JUDGMENT
P.S. Narayana, J.
1. Heard Sri A Ravinder Reddy, Counsel representing the appellant and Sri N. Vasudeva Reddy, Counsel representing the respondent.
2. The only substantial question of law raised by Sri A. Ravinder Reddy, Counsel representing the appellant in the Second Appeal, Sri A. Govindraj Goud, the unsuccessful defendant in both the Courts below is as hereunder:
“Whether there was service of notice in accordance with law under Section 106 of the Transfer of Property Act, 1882 (for short ‘the Act’) on the appellant/ defendant?”
3. In the facts and circumstances of the case, the learned Counsel made elaborate submissions pointing out the findings recorded by the Court of the first instance and also by the lower appellate Court. The learned Counsel also had traced the historical background and would maintain that in view of the compromise entered into in a prior litigation, the appellant as defendant had handed over possession of mulgie No. 2-101/8 and he is continuing in occupation of one mulgie bearing No. 2-101/9 only, which is the plaint schedule property. The learned Counsel would maintain that it is not as though the respondent/plaintiff is not aware of these facts but despite the same deliberately both addresses were shown on the covers in relation to the service of notice and notice in fact was never served. But however, both the Courts had recorded concurrent findings erroneously that such notice would be sufficient notice within the meaning of Section 106(2) of the Act. The learned Counsel also submitted that this approach of both the Courts below definitely cannot be sustained. The learned Counsel also submitted that in the decisions, which had been relied upon by the both the Courts below, there was no mention of any wrong number or at any rate a misleading number and in this view of the matter those decisions are distinguishable on facts. The learned Counsel placed strong reliance on the judgment reported in Surajmull Ghanshyamdas v. Samadarshan, .
4. On the contrary, Sri N. Vasudeva Reddy, learned Counsel representing the respondent-plaintiff M/s. Vikranti and Company, a partnership firm represented by its Managing Partner, that the mere mentioning of both the numbers would not in any way alter the situation since the fact remains that originally both the shops were let out to the appellant-defendant and subsequent thereto possession was taken in relation to one shop and the other shop continues to be in his possession, and, in relation to the said shop, the notice of termination of tenancy under Section 106 of the Act had been issued in accordance with law. The Counsel also had drawn the attention of this Court to the evidence of both PW-1 and DW-1 in this regard and had explained that DW-1 admitted relating to the correctness of the address. The Counsel would maintain that in such a situation, the mere fact that another number was also mentioned in addition to the correct number would not amount to any deliberate act of giving a wrong number or a wrong address. The learned Counsel also had drawn the attention of this Court to Ex.A-5 Office Copy of notice dated 20.7.1994, Ex.A6 Receipt of Certificate of Posting and Ex.A-7 Returned cover, The learned Counsel also would maintain that in the light of the facts and circumstances, both the Courts had arrived at the correct conclusion, especially, in the light of the presumption available in law, and, held that respondent-plaintiff is entitled to the relief of eviction. The learned Counsel also had placed strong reliance of decisions in M.A. Ghani v. P. Kami Reddy, , Saladi Srirama Murthy v. Kavali Swaminaidu and Ors., , Dinshaw N.Chenoy and Ors. v. Government of A.P. Rep. by Secretary and Ors., 1996 (3) ALD 743, Madan and Co., v. Wazir Jaivir Chand, and Kulkarni Patterns Pvt. Ltd., and Ors. v. Vasant Baburao Ashtekar and Ors., .
5. Heard both the Counsel on several of the factual aspects, hi fact they are not in controversy between the parties and the only substantial question of law, which had been argued at length, had already been specified supra. Respondent-plaintiff is a registered partnership firm and a suit in O.S. No. 517 of 1994 was instituted on the file of Principal Junior Civil Judge, Hyderabad, West and South, R.R. District at Saroornagar, praying for the relief of eviction, arrears of rent, mesne profits and also for permanent injunction. It was pleaded in the plaint as hereunder:
“The plaintiff is the absolute and unencumbered owner of a Theatre building together with shopping complex consisting of 8 shops facing main road, Balanagar, R.R. District. The defendant obtained 2 shops on lease bearing Nos. 2-101/8 and 2-101/9 in the said shopping complex. The lease was reduced into writing on 15.1.1991. As per the terms of the lease deed the tenancy was for 11 months starting from first June, 1991 which is extendable with mutual consent for a further period of 11 months. The monthly rent was Rs. 2,500/- p.m. payable on or before 5th of every month. The defendant deposited one month as advance at the time of commencement of lease. The defendant agreed to run business for selling Liquor and wines only. He is not authorized to change the nature of business and sell the liquor loosely. When the defendant violated the terms of the lease deed, by selling Liquor loosely for consumption in the shops, the plaintiff initiated legal proceedings against the defendants by filing O.S.No.373 of 1993 on the file of Additional Subordinate Judge, Rangareddy District seeking the relief of eviction and injunction. The suit was withdrawn in the month of August, 1992, as the defendant paid all the arrears of rent and undertook not to mis-use the shops. The defendant handed over vacant possession of one mulgi i.e., 2-101/8 and he is continuing in occupation of one mulgi i.e., 2-101/9, which is suit schedule mulgi, on a monthly rent of Rs. 1,250/- p.m. Though the defendant undertook not to misuse the premises and to pay the rents regularly. He failed to abide by the terms of the lease, fed up with the attitude of the defendant, a legal notice was issued on 20.7.1994 by registered post under certificate of posting under Section 106 of Transfer of Property Act, by the plaintiff, terminating the tenancy of the defendant by 31.8.1994. The defendant was asked to vacate and handover the possession of the premises. The defendant received notice sent under certificate of posting, but deliberately avoided to receive the notice sent under registered post with mala fide intention. Though the defendant received the notice of termination of tenancy, he failed to vacate the premises and is continuing in possession. His possession is that of a trespasser. The defendant committed default in payment of rents for the months of May, 1994 till the end of August, 1994 i.e., for 4 months amounting to Rs. 5,000/-. The defendant was also intimated that he would be liable to pay damages at the rate of Rs. 4,000/- p.m. from 1.9.1994 onwards for illegal use and occupation through the said notice. The schedule property is on the main road i.e., Highway No. 7 connecting the Twin cities of Hyderabad-Secunderabad and Bombay and commands a large business potential. It is very difficult to find identical shops as schedule shops in the vicinity on rent. The schedule shop commands rent of Rs. 4,000/- p.m. The defendant is continuing to sell the Liquor loosely violating the A.P. Excise Department Rules. As the defendant failed to vacate the premises and failed to pay the arrears of rent and violated the conditions of lease this suit is filed. The plaintiff prayed to direct the defendant to handover vacant possession of the schedule shop, to pay arrears of rent of Rs. 5,000/-for the months of May, 1994 to August, 1994 to pay mesne profits at Rs. 4,000/- p.m. from 1.9.1994 till 30.9.1994 and also future mesne profits from 1.10.1994 till the possession is handed over. The plaintiff further prayed to grant perpetual injunction restraining the defendant from using the suit schedule premises for selling Liquor loosely in contravention of express terms of the lease deed.”
6. The appellant herein as defendant filed Written Statement with the following allegations:
“It is true the defendant originally took 2 mulgies on lease from the plaintiff for Liquor and Wine shops and after the suit O.S. No. 373 of 1992 on the file of Additional Subordinate Judge, R.R. District was compromised, the defendant is continuing as tenant in the suit schedule mulgi. The contents of the compromise in the said suit are not true and correct and there was no voluntary admission on the part of the defendant. The defendant was forced to vacate one mulgi bearing No. 2-101/8 and the plaintiff by taking advantage of the absence of legal advise to this defendant, has dictated the terms of the compromise. The defendant has not violated the terms of the rental agreement and did not violate the rules and regulations formulated by the Government. The defendant did not receive any notice under Section 106 of Transfer of Property Act. Therefore, he did not give any reply to it. However, the allegations made in the notice are false and baseless, and the notice is neither legal or valid. The defendant did not receive any notice sent under certificate of posting. Since the business was completely closed and prohibition laws were imposed strictly the defendant could not pay the amounts regularly. Immediately after the suit the defendant has deposited the amount into Court. Since the tenancy has not been terminated properly in accordance with law, the plaintiff is not entitled to damages. Even the damages claimed at the rate of Rs. 4,000/-are exorbitant. There is no demand for mulgies especially for Liquor and Wine business. The defendant has not violated any terms and conditions of the agreement or prohibition Act. The plaintiff with a view to harass this defendant, by taking advantage of the in-experienced life, made him to agree the illegal documents and created a base for filing suit.”
7. On the strength of the pleadings of the parties, the following issues were settled:
1. Whether the plaintiff is entitled for possession?
2. Whether the plaintiff is entitled for arrears of rent?
3. Whether the plaintiff is entitled for mesne profits?
4. Whether the plaintiff is entitled for perpetual injunction?
5. To what relief ?
8. On behalf of the respondent-plaintiff, PW-1 was examined and Exs.A-1 to A-9 were marked and on behalf of appellant-defendant, DW-1 was examined and apart from him yet another witness DW-2 was also examined. On appreciation of the oral and documentary evidence while dealing with Issue No. 4, at Para-16, the Court of first instance negatived the relief of perpetual injunction and while answering Issue No. 5, the suit was decreed with costs, directing the defendant to vacate the suit mulgie within three months from the date of the judgment and deliver vacant possession of the same to the plaintiff and he is also liable to pay Rs. 1,750/- per month towards mesne profits from the date of termination of tenancy i.e., 31.8.1994 till the date of delivery of vacant possession to the plaintiff. The plaintiff is also entitled to recover the same on payment of Court Fee.
9. Aggrieved by the same, the unsuccessful defendant preferred appeal in A.S.No.33 of 1999 on the file of I Additional District Judge, R.R. District at Saroornagar, Hyderabad. The appellate Court at Para 8 framed the following points for consideration;
1. Whether there is valid termination of tenancy?
2. Whether the damages for use and occupation granted by the learned Junior Civil Judge is legal and sustainable?
3. Whether the judgment and decree passed by the learned Junior Civil Judge is legal and sustainable?
4. To what relief ?
10. The appellate Court at Para Nos. 9 to 12 discussed the points for consideration and the findings recorded by the Court of first instance and ultimately dismissed the appeal with costs, granting three months time to vacate the premises to the defendant. Aggrieved by the same, the present Second Appeal is preferred.
11. I had given my careful and anxious consideration to the findings recorded by both the Courts below on the aspect of service of notice. The office copy of Notice issued by the respondent-plaintiff to the appellant-defendant for terminating the tenancy was marked as Ex.A-5 through PW-1 and PW-1 also deposed that he had sent a notice under Certificate of posting and also through registered post. The receipt of Certificate of posting under Ex.A-6 shows that the appellant-defendant received the said notice sent under certificate of posting, and deliberately had got returned the notice sent by registered post and the returned cover was marked as Ex.A-7. It is evident that appellant-defendant-tenant having been unsuccessful in both the Courts below at the second appellate stage intends to raise a question stating that in view of the confusion in specifying the mulgie numbers both 2-10178 and 2-10179, in fact, service of notice was not effected and this would amount to mentioning wrong number and hence, no presumption definitely can be drawn in favour of service of notice on the party in accordance with Section 106(2) of the Act. Strong reliance was placed on the decision of Surajmull Ghanshyamdas v. Samadarshan (supra) cited, the Division Bench at page 110 held as hereunder:
“Moreover, the notice of ejectment, on the opposite party’s own case, was served by three processes: (i) by registered post; (ii) under certificate of posting; and (iii) by personal service. So far as service by registered post is concerned, the postal peon’s return is “left”. The Tribunals below, however, have accepted the same as good service on the authority of a decision of this Court, reported in Sita Nath Mondal v. Soleman Motto. 51 Cal.WN 650.
In our view, this is erroneous as the said decision has already been explained away or overruled by a Bench decision of this Court, reported in Hare Krishna Das v. Hahnemann Publishing Co Ltd., 70 Cal.WN 262. Indeed the word “left” itself shows that there was no tender, and, unless there was a tender to the addressee, on no conceivable principle, can service by registered post be accepted as good service. The service by registered post, in the instant case, must, therefore, be rejected.
As regards personal service, this has been sought to be proved by an employee of the solicitor’s firm, which issued the notice in question. According to the said employee, he went to the disputed premises and, not having found anybody authorized to receive the petitioner’s notice, the proprietors or partners of the petitioner firm or the persons-in-charge of the same not being there, he affixed the said notice to the entrance of the disputed premises. It is significant to note that the peon book entry, which has been exhibited for this purpose, discloses that the alleged report of the peon was written at the bottom of the page, while the entry of delivery to the said peon is to be found in the middle. This feature ought to have attracted the attention of the Tribunals below but it does not appear to have been considered by them at all. It also appears that there was no attempt to find out the petitioner’s representatives or agents before affixing the notice, as aforesaid. In such circumstances, the alleged personal service cannot be accepted as good service in law.”
12. On the admitted facts by both the parties and also taking into consideration the conduct of the parties, it may have to be seen whether there was service of notice in accordance with the provisions of Section 106 of the Act or not. The main stand taken by the appellate-defendant is that when notice was sent under registered post and the same was returned up-served, the other modes of service are to be followed and hence, in view of the non-following of such other modes, it should be taken that there was no service of notice as per law in the present case. The factual aspect in the context of the appreciation of both the oral and documentary evidence had been dealt with in detail by both the Courts and concurrent findings had been recorded in this regard. Hence, such factual findings cannot be disturbed in Second Appeal normally. In the decision MA. Ghani v. P. Rami Reddy (supra) while dealing with a similar question this Court held that:
“The landlord can follow any of the modes of service mentioned in Section 106 of Transfer of Property Act, and need not resort to all the modes of service of notice to quit as mentioned therein. In this case respondent admittedly sent the notice to quit by registered post, and therefore there was no need for him to tender or deliver the notice to quit personally on the appellant or any of the members of his family or servant at his residence, or affix the same to a conspicuous part of the property,”
In the decision Dinshaw N. Chenoy and Ors. v. Government of A.P. Rep. by Secretary and Ors. (cited supra), it was held that:
“A letter was sent by certificate of posting, presumption of service of notice would arise under Section 114 of the Indian Evidence Act, 1972.”
13. In the decision Madan and Co. v. Wazir Jaivirchand (cited supra), the Apex Court while dealing with the service of notice through registered post as required under the rent statute held:
“When once notice is dispatched by registered post, the same can be presumed to have been delivered to the tenant.”
14. In the decision Kulkarni Patterns Pvt., Ltd. and Ors. v. Vasant Baburao Ashtekar and Ors. (cited supra), while dealing with notice to a tenant and service thereof, and presumption in relation there to, the Apex Court held :
“Where notice was sent as per the provisions of Section 106 of the Transfer of Property Act, to a tenant a company by registered post in the name of the company, and the partner admit that notice was sent on correct address, such sending of notice would amount to service of notice fully in accordance with Section 106 of the Act.”
15. In the decision Saladi Srirama Murthy v. Kavali Swaminaidu and Ors. (cited supra), while dealing with the posting of letter and the presumption, it was held :
“Under Section 114 Indian Evidence Act, the presumption would be that a letter posted by the sender would reach the addressee in usual course. Once a letter has been delivered to the post office, it is presumed to have been delivered to the addressee under Section 27 of the General Clauses Act.
When a letter had been sent by post correctly and properly addressed to the defendant, the tender of the letter by the postman at the address mentioned in the letter shall be treated as receipt of the letter by the addressee, When the letter was sent by registered post correctly and properly addressed to the defendant it would be presumed that the postman had tendered the letter at the address mentioned in the letter.
There is no dispute that the address of the defendant mentioned in Ex.A-4 letter is correct. The various endorsements made by the postman on the letter show that the defendant was not available at the address given in the letter when the postman went there to tender the letter. The letter was returned to the plaintiff on March 9, 1972 with an endorsement made by the postman “avoiding to take delivery”. DW-1 (defendant) admitted in his evidence that the postman had no enmity with him. In those circumstances, it has to be presumed that Ex.A-4 letter was served on the defendant.”
16. It is no doubt true that Sri A. Ravinder Reddy, the learned Counsel representing the appellant made a serious attempt to distinguish the decisions on the ground that in all these matters notices in fact were sent to correct addresses, and in the present case, there was some confusion by mentioning two addresses and hence, such presumption cannot be drawn in favour of service of notice. I am unable to agree with the said contention for the reason that the mere mentioning of yet another additional number in which the appellant had been there as tenant and had delivered possession by virtue of a prior compromise would not alter the situation in any way and this cannot be taken advantage by the appellant-defendant-tenant especially in the light of Ex.A-6.
17. Hence, viewed from any angle,
this Court is of the considered opinion that
the service of notice on the appellant-
defendant was in accordance with the
provisions of Section 106 of the Act and the
factual findings are hereby confirmed. It is
needless to say that the Second Appeal is
bound to fail. Accordingly, the same shall
stand dismissed with costs. The appellant-
defendant-tenant is granted four months time
to vacate the premises on condition of
payment of rents for that period.