Lila Rani Chakraborty vs Smt. Ranu Chakraborty

Joytosh Banerjee, J.—This Second Appeal filed by the landlord is against the judgment and decree dated November 5, 1990, and November 17, 1990, respectively passed by the learned Assistatant District Judge, 1st Court, Hooghly in Title Appeal No. 288 of 1989 whereby the learned Appellate Court below dismissed the prayer of eviction of the Plaintiff/ Appellant but decreed the suit for Rs. 1,200.00 towards arrear of rent. The only question of substance raised in the appeal is whether landlord''s notice demanding vacation of the suit premises was received by the tenant, in the facts and circumstances of the case.

The facts and circumstances leading to the aforesaid questions are as follows:

The suit property originally belonged to husband of the Plaintiff/Appellant who let out the suit premises to the predecessor-in-interest of the Respondent at a monthly rental of Rs. 40.00 payable according to the English calendar After the death of the original tenant, his legal heirs, the present Respondent stepped into his shoes and paid rent to the Plaintiff/Appellant up to May, 1981. The notice u/s 106 of T.P. Act was sent to the Defendants/tenants terminating their tenancy but those tenants refused to accept the same.

The tenants contested the suit by filing the Written Statement and also an additional Written Statement alleging, inter alia, that they did not receive any notice to quit.

The learned Munsif who originally heard and disposed of the suit by decreeing the suit for eviction raised certain issues including issue No. 7 touching the question of service of notice upon the Defendants and in the judgment came to a clear finding that notice were sent in 6 (six) sealed envelops along with acknowledgement cards, which were marked Ext. 5 to 5(e). The learned trial court found that the envelops which were sent by Registered post with A/D came back with an endorsement ''refused'' on the cover, the date of refusal in each case was May 7 1986. |t was argued before the trial court that since D.W. 1 who deposed on behalf of all the Defendants claimed in his evidence that the notices were never tendered to the Defendants by the postal peon, in the absence of any evidence from such postal peon, it could not be said that the notices were served upon the Defendants. But learned trial court found that there was no allegation of collusion between the Plaintiff and the postal peon. He also found that D.W. 1 admitted in his evidence that they had no dispute with the postal peon and that the address of the Defendants in the plaint was correct and if any notice was sent to such address, then it was generally served upon the Defendants. The learned trial court further found that the Defendants did not allege that they were absent in the premises on the date when the postal envelops containing the notices were shown to have been refused. Under that circumstances, the trial court held that the Defendants had full knowledge of the notice and they had actually refused to accept those notices. In appeal, the learned appellate court below reversed such specific finding of the trial court on a finding that all the 6 (six) Defendants individually and the 6 (six) envelops containing the copies of the notices were tendered to all the 6 addressees on May 6, and all the 6 (six) Defendants addressee of different names and occupation were found absent on that date. Such appellate court further found that all the 6 (six) envelops containing the copies of notices were again tendered for service on all the 6 (six) Defendants on May 7, and on that day that is to say on May 7, all the 6 (six) Defendants were present in the house but they refused to accept the envelop. The learned Judge pointed out that the fact that all the 6 (six) persons who were brothers and sister and mother remained absent on one particular day during day time and all of them remained present on the following day to refuse to accept a letter seemed improbable. He considered these circumstances coupled with the denial made on oath on behalf of the Defendant about the service and found these amounted to sufficient discharge of Defendants'' on us impeaching the credence of service as alleged by the Plaintiff/Respondent before him. In this background by the order impugned, the learned Judge dismissed the suit for eviction of the tenants but decreed the suit for Rs. 1,200.00 towards arrears of rent.

It is the contention of the learned Advocate for the appellant that the denial of the Defendants regarding service of notice to quit, is evasive as apposed to specific as required under Order 8 Rule 3 of Code of Civil Procedure. But on going through the specific portion of the Written Statement, namely, para. 11 of the Written Statement I find that the relevant assertion on the point of no receipt of the notice was not evasive. The Defendants, there specifically stated that they did not receive any notice to quit. In course of the argument, the learned Advocate for the Appellant has wanted to make a futile attempt to allege that the assertion was evasive in view of the fact that no allegation has been made in the Written Statement that the notices were never tendered to the Defendants and therefore they had no occasion the refuse the same. In this connection my attention has also been drawn to the fact that D.W. 1, who deposed in connection with the suit on behalf of all the Defendants only alleged in his evidence that they did not receive any notice to quit but there is nothing to show in such evidence that the notices were never tendered to the Defendants and therefore the postal endorsement ''refused'' should be accepted as the presumption arising out of such postal endorsement could not be rebutted by the vague statement of D.W. 1, only denying the service of notice. The learned Advocate for the Respondents on the other hand has submitted that the presumption arising out of the postal endorsement ''refused'' on the cover has been rebutted by the Defendants through the denial on oath by D.W. 1, coupled with the circumstances noted by the learned Assistant District Judge in his judgment impugned.

In support of their respective contention, the learned Advocate for the Appellant has placed his reliance on the judgment of the Apex Court reported in Gujarat Electricity Board and Another Vs. Atmaram Sungomal Poshani, The learned Advocate for the Respondent on the other hand has relied on the Devision Bench decision of this Court reported in Mono Ranjan Dasgupta Vs. Suchitra Ganguly and Others, Both the Counsels have relied on the Supreme Court decision reported in Har Charan Singh v. Shiv Rani and Ors. AIR 1981 S.C. 1284 On going through the aforesaid decisions very carefully it transpires it has been pointed out in all those cases that when a postal cover which is correctly addressed is sent through postal Authority and when such postal cover is returned with a postal endorsement ''refused'' on its cover then it will be considered as a proper service as the same raises a presumption of service. But undoubtedly such presumption is rebuttable and the onus to rebut such presumption lies on the party who alleges that there is no service. But what constitutes rebuttal of such presumption would depend upon the facts and circumstances of each case. In this way, it transpires from the decision of the Division Bench of this Court that having regard to the facts and circumstances of that case, the court found that the categorical testimony of the Defendants denying tender of the notice to him should be accepted and presumption arising out of. the postal endorsement should be allowed to be rebutted. In the reported Supreme Court Case Gujarat Electricity Board and Anr. v. Atwaram Sungomal Poshani (supra) relied on by the learned Advocate for the Appellant the Apex Court came to a finding that in the absence of any material, the Defendants should not be allowed to rebut such presumption. That observation was made in connection with a writ appeal wherein the parties filed affidavits, counter affidavits etc. In the reported decision of the Supreme Court on which both sides have placed their reliance as noted above, the presumption was not allowed to be rebutted as the postal peon was examined.

Now coming to consider the question at issue in the light of the observation made by the aforesaid decisions, I am constrained to hold that the learned appellate court below has correctly come to a conclusion regarding the service of notice in the instant case when the 6 (six) envelops were returned with a postal endorsement ''refused'' on the cover those postal remarks raised a presumption of service. But such presumption was rebutted by the clear denial on oath by the D.W. 1, who deposed on behalf of all the Defendants coupled with the cogent and relevant circumstances pointed out by the learned appellate court that since the Defendants were the brother, sister and mother they could not be absent during day time on one day and should not be present on the very next day to refuse the notice when such notice was tendered to each of them individually.

Considering all these facts and circumstances I am constrained to hold that the present appeal must fail. Accordingly, the appeal stands dismissed. No costs.