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PETITIONER: PUWADA VENKATESWARA RAO

       Vs.

RESPONDENT: CHIDAMANA VENKATA RAMANA

DATE OF JUDGMENT08/03/1976

BENCH: BEG, M. HAMEEDULLAH BENCH: BEG, M. HAMEEDULLAH RAY, A.N. (CJ) SINGH, JASWANT

CITATION:  1976 AIR  869            1976 SCR  (3) 551  1976 SCC  (2) 409  CITATOR INFO :  RF         1978 SC1518  (14)  RF         1979 SC1745  (17)

ACT:      Andhra Pradesh  Building  (Lease.  Rent  and  Eviction) Control Act,  1960-Eviction of  tenant -Notice  under s.  10 issued- Whether  notice under  s. 106   Transfer of Property Act necessary.      Evidence-Party receipt of notice-Production of postman- If necessary.

HEADNOTE:      The respondent-landlord filed a petition under s. 10 of the Andhra  Pradesh  Building  (Lease,  Rent  and  Eviction) Control Act, 1960, for the eviction of the appellant-tenant. There was  a  compromise.  Since  the  tenant  defaulted  in payment  of   the  rent   thereafter,  a  registered  notice terminating the  tenancy issued  by the  landlord, came back with an endorsement that the appellant had refused to accept it. Later.  the tenant  was  ordered  to  be  evicted.  ’The tenant’s appeal to the appellate court and then his revision application to the High Court were rejected. Relying upon an earlier Division  Bench decision  of that  Court,  the  High Court held  that the Act provided a self-contained procedure for eviction  of tenants, and therefore, compliance with the provisions  of   s.  106,   Transfer  of  Property  Act  was unnecessary.      Dismissing the tenant’s appeal, ^      HELD:  The   High  Court   has  correctly  applied  the principle laid  down by  a Division  Bench of  that court in Mohan &  ors. v.  S. Mohan  Rao &  Ors. [1969]  An. P.R. Law Journal 351. [553-E]      Raval &  Co. v. K. C. Ramacharndran & ors. [19741 2 SCR 629 @  634 and  Shri Hern  Chand v.  Shrimali Sham Devi. ILR 1955 Puni. 36, referred to.      In Mangilal v. Sugan Chand Rathi [AIR 1955 SC 101] this Court  was   considering  an   entirely  different  kind  of provision of  another Act in another State, and this case is distinguishable. In  the context  of the remedy of ejectment by an  ordinary civil suit it was held in that case that the

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usual notice  of termination  _ of  tenancy under-  s.  106. Transfer of Property Act was necesary. [553F & D] boiler      [In cases  where a  party denies  receipt of registered notice it is not always necessary to produce the postman who tried to effect service. Denial of service by a party may be found to  be incorrect  from its  own admissions or conduct. The decision  of the  Bombay High  Court in  M. K.  Patel v. Kundan Mal  Chamanlal and that of the Calcutta High Court in Nirmal Bala Devi. v. Provar Kumar Basu are reconcilable. The Calcutta High  Court applied  a rebuttable presumption under s. 114,  Evidence Act,  that the  letter was received by the addressee in  the ordinary  course of blazons was refused by him because  the presumption  from the endorsement made upon it had  not been  repelled by  any , evidence. In the Bombay case, the presumption had been held to have been ‘J rebutted by the  evidence of  the defendant  on oath so that it meant that  the   plaintiff  could  not  succeed  without  further evidence.] [554C-E]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 2534 of 1969.      (Appeal by  special leave  from the  judgment and order dated the  19-8-1969 of  the Andhra  Pradesh High  Court  at Hyderabad in C.R.P. No. 2190 of 1968.)      P. P. Juneja, for the appellant.      G. N. Rao, for the respondent. 552      The Judgment of the Court was delivered by      BEG J.-The  defendant-appellant had  taken a  house  on rent under  a registered lease dated 10th February, 1958, on a monthly  rent of rent Rs. 250/- for a period of five years for running  a lodging house. It J is admitted by both sides that in  February, 1963, the lease had expired. According to the  landlord   respondent,  the   defendant-appellant   had continued to  hold over  as a  tenant "on the same terms" by which he,  presumably, meant  that it  was a  month to month tenancy.      The Andhra  Pradesh Building (Lease, Rent and Eviction) Control Act,  1960, (hereinafter  referred to  as ’the Act’) came into opera ton before the lease expired.      The appellant  seemed to  be constantly making defaults in payments  of rent. The landlord responden had, therefore, to file  a suit for arrears of rent in the Court of District Munsif, Visakhapatnam, which was decreed on 4th April, 1962. The landlord  respondent had  to file  a  petition  on  21st April, 1962,  under Section  10 of  the Act  before the Rent Controller, Visakhapatnam  for the eviction of the appellant as no  rent was  paid from 1st December, 1961 to 31st March, 1962. There  was a  compromise on  12th October,  1962.  The appellant  agreed   to  clear   arrears  and  to  pay  rents regularly. The appellant, however, wailfully defaulted again in payments  of rent  from September, 1963 to April, 1964. A notice dated 8th April, 1964, was sent by registered post by the landlord  respondent to  the appellant  terminating  his tenancy and  calling upon  him to pay up the arrears of rent and vacate  the house  by the  end of April, 1964. This came back with the endorsement that the appellant was refusing to accept it.  On 9th  ‘‘ April,  1964,  the  respondent  filed another petition under Section 10 of the Act before the Rent Controller of  Visakhapatnam who ordered the eviction of the appellant after  holding all  the flimsy  defenses of  the t

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appellant to  be unsubstantiated.  The Subordinate  Judge of Visakhapatnam dismissed the tenant’s appeal on 23rd October, 1968. The appellant’s revision application to the High Court was also rejected on 19th August, 1969.      The only question raised by the appellant before us, in this appeal  by special  leave,  is  that  no  notice  under Section 106  of the Transfer of Property Act had been served upon the  appellant according  to the  finding of the Andhra Pradesh High  Court itself.  It was, therefore, urged , that the petition  under Section 10 of the Act could not succeed. The Andhra  Pradesh High  Court had,  however,  relied  upon Ulligamma Ors.  V. S. Mohan Rao & ors. (1), where a Division Bench of  that High  Court had held that the Act, with which we are  now concerned,  provided a procedure for eviction of tenants which  was self-contained so that no recourse to the provisions of  Section 106  of the  Transfer of Property Act was necessary.      We may  also refer  here to  the observations  of  this Court. in  Raval   & Co.  v. K.  C. Ramachandran  & ors.(2). There, this Court noticed      (1) (1969) 1 An. P.R. Law Jolurnal 351.      (2) [197412 S.C.R. 629 @ 634 553 Shri Hem  Chand v.  Shrmati Sham  Devi(1), and  pointed  out "that it  was held there that the Act under consideration in that case  provided the  whole procedure  for obtaining  the relief of  ejectment, and,  that  being  so,  provisions  of Section  106   of  the  Transfer  of  Property  Act  had  no relevance". No doubt the decision mentioned with approval by this Court  related to another enactment. But, the principle indicated by  this Court was the same as that applied by the Andhra Pradesh High Court.      It is  true that,  in Mangilal  v. Sugan.  Chand  Rathi (Deceased) etc.(2),  this Court has held that the provisions of Section 4 of the Madhya Pradesh Accommodation Control Act of 1955  do not dispense with the requirement to comply with the provisions  of Section  16 of  the Transfer  of Property Act. In  that case, however, Section 4 of the Madhya Pradesh Act merely  operated as  a bar  to an ordinary civil suit so that service  of a  notice under Section 106 of the Transfer of Property  Act became  relevant in  considering whether an ordinary civil  suit filed  on a ground which constituted an exception to  the bar  contained in  Section  4  had  to  be preceded by  a notice  under Section  106 of the Transfer of Property Act.  In the  context of the remedy of ejectment by an ordinary civil suit, it was held that the usual notice of termination of tenancy under Section long of the Transfer of Pro- party  Act was  necessary to  terminate a  tenancy as a condition precedent to the maintainability of such a suit.      In the  case before  us, the respondent landlord relied upon  a   provision  for  special  summary  proceedings  for eviction of  tenants under  an Act  which contains  all  the requirements for those proceedings. We, therefore think that the learned  Judge of  the Andhra  Pradesh  High  Court  had correctly applied  the principle  laid down  by  a  Division Bench decision  of that Court. He rightly distinguished such a case  from Mangilal’s  case  (supra),  where  an  entirely different kind  of provision of another Act in another State was being  considered by  this  Court.  The  Division  Bench decision of  the High  Court, applied  by the learned Judge, had, we think, enunciated the correct principle.      A question  raised before us by learned Counsel for the respondent is  whether the  notice sent  by the  respondent- landlord could be held not to have been served at all simply because  the  postman,  who  had  made  the  endorsement  of

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refusal, had  not been  produced. The  Andhra  Pradesh  High Court had  relied  upon  Meghji  Kanji  Patel  v.  Kundanmal Chamanlal (a),  to hold  that the  notice  was  not  served. There, a  writ of summons, sought to be served by registered post, had  been returned with the endorsement "refused". The Bombay High Court held G that the presumption of service had been repelled  by the  defendant’s statement on oath that he had not  refused it  as it was never brought to him. In this state of  evidence, it was held that, unless the postman was produced, the  statement  of  the  defendant  on  oath  must prevail. An      (1) I.L.R. [1955] Punj. 36.     (2) A.I.R. 1965 SC 101.      (3) A.I.R. 1968 Bombay 387. 3-608SCI/76 554 ex-paste decree,  passed on  the basis  of such  an  alleged service was,  therefore, set aside. On facts found, the view expressed could not be held to be incorrect.      In Nirmalabala  Debi v.  Provat Kumar  Basa(1), it  was held by  the Calcutta  High Court,  that a  letter  sent  by registered post,  with  the  endorsement  "refused"  on  the cover, could  be presumed  to have been duly served upon the addressee without  examining the  postman who  had tried  to effect service.  What was  held there was that the mere fact that the latter had come back with the endorsement "refused" could not  raise a  presumption of  failure to serve. On the other  hand,  the  presumption  under  section  114  of  the Evidence Act  would be  that,  in  the  ordinary  course  of business, it  was received  by the  addressee  and  actually refused by him. This is also a correct statement of the law.      The two  decisions are  reconcilable. The Calcutta High Court applied  a rebuttable  presumption which  had not been repelled  by   any  evidence.   In  the   Bombay  case,  the presumption had  been held  to have  been  rebutted  by  the evidence of  the defendant on oath so that it meant that the plaintiff could  not succeed  without further  evidence. The Andhra Pradesh High Court had applied the ratio disdained of the Bombay  case because  the defendant-appellant  before us had deposed  that he  had not received the notice. It may be that, on  a closer  examination of  evidence on  record, the Court could  have reached  the conclusion that the defendant had full knowledge of the notice and had actually refused it knowingly. It  is not  always necessary,  in such  cases, to produce the  postman who tried to effect service. The denial of service  by a party may be found to be incorrect from its own admissions  or conduct.  We do not think it necessary to go into  this question any further as we agree with the High Court on the first point argued before us.      Consequently, this appeal is dismissed with costs. P.B.R.                                     Appear dismissed. (1) 52 C.W.N. 659. 555