Case Note & Summary
The revision application was filed by the applicant (defendant No.2) against the judgment and decree dated 4th May 2022 passed by the Appellate Bench of the Court of Small Causes at Bombay in P. Appeal No.398 of 2019. The appellate court had allowed the appeal preferred by respondent No.1 against a judgment and decree passed in LE Suit No.36/42 of 2013, setting aside the trial court's decree and directing the applicant to hand over clear and vacant possession of the suit premises. The applicant challenged the appellate decree primarily on the ground that the notice of termination of tenancy under Section 106 of the Transfer of Property Act, 1882 was not validly served. The notice was sent by UPC (Under Postal Certificate) without acknowledgment due. The Court examined the provisions of Section 106 of the Transfer of Property Act, 1882 and Section 27 of the General Clauses Act, 1897. It held that for a notice to be deemed served under Section 27 of the General Clauses Act, it must be sent by registered post with acknowledgment due. Sending by UPC without acknowledgment due does not attract the presumption of service. The Court found that the appellate court had erred in holding that the notice was validly served. Consequently, the revision application was allowed, the appellate decree was set aside, and the trial court's decree was restored. The Court also disposed of the interim application.
Headnote
A) Transfer of Property Act - Notice of Termination - Section 106 - Service of Notice - The issue was whether a notice sent by UPC (Under Postal Certificate) without acknowledgment due amounts to valid service under Section 106 of the Transfer of Property Act, 1882. The Court held that service by UPC without acknowledgment due does not satisfy the requirement of Section 27 of the General Clauses Act, 1897, and therefore the notice is not validly served. The appellate court's decree for eviction was set aside. (Paras 1-10) B) General Clauses Act - Service of Notice - Section 27 - Mode of Service - Section 27 of the General Clauses Act, 1897 requires that a notice be sent by registered post with acknowledgment due to be deemed served. The Court held that sending by UPC (Under Postal Certificate) without acknowledgment due does not meet this requirement, and thus the presumption of service under Section 27 cannot be invoked. (Paras 5-10)
Issue of Consideration
Whether the notice of termination of tenancy sent by UPC (Under Postal Certificate) without acknowledgment due constitutes valid service under Section 106 of the Transfer of Property Act, 1882 read with Section 27 of the General Clauses Act, 1897
Final Decision
Revision application allowed; appellate decree set aside; trial court decree restored; interim application disposed of
Law Points
- Notice under Section 106 of Transfer of Property Act
- 1882 must be served in the manner prescribed under Section 27 of the General Clauses Act
- 1897
- which requires sending by registered post with acknowledgment due
- service by UPC without acknowledgment due is not valid service
