2007(1) ALL MR 202
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)
B.P. DHARMADHIKARI, J.
Tirathdas Pokhardas Kalda Vs. Smt. Suribai Assumal Moolchandani & Ors.
Writ Petition No.294 of 2006
6th November, 2006
Petitioner Counsel: Mr. M. B. NAIDU
Respondent Counsel: Mr. S. V. PUROHIT
C.P. and Berar Letting of Houses and Rent Control Order (1949), Cl.13(3)(vi) - Transfer of Property Act (1882), S.106 - Termination of tenancy - Notice under S.106 of T.P. Act - Proof of service of notice - Held, initial burden is upon person sending notice to show that he did all that was necessary to get notice served upon other side in normal circumstances - Once he establishes this, the burden shifts to other side to show that Postal endorsements like - "Not-claimed" or "unclaimed" or "not found" are incorrect because it was never tendered to him or to his authorized representative - He has to enter witness box and prove this before court - He may also examine postman for that purpose - Mere taking stand of denial of service or incorrectness of remark in written statement is not sufficient in law. 2001(2) ALL MR 415, AIR 1989 SC 630 and 2002(7) SCC 531(2) - Ref. to. (Para 12)
Samir Mukherjee Vs. Davinder K. Bajaj, 2001(3) ALL MR 263 (S.C.)=AIR 2001 SC 1696 [Para 3,5]
Vishwasrao Shankarrao Meghe Vs. Bachharam Varumal Balwani, 1995(2) Mh.L.J. 403 [Para 5,9,11]
S. A. Wali Quadri Vs. Sadar Anjuma-e-Islamia, AIR 2000 AP 417 [Para 5,13]
Kanji Manji Vs. The Trustees of Port of Bombay, AIR 1963 SC 468 [Para 5,13]
H.C. Pandey Vs G.C. Paul, AIR 1989 SC 1470 [Para 5,11,13]
Prabhakar A. Kale Vs. Bharat Santaji More, 1983 Mh.L.J. 426 [Para 5,8]
Lalmani Ramnath Tiwari Vs. Bhimrao Govind Pawar, 2001(2) ALL MR 415 [Para 6,9,10]
David K. N. Vs. S. R. Chaubey (Chaturvedi), 2003(3) ALL MR 511=2003(8) LJSOFT 80 [Para 10,11]
Basant Singh Vs. Roman Catholic Mission, (2002)7 SCC 531 [Para 10]
Narayan Ganpat Bhoite Vs. Smt. Rampyari Suchitram Gupta since deceased through heirs Hariprasad Surajbally Gupta, 2000(4) ALL MR 713=2001(3) Mh.L.J. 234 [Para 10]
Hajrabai Abdul Gani Vs. Abdul Latif Azizulla, 1996(2) B.C.R. 626 [Para 10]
Anil Kumar Vs. Nanak Chandra Verma, AIR 1990 S.C. 1215 [Para 10]
M/s. Madan and Co. Vs. Wazir Javir Chand, AIR 1989 S.C. 630 [Para 10]
B.S. Mahajan since deceased by his heirs and legal representative Vs. Chapsey R. Mistry, 1988(3) B.C.R 535 [Para 10]
Oza Kumbhar Naran Ala Vs. Mehta Nanalal Jethabhai, 1987 Mah. R.C.J. 541 [Para 10]
Pannalal Shivlal Mutha Vs. Mangilal Ganpatdas Agarwal, 1987 Mah.R.C.J. 729 [Para 10]
Chhedi Lal Vs. Munna Sardar, AIR 1983 Allahabad 274 [Para 10]
P. A. Kowli Vs. Narayan Jagannath Mahale, 1981 Mh.L.J. 355 [Para 10]
Meghji Kanji Patel Vs. Kundanmal Chamanlal Methani, AIR 1968 Bom 387 [Para 10]
Krishna R. Jadhav Vs. Shankari, 2005(12) LJS 107 : 2005(4) Mh.L.J. 577 [Para 11]
D. Vinod Shivppa Vs. Nanda Belliappa, 2006(4) ALL MR 145 (S.C.)=2006(7) LJS 31 [Para 11]
JUDGMENT :- By this petition filed under Art. 227 of Constitution of India, the petitioner/landlord who is original plaintiff has challenged the reversing judgment of Appellate Court whereby decree of eviction of present respondents/defendants/original tenants by Trial Court has been set aside & his suit came to be dismissed. The petitioner landlord is aged about 83 years and he filed in the suit after obtaining permission from Rent Controller on the ground of bonafide need in proceedings instituted in 1988/89. Hence by consent of parties petition has been heard finally at the stage of admission itself. Rule is accordingly made returnable forthwith and case is heard finally.
2. Petitioner is owner of house number 107/A situated at Teen Nal square (a commercial locality) at Nagpur. One shop block consisting of two rooms about 500 square feet in area was initially let out by him to two brothers by name Assumal & Lalumal for rent of Rs.500/- per month and these brothers were running a hotel in it. In 1988, for his bonafide need, petitioner filed proceedings before Rent Controller Nagpur under clause 13 (3) (vi) of C.P.& Berar Rent Control Order, 1949 (hereinafter referred to as Rent Control Order). Lalumal had expired in the 1981 and his widow by name Shantidevi i.e. present respondent No.4 was joined as party along with Asssumal. It is the case of petitioner that surviving brother became sole tenant and as no reply was given to legal notice dated 10/1/1989, he joined said widow also as party to avoid any controversy. During pendency of case before Rent Controller, Assumal also expired and shop block came in possession of his son Satish who is running hotel. Legal heirs of Assumal along with Satish were also made parties before Rent Controller. The requisite permission has been given by Rent Controller to petitioner on 13/4/2001 (11/4/2001-?) and thereafter he issued quit notice i.e. notice determining tenancy of respondents under section 106 of Transfer of Property Act. By said notice he called upon respondents to vacate tenanted premises and to handover possession to him by midnight of 31st July, 2001. Said notice has been duly served on respondent No.3 and respondent No.4 on 21/6/2001 and 18/6/2001 respectively. However, envelopes with notice addressed to respondent Nos.1 and 2 were received back by petitioner with postal endorsement of "not claimed". The respondents filed common written statement and denied all allegations of petitioner including due service on respondent Nos.3 and 4 or the other envelopes being received back by petitioner with remark of "not claimed". They contended that said quit notice or its alleged service is improper and insufficient and respondent Nos.1 and 2 had no occasion or no reason not to claim any notice. They further stated that tenancy was for manufacturing purpose and hence notice to quit of six months duration was essential. They further contended that permission granted by Rent Controller had not become final or conclusive, and suit was bad for non-joinder of necessary parties as all tenants were not before Trial Court. No quit notice was served upon all such tenants. They therefore prayed for dismissal of suit.
3. Suit was tried by Small Causes Court, Nagpur. Petitioner examined himself in support of his case while respondent Nos.1 and 2 (original defendant Nos.1 and 2) did not enter witness box though they filed affidavit of their examination in chief under Order 18 rule 4 C.P. C. Trial Court held that quit notice was validly served upon all defendants and the tenancy has been validly terminated. It further held that plaintiff before it is entitled to decree for ejectment and vacant possession of tenanted premises as also to inquiry for future mesne profits. It relied upon judgment of Hon Apex Court in case of Samir Mukherjee Vs. Davinder K. Bajaj reported at A.I.R. 2001 SC 1696 : [2001(3) ALL MR 263 (S.C.)], to hold that termination of tenancy with 15 days notice was not illegal in the facts of case. It therefore, decreed the suit. Present respondent Nos.1 and 2 i.e. original defendant Nos.1 and 2 alone filed appeal under section 26 of Provincial Small Causes Court Act before District Court vide Regular Civil appeal No.630 of 2004 and the same has been decided in favour of the respondents and against present petitioner on 3/12/2005. The 11th Ad hoc Additional District Judge who decided the appeal found that the permission granted by Rent Controller on 11/4/2001 has not become final as the matter was/is pending before Additional Collector, Nagpur who is Appellate authority under Rent Control Order. It further found that return of envelops with endorsement "not claimed" could not have been accepted to constitute valid service of quit notice. It therefore, allowed the appeal holding that suit instituted by present petitioner was premature. It is this Judgment of Appellate Court which is questioned in this petition.
4. I have heard Adv. M. B. Naidu for petitioner landlord & Adv. S. V. Purohit for respondents 1 & 2. Nobody has appeared for respondents 3 and 4 though they are served. They did not challenge the judgment and decree of Trial Court and did not appear even before Lower Appellate Court. On 6/10/2006, both Advocates were informed that Petition may be heard finally at the stage of Admission itself.
5. Adv. Naidu for landlord has after narrating the facts as discussed above, contended that defences of present respondent Nos.1 and 2 in Civil Suit was only about no service of quit notice upon them, requirement of six months quit notice as tenancy is alleged to be for manufacturing purpose, not joining all necessary parties in suit and suit being premature, as permission granted by Rent Controller did not attain finality. He states that Trial Court has answered all these issues in favour of petitioner and Appellate Court has interfered with said judgment and decree only on two counts. According to him, return of postal envelopes of respondent Nos.1 and 2 with remark of not claimed, in the facts of present case constituted valid service. He has relied upon the judgment of this Court in case of Vishwasrao Shankarrao Meghe Vs. Bachharam Varumal Balwani, 1995(2) Mh.L.J. 403 to substantiate this argument. He has also contended that the tenancy inherited by legal heirs was joint and hence, service of notice under section 106 of the T.P. Act upon anyone of such heir is sufficient and each individual is not required to be served separately. He has placed reliance upon S.A.Wali Quadri Vs. Sadar Anjuma-e-Islamia reported at A.I.R. 2000 AP 417; Kanji Manji Vs. The Trustees of Port of Bombay, A.I.R. 1963 SC 468; H.C. Pandey Vs G.C. Paul reported at A.I.R. 1989 SC 1470 for the second proposition. He has further contended that Appellate Court at the most could have directed that decree for eviction should be executed only after confirmation of permission by Appellate Authority under Rent Control Order and cited Prabhakar A. Kale Vs. Bharat Santaji More reported at 1983 Mh.L.J. 426. Judgment of Hon Apex Court in case of Samir Mukherjee Vs. Davinder K. Bajaj reported at A.I.R. 2001 SC 1696 : [2001(3) ALL MR 263 (S.C.)] is relied upon by him to urge that termination of tenancy with 15 days notice was not illegal as there was no registered written lease.
6. Adv. S.V. Purohit for resp.1 & 2 has supported the reasoning adopted by Appellate Court. He argues that notice under section 106 T. P. Act cannot be issued unless and until the permission becomes final in terms of Clause 21 of Rent Control Order. He further argues that the endorsement or remark of "not claimed" on postal envelopes has not been correctly evaluated and appreciated by Trial Court. Said error is corrected by Appellate Court and he points out the judgment of this Court Lalmani Ramnath Tiwari Vs. Bhimrao Govind Pawar, reported at 2001(2) ALL MR 415 for this purpose. According to him therefore, no interference is warranted in exercise of writ jurisdiction.
7. Perusal of impugned judgment of Appellate Court reveals that the learned Ad hoc Additional District Judge has given two reasons to set aside the judgment and decree passed by Trial Court. The first reason is in paragraph 18 and 19 of its judgment and the Appellate Court has held that the appeal under Rent Control Order being pending, permission in favour of petitioner landlord has not attained finality. In subsequent paragraphs 20 and 21 it has considered their respective arguments on the point of validity of service in view of remark of "not claimed" and concluded that quit notice is not duly served on appellants before it. In view of these findings, in paragraph 22 it has been held that suit for eviction as instituted was premature and hence it has proceeded to allow the appeal of present respondent Nos.1 and 2 who were appellants before it. These are the only reasons which require scrutiny in present petition.
8. Division Bench judgment in case of Prabhakar A. Kale Vs. Bharat Santaji More reported at 1983 Mh.L.J. 426 clinches the finding about suit being premature. The Division Bench has in paragraph 21 of report found that grant of permission by Rent Controller is charter for landlord to issue quit notice determining the lease and there is no provision in Rent Control Order which prevents him from filing ejectment suit. In paragraph 24, it is further observed that when filing of appeal under Clause 21 does not effect the permission, though ultimate eviction of tenant in some measure becomes restricted. The Division Bench did not accept the view of Single Judge that filing of an appeal against Order of Rent Controller granting permission takes away the right of landlord to serve quit notice because matter is subjudice. It has been observed that entitlement of right and its consumption are two different concepts. It is therefore apparent that the Appellate Court could not have held that suit is premature and it should have, at the most subjected execution to and postponed it till decision of pending appeal of respondent Nos.1 and 2 under Clause 21 of Rent Control Order before Additional District Magistrate. The said part of the judgment of appellate Court is therefore clearly unsustainable & shows refusal on its part of exercise jurisdiction available to it.
9. Remaining issue to be decided is implication of postal remark "not claimed". Perusal of judgment of Trial Court reveals that it has accepted the said endorsement as proof of valid and due service without recording more reasons in that respect. At the end of paragraph 5 of its judgment, it has mentioned arguments of landlord/petitioner about it and in paragraph 7 it has recorded its findings. The Appellate Court has considered said arguments at some length and it has also mentioned two judgments of learned Single Judges of this Court. Relevant portion from Vishwasrao Shankarrao Meghe Vs. Bachharam Varumal Balwani (supra), has only been reproduced and, thereafter, it has reproduced the relevant extract from ruling in case of Lalmani Ramnath Tiwari Vs. Bhimrao Govind Pawar [2001(2) ALL MR 415] (supra). However, again there is no discussion as to why it is taking a particular view of the matter. The discussion contained at end of paragraph 21 only mentions the facts and law applicable has not been appreciated in said background. It appears that Lalmani Ramnath Tiwari Vs. Bhimrao Govind Pawar (supra), has been used because Appellate Court found it to be recent one.
10. I find that there are more recent authorities which consider this question and also the judgment in case of Lalmani Ramnath Tiwari [2001(2) ALL MR 415] (supra). In case reported at 2003(8) LJSOFT 80 : [2003(3) ALL MR 511] - David K. N. Vs. S.R. Chaubey (Chaturvedi), this Court considered various judgments of Hon Apex Court and also of this Court. All judgments including one relied in case of Lalmani Ramnath Tiwari are appreciated in it. Said judgments are : - (1) Basant Singh and another Vs. Roman Catholic Mission, (2002)7 SCC 531; (2) Lalmani Ramnath Tiwari Vs. Bhimrao Govind Pawar, 2001(2) ALL MR 415; (3) Narayan Ganpat Bhoite Vs. Smt. Rampyari Suchitram Gupta since deceased through heirs Hariprasad Surajbally Gupta and others, 2001(3) Mh.L.J. 234 : [2000(4) ALL MR 713]; (4) Hajrabai Abdul Gani Vs. Abdul Latif Azizulla and another, 1996 (2) Bom.C.R. 626; (5) Anil Kumar Vs. Nanak Chandra Verma, AIR 1990 S.C. 1215; (6) M/s. Madan and Co. Vs. Wazir Javir Chand, AIR 1989 S.C. 630; (7) B. S. Mahajan since deceased by his heirs and legal representative Vs. Chapsey R. Mistry, 1988(3) Bom.C.R 535; (8) Oza Kumbhar Naran Ala Vs. Mehta Nanalal Jethabhai, 1987 Mah. R.C.J. 541; (9) Pannalal Shivlal Mutha Vs. Mangilal Ganpatdas Agarwal, 1987 Mah.R.C.J. 729; (10) Chhedi Lal Vs. Munna Sardar, AIR 1983 Allahabad 274; (11) P. A. Kowli Vs. Narayan Jagannath Mahale, 1981 Mh.L.J. 355; (12) Meghji Kanji Patel Vs. Kundanmal Chamanlal Methani, AIR 1968 Bombay 387. From para 7 onwards this Court noticed certain important aspects. Same can be briefly mentioned here.
"The Indian Post Office Rules do not prescribe any detailed procedure regarding the delivery of such registered letters. When the postman is unable to deliver it on his first visit, the general practice is for the postman to attempt to deliver it on the next one or two days also before returning it to the sender. However, he has neither the power nor the time to make enquiries regarding the whereabouts of the addressee, he is not expected to detain the letter until the addressee chooses to return and accept it; and he is not authorised to affix the letter on the premises because of the assessee's absence. His responsibilities cannot, therefore, be equated to those of a process server entrusted to the responsibilities of serving the summons of a Court under O.5 of the C.P.C. The statutory provision has to be interpreted in the context of this difficulty and in the light of the very limited role that the post office can play in such a task. If we interpret the provision as requiring that the letter must have been actually delivered to the addressee, we would be virtually rendering it a dead letter. The letter cannot be served where, as in this case, the tenant is away from the premises for some considerable time. Also, as addressee can easily avoid receiving the letter addressed to him without specifically refusing to receive it. He can so manipulate matters that it gets returned to the sender with vague endorsements such as "not found", "not in station", "addressee has left" and so on, it is suggested that a landlord, knowing that the tenant is away from station for some reasons, could go through the motions of posting a letter to him which he knows will not be served. Such a possibility cannot be excluded. But as against this, if a registered letter addressed 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. In this situation. we have to choose the more reasonable, effective, equitable and practical interpretation and that would be to read the word "served" as "sent by post", correctly and properly addressed to the tenant and the word "receipt" as the tender of the letter by the postal peon at the address mentioned in the letter. No other interpretation, we think, will fit the situation as it is simply not possible for a landlord to ensure that a registered letter sent by him gets served on, or is received by, the tenant." (Emphasis supplied). This Court has observed that:- "It is to be borne in mind that even in a situation where the statutory provision speaks of requirement of receipt of the letter to conclude the service of notice upon addressee, the Apex Court after taking into consideration the procedure which is followed for the purpose of service of registered letter by post office has held that "Endorsement on letters returned by post office to the sender, like "not found" or "addressee has left" would amount to service", certainly similar such endorsement in case of service of notice in terms of Section 106 of the Transfer of Property Act would also lead to the presumption about the service of such notice in view of the provision contained in Section 28 of the Bombay General Clauses Act."
About the burden of proof and necessity of examining postman as witness, this Court has noticed as under : -
"Apparently the Apex Court in Anil Kumar's case also has taken same view as was in Madan & Co.'s case. In relation to presumption arising under Section 28 of the Bombay General Clauses Act which is in pari materia with Section 27 of the General Clauses Act, only thing which has been clarified in Anil Kumar's case is in a given case unchallenged testimony of a tenant may also be sufficient to rebut the presumption but that would depend on the facts of each case and, where the testimony of the tenant in such case is not inherently unreliable. Obviously where a tenant wants to rebut the presumptions arising under Section 28 of the Bombay General Clauses Act regarding registered notice upon the tenant, it is necessary for the tenant to deny and establish the fact of non-service of the notice. Needless to say that the circumstances in each case may differ and, accordingly those circumstances will have to be brought on record by the tenant revealing hollowness in the case of landlord regarding service of notice and, only thereupon presumption can be said to be rebutted. In other words, mere statements that "I have not received the notice sent to me" or that "notice allegedly sent was never received by me" or the like by themselves would not rebut the presumption. The facts leading to the conclusion about improbability or impracticability of service of notice in spite of endorsement to the contrary will have to be brought on record by the tenant in order to rebut the presumption. Otherwise provisions in Section 28 of the Bombay General Clauses Act itself would be rendered meaningless and as is observed by the Apex Court in Madan & Co.'s case a tenant can always create a situation where by he may be able to return the letter without actually refusing the same. It is pertinent to note ......such a letter during his absence. " In paragraph 9 of the judgment it is observed:-
"Reading the decision in P.A. Kowli's case along with the decision of the Apex Court in M/s. Madan & Co.'s case it is evident that apart from the presumption which arises in terms of the provisions contained in Section 28 of the Bombay General Clauses Act regarding service of notice, when notice is sent by registered post disclosing the correct address of the addressee thereon, when such letter is returned to the sender with endorsement by the postal authority either as "refused" or as "not claimed", by the addressee, the conclusion that is to be drawn is that either the letter was actually tendered or refused by the addressee or inspite of an intimation having been received from the post office in whose local jurisdiction the premises in occupation of the tenant are situated, no steps were taken by the tenant to collect the said letter from the post office. It is not the duty of the landlord to keep track of the tenant and to find out whether the tenant is actually residing or available at the premises in his occupation where the letter is to be addressed. It is obligatory on the part of the tenant to make arrangement for receipt of any correspondence which he may receive in case he is going to be out of station for any period of time. Having been out of station, the tenant is not entitled to make any grievance of his absence of non-receipt of correspondence on account of his absence in the suit premises and, that is the ratio of the decision of Apex Court in M/s. Madan & Co.'s case which is also the ratio of the decision by learned Single Judge in P.A. Kowli's case. "In paragraph 10 it is noticed that another learned Single Judge of this Court in Hajrabi Abdul Gani's case while dealing with the similar issue "has not ruled that a mere statement on oath of denial or receipt of notice would suffice to rebut the presumption. On the contrary the ruling specifically says that "by making statement on oath and adducing other evidence". Evidently considering the decision and observations of the Apex Court in Madan & Co's Case as well as in Anil Kumar's case, it is necessary for the tenant to place relevant facts on record which would shift onus upon the plaintiff to prove the delivery or tender of notice to the tenant."
In para 11 the observations by another learned single Judge of this Court in Narayan Bhoite's case have been found to be on same lines. In paragraph 12 observations of learned Single Judge in Meghji Patel's case were found to be made in peculiar facts of the case, as a general proposition of law, it stands no more good law in view of the decision of the Apex Court in M/s. Madan & Co's case. Being so the decision in Meghji Patel's case is of no help in the case in hand. The decision in B.S. Mahajan's case is distinguished on facts by observing that :- " Apparently the tenant in the said case had led necessary evidence regarding ulterior motive of the landlord to send letter at the place where the tenant was not residing and with full knowledge that the tenant was residing at a place other than the suit premises. " The decision of the learned Single Judge in Pannalal Mutha's case is to the effect that the presumption would stand rebutted, if the addressee enters the witness box and says that no notice or letter was ever tendered to him but it is no more good law in view of the decision of the Apex Court in M/s. Madan & Co.'s case (supra). In para 15 observing that the decision of the Gujarat High Court in Oza Kumbhar's case also is not in tune with the decision of the Apex Court in M/s. Madan & Co.'s case, it is held that :- "It is primarily for the tenant to disprove or rebut the presumption arising under Section 28 of Bombay General Clauses Act and only there upon the question of examining the postman or identifying the party at the instance of the landlord can arise. The question of identification of the party for the purpose of proof of endorsement of service under Section 106 of the Transfer of Property Act does no arise, as such a service can be effected not only on the addressee himself but even on anyone of his family members and even on his servant who is found residing in the suit premises. Besides, the onus of examining the postman lies upon the addressee in order to rebut the presumption under Section 28 of Bombay General Clauses Act". The Apex Court in Basant Singh and another Vs. Roman Catholic Mission reported in (2002)7 SCC 531 has been cited in support.
Lalmani Ramnath Tiwari [2001(2) ALL MR 415] (supra) relied upon by Appellate Court has been distinguished in this judgment as under :-
"16. As regards the decision in Lalmani Tiwari's case, obviously the same was delivered in the peculiar set of facts. The learned Single Judge of this Court therein has, after noting the observations of the lower appellate Court made on analysis of the evidence on record, held thus :
"The landlord has stated in deposition at Exh.39 that according to him, the notice was refused by the deft., because it was not returned to him. Thus his statement that the notice was received by the tenant is inferential. The tenant has categorically denied on oath in his deposition at Exh.60 that he had received the notice sent under postal certificate or had refused to claim the notice sent by regd. post. The cross-examination of deft on this point is brief."
In those circumstances the learned Single Judge has proceeded to observe that :
"In my view, no exception can be taken to the conclusion reached by the appellate Court that in absence of clear endorsement of refusal it is not possible to presume that notice has been duly served on the Respondent tenant."
Admittedly, there was no clear endorsement of refusal of notice coupled with the fact that the case of the plaintiff/ landlord regarding service of notice was not based on any such material on record which can sufficiently lead to the presumption as provided under Section 28 of the Bombay General Clauses Act, and it was only on the basis of the inferences sought to be drawn by the landlord regarding service of notice that the landlord was seeking to claim presumption specified under Section 28 of the Bombay General Clauses Act, and the same was rightly refused. Undisputedly in relation to the decision of the Apex Court in Anil Kumar's case a contention was sought to be raised before the learned Single Judge that the appellate Court therein has stated that it is sufficient for the tenant to deny the receipt of the notice on oath in order to rebut the presumption of service under Section 28 of Bombay General Clauses Act. Bare reading of the judgment discloses that the learned Single Judge had no occasion to deal with the said contention in view of the facts of that case. In any case, the contention does not hold any water as in Anil Kumar's case (supra) the Apex Court has not held or observed that mere statement on oath by a tenant about denial of receipt of letter or notice would rebut the presumption under section 27 of the Indian General Clauses Act or under Section 28 of the Bombay General Clauses Act. On the contrary, the Apex Court has clearly held that there is no hard and fast rule as regards the material which is required to rebut the presumption and in given case even unchallenged testimony may be sufficient to rebut the presumption, unless the testimony is found to be inherently unreliable. The Apex Court has nowhere held that mere testimony on oath of denial of service would lead to conclusion that the presumption arising under Section 28 of the Bombay General Clauses Act regarding service of notice would stand rebutted. It is well settled that a decision is what it decides and not what follows from it. The ratio of the decision is to be understood by referring to the point for consideration arising in the case and judicial pronouncement in relation to the said point."
11. In Krishna R. Jadhav Vs. Shankari, 2005(12) LJS 107 = 2005(4) Mh.L.J. 577 again similar view has been reiterated. In paragraph 10 the above judgment in case of David K. N. [2003(3) ALL MR 511] (supra) are coated with approval and in paragraph 11 conclusion drawn that burden of proof to examine postman is upon addressee has been endorsed.
Recently, while considering similar controversy in the light of Section 138 of Negotiable Instruments Act, Hon. Apex Court in case of D. Vinod Shivppa Vs. Nanda Belliappa reported at 2006(2) Bom.C.R. (Cri) (SC) 31 = 2006(7) LJS 31 : [2006(4) ALL MR 145 (S.C.)] has taken review of various cases on the point. In paragraph 11, the Hon. Apex Court has held that no rule of universal application can be laid down that in all cases where notice is not served on account of non availability of addressee, the court must presume service of notice. The Hon Apex Court has held that the Court must adopt that construction which suppresseis the mischief and advances the remedy. In paragraph 14, Hon. Apex Court notices that when notice is served upon drawer of cheque, or it is refused, no controversy arises. Controversy arises only when notice could not be served on addressee. In paragraph 18, Hon. Apex Court has referred to section 27 of General Clauses Act and found that principle incorporated therein could profitably be imported in case where the sender had dispatched the notice by post with correct address written on it. These observations are in respect of remark "unclaimed". In paragraph 24, Hon. Court states that question whether there was deemed service of notice, in the sense that the endorsement made on the returned envelope was a manipulated and false endorsement, is essentially the question of fact and that must be considered in the light of evidence on record.
Vishwasrao Shankarrao Meghe Vs. Bachharam Varumal Balwani (supra) in fact considers the evidence and conclusion has been drawn about the postal endorsement "not found" accordingly.
12. From various judgments mentioned above, it is apparent that initial burden is upon person sending notice to show that he did all that was necessary to get notice served upon other side in normal circumstances. Once he establishes this, the burden shifts to other side to show that postal endorsements like-"not claimed" or "unclaimed" or "not found" are incorrect because it was never tendered to him or to his authorised representative. He has to enter witness box and prove this before Court. He may also examine postman for that purpose. Mere taking stand of denial of service or incorrectness of remark in written statement is not sufficient in law. In the facts of present case, in written statement joint stand taken is - "The alleged quit notice and its alleged service are all alleged, improper and insufficient. The defendants 1 and 2 had no occasion or reason not to claim any notice. No notice was ever tendered or intimated to them. At the relevant time they were not in town. False and baseless endorsements are fraudulently obtained by plaintiff, as is apparent."
From the judgments considered above, it is apparent that even if it is presumed that respondent Nos.1 and 2 (original defendant Nos.1 and 2) were really out of station, that by itself is not sufficient to hold that remark of "not claimed" made by postal authorities is incorrect. Moreover, as already observed above the respondents could not muster courage to enter witness box and to offer themselves for cross-examination by petitioner plaintiff. Thus, this stand on paper itself cannot be accepted. It is to be noted that all 4 respondents before this Court were also parties to proceedings before Rent Controller. Two of these parties i.e. respondent Nos.3 and 4 have duly acknowledged the receipt of notice. The respondents are close relatives of respondent Nos.1 and 2. In this background, the burden was upon respondent Nos.1 and 2 to show that petitioner/plaintiff procured false endorsements from postal authorities. This stand itself cannot be accepted. Petitioner is fighting litigation since long and it is unlikely that he would leave any loopholes in such way. When quit notice is served upon respondent Nos.3 and 4, there is absolutely no reason to presume that petitioner could have gained anything by avoiding its service upon respondent Nos.1 and 2. In fact after obtaining permission from Rent Controller the nature of litigation before Small Cause Court was simple and it is respondents Nos.1 and 2 who stand to gain by creating artificial complications therein. This attitude adopted by the respondents is also apparent from their roving stand that all tenants are not parties to Civil Suit and Suit deserved to be dismissed for non-joinder of necessary parties. Who are tenants left out has not at all been specified. The conduct of respondent Nos.1 and 2 therefore demonstrates design to delay the disposal of Suit and to continue in occupation of premises as long as possible. Had there been any bonafides in the stand of respondent Nos.1 and 2, they would have definitely entered the witness box. Even in their appeal memo before Lower Appellate Court they have not made any grudge about their failure to enter witness box. All these facts which are very relevant have been lost sight of by Lower Appellate Court and it has mechanically held that "not claimed" does not constitute due service upon respondent Nos.1 and 2. In view of law as settled by recent judgments pointed out above, this finding is unsustainable. It reveals total non-application of mind to the requirements of law and also constitutes failure to exercise jurisdiction vested in it.
13. This brings me to consider last submission of learned counsel for Petitioner. The contention is as tenancy is joint, service of notice issued under section 106 of T.P. Act upon anyone of joint tenants constitutes good service. S.A.Wali Quadri Vs. Sadar Anjuma-e-Islamia reported at A.I.R. 2000 AP 417; Kanji Manji Vs. The Trustees of Port of Bombay, A.I.R. 1963 SC 468; H. C. Pandey Vs. G. C. Paul reported at A.I.R. 1989 SC 1470 are relied upon by him. In Kanji Manji Vs. The Trustees of Port of Bombay (supra) challenge considered was whether service of notice upon one of tenants and not upon the heirs or legal representatives of other joint tenant was valid or not. In paragraph 7, Hon. Apex Court has noticed that once tenancy was found to be joint, notice to one of the joint tenants was sufficient and the suit for same reason was also good. It was not necessary to join legal representatives of other joint tenant. In H.C. Pandey Vs. G.C. Paul (supra) it is held that on death of original tenant, the tenancy rights devolve on the heirs of deceased tenant. It is single tenancy and there is no division of premises or of rent payable. Such heirs succeed to tenancy as joint tenants. It was found that notice served upon one of the members who was acting on behalf of such joint tenants constituted valid service and it was not necessary to serve all members of family. The situation in present case is identical. Respondent Nos.1 and 2 have nowhere pointed out or pleaded any fact to the contrary and hence, admitted service of quit notice upon respondent Nos.3 and 4 is itself sufficient to decree the suit. The controversy about postal remark "not claimed" does not remain really relevant in view of this finding.
14. Advocate Purohit for respondent Nos.1 and 2 has invited attention to affidavit about subsequent development and according to him present petitioner has agreed to sale tenanted premises to respondent Nos.1 and 2 and has also received some amount in earnest. He states that the agreement is oral. Learned Counsel for Petitioner denies any such agreement and development. I find that alleged subsequent event has no bearing on this writ petition. Respondent Nos.1 and 2 are free to take appropriate steps to establish these events.
15. In the result, Judgment and Decree dated 3/12/2005 delivered by 11th Ad hoc Additional District Judge, Nagpur in Regular Civil Appeal No.630/2004 is quashed and set aside. The Judgment and Decree dated 26/10/2004 passed by Additional Judge, Small Causes Court, Nagpur in Regular Civil Suit 331/2001 is restored but subject to modification that it shall not be executed till decision of appeal filed under clause 21 of Rent Control Order by respondents before Appellate Authority functioning thereunder. Writ petition is thus allowed and rule is made absolute accordingly. However, in the circumstances of the case there shall be no Order as to costs.