of Section 114 of the Indian Evidence Act. It is true that this presumption is rebuttable, but is not rebutted by a mere denial of receipt of notice by the addressee. My view stands fortified by a judgment of this Court in the matter of Pakhar Singh [MANU/RH/0034/1974 : AIR 1974 (Raj) 112], wherein while examining issue relating to presumption under Illustration (f) of Section 114, Evidence Act, Court held:

"I now take up the second point The plaintiff-respondent pleaded in the plaint that he was always ready and willing to perform his part of the contract. The defendant denied that allegation in his written statement. In a suit for specific performance the plaintiff is required not only to allege out also to prove his readiness and willingness continuously from the date of the contract till the hearing of the suit and if he fails in that, his suit is liable to be dismissed. The plaintiff respondent in his statement as PW1 has deposed that he is and was always ready and willing to pay the balance of the sale price and set the sale-deed registered. There is no denying the fact that the defendant-appellant receive substantial amount of Rs. 8,000/- against the sale-price on the date of the agreement and he further received Rs. 1,000/- on 29-7-1966 as per terms of the agreement. It is further evident from the statements of P.W. 1, P.W. 2 and P.W. 5 that the plaintiff had obtained a sum of Rs. 5,500/- from Messrs. Milkhasingh Prakatsingh on 29-5-1967 for the purpose of making payment to the defendant of the remaining amount of the sale-price and to purchase stamps and defray the registration charges P.W. 8 Ramprakash who is an advocate has deposed that he on behalf of the plaintiff gave a registered notice Exhibit 7 on 2-6-1967 calling upon the defendant to execute the sale-deed and get it registered and receive payment of the balance of the sale-price. He has proved the notice Exhibit 7 and its postal receipt Exhibit 8. He has further deposed that this notice came back to him with the endorsement 'refused'. There is no dispute that the notice was despatched at the correct address of the defendant P.W. 6 Mohansingh who was the postman of the locality during the relevant period has deposed that he went to the house of Pakharsingh and offered him registered letter Exhibit 7, but Pakharsingh refused to accept the same. He has further deposed that the endorsement of refusal on the letter Exhibit 7 was made by Charansingh at his instance. Taking Into consideration the manner in which the post office deals with the registered letters, the endorsement, namely 'refused' on the cover containing the notice raises a presumption under Section 114(e) and (f) and Section 16 of the Indian Evidence Act that an attempt was made to deliver the notice to the addressee. The presumption is no doubt rebuttable but no reliable evidence has been produced on behalf of the defendant to rebut that presumption. The only evidence in this connection is that of the defendant himself who has deposed that he has not received the notice. The defendant's bare denial, in my opinion, is wholly insufficient, to rebut the presumption. The defendant therefore cannot be allowed to plead ignorance of the contents of the notice Ex. 7 when he intentionally abstained from receiving it and acquainting himself with the contents thereof. A person refusing to receive a registered letter sent by post must be deemed to have constructive notice of its contents. When nothing was heard from the defendant after the notice, the plaintiff instituted the present suit on 26-10-1967 and deposited the balance of the sale-price in accordance with the directions contained in the decree passed in his favour by the lower Court. The above facts clearly go to show that the plaintiff was ready and willing to perform his part of the contract throughout the relevant period."
15. On thoroughly examining the impugned judgments, it is crystal clear that both the learned Courts below have recorded an affirmative finding in favour of respondent landlord placing reliance on the evidence tendered by respondent-plaintiff in this behalf. As the learned trial Court has recorded a finding of fact by marshalling the evidence and the learned appellate Court, while fully concurring with the said finding of fact, has affirmed the same, there is obviously no reason for this Court to upset the said finding of fact in the second appeal. The second appeal is entertainable only when there is substantial question of law involved in the matter. In view of the foregoing discussion, the substantial questions of law proposed by the appellant are pure and simple question of facts, and in second appeal, Court is not obliged to enter into factual arena. The concurrent finding of fact recorded by both the Courts below is based on sound appreciation of evidence and there is no perversity in the unison finding much less any misreading of evidence or eschewing the material evidence. Thus, the instant appeal is bereft of any question of law much less substantial question of law, merits rejection.

Resultantly, appeal being devoid of any force fails and is hereby dismissed.

Costs are made easy.




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