Satish Chandra, J.:— The defendant is the appellant. The suit was for ejectment and recovery of arrears of rent and damages. Both the courts below have decreed the suit on the finding that the appellant was in arrears of rent for more than three months and had failed to pay the same in spite of service of notice of demand.
2. The only point raised on behalf of the appellant was that the notice of demand was not validly served on the defendant. On the instructions of the plaintiff-landlord a lawyer sent a registered letter bearing on top the lawyer's address as the sender of the letter. The letter was returned to the lawyer with the postal endorsement that the addressee namely the defendant-appellant had refused to accept it. On this finding the Courts below draw a presumption of due service on the defendant. The letter contained in combined notice of demand for arrears of rent as well as to quit under Sec. 106, Transfer of Property Act.
3. Learned counsel for the appellant urged that when the registered letter was refused, no presumption of knowledge of the contents of that letter could in law be raised against the tenant even though he himself may have refused to accept it. In support reliance was placed upon the decision of K.B Asthana, J. in Amarjit Singh Bedi v. Lachchman Das Second Appeal No. 3420 of 1962 decided on 13th April, 1964.. In this case the learned Judge accepted the dicta of Beaumont, C.J in Vaman Vithal Kulkarni's2 case. In that case it was observed:—
“It seems to me impossible to say that a letter has been served so as to bring the contents to the notice of the person to whom the letter is addressed, if the agent for service states that is fact the notice was not served, although the reason may have been that the addressee declined to accept it. One cannot assume that because an addressee declines to accept a particular sealed envelope he has guessed correctly as to its contents.”
4. Hon. Asthana, J. held that in such circumstances no presumption of due service can be raised under Sec. 114 of the Evidence Act. The learned Judge went on to observe that though there is a specific provision in the Civil Procedure Code under Rule 20-A of Order 5 thereof for the raising of a presumption of due service even when summons sent by registered post are refused by the addressee, there was no provision for raising such a presumption under the Rent Control Act.
5. We are unable to agreewith either of the two premises upon which the learned Judge based his decision.
6. The Bombay case has not been accepted as laying down the correct law is several decisions of this Court3. These single Judge decisions apart, a Full Bench of this court in Ganga Ram v. Smt. Phulwati 1970 A.L.J 336. has expressed its disagreement with the Bombay view. It has held that when a registered letter containing a notice of demand is presented to the tenant and refused by him, a presumption of due service arises both under Sec. 27, General Clauses Act, as well as under Sec. 114, Evidence Act. In view of this Full Bench, the view to the contrary expressed by Asthana, J. cannot be upheld.
7. On the other aspect the Full Bench in Ganga Ram's case has held that a combined notice namely a notice of demand under Sec. 3(a) of the Rent Control Act and a notice under Sec. 106, Transfer of Property Act, can validly be issued by the landlord. Sec. 106, Transfer of Property Act, expressly authorises service of notice to quit by post. Since a combined notice is valid, it is obvious that the Rent Control Act will be deemed to authorise service of a notice of demand along with a notice under Sec. 106, Transfer of Property Act, by post. That being so, Sec. 27, General Clauses Act, becomes applicable. That section provides that if the notice is correctly addressed and is sent by registered post, it will be deemed to have been delivered in the usual course and at the appropriate time. In the present case the notice was correctly addressed to the defendant-appellant. A presumption of due service would hence arise under Sec. 27, General Clauses Act.
8. In Dwarka Singh v. B.S Ahuja 1969 A.L.J 849. a Division Bench held that Sec. 27, General Clauses Act, raises a presumption of law and the presumption is compelling. The Court has no discretion in the matter. The presumption of course is rebuttable, but the onus of rebutting it is on the addressee. In this view, on the finding that a correctly addressed notice was sent by registered post, the Court is bound to raise the presumption that it was duly served, even though the letter is returned unserved because the addressee refused to accept it.
9. When the law requires the raising of a presumption of valid service, the same cannot be defeated on the ground that since there was refusal to accept delivery, knowledge of its contents cannot be imputed to the addressee; because this will be taking a stand in contradiction to the presumption of law that the Court is bound to raise. This aspect might be relevant if the question was whether a presumption of fact under Sec. 114, Evidence Act, sought or ought not to be raised. But when in such a situation a presumption of law has to be raised, there is no room for the Court to consider whether the presumption of fact under Sec. 114, Evidence Act, ought to be raised. That question may arise in cases where it is sought to be effected by means other than registered post, for issuance, by ordinary post, or through a process server.
10. The observation of Asthana, J., that the defect may be cured by the Legislature making a provision for raising a presumption under the Rent Control Act is based on an erroneous appreciation of the effect of Sec. 106, Transfer of Property Act, upon the service of a notice of demand under Sec. 3(a) of the Rent Control Act. As seen above, in the case of a combined notice, the provisions of the Rent Control Act will be deemed to authorise service by registered post, and Sec. 27, General Clauses Act, would become applicable.
11. In our opinion, the suit was rightly decreed. There is no merit in this appeal. The same is accordingly dismissed with costs.
Appeal dismissed.