M.H Beg, J.— The defendant-appellant had taken a house on rent under a registered lease dated February 10, 1958, on a monthly rent of Rs 250 for a period of five years for running a lodging house. It 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.
2. The Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960, (hereinafter referred to as “the Act”) came into operation before the lease expired.
3. The appellant seemed to be constantly making defaults in payments of rent. The landlord respondent had, therefore, to file a suit for arrears of rent in the Court of District Munsif, Visakhapatnam, which was decreed on April 4, 1962. The landlord respondent had to file a petition on April 21, 1962, under Section 10 of the Act before the Rent Controller, Visakhapatnam for the eviction of the appellant as no rent was paid from December 1, 1961 to March 31, 1962. There was a compromise on October 12, 1962. The appellant agreed to clear arrears and to pay rents regularly. The appellant, however, wilfully defaulted again in payments of rent from September, 1963 to April, 1964. A notice dated April 8, 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 April 9, 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 defences of the appellant to be unsubstantiated. The Subordinate Judge of Visakhapatnam dismissed the tenant's appeal on October 23, 1968. The appellant's revision application to the High Court was also rejected on August 19, 1969.
4. 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 Ulligappa v. S. Mohan Rao (1969) 2 Andh LT 268, ILR 1970 AP 412 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.
5. We may also refer here to the observations of this Court in Raval & Co. v. K.G Ramachandran (1974) 1 SCC 424, (1974) 2 SCR 629. There, this Court noticed Shri Hem Chand v. Shrimati Sham Devi ILR 1955 Punj 36, 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.
6. It is true that, in Mangilal v. Sugan Chand Rathi (deceased) AIR 1965 SC 101, (1964) 5 SCR 239, 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 106 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 106 of the Transfer of Property Act was necessary to terminate a tenancy as a condition precedent to the maintainability of such a suit.
7. 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 case 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.
8. 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 refusal, had not been produced. The Andhra Pradesh High Court had relied upon Meghji Kanji Patel v. Kundanmal Chamanlal AIR 1968 Bom 387 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 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 ex parte 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.
9. In Nirmalabala Devi v. Provat Kumar Basu (1948) 52 CWN 659 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 letter 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.
10. 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 decidendi 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.
11. Consequently, this appeal is dismissed with costs.