# Ram Babu v. Raj Kumar Singh

- **Citation:** (2022) 12 ILRA 932
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-11-15
- **Case number:** Matter under Article 227 No. 7364 of 2015
- **Bench:** Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-babu-v-raj-kumar-singh-48072
- **Pages:** 8

## Headnote

Sri Pankaj Agarwal, Sri Pankaj Agarwal

Tenant Petitioner -aggrieved against orderwhere landlord has been non suited on the
ground that the service of notice was not
effected upon the tenant-as to determine the
tenancy-as Petitioner was not found to be in
default of payment of rent-and entitled to
protection u/s 20(4) of the Act, 1972-only duty
of the landlord to ensure that a registered notice
is duly sent at the correct address and then if it
is refused or returned for non availability of the
notice-deemed sufficient-findings of revisional
court legal.

W.P. dismissed. (E-9)

List of Cases cited:

## Text

932 INDIAN LAW REPORTS ALLAHABAD SERIES
would be taken to have waived his right of
protection under the proviso.

21. The moratorium of three years
period having already expired because the
property was purchased by the present
landlord way back in the year 2001, and the
fact that the tenant respondent was admittedly
paying the rent to landlord-respondents,
tenant by his own and statement made in the
written statement, the release application was
maintainable. So, judgment granting release
application having been passed on 23rd
December, 2014, it would not got rendered as
null and void or bad for corum non judis as
the prescribed authority concerned had the
jurisdiction
to
entertain
the
release
application and pass order thereupon.

22. In view of the above, therefore, the
judgment passed by the court of appeal dated
31st May, 2016 holding that release
application was barred by proviso to Section
21 (1) of the Act, 1972, cannot be sustained
in law both on facts and legal premise, and
the same is hereby set aside.

23. Accordingly, writ petition succeeds
and is allowed and the order passed by the
Prescribed Authority is hereby confirmed. No
order as to cost.
----------
(2022) 12 ILRA 932
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.11.2022

BEFORE

THE HON'BLE AJIT KUMAR, J.

Matter under Article 227 No. 7364 of 2015
(CIVIL)

Ram Babu ...Petitioner
Versus
Raj Kumar Singh ...Respondent
Counsel for the Petitioner:
Smt. Anita Tripathi, Sri Tripathi B.G. Bhai

Counsel for the Respondent:
Sri Pankaj Agarwal, Sri Pankaj Agarwal

Tenant Petitioner -aggrieved against orderwhere landlord has been non suited on the
ground that the service of notice was not
effected upon the tenant-as to determine the
tenancy-as Petitioner was not found to be in
default of payment of rent-and entitled to
protection u/s 20(4) of the Act, 1972-only duty
of the landlord to ensure that a registered notice
is duly sent at the correct address and then if it
is refused or returned for non availability of the
notice-deemed sufficient-findings of revisional
court legal.

W.P. dismissed. (E-9)

List of Cases cited:

1. Balloo Ram Bookseller Vs Chhedi Lal, 1968
ALJ

2. Shri Ram Mittal Vs XIth A.D.J., Meerut & ors.

3. Rajendra Vs Sanatan Dharam Intermediate
College, 2008(70) AIR 61 (MANU/ UP/ 1308/
2007)

4.Green View Radio Service Vs Laxmibai Ramji &
ors.,
AIR
1990
(SC)
2156
(MANU/SC/
0378/1990)

5. Gujarat Electricity Board & ors. Vs Atmaram
Sungomal Poshani, AIR 1989 (SC) 1433
(MANU/SC/0200/1989)

6. Ganga Ram Vs Phulwati, AIR 1970 ALL. 446
(MANU/UP/0071/1970 )

7. Gokaran Singh & ors. Vs 1st Additional District
and Session Judge, Hardoi & ors., 2000 SCFRC
193 (MANU/UP/1528/2000)
(Delivered by Hon'ble Ajit Kumar, J.)

1. Heard Sri Tripathi B.G. Bhai,
learned counsel for the petitioner and Sri
12 All. Ram Babu Vs. Raj Kumar Singh
933
Pankaj Agrawal, learned counsel for the
respondent.

2. The tenant petitioner has sought to
invoke supervisory jurisdiction of this
Court under Article 227 of the Constitution
questioning the judgment and order passed
by the revisional court in SCC Revision
under Section 25 of Provincial Small Cause
Courts Act, 1887.

3. The petitioner is aggrieved against
the order for there being no justification to
reverse the judgment and order of the Trial
Judge in SCC Suit No. 32 of 2005, wherein
land lord respondent has been non suited on
the ground that the service of notice was
not effected upon the tenant so as to
determine the tenancy, inasmuch as, the
petitioner was not found to be in default of
payment of rent and if he continued to
deposit the rent in time, may be under
Section 30 of U.P. Urban Buildings
(Regulation of Letting and Eviction) Act,
1972, he would be entitled to protection
under Section 20(4) of the said Act. So the
bone of the contention between the parties
qua maintainability of the suit and
consequential entitlement of land to get the
suit
for
ejectment
decreed
and
on
sufficiency of service of notice.

4. Learned counsel for the petitioner
submitted that notice to determine tenancy
was required to be personally served upon
the tenant. He submitted that no body knew
who was receipient woman, named Sapna.
A mere acknowledgement with signature of
the alleged receipient of notice would not
suffice the need of service of notice. He
submitted that once the acknowledgment
was received by the land lord, he ought to
have enquired as to who was woman
named Sapna and whether she was member
of the family or a resident of the place of
address. Sapna, it was argued, having not
been identified , the service would not be
taken to be due service of notice personally
upon the tenant petitioner.

5. Yet another argument advanced is
that once the landlord refused rent, tenant
was left with no other option but to deposit
rent under Section 30 of Act No. 13 of
1972 and alleged notice having not been
served upon him, he was not liable to offer
any rent to the landlord respondent and
considering the continued deposit even at
the time of filing suit and even thereafter,
he cannot be held to have default in
payment of rent.

6. Learned counsel for the petitioner
has relied upon the judgments in support of
his arguments firstly in the case of Balloo
Ram Bookseller v. Chhedi Lal, 1968 ALJ
to assail that there has to be personal
service of notice upon tenant and service
upon a third party would do needful and
then in the case of Shri Ram Mittal v.
XIth Additional District Judge, Meerut
and Others, wherein it was held that if the
tenant was in four months default of water
tax, does not exceed period of four months
under Section 7 of the Act No. 13 of 1972
then petitioner would be entitled to
payment under Section 20(4) of the Act
No. 13 of 1972, inasmuch as , the deposit
made under Section 30 of the Act No. 13 of
1972 will be taken into consideration while
calculating the defendant's liability towards
rent.

7. Per contra, it is submitted by
learned counsel for the respondent landlord
that the landlord had sent notice by
registered post that was duly served upon a
lady, named, Sapna at the address of the
tenanted premises. The registry receipt in
original, the acknowledgement received
934 INDIAN LAW REPORTS ALLAHABAD SERIES
back in original and also the copy of the
notice was filed before the Trial Court. It
was argued before the Trial Court,
therefore, that burden to establish service of
notice under Section 106 of the Transfer of
Property Act, 1882 to determine the
tenancy, stood discharged and so onus
shifted upon the tenant to prove that notice
was not served upon to the member of the
family, which he failed to discharge.

8. The further contention advanced by
learned counsel for the respondent in
defence on the point of default of payment
of rent, is that after service of notice upon
tenant, the tenant was required to again ask
the land lord to accept the rent at a revised
rate and if the land lord refused , he ought
to have made the deposit under Section
20(4) of the Act No. 13 of 1972 in the
Court itself. In this regard, he has relied
upon the judgment of Full Bench in the
case Gokaran Singh and Others (supra).

9. In support of this above argument,
learned counsel for the respondent land lord
has relied upon the judgment of this Court
and the Supreme Court in the case of
Rajendra
v.
Sanatan
Dharam
Intermediate College, 2008(70) AIR 61
(MANU/UP/1308/2007),
Green
View
Radio Service v. Laxmibai Ramji and
Others,
AIR
1990
(SC)
2156
(MANU/SC/0378/1990, Gujarat Electricity
Board and Others v. Atmaram Sungomal
Poshani,
AIR
1989
(SC)
1433
(MANU/SC/0200/1989, Ganga Ram v.
Phulwati,
AIR
1970
ALL.
446
(MANU/UP/0071/1970 and Gokaran Singh
and Others v. 1st Additional District and
Session Judge, Hardoi and Others, 2000
SCFRC 193 (MANU/UP/1528/2000).

10. Having heard learned counsel for
the respective parties, I find that the core
issue to be of service of notice to determine
tenancy. In the event if the service of notice
is held to be valid, it is then only question
would crop up about sufficiency of deposit
made under Section 30 of the Act No. 13 of
1972 and whether such deposits where to
be taken for entitling the tenant to the
statutory protection under Section 20(4) of
the Act No. 13 of 1972.

11. The learned judge deciding the
Small Cause Courts Suit of the land lord
respondent held that though from the
acknowledgement bearing paper no. 12-C
that has been filed it is reflected that notice
was served upon some woman, named
Sapna, but it did not bear any date, nor
plaintiff has explained as to whether Sapna
was a member of the family of the tenant
defendant and so service of notice was
legally affected upon. The Trial Judge held
that the defendant D.W.-1 having stated on
oath that he has not received notice and that
upon perusal of acknowledgement it does
not show that it was personally served upon
tenant, therefore, presumption would be
raised that service of notice was not duly
effected upon the defendant and thus non
suited the plaintiff .

12. The suit was dismissed on yet
another ground that the land lord having
refused to accept rent, the tenant defendant
rightly deposited the rent in Court and as
far as the increased water and house taxes
are concerned, he was not informed
properly about any such increase by the
Cantonment Board. Thus tenant having not
received any notice regarding increase in
the house and water taxes, petitioner could
not be held in arrears of rent for not paying
such taxes and would be entitled to
protection under Section 20(4) of the Act
No. 13 of 1972 for the regular deposit made
under Sectin 30 of the Act No. 13 of 1972.
12 All. Ram Babu Vs. Raj Kumar Singh
935

13. The land lord challenged the order
before the Court had filed SCC Revision
under Section 25 of the Act, 1887, which
was allowed raising presumption that there
was absolute proof of service of notice and
it was duty upon the tenant defendant to
have discharged his onus by proving non
service of notice by leading cogent and
convincing evidence, which he failed. The
Court sitting in revision also found that
tenant had absolute information about
increase in the house and water tax from
Rs. 84/- to Rs. 118/- and yet he sent
moneyorder of Rs. 548/- only and when it
was refused , he deposited rent at the same
rate i.e. Rs. 584/- whereas he was required
to deposit rent @ Rs. 618 /- w.e.f.
11.4.2002.

14. As far as sufficiency of notice is
concerned, it was established before the
trial court itself that acknowledgement of
service of registered notice and the registry
receipt alongwith copy of notice was filed
before trial judge and acknowledgement
did bear signature of a recipient Sapna, a
woman. The question is as to whether
burden stood discharged at the end of land
lord once he filed registry receipt and
acknowledgement along with the copy of
the notice that was sent.

15. This controversy about discharge
of burden at the end of land lord to raise
presumption regarding service of notice
may not detain this Court any longer
because this controversy has already stood
settled in a series of judgment cited by
learned counsel for the respondent land
lord.

16. The Full Bench judgment in the
case of Ganga Ram (Supra) while dealing
with service of notice sent under Section
106 of the Transfer of Property Act, 1882
vide paragraph 28 held thus:

"28. It is not the duty of the
plaintiff to prove that the defendant, after
having received notice, had actually read it
and understood its contents. Similarly,
where the registered envelope contains a
correct address of the tenant and the
addressee either cannot be met or refuses
to take notice, there appears to be no
reason why the notice should not be
deemed to have been properly served on
the addressees. In the case of Harihar
Banerji v. Ramshashi Roy, AIR 1918 PC
102 it was held that if a letter properly
directed containing notice to quit is proved
to have been put into the post office, it is
presumed that the letter reached its
destination at the proper time according to
the regular course of business of the post
office and was received by the person to
whom it was addressed. In the absence of
proof to the contrary. It will be presumed
that the refusal had been made by the
tenant to whom the registered letter was
correctly addressed at the time when the
letter could be expected to reach him in
the ordinary course. With great respect,
and for the reasons given by us, we do not
find it possible to agree with the views
expressed in the abovementioned cases
decided by the Bombay, Madhya Bharat
and Nagpur High Courts."

(emphasis added)

17. Finally the Court answered three
questions framed as under:

"34. In view of what we have
stated above, we proceed to answer as
follows the three questions referred to the
Full Bench:--
936 INDIAN LAW REPORTS ALLAHABAD SERIES

Question Our Reply

1. Whether a notice under S. 3 of
the U. P. (Temporary) Control of Rent
and Eviction Act, even if combined with a
notice under S. 109 of the Transfer of
Property Act, has to be served on the tenant
personally?

1. The answer is in the negative.
Even a notice of demand deemed or
presumed to have been served on a tenant
will be "service upon him of notice of
demand".

2. Whether it is incumbent on
the plaintiff to prove the endorsement of
refusal on the notice sent by registered
post by producing the postman or other
evidence in case the defendant denies
service on him ?

2. The answer is in the negative.

3. Whether in the circumstances
of the present case the Courts below were
right in raising the presumtion under S.
114 of the Evidence Act in favour of the
landlord ?

3.
The
answer
is
In
the
affirmative. The presumption regarding
service of such notice has also to oe made
Under S, 27, General Clauses Act."

(emphasis added)

18. In Green View Radio Service
(supra), the Court held that service of
notice was completed once it was sent by
registered
post
and
once
the
acknowledgement
has
been
received
bearing signature of the person receiving
notice, then valid presumption shall be
raised qua service of notice/ letter sent by
registered post and so to be rebutted by
tenant/ addressee by appearing as a witness
and refusing signature and producing
witness to corroborate his stand. This
burden lies heavily upon the noticee. Vide
paragraph 3, the Court held thus:

"3. In this connection, we may
also
point
out
that
the
provisions
of Section 106 of the Transfer of Property
Act require that notice to quit has to be
sent either by post to the party or be
tendered or delivered personally to such
party or to one of his family members or
servants at his residence or if such tender
or delivery is not practicable, affixed to a
conspicuous part of the property. The
service is complete when the notice is sent
by post. In the present case, as pointed out
earlier, the notice was sent by the plaintiff's
advocate
by
registered
post
acknowledgment due. The acknowledgment
signed by the party was received by the
advocate of the plaintiff. Thus in our view
the presumption of service of a letter sent
by registered post can be rebutted by the
addressee by appearing as witness and
stating that he never received such letter. If
the acknowledgment due receipt contains
the signatures of the addressee himself and
the addressee as a witness states that he
never
received
such
letter
and
the
acknowledgment due does not bear his
signature and such statement of the
addressee is believed then it would be a
sufficient rebuttal of the presumption
drawn against him. The burden would then
shift on the plaintiff who wants to rely on
such presumption to satisfy the court by
leading oral or documentary evidence to
prove the service of such letter on the
addressee. This rebuttal by the defendant
of the presumption drawn against him
would of course depend on the veracity of
his statement. The court in the facts and
12 All. Ram Babu Vs. Raj Kumar Singh
937
circumstances of a case may not consider
such denial by the defendant as truthful
and in that case such denial alone would
not be sufficient. But if there is nothing to
disbelieve the statement of the defendant
then it would be sufficient rebuttal of the
presumption of service of such letter or
notice sent to him by registered post."

(emphasis added)

19. This Court in the case of
Rajendra v. Sanatan Dharam (supra)
vide paragraph 2 has relied upon the
judgment of the Supreme Court wherein it
was
held
that
even
if
there
was
endorsement "not met" on the registered
letter returned service of notice would be
deemed sufficient.

20. In the case of Gujarat Electricity
Board and Others (supra), the Supreme
Court held that once presumption has been
raised, the duty lies upon noticee to
discharge burden regarding factum of
service. Vide paragraph 3, the Court held
thus:

" There is presumption of service
of a letter sent under registered cover, if
the same is returned back with a postal
endorsement that the addressee refused to
accept the same. No doubt the presumption
is rebuttable and it is open to the party
concerned to place evidence before the
Court to rebut the presumption by showing
that the address mentioned on the cover
was incorrect or that the postal authorities
never tendered the registered letter to him
or that there was no occasion for him to
refuse the same. The burden to rebut the
presumption lies on the party, challenging
the factum of service. In the instant case the
respondent failed to dis- charge this burden
as he failed to place material before the
Court to show that the endorsement made
by the postal au- thorities was wrong and
incorrect. Mere denial made by ,the
respondent in the circumstances of the case
was
not
suffi-
cient
to
rebut
the
presumption relating to service of the
registered cover. We are, therefore, of the
opinion that the letter dated 24.4.1974 was
served on the respondent and he refused to
accept the same. Consequently,the service
was complete and the view taken by the
High Court is incorrect. "

21. Thus from the above exposition of
law regarding service of notice for
determining
the
tenancy
and
the
presumption being raised thereof, it is clear
that the only duty of the landlord is to
ensure that a registered notice is duly sent
at the correct address and then if it is
refused or returned for non availability of
the noticee or that it has been served upon
another person at the same address and was
received on behalf of the noticee, service
would be deemed sufficient for the purpose
of raising presumption regarding service of
notice.

22. This presumption is rebuttable
provided of-course the noticee leads
evidence to the effect that the person who
has received notice was not in any manner
related to him, nor such a person who
received notice was authorized to receive
notice and so if the notice was not handed
over to the noticee after service or
affixation upon the tenanted premises, then
the presumption raised regarding service of
notice would stand rebutted.

23.

Learned
counsel
for
the
respondent submitted that notice was to be
served personally under the Act and,
therefore, service of notice would not be
deemed sufficient and no presumption in
938 INDIAN LAW REPORTS ALLAHABAD SERIES
respect of validity of notice could have
been raised. The judgment that he has
relied upon is of coordinate bench of this
Court in the case of case of Balloo Ram
Bookseller (supra) wherein the Court, I
find, Court was dealing with the relevant
provision as contained under Section 3 of
the old Control of Rent and Eviction Act,
1947. It came to be concluded that the
words ''service upon him' would mean
personal service and would exclude the
service either on servant or member of the
family. The provision as such contained
under Section 3(i)(a) of U.P. (Temp.)
Control of Rent and Eviction Act, 1947 had
used the words and expression notice of
''service upon him' but I do not find any
such provision qua service of notice under
the new Act of 1972. Moreover, it is a case
of suit where service of notice has to be
looked into with regard to Section 106 of
the Transfer of Property Act, 1882 and
exposition of law in that regard by series of
judgments already referred to hereinabove.
Furthere in view of the judgment and the
answer to question no. 1 by Full Bench in
Ganga Ram (supra) case, the law laid down
in Balloo Ram (supra) with utmost respect I
observe, is no more a good law.

24. In view of above, therefore, I do
not find any fault with the judgment of the
Court sitting in revision that looking to the
papers
of
postal
receipt
and
acknowledgement received and corrctness
of address of noticee upon notice, a
presumption can be validly raised regarding
service of notice.

25. On a repeated querry being made
to the learned counsel for the petitioner as
to whether he led any evidence to dispute
the identity of Sapna as a member of the
family or as a strange person who could not
have received notice in his behalf or
whether he took plea that Sapna was not a
member of the family or that he did not
know who was Sapna who had received
notice in his behalf , he has not been able to
give any satisfactory reply. Even otherwise,
I do not find any paper filed or available on
record to show that he has been able to
dispute identity of the woman Sapna nor,
was he able to get the postman examined
who served notice upon the woman, named
Sapna.

26. In such above view, therefore,
presumption regarding service of notice
that validly raised could not be rebutted.
Thus, the findings returned on the point of
service of notice, returned by the court
sitting in revision impugned herein this
petition cannot be said to be suffering from
any manifest error of law or fact so as to
warrant any interference.

27. In view of above, therefore, the
suit in question was clearly maintainable at
the instance of the respondent land lord .

28. Now, the question arose as to
whether deposit under Section 30 of the
Act No. 13 of 1972 could have been taken
to be sufficient enough to give protection to
the petitioner under Section 20(4) of the
Act No. 13 of 1972. From the perusal of the
pleadings and discussion made both in the
judgments of trial court as well as of
appellate court, I find that plaintiff never
offered any rent to the land lord after he
received notice besides the deposits that he
had been making under Section 30 of the
Act No. 13 of 1972 since prior to the
notice. I, further, noticed that even after
receipt of service of notice of the suit while
he presented his written statement or on
any other date to be called as first date of
hearing, he did not submit any rent in court
as was claimed in the notice or in the plaint
12 All. Manju Pal Vs. State of U.P. & Ors.
939

29. In the full bench judgment of this
Court in the case of Gokaran Singh
(supra), it has been clearly held that once
notice has been sent and the land lord
showed his willingness to accept rent while
determining tenancy, it was incumbent
upon the tenant to pay rent to the land lord
directly and if he refused, in that event he
would have to deposit rent in Court because
in that circumstances, as was held in
Indrasani's case, the rent shall be deemed to
have been paid to the land lord. Vide
paragraph 28, the full bench has held thus:

"In Indrasani's case (supra), it has
been held that if the amount of rent at the
correct rate is tendered by the tenant and the
same is refused by the landlord, which covers
to a particular period, tenant can not be held
to be defaulter in respect there of. After
refusal of the rent by the landlord, tenant is
legally entitled to deposit the same in the
Court under Section 30, but if thereafter,
landlord serves notice of demand again at a
higher rate, tenant need not tender the
amount which has been deposited under
Section 30 again but he will be under
obligation to tender the amount of rent due at
the correct or admitted rate of rent. Without
tendering the said amount, the tenant will
have no right to deposit the same under
Section 30 of the Act."

30. Thus, legal position that emerges is
that even if the tenant has been paying rent
under Section 30 of the Act No. 13 of 1972,
once he received notice, he should pay over
rent to the land lord directly and if he refused,
he should send money-order to him and then
if the money-order is refused, he must make
deposit under Section 20(4) of the Act No. 13
of 1972. To get the stautory protection, the
tenant is required to deposit rent directly in
Court on the first date of hearing alongwith
advocate fee etc. as have been prescribed for
under Section 20(4) of the Act No. 13 of
1972. Merely because tenant has been
depositing rent under Section 30 of the Act
No. 13 of 1972 since prior to the notice and
continued to deposit under Section 30 of the
Act No. 13 of 1972, such deposit as such
would not suffice the requirement of law that
is mandated as per relevant provisions nor,
deposit made under Section 30 of the Act No.
13 of 1972, itself be a guarantee to the
protection under Section 20(4) of the Act No.
13 of 1972. Section 20(4) of the Act No. 13
of 1972 requires deposit to be made in court
itself where the case is going on. Nothing is
reflected from the findings returned by the
trial judge that any such deposit was ever
made by the petitioner tenant so as to give
him benefit of protection under Section 20(4)
of the Act No. 13 of 1972. Thus findings
returned by the trial judge was clearly
unsustainable and the court below is justified
in reversing the same.

31. In view of above, I do not find any
merit in this petition. Petition Lacks merit and
is accordingly dismissed with no order as to
cost. Consigned to records.
----------
(2022) 12 ILRA 939
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.11.2022

BEFORE

THE HON'BLE ASHUTOSH SRIVASTAVA, J.

Writ A No. 17977 of 2021
With other cases

Manju Pal ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Sri Navin Kumar Sharma, Sri Lakshmi Kant
Singh