Case Note & Summary
The petitioner-tenant invoked Article 227 of the Constitution to challenge concurrent findings of the courts below decreeing the landlord's suit for possession under the Bombay Rent, Hotels and Lodging House Rates (Control) Act, 1947. The landlord had issued a demand notice dated 14 October 1980 by registered post AD, which was returned with the endorsement 'refused'. The landlord also sent a notice under certificate of posting, which was returned. The tenant was in arrears of rent for over six months and did not pay within one month of the notice. The trial court and first appellate court both held that the notice was validly served and decreed the suit for possession. Before the High Court, the tenant argued that the notice was not duly served because it was returned unserved. The landlord relied on the presumptions under Section 114 of the Indian Evidence Act, 1872 and Section 26 of the General Clauses Act, 1897, contending that refusal amounts to service. The High Court noted the concurrent findings and referred to Harcharan Singh v. Shivrani (AIR 1981 SC 1284) and P.A. Koli v. Narayan Jagannath Mahale (1981 Mh.L.J. 355) to hold that when a notice is properly addressed and sent by registered post, there is a presumption of receipt, and the endorsement 'refused' itself proves service. There was no rebuttal by the tenant. Finding no perversity in the concurrent judgments, the High Court dismissed the writ petition, discharged the rule, vacated the interim stay which had been operating since 11 June 1992, and made no order as to costs.
Headnote
A) Rent Control and Eviction - Service of Demand Notice - Presumption of Service - Indian Evidence Act, 1872, Section 114; General Clauses Act, 1897, Section 26 - Notice sent by registered post AD and returned with endorsement 'refused' - Courts below held that demand notice was duly served and tenant failed to pay arrears of rent for more than six months within one month of service - Held that when a notice is properly addressed and sent by registered post, it must be presumed to have been received by the addressee; no need to examine postman in every case; endorsement 'refused' constitutes valid service; concurrent findings not perverse, no interference under Article 227 (Paras 3-6).
Issue of Consideration
Whether the service of demand notice under the Bombay Rent, Hotels and Lodging House Rates (Control) Act, 1947 was valid and whether the tenant's failure to pay arrears of rent within one month after service entitled the landlord to a decree for possession.
Final Decision
The writ petition was dismissed; the concurrent findings of the courts below were upheld as no perversity was found. Rule discharged, interim stay vacated, no order as to costs.
Law Points
- Service of notice deemed valid if sent by registered post and returned with endorsement 'refused'
- presumption under Section 114 of the Indian Evidence Act
- 1872 and Section 26 of the General Clauses Act
- 1897
- concurrent findings of fact not interfered under Article 227 of the Constitution of India absent perversity
Case Details
2005 LawText (BOM) (07) 183
WRIT PETITION NO. 2160 OF 1992
Mr. P.S. Dani, Mr. G.S. Hiranandani
Shri Madhusudan Panipuriwalla
Smt. Hausabai Pandurang Surve
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Nature of Litigation
Writ petition under Article 227 of the Constitution of India challenging concurrent judgments of lower courts decreeing landlord's suit for possession under the Bombay Rent, Hotels and Lodging House Rates (Control) Act, 1947 on ground of default in payment of rent after service of demand notice.
Remedy Sought
The petitioner-tenant sought to set aside the decree for possession and dismissal of the landlord's suit.
Filing Reason
The tenant contended that the demand notice was not duly served, and thus the suit for possession ought to have been dismissed.
Previous Decisions
The trial court decreed the suit for possession; the first appellate court confirmed the decree; both courts held that the notice was validly served and the tenant defaulted in paying arrears of rent.
Issues
Whether the service of demand notice was validly effected given that the registered post notice was returned with endorsement 'refused'.
Whether the tenant's failure to pay arrears of rent after valid service of notice entitled the landlord to a decree for possession under the Bombay Rent Act.
Submissions/Arguments
Petitioner-tenant argued that the notice sent by registered post was not served as it was returned with endorsement 'refused', implying non-receipt.
Respondent-landlord contended that the notice was duly served, invoking presumption under Section 114 of the Evidence Act and Section 26 of the General Clauses Act, and the tenant's refusal constituted service.
Ratio Decidendi
When a notice is properly addressed and sent by registered post, there is a presumption of due service under Section 114 of the Indian Evidence Act, 1872 and Section 26 of the General Clauses Act, 1897; endorsement 'refused' on the postal article constitutes valid service. In a writ petition under Article 227 of the Constitution of India, concurrent findings of fact will not be interfered with unless perverse.
Judgment Excerpts
when the notice was properly addressed and sent it must be presumed that it was really received by the addressee.
it is not necessary to examine the postman to prove the endorsement in each and every case.
the concurrent findings, based on the facts and circumstances of the present case, after going through the record, therefore, seem to be correct and within the framework of law and record.
Procedural History
The respondent-landlord filed a civil suit for possession after issuing notice dated 14.10.1980. The trial court decreed the suit. The petitioner-tenant appealed, and the appellate court confirmed the decree. The tenant then filed a writ petition under Article 227 before the High Court, which was admitted and interim stay granted on 11.06.1992. The matter was heard finally on 18.07.2005.
Acts & Sections
- Constitution of India: Article 227
- Bombay Rent, Hotels and Lodging House Rates (Control) Act, 1947:
- Indian Evidence Act, 1872: Section 114
- General Clauses Act, 1897: Section 26
