Khaza Moinuddin vs Gayatri Iron Company, Vijayawada

This CRP is directed against the order dated 6-11-1997 in EP No.2/96 in RCC No.235/84 on the file of the Rent Controller, Vijayawada, directing the revision petitioner to file a memo fixing a date for handing-over the schedule premises within ten days from the date of the order and in the event of failure, to issue delivery warrant returnable by 28-11-1997. The revision petitioner is the landlord of the premises and the will be referred as "land-lord" while the respondent will be referred to as "tenant".

The facts giving rise to this CRP in brief arc that the landlord sought for the demised premises bearing Door No.11-1-22 situate at Vijayawada from the tenant for the purpose of reconstruction u/s 12 of the Andhra Pradesh (Buildings, Lease and Eviction) Control Act (for short "the Act") in RCC No.235/84. During the pendency of the above RCC the parties settled the matter and accordingly the schedule premises was handed-over to the landlord for the purpose of reconstruclion subject to the landlord agreeing to hand-over the same within six months after reconstruction. When the landlord failed to deliver the schedule premises after six months the tenant filed EP No.14/87 for execution of the order in RCC. The landlord contested the same on the ground that it is time barred. Thereupon the Rent Controller held that the EP was not barred by limitation and the tenant is entitled to re-delivery of the demised premises. Thereupon the landlord filed CRP No. 1539 of 1988. The matter was listed before a learned single Judge of this Court P. Rama Rao, J., who referred the same to a Division Bench as there were conflicting Judgments of two learned single Judges on the question of limitation. A Division Bench consisting of two learned Judges Syed Shah Mohammed Quadri, J., (as he then was) and Motilal B. Naik, J., resolved the conflict and held that the starting point of limitation is to be reckoned from the date when the decree or order became executable and from that view the EP is not barred by limitation. Adverting to the merits it was contended on behalf of the tenant that during the course of reconstruction a slair-casc was laid in the demised premises and that the same has to be removed and in that context another shop was offered to the tenant. The learned Judges held that both the Parties agreed that instead of the demised premises another premises can be offered to the tenant and that the tenant is not precluded from accepting the other premises in lieu of the demised premises. Thus CRP No.1539/1988 was disposed of on 26-2-1993.

The landlord filed a Memo in the lower Court on 14-9-1995 stating that pursuant to the order of the Hon''ble High Court he offered the premises bearing door No.l 1-1-23 in the same building to the tenant in the first week of March, 1993 and that in spite of the landlord''s repeated offers, the tenant did not turn up to discuss regarding the said shop and accept the offer and having waited for one year for acceptance, of his offer, he has let out the shop offered to the tenant as he was suffering heavy loss of rents. Thus he sought for dismissal of the Execution Petition on the ground that the tenant-decree-holder did not turn up and accept the offer within a reasonable time.

The tenant resisted the above Memo by filing an affidavit controverting the contention of the landlord that he offered any shop bearing No. 11-1-23 in the first week of March, 1994. He asserted that the landlord never offered any shop to him at any time.

The parties adduced evidence in support of their respective claims. The tenant was cross-examined on the facts stated by him in the affidavit and he figured as PW1 and Exs.A1 to A4 have been marked on his behalf. The landlord examined himself as RW1 and he got Exs.Bl to B6 marked.

The learned Rent Controller scrutinised the above evidence and considered the contentions of both sides and held that there is no material to show that the tenant refused to accept the offer and thereby waived his right to occupy the shop that was offered to him and therefore, it is held that the landlord is bound to have over the shop to the tenant. Accordingly he directed the landlord to file a Memo fixing the date of handing over of the demised premises within ten days from the date of the order which is impugned herein.

Mr. T. Veerabhadrayya, learned Counsel for the revision petitioner has taken me through Exs.B1 to B6 and pointed out that the notice Ex.B1 shows that the premises bearing No.11-1-23 where there is no stair case was offered to him with a note at the foot of the notice that he would remove the stair case from the demised premises, if he so desired and the option to occupy either 11-1-22 or 11-1-23 was left to the tenant. He pointed out that Ex.Bl was sent by registered post, but it was returned to the landlord with the endorsement "refused" as per Ex.B2. Mr. T. Veerabhadrayya then took me through Ex.B3 dated 10-9-1993 which is similar to Ex.B1 and pointed out that it was sent to the tenant under certificate of posting marked as Ex.B4. After waiting for some more time the landlord is said to have sent another notice on 17-3-1994 which is marked as Ex.B5 and the certificate of posting thereof is marked as Ex.B6. On the basis of the above documents, it is contended that an offer has been made to the tenant to occupy either 11-1-23 where there is no stair-case or 11-1-22, the demised premises where there is a stair-case, which, he offered to remove if the tenant so desired.

He relied on the decisions reported in Har Charan Singh v. Shiv Rani AIR 1981 SC 1284, and Pudi Lazarus v. Johnson Edward AIR 1976 AP 243, and contended that refusal of the registered post amounts to proper service. He also relied on the decision of the Calcutta High Court reported in Kanak Lata Ghose Vs. Amal Kumar Ghose, , and argued that certificate of posting issued by postal authorities in ordinary course of business raises presumption as to the genuineness and truth of the contents of the letter so sent. On the basis of the above material Mr. T. Veerabhadrayya assailed the finding of the Renl Controller that there is no material to show that the tenant refused to accept the offer or waived his right to occupy the shop that was offered to him.

On the other hand Sri V.S.R. Anjaneyitlu, learned Counsel for the tenant argued that the EP was pending all along and hence the landlord should have made an offer if any in the Court itself and it is improbable that he had sent an offer througti a notice by registered post or under certificate of posting that the presumption u/s 114(f) of the Evidence Act and Section 27 of the General Clauses Act can be said to have been rebutted on account of denial of the allegation of ''refusal'' and hence the postman should have been examined as held in Puwada Venkateswara Rao Vs. Chidamana Venkata Ramana, . He strenuously contended that this Court cannot interfere with a finding of fact recorded by the Rent Controller as held in Sri. Raja Lakshmi Dyeing Works and Others Vs. Rangaswamy Chettiar, .

In view of the above contentions the short point that arises for consideration is, whether the landlord offered the premises to the tenant as directed by this Court.

I carefully considered the contentions of Sri T. Veerabhadrayya, learned Counsel for the petitioner and perused Exs.B1 to B6. Ex.B1 is the office copy of the notice, the original of which is written by hand on a paper and that paper has been wrapped up in the same manner as an inland letter is folded and the address of the tenant is written on one side while that of the landlord on the other side and that has been sent by registered post and marked as Ex.B2. I got the above notice Ex.B2 opened in the open Court and compared the contents with the office copy of Ex.Bl and I find that they are tallying. There is a postal endorsement on Ex.B2 that the same is refused. What is the effect of refusal of this notice is to be considered.

In the decision reported in Har Charan Singh ''s case (supra) it is held -

"When a registered envelope is tendered by a postman to the addressee but he refused to accept it, there is due service effected upon the addressee by refusal; the addressee, must therefore, be imputed with the knowledge of the contents thereof and, this follows upon the presumptions that are raised u/s 27 of the General Clauses Act, 1897 and Section 114 of the Evidence Act.

The presumptions both u/s 27 of the General Clauses Act as well as u/s 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, which must mean service of everything that is contained in the notice. It cannot be said that before knowledge of the contents of the 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 occur when the addressee is determined to decline to accept the sealed envelope."

The Supreme Court considered the scope of Section 27 of the General Clauses Act, 1897 and also illustration (f) to Section 114 of the Evidence Act in the above Judgment and held that refusal of postal communication amounts to service and by such a service the addressee must be imputed with the knowledge of the contents thereof and accordingly the presumptions u/s 27 of the General Clauses Act and Section 114 of the Indian Evidence Act would follow.

A similar question was raised before a Division Bench of this Court consisting of two learned Judges Alladi Kuppuswamy, J., (as he then was) and Jeevan Reddy, J., (as he then was) in P. Lazarus''s case (supra) and their Lordships held -

"It is proper to presume that the endorsement of refusal is true and so the inference follows that the plaintiff out of ulterior motives, refused to receive the 1st defendant''s notice."

Returning to two other notices which are marked as Exs.B3 and B5 it is contended that the originals of Exs.B3 and B5 were sent by post under certificate of posting. The certificates are marked as Exs.B4 and B6 respectively. Relying upon the decision reported in Kanak Lata''s case (supra) Sri T. Veerabhadrayya, contended that the certificate of posting gives rise to presumption as to the genuineness or truth of the contents and mere denial of receipt of letters does not rebut the presumption. A Division Bench of Calcutta High Court in the above Judgment held -

"It is difficult to believe that all the three certificates of posting, Exts.F, F(1) and H dated respectively 16-7-1962, 22-1-1963 and 22-7-1963 were obtained from the post office without actually posting the letters mentioned therein. The certificates having been given by the postal authorities in the ordinary course of business must be presumed to be genuine unless the presumption is rebutted by cogent proof. The contents of the certificates must be presumed to be true unless they are proved to be false. No evidence has been adduced on behalf of the husband that the certificates are forged or spurious. Therefore, it must be taken that the three letters, copies whereof have been marked as Exls.E, E(l) and G., were duly posted according to the tenor of the certificates Exts.F, F(1) and H. u/s 114 illustration (f) of the Evidence Act it must further be presumed that the three letters, two by the wife and one by Kalipada were received by the husband in due course."

In view of the above authorities I have no doubt in my mind that Ex.B2 notice, which is the earliest notice in point of time offering both the demised premises as well as the adjoining shop 11-1-23 giving an option to the tenant to occupy one of them as directed by the Division Bench of this Court, was within the knowledge of the tenant, inasmuch as the refusal of this notice would raise a presumption in that regard. Likewise Exs.B3 and B5 coupled with the certificates of posting Exs.B4 and B6 would go to show that the landlord followed up the earliest notice and he gave two more opportunities to the tenant to exercise the option to occupy either the demised premises or the adjoining shop 11-1-23. That in my view, is the only conclusion that can be reached in this regard.

Be it noted that this Court in its order dated 26-2-1993 in CRP No.1539/88 did not direct the landlord to make the offer through the Rent Controller and hence Sri Veerabhadrayya rightly contended that he was justified in communicating the offer directly to the tenant.

In view of the above material it was improper on the part of the learned Rent Controller to hold that there is no material to show that the tenant refused the offer. On the contrary the memo filed on behalf of the landlord showing that inspite of his repeated offer the tenant did not turn up to discuss about the shop or accept the offer and having waited for one year for acceptance of his offer, he has let-out the shop to some other tenant, should have been accepted in the circumstances of the case. I am satisfied that the landlord has made an offer repeatedly and it was the tenant who failed to accept the same and hence the landlord cannot be faulted in this case.

On the contrary the tenant filed an affidavit in the lower Court stating that he does not know about the passing of the order by the Division Bench of this Court and that he came to know about the same only in March, 1995. Such a version cannot be believed. He entered appearance through an Advocate and having succeeded in the CRP, the advocate would not have failed to intimate the result to him. I am satisfied that Exs.B1 to B6 are sufficient to belie the above version of the tenant.

That the above reasons the CRP is allowed and the impugned order is set aside and consequently EP No.2/96 (Old EP No.14/87) on the file of the Rent Controller, Vijayawada stands dismissed. There will be no order as to costs in the circumstances of the case.

Before parting with the malter I have to record that the Division Bcnch of this Court consisting of Syed Shah Mohammed Quadri, J., (as he then was) and Motilal B. Naik, J., has rendered an authoritative pronouncement on the question of commencement of limitation in EP under the AP Buildings (Lease, Rent and Eviction) Control Act, 1960, but the same is not reported. The judgment is directed to be reported in the Law Journals.