O.P. Srivastava, J. -
This revision is directed against the judgment and decree dated 1.9.2007 decreeing the suit of plaintiff-opposite parties against defendant-revisionists for ejectment and arrears of rent.
2. The plaintiff-opposite parties had filed a suit for ejectment of the defendant-revisionists from a part of H. No. 8/5 Vikramaditya Marg, Lucknow in their tenancy and arrears of rent.
3. Plaintiff-opposite parties' case is that the defendants were tenants on monthly basis in the premises in question which is not governed by provisions of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (Act No. XIII of 1972), as the rent of the premises is more than Rs. 2,000/- per month. It was further alleged that as the tenants failed to pay rent since January, 2004, a notice was issued terminating their tenancy and demanding arrears of rent but they failed to vacate the premises and deliver possession to the landlords, hence the suit.
4. The suit was contested by defendant-revisionists who did not dispute that the plaintiff-respondents are landlords of the premises in question but alleged that M/s. Trans world Export, of which Sri Ghulam Waris Khan is the sole proprietor, is the' tenant and that since it was referred as M/s. Trans world alone as party, the suit was not maintainable. It was further alleged that after receipt of information that the house in question was earlier owned by Mukul Ghosal, has been purchased by plaintiff-opposite parties, rent at the rate of Rs. 5,175/- as claimed by plaintiff-opposite parties also, was sent through pay order since January, 2003 in a registered cover and that the same was accepted also by the plaintiff-opposite parties who continued to accept rent till December, 2003. However, when the rent for the month of January, 2004 was sent through pay order dated 29.12.2003, plaintiff-respondent No. 1 did not accept the same and it was returned with the endorsement of 'refusal'. It has been further alleged that inspite of best efforts made by defendant-revisionists, the plaintiff-opposite parties did not accepted the same. Therefore, the same was deposited along with 9% interest in the suit in compliance of Order XV, Rule 5, C.P.C. Defendant-revisionists denied the service of any legal and valid notice on them either through registered post or under postal certificate. Parties adduced evidence in support of their respective contentions. Upon consideration of material on record, learned Trial Court decreed the suit. Feeling aggrieved, the defendant-revisionists have come up in revision before this Court.
5. I have heard Sri M.A. Khan, learned Senior Advocate assisted by Sri Mohiuddin Khan, for revisionists and Sri Siddharth Dhaon, for respondents.
6. Learned Counsel for the revisionist vehemently submitted that revisionist was never served of the notice through registered post as claimed by revisionist. He; submitted that the registered envelope containing the notice was returned with the endorsement "not claimed" and not with endorsement of "refusal" raising a presumption in favour of revisionist for service.
7. On the other hand, the contention raised on behalf of opposite parties is that as per endorsement the postman visited revisionist repeatedly but when notice was not received and was refused, the same was returned as "not claimed" which amounts to refusal and therefore, under the General Glauses Act, 1897 revisionist shall be deemed to have been served of the said notice.
8. Thus, the main question for consideration in this case is whether learned Trial Court committed any error on the facts of the case in holding that revisionist was served of the notice.
9. The record reveals that the notices were sent to the revisionists by registered post in addition to the notices sent under postal certificate. The opposite parties have filed receipts regarding sending of the notices under postal certificate and also the receipt regarding issue of notice by registered post. According to the statement of opposite parties notices were sent to Ghulam Waris Khan both at his residential address as well as at the address of the premises in question. The postal certificates on record as also the addressees on Inland letters i.e. the notices also show that the opposite parties sent notices both at the addresses of the premises from which eviction has been sought and where the revisionist is carrying on business and also at his residential address of the revisionist. The opposite party No. 1 has further stated that the letters sent under postal certificate were not returned at all. The registered Inland letters were, however, returned to opposite party No. 1 with certain endorsements. For proper appreciation the endorsements of postmen on two registered Inland letters are extracted here below. The Inland letter sent at the address of the premises in question where the revisionist is carrying on business, was returned with the following endorsements :
(i) 'not met' - 13.6.06
(ii) 'not met' - 14.6.06
(iii) 'not met' - 15.6.06.
"Bar Bar jane par praptakarta nahin milte. Office karmchari ne bataya ki bahar gaye hain. Atah Wapas."
16.6.06.
10. The Inland letter card sent at the residential address was returned with the following endorsements :
"13.6.06 - 'Suchana Diva' (information given).
14.6.06 - 'not claimed'."
11. The above facts clearly demonstrate that the opposite party-landlords took all possible steps to ensure service of notice on the revisionists. There were no laches on the part of the opposite parties. Whatever was possible for service of notices it was done. Notices were sent by two modes and not only at one address but all the two addresses of the revisionist No. 1 i.e. at the address where he is carrying on business and at his residential address. The letters sent under postal certificate did not return at all, probably for the reason they were delivered at the addresses mentioned therein. From the receipts filed in the case it is proved that the letters were sent not only under postal certificate but through registered post also.
12. Now, the question is whether in the above circumstances and in view of the endorsements made, as extracted hereinabove, by the postman on the two letters sent by registered post, can prove sufficient service of notice on the revisionists.
13. The endorsement as made on the letter sent at the premises from which the eviction has been sought and where the revisionist No. 1 is carrying on business, show that the post man visited the premises four days consecutively but he could not find the addressee so that service could be made. Ultimately, when on repeated visits of the postman, the employees also informed only that the revisionist had gone out, the notice was returned to the Counsel for opposite parties through whom the notice was sent. Thus, it is clear that the employees had full knowledge of the notices and they are expected to have informed the revisionist No. 1 about the same.
14. As per endorsement on inland letters sent to the revisionist No. 1 at the residential address, the postman visited the residence for delivery of notice on 13.6.2006 and gave intimation. This endorsement clearly shows that information was given at the residence of the revisionist No. 1 regarding registered letter. However, postman visited the next day again and when the revisionist No. 1 did not receive the same, it was returned as "not claimed".
15. From the above facts, it is clear that repeated efforts were made by postmen and the employees of revisionist No. 1 working at the premises in question and family members at the residence had full knowledge of the registered envelopes and in this view of the matter, it is clearly apparent that when the letter was refused it was returned with the endorsement of "not claimed".
16. In view of above facts, in my opinion, the learned Court below did not commit any error in coming to the conclusion that the revisionist was served with the notice.
17. Section 27 of the General Clauses Act also deals with the meaning of word 'service' by post and according to the same the service shall be deemed to be effected if the letter is properly addressed and the same is sent by registered post after the postal charges have already been paid unless contrary is proved to have been effected at the time if letter would have been delivered in ordinary course.
18. Hon'ble Supreme Court in M/s. Madan and Company v. Wazir Jaivir Chand, 1989 (2) ARC page 381. cited on behalf of revisionists has observed that if a registered letter addressed to a person at his residential address does not get served in normal course and is returned, it can only be attributed to the addressee's own conduct. It has been further observed that the dispatch of the notice by registered post is sufficient compliance, the landlord is required to fulfill.
19. The Hon'ble Supreme Court in K. Bhaskaran v. Sankaran Vaishyan Balan and another, (1999) 7 SCC 510. has held that there is no significant difference when the notice is returned as "unclaimed" and not as "refused" and has further held that under Section 27 of the General Clauses Act, there would be presumption of service in such cases and that it is upto the other party to rebut this presumption of service by post. -Although the said case was under section 138 of the Negotiable Instruments Act but the principle in such matter regarding service of notice will be applicable in the instant case also. Therefore, in the instant case also, in view of the above endorsements it can safely be said that presumption would be that the notice was served on the defendant as he failed to rebut the said presumption by adducing any notice in rebuttal. It was open to the revisionist to produce either any of his employees to belie the endorsement of postman or postman himself.
20. I am, therefore, of the view that the learned Lower Court rightly held that the revisionist was served of the notice.
21. As regards the other point that the suit was not filed against the proper person in as much as instead of M/s. Trans world Exports the respondents impleaded M/s. Trans world alone as defendant. However, it is not disputed that Ghulam Waris Khan is the proprietor of Trans world Exports. Therefore, in case by inadvertence instead of M/s. Trans world Export only word M/s.. Trans world through Ghulam Waris Khan was impleaded as party, no prejudice is said to have been caused to the revisionists. Can not get the benefit of the same unless they prove that any prejudice was caused to them in identifying the said firm. Insignificant omission, in my opinion, cannot have any bearing on the merit of the case.
22. In view of above, there is no ground calling for any interference by this Court in this revision.
23. The revision is, therefore, dismissed. However, parties shall bear their own costs.
Revision Dismissed.