# Smt. Kaisar Jahan & Ors. Revisionists v. Pashupati Colonizer Pvt. Ltd

- **Citation:** (2022) 6 ILRA 134
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-30
- **Case number:** S.C.C. Revision No. 23 of 2022
- **Bench:** Neeraj Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-kaisar-jahan-ors-revisionists-v-pashupati-colonizer-pvt-ltd-48647
- **Pages:** 11

## Headnote

(A) Civil Law - U.P. Urban Buildings
(Regulation of Letting, Rent and Eviction)
Act , 1972 - Section 30 - The post office
Act,1898 - section 27 - gives rise to a
presumption that service of notice has
been effected when it is sent to the
correct address by registered post , Indian
Evidence Act, 1872 - Section 114 - enables
the Court to presume that in the common
course
of
natural
events,
the
communication would have been delivered
at the address of the addressee , Code of
Civil Procedure ,1908 - Order XV Rule 5 -
Striking off defence for failure to deposit
admitted rent, etc. (Para -24 )

Revisionists-defendants challenged
judgment
and decree - on four grounds - maintainability
of suit, rate of rent, no proper notice and
communication of sale deed.(Para -3 )

(B) Civil Law - maintainability of suit -
Court record findings only on the issues
which are part of the pleadings - on which
parties
are
contesting
the
case
-
Resolution of Board of Director has been
passed or not, is the question of fact and
can only be replied if it is raised in the
pleadings - held - without pleadings
revisionists-defendants
cannot
take
benefit of maintainability of the SCC suit.
(Para - 19)

(C) Civil Law - rate of rent - acceptance of
change of landlordship and continuation
of tenancy with new landlord - impliedly
said
that
applicant
was
having
full
knowledge about the enhanced rent at the
rate of Rs. 6600/- per month - held - It is
nothing, but an attempt to any how
continue the tenancy by getting the SCC
suit prolonged or dismissed on a frivolous
ground. (Para -22)

(D) Civil Law - service of notice and
examination of postman in court - held -
once the requirement of Section 27 of the
Post Office Act has been complied with
and endorsement has been made by the
postman with regard to service of notice -
there is no requirement to examine the
postman in Court. (Para -25)

(E) Civil Law - Improper communication of
sale deed - notice properly served -
revisionists-defendants accepted change
of landlordship in their written statements
- payment of Rs. 32/- per month under
Section 30 Act - clearly shows that they
are having full knowledge of change of
landlordship after receiving the notice -
admitted
the
same
in
their
written
statements - held - Once they have
knowledge of change of landlordship, that
cannot be without having knowledge of
sale deed.(Para -26)

HELD:-No good ground/reason for interference in
the impugned judgement and order. (Para - 27)

S.C.C. Revision dismissed. (E-7)

List of Cases cited:-

## Text

134 INDIAN LAW REPORTS ALLAHABAD SERIES
(2022)06ILR A134
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.05.2022

BEFORE

THE HON'BLE NEERAJ TIWARI, J.

S.C.C. Revision No. 23 of 2022

Smt. Kaisar Jahan & Ors. ...Revisionists
Versus
Pashupati Colonizer Pvt. Ltd.
 ...Respondent

Counsel for the Revisionists:
Sri Amit Krishna, Sri Tejasvi Misra

Counsel for the Respondents:
Sri Hanuman Kinkar, Sri Shashi Kumar Dwivedi,
Sri Atul Dayal

(A) Civil Law - U.P. Urban Buildings
(Regulation of Letting, Rent and Eviction)
Act , 1972 - Section 30 - The post office
Act,1898 - section 27 - gives rise to a
presumption that service of notice has
been effected when it is sent to the
correct address by registered post , Indian
Evidence Act, 1872 - Section 114 - enables
the Court to presume that in the common
course
of
natural
events,
the
communication would have been delivered
at the address of the addressee , Code of
Civil Procedure ,1908 - Order XV Rule 5 -
Striking off defence for failure to deposit
admitted rent, etc. (Para -24 )

Revisionists-defendants challenged
judgment
and decree - on four grounds - maintainability
of suit, rate of rent, no proper notice and
communication of sale deed.(Para -3 )

(B) Civil Law - maintainability of suit -
Court record findings only on the issues
which are part of the pleadings - on which
parties
are
contesting
the
case
-
Resolution of Board of Director has been
passed or not, is the question of fact and
can only be replied if it is raised in the
pleadings - held - without pleadings
revisionists-defendants
cannot
take
benefit of maintainability of the SCC suit.
(Para - 19)

(C) Civil Law - rate of rent - acceptance of
change of landlordship and continuation
of tenancy with new landlord - impliedly
said
that
applicant
was
having
full
knowledge about the enhanced rent at the
rate of Rs. 6600/- per month - held - It is
nothing, but an attempt to any how
continue the tenancy by getting the SCC
suit prolonged or dismissed on a frivolous
ground. (Para -22)

(D) Civil Law - service of notice and
examination of postman in court - held -
once the requirement of Section 27 of the
Post Office Act has been complied with
and endorsement has been made by the
postman with regard to service of notice -
there is no requirement to examine the
postman in Court. (Para -25)

(E) Civil Law - Improper communication of
sale deed - notice properly served -
revisionists-defendants accepted change
of landlordship in their written statements
- payment of Rs. 32/- per month under
Section 30 Act - clearly shows that they
are having full knowledge of change of
landlordship after receiving the notice -
admitted
the
same
in
their
written
statements - held - Once they have
knowledge of change of landlordship, that
cannot be without having knowledge of
sale deed.(Para -26)

HELD:-No good ground/reason for interference in
the impugned judgement and order. (Para - 27)

S.C.C. Revision dismissed. (E-7)

List of Cases cited:-

1. M/s. Dale & Carrington Invt. (P) Ltd. & anr.
Vs P.K. Prathapan & ors., 2005 0 AIR (SC)

2. Shri Saurav Jain & anr. Vs M/s A.B.P. Design
& anr. , Civil Appeal No. 4448 of 2021

3. Shivaji Balaram Haibatti Vs Avinash Maruthi
Pawar, (2018) 11 SCC 652
6 All. Smt. Kaisar Jahan & Ors. Vs. Pashupati Colonizer Pvt. Ltd.
135
4. Smt. Kalawati Vs Deen Dayal Sharma, 2018
(1) ARC 464

5. Dharam Pal Vs Harbans Singh, (2006) 9 SCC
216

6. Ajeet Seeds Ltd. Vs K. Gopala Krishnaiah,
(2014) 12 SCC 685 P.T.

7. Thomas Vs Thomas Job, (2005) 6 SCC 478

(Delivered by Hon'ble Neeraj Tiwari, J.)

1. Heard Sri Tejasvi Misra, learned
counsel for the revisionists-defendants and
Sri Atul Dayal, learned senior counsel
assisted by Sri Hanuman Kinkar, learned
counsel for the respondent-plaintiff.

2. Present revision has been filed
challenging the impugned judgment and
order
dated
18.12.2021
passed
by
Additional District and Sessions Judge,
(Anti-Corruption), Court No. 5, Gorakhpur
in SCC Suit No. 15/2011 (Pashupati
Colonizer Private Limited Vs. Smt. Kaisar
Jahan and 11 others).

3.

Learned
counsel
for
the
revisionists-defendants has challenged the
judgment and decree basically on four
grounds i.e. maintainability of suit, rate of
rent, no proper notice and communication
of sale deed.

4. So far as maintainability of suit is
concerned, he submitted that respondentplaintiff is a Private Limited Company,
therefore, to initiate any legal proceeding,
resolution
of
Board
of
Director
of
Company is necessarily required. In the
cross
examination,
Director
of
the
Company, namely, Sri Awadhesh Kumar
Srivastava, who has filed SCC Suit has
accepted that he has not filed any resolution
of Company as it was not required. There is
no meeting of Board of Directors before
filing the case. He next submitted that once
there is no resolution, an individual
Director cannot file SCC Suit for eviction
against
the
revisionists-defendants.
In
support of his contention, he has placed
reliance upon the judgement of Apex Court
in the matter of M/s. Dale & Carrington
Invt. (P) Ltd. & Another Vs. P.K.
Prathapan & others; 2005 0 AIR (SC), in
which Apex Court has observed that
individual Director has no power to act on
behalf of the Company.

5.

Learned
counsel
for
the
revisionists-defendants submitted that it is a
question of law, which goes to the root of
the case, therefore, it can be raised at any
stage of proceeding. In support of his
contention, he placed reliance upon the
judgement of Apex Court in the matter of
Shri Saurav Jain & Another Vs. M/s
A.B.P. Design & Another passed in Civil
Appeal No. 4448 of 2021 arising out of
SLP (C) No. 29868 of 2018.

6. He next submitted that respondentplaintiff is claiming the rent at the rate of
Rs. 6600/- per month, but at no point of
time, it has been proved and according to
the revisionists-defendants, rent was Rs.
32/- per month, which has been deposited
till the decision of suit under Section 30 of
U.P. Urban Buildings (Regulation of
Letting, Rent and Eviction) Act , 1972
(hereinafter referred to as U.P. Act No. 13
of 1972). He next submitted that there is no
specific finding as to how, amount of rent is
Rs. 6600/- per month.

7. He further submitted that no proper
notice has been given to them as notices are
returned back with endorsement of postman
as "ckj ckj tkus ij Hkh edku ij rkyk can jgrk
gS" (Baar Baar Jaane Par Bhi Makaan Par
136 INDIAN LAW REPORTS ALLAHABAD SERIES
Taala Band Rehta Hai). He next submitted
that it is required on the part of plaintiffrespondent to examine the postman in
Court to prove the service of notice for
which no application had ever been filed by
the plaintiff-respondent. Under such facts
of the case, notice may not be treated to be
sufficient and further postman has to be
examined.

8.

Lastly,
he
submitted
that
information of sale deed has never been
provided to them, therefore, impugned
order is bad and liable to be set aside.

9. Learned counsel for respondentplaintiff submitted that so far as first
contention with regard to maintainability of
suit is concerned, it is necessarily required
to raise this issue in plaint and should have
been part of pleading, which has never
been raised. Further, there is only vague
assertion
based
upon
the
cross
examinations
not
supported
by
any
documentary evidence, therefore, cannot be
accepted. He next submitted that it is
required on the part of revisionistsdefendants to have specific pleading to this
effect and in lack of pleading, Court may
not travel beyond that. In support of his
contention, he placed reliance upon the
judgement of Apex Court in the matter of
Shivaji Balaram Haibatti Vs. Avinash
Maruthi Pawar; (2018) 11 SCC 652.

10. So far as rate of rent is concerned,
he submitted that admitted rent by the
revisionists-defendants was Rs. 32/- per
month and they deposited the same under
Section 30 of U.P. Act No. 13 of 1972
before the Court till the conclusion of this
proceeding whereas as per Order XV Rule
5 of Code of Civil Procedure, 1908
(hereinafter referred to as "CPC, 1908"),
after first appearance, it is required on the
part of revisionists-defendants to deposit
the amount before the Court concerned,
where the suit is pending. Not only this,
they have admitted the tenancy in a written
statement with effect from 2011, but even
though they have never deposited any
amount of rent before SCC Court and they
continuously deposited the amount of rent
under Section 30 of U.P. Act No. 13 of
1972 before another Court. This fact is
never
disputed
by
the
revisionistsdefendants. Therefore, in all eventuality,
they are defaulter of payment of rent either
it is at the rate of Rs. 32/- per month or Rs.
6600/- per month. In support of his
contention, he placed reliance upon the
judgement of this Court in the matter of
Smt. Kalawati Vs. Deen Dayal Sharma;
2018 (1) ARC 464.

11. About the service of notice upon
the revisionists-defendants is concerned, he
submitted that there is no dispute on the
point that notice has been sent to the
revisionists-defendants
on
the
correct
address, which was returned back with
remark "ckj ckj tkus ij Hkh edku ij rkyk can
jgrk gS" (Baar Baar Jaane Par Bhi Makaan
Par Taala Band Rehta Hai). He next
submitted that once notice has been sent on
the correct address and returned back with
endorsement of postman with aforesaid
remark, same shall be treated to be
sufficient. In support of his contention, he
placed reliance upon the judgement of
Apex Court in the matters of Dharam Pal
Vs. Harbans Singh; (2006) 9 SCC 216.

12. Further, he also placed reliance
upon the judgement of Apex Court in the
matters of Ajeet Seeds Limited Vs. K.
Gopala Krishnaiah; (2014) 12 SCC 685.

13. The issue of examination of
postman in Court is having no force. He
6 All. Smt. Kaisar Jahan & Ors. Vs. Pashupati Colonizer Pvt. Ltd.
137
submitted that once notice has been sent
upon the correct address, there is no
requirement to examine the postman. In
support of his contention, he placed
reliance upon the judgement of Apex Court
in the matters of P.T. Thomas Vs. Thomas
Job; (2005) 6 SCC 478.

14. So far as communication of sale
deed is concerned, once notice has been
served, which is mentioned in plaint and
also accepted by revisionists-defendants in
their written statement that they are having
knowledge of change of landlordship of
respondent- plaintiff and paid rent at the
rate of Rs. 32/- per month. It would be
deemed that they are having knowledge of
sale deed. Lastly, he submitted that once,
they have never deposited any amount
before SCC Court, admitted or not
admitted, they are defaulter and liable to be
vacate the house in question. Under such
facts and circumstances, there is no
illegality in the impugned judgment and
order and same is liable to be set aside.

15. I have considered the rival
submissions advanced by the learned
counsel for the parties and perused the
record as well as judgments placed by the
learned counsel for the parties.

16. The first issue which was raised
by the learned counsel for the revisionistsdefendants about the maintainability of the
suit in lack of resolution or authorization
from the Board of Director and whether
this question can be raised for the first time
before this Court or not.

17.

Learned
counsel
for
the
revisionists-defendants has placed reliance
upon the judgement of the Apex Court in
the matter of M/s Dale & Carrington Invt.
(P) Ltd. (supra), which says that individual
Director has no power to act on behalf of
the Company. Relevant paragraph is quoted
hereinbelow;

"At this stage it may be appropriate to
consider the legal position of Directors of
companies registered under the Companies
Act. A company is a juristic person and it
acts
though
its
Directors
who
are
collectively referred to as the Board of
Directors. An individual Director has no
power to act on behalf of a company of
which he is a Director unless by some
resolution of the Board of Directors of the
Company specific power is given to
him/her. Whatever decisions are taken
regarding running the affairs of the
company, they are taken by the Board of
Directors. The Directors of companies have
been
variously
described
as
agents,
trustees or representatives, but one thing is
certain that the Directors act on behalf of a
company in a fiduciary capacity and their
acts and deeds have to be exercised for the
benefit of the company. They are agents of
the company to the extent they have been
authorized to perform certain acts on
behalf of the company. In a limited sense
they are also trustees for the shareholders
of the company. To the extent the power of
the Directors are delineated in the
Memorandum and Articles of Association
of the company, the Directors are bound to
act accordingly. As agents of the company
they must act within the scope of their
authority and must disclose that they are
acting on behalf of the company. The
fiduciary
capacity
within
which
the
Directors have to act enjoins upon them a
duty to act on behalf of a company with
utmost good faith, utmost care and skill and
due diligence and in the interest of the
company they represent. They have a duty
to make full and honest disclosure to the
shareholders
regarding
all
important
138 INDIAN LAW REPORTS ALLAHABAD SERIES
matters relating to the company. It follows
that in the matter of issue of additional
shares, the directors owe a fiduciary duty to
issue shares for a proper purpose. This duty
is owed by them to the shareholders of the
company. Therefore, even though Section
81 of the Companies Act which contains
certain requirements in the matter of issue
of further share capital by a company does
not apply to private limited companies, the
directors in a private limited company are
expected to make a disclosure to the
shareholders of such a company when
further shares are being issued. This
requirement flows their duty to act in good
faith and make full disclosure to the
shareholders
regarding
affairs
of
a
company. The acts of directors in a private
limited company are required to be tested
on a much finer scale in order to rule out
any misuse of power for personal gains or
ulterior
motives.
Non-applicability
of
Section 81 of the Companies Act in case of
private limited companies casts a heavier
burden on its directors. Private limited
companies are normally closely held i.e.
the share capital is held within members of
a family or within a close knit group of
friends. This brings in considerations akin
to those applied in cases of partnership
where the partners owe a duty to act with
utmost good faith towards each other. Nonapplicability of Section 81 of the Act to
private companies does not mean that the
directors have absolute freedom in the
matter of management of affairs of the
company."

18. Further in light of judgment of
Apex Court in the matter of Shri Saurav
Jain (supra), he submitted that it is a
question of law, which can be raised at any
stage as it goes to the root of the case.
Relevant
paragraph
of
the
aforesaid
judgment is quoted hereinbelow;-

"Based on the position of law, we find
it just to allow the appellant to raise the
ground of jurisdiction before us. Allowing
the ground to be raised would not require
the submission of additional evidence since
it is a pure question of law and strikes at
the heart of the matter. We shall now turn to
the merits of this argument."

19. There is no dispute on the point
that Director may not proceed alone on
behalf of the Company. It is also
undisputed that it is required on the part of
revisionists-defendants to have specific
pleading
to
this
effect
to
provide
opportunity to other side to rebut the same.
In present case, undisputedly this issue has
never been pleaded or raised before the
Court below. The Apex Court in the matter
of Shivaji Balaram Haibatti (supra) has
considered this fact and clearly held that
Court has to record the findings only on the
issues which are part of the pleadings on
which parties are contesting the case.
Resolution of Board of Director has been
passed or not, is the question of fact and
can only be replied if it is raised in the
pleadings. In the present case, this issue is
based upon the cross examination of the
plaintiff-respondent not supported by any
documentary evidence, therefore, without
pleadings revisionists-defendants cannot
take benefit of maintainability of the SCC
suit. Apex Court in the matter of Shivaji
Balaram Haibatti (supra) has also taken
the same view. Relevant paragraph of the
said judgment is quoted hereinbelow;

"It is these issues, which were gone
into
by
the
two
Courts
and
were
concurrently decided by them against the
respondent. These issues, in our opinion,
should have been examined by the High
Court with a view to find out as to whether
these findings contain any legal error so as
6 All. Smt. Kaisar Jahan & Ors. Vs. Pashupati Colonizer Pvt. Ltd.
139
to call for any interference in second
appeal. The High Court, however, did not
undertake this exercise and rather affirmed
these findings when it did not consider it
proper to frame any substantial question of
law. It is a settled principle of law that the
parties to the suit cannot travel beyond the
pleadings so also the Court cannot record
any finding on the issues which are not part
of pleadings. In other words, the Court has
to record the findings only on the issues
which are part of the pleadings on which
parties are contesting the case. Any finding
recorded on an issue de hors the pleadings
is without jurisdiction. Such is the case
here."

20. So far as judgment of Shri Saurav
Jain (supra) is concerned, same is not
applicable in the present case for the reason
that revisionists-defendants have not raised
any legal issue, but factual issue based
upon the cross examination of plaintiffrespondent, which cannot be accepted
without pleading in written statements as it
was held by the Apex Court in the matter of
Shivaji Balaram Haibatti (supra).

21. The second issue is about the rate
of rent. The case of revisionists-defendants
are that rent was Rs. 32/- per month, which
they have deposited till the decision of the
suit under Section 30 of U.P. Act No. 13 of
1972. If it is treated to be correct even
though as provided under Order XV Rule 5
CPC after first appearance before the Court
concerned or SCC Court, it is required on
the part of revisionists-defendants to
deposit the amount before this Court where
the suit is pending, but it is admitted
position that revisionists-defendants have
never deposited any amount before the
SCC Court, but continuously deposited the
same before the Court provided under
Section 30 of U.P. Act No. 13 of 1972.
Therefore, in light of judgment of Apex
Court in the matter of Smt. Kalawati
(supra), no advantage can be given to the
revisionists-defendants for the very simple
reason
that
in
all
eventuality
after
appearance in suit proceedings, current rent
has to be deposited by the revisionistsdefendants before the Court where the suit
is pending. Relevant paragraphs of the
aforesaid judgment is quoted hereinbelow;-

"Similar view has been expressed by a
Bench of this Court in the case of Madhu
Mittal (Smt.) Vs. Additional District Judge,
Ghaziabad and others, 2004 (2) ARC 326
wherein following the law laid down by the
full Bench, the court held as under;

"4. The tenant started depositing rent
under Section 30 of U.P. Act N. 13 of 1972
with effect from 01.07.1993 and continued
to deposit the rent under Section 30 till
30.06.1995.
Defendant
admitted
that
meanwhile he received two registered
notices from the landlord dated 27/30
January 1994 demanding the rent. In spite
of the said notices, defendant continued to
deposit the rent under Section 30 of the Act.
The defendant did not deposit any rent in
the suit. The suit was ultimately decreed on
30.01.1996 by J.S.C.C. Tenant-respondent
no. 2 filed a revision against the judgment
and decree passed by the trial court under
Section 25 P.S.C.C. Act being S.C.C.
Revision No. 60 of 1996. Vth Addl. District
Judge, Ghaziabad through judgment and
decree dated 19.03.1997, allowed the
revision, set aside the judgment and decree
passed by the trial court and dismissed the
suit. The Revisional Court placing reliance
upon, 1986 All. C.J. 782 (Gyanendra Lal
and another Vs. Vishnu Narain Mishra)
held that even after filing of the suit for
ejectment tenant had two options, one
deposit of rent under Section 30 of the Act
and second; deposit of rent in court where
140 INDIAN LAW REPORTS ALLAHABAD SERIES
suit for ejectment was filed. The writ
petition is directed against the aforesaid
judgment and order of revisional court.

5. It has been held in Full Bench
Authority of this Court reported in 2000 (1)
ARC 653, that deposit of rent under Section
30 of Act, after receiving notice of demand,
is not permissible and any such deposit, if
made, will not be of any benefit of the
tenant. The tenant will have to be treated
defaulter in payment of rent for the period
subsequent to the receipt of notice given by
landlord intimating his intention to receive
the rent directly.

6. Accordingly, I hold deposit of rent
made by the tenant after receipt of notice
dated 27/30 January 1994 was not
permissible and the said deposit cannot be
said to be payment to the landlord. The
tenant was defaulter when the suit was filed
and the trial court rightly decreed the suit.
In view of the above, I hold that the
judgment passed by the revisional court is
patently erroneous in law."

(Emphasis supplied by me)

Thus, the deposit of rent under Section
30 of the Act after receiving of notice of
demand, is not permissible and any such
deposit, if made will not be of any benefit to
the tenant. The tenant will have to be
treated as defaulter in payment of rent for
the period subsequent to the receipt of
notice given by the landlord intimating his
intention to receive the rent directly.

A careful reading of Section 20(4) of
the Act/ Rule 5 of Order XV shows that in
any suit by a lessor for the eviction of a
lessee after the determination of the lease
and for recovery of rent or compensation
for use and occupation, the defendant is
required to deposit at or before the first
hearing of suit, the entire amount admitted
by him to be due together with interest
thereon at the rate of 9% per annum and
whether or not he admits any amount to be
due, he shall throughout the continuation of
the suit regularly, deposit the monthly
amount due within a week from the date of
its accrual, and in the event of any default
in making the deposit of the entire amount
admitted by him to be due or the monthly
amount due as aforesaid, the Court may,
subject to the provisions of sub-rule (2)
strike off his defence. The expression
"entire amount admitted to be due" means
the entire gross amount, whether as rent or
compensation for use and occupation,
calculated at the admitted rate of rent for
the admitted period of arrears after making
no other deduction except the taxes, if any,
paid to a local authority in respect of the
building on lessor's account and the
amount, if any, deposited in any Court
under Section 30 of the U.P. Act No.13 of
1972. As per Explanation 3, the expression
"monthly amount due" means the amount
due every month, whether as rent or
compensation for use and occupation at the
admitted rate of rent, after making no other
deduction except the taxes, if any, paid to a
local authority, in respect of the building on
lessor's account. The admitted rate of rent
is Rs.200/- per month which was payable to
the plaintiff-respondent. The petitionerdefendant was liable to deposit the entire
amount at the first hearing and was also
liable to continue to deposit the monthly
rent in time from month to month. The
aforesaid provision is a beneficial provision
and if the petitioner defendant wanted to
take its advantage then he must have
strictly complied with the requirement of
the aforesaid provision.

A clear cut statutory provisions of
Section 20(4) of the Act leads to an
inescapable and irresistible conclusion that
the petitioner-defendant/ tenant was under
statutory obligation to deposit the entire
amount of rent and damages for use and
occupation of the building due from him
6 All. Smt. Kaisar Jahan & Ors. Vs. Pashupati Colonizer Pvt. Ltd.
141
together with interest thereon @ 9% per
annum and landlord's costs of the suit in
respect thereof, at first date of hearing of
the suit, after deducting there from any
amount already deposited by him under
Section 30(1) of the Act, if he desired to
take benefit of the beneficial provisions of
Section 20(4) of the Act. The tenant can
deduct the amount deposited under Section
30 of the Act but the deposits of the monthly
amount after
the
first
hearing
and
throughout the continuation of the suit must
be made in the court where the suit has
been filed for eviction and recovery of rent
or compensation for use and occupation.
Amount, if any, deposited by petitionerdefendant/tenant under Section 30 of the
after the first hearing of the suit cannot be
deducted for the purposes of benefit of the
provisions of Section 20(4) of the Act. If the
defendant wishes to take advantage of the
beneficial provisions of Section 20(4) of the
Act, he must strictly comply with the
requirements
and
if
any
condition
precedent is to be fulfilled before the
benefit can be claimed, he must comply
with that condition, failing which, he
cannot take advantage of the benefit
conferred by the provisions of Section 20(4)
of the Act.

If the tenant wishes to take advantage
of the beneficial provisions of the Rent
Control Act, he must strictly comply with
the requirements and if any condition
precedent is to be fulfilled before the
benefit can be claimed, he must strictly
comply with the condition failing which, he
can not take advantage of the benefit
conferred by such a provision. It has been
further emphasized that the rent must be
deposited in the court where it is required
to be deposited under the Rent Control Act
and if it is deposited somewhere else, it
shall
not
be
treated
as
a
valid
payment/tender
of
the
rent
and
consequently, the tenant must be held to be
in default."

22. It is undisputed that applicant is
having full knowledge of change of
landlordship and it cannot be believed that
second
purchaser
(respondent-plaintiff)
after a very long time shall maintain the
same rent, which was earlier fixed by the
previous landlord i.e. Rs. 32/- per month.
The acceptance of change of landlordship
and continuation of tenancy with new
landlord impliedly said that applicant was
also having full knowledge about the
enhanced rent at the rate of Rs. 6600/- per
month. It is nothing, but an attempt to any
how continue the tenancy by getting the
SCC suit prolonged or dismissed on a
frivolous ground.

23. So far as issue with regard to
service of notice and examination of
postman in court are concerned, there is no
dispute on the point that notice has been
returned back with the remark as "ckj ckj
tkus ij Hkh edku ij rkyk can jgrk gS" (Baar
Baar Jaane Par Bhi Makaan Par Taala Band
Rehta Hai). In light of judgment of Apex
Court in the matter of Dharam Pal (supra)
& Ajeet Seeds Limited (supra), it is settled
proposition
of
law
that
in
such
circumstances notice has to be treated
sufficient and this cannot be ground for
which benefit may be given to the
revisionists-defendants. In the matter of
Dharam Pal (supra), Apex Court has taken
the same view and relevant paragraph of
the same is quoted hereinbelow;-

"Learned counsel for the appellant
submits that none of the two recitals
contained in the notice can fulfill the
requirement of Section 106 of the Transfer
of Property Act. One recital in the notice
terminates the tenancy from the date of
142 INDIAN LAW REPORTS ALLAHABAD SERIES
issue of notice. The other one requires the
tenant to vacate the premises within 15
days from the date of the receipt of the
notice. Both are bad in the light of the
requirements spelled out by the Section 106
of the Transfer of Property Act. The learned
counsel seems to be right in urging the
pleas. However, still we feel that the
appellant cannot be allowed relief. Law is
well settled that an objection as to the
invalidity or insufficiency of notice under
Section 106 of the Transfer of Property Act
should be specifically raised in the written
statement failing which it will be deemed to
have been waived. In the present case, the
only objection taken in the written
statement is that the notice issued by the
plaintiff was "illegal, null and void and
ineffective upon the right of the defendant".
The thrust of the plea raised by the
defendant-appellant
in
his
written
statement was that the notice was issued by
the person who did not have the authority
from the landlord to give the notice. The
plea so taken has been found devoid of
merit by the High Court and the courts
below. The plea that the notice was
insufficient in the sense and it did not give
15 clear days to the tenant to vacate or that
the notice did not terminate the tenancy
with the expiry of the month of the tenancy,
has not been taken in the written
statement."

24. Again, Apex Court in the matter
of Ajeet Seeds Limited (supra), reiterated
the same view and relevant paragraph of
the same is quoted hereinbelow;-

"This Court then explained the nature
of presumptions under Section 114 of the
Evidence Act and under Section 27 of the
GC Act and pointed out how these two
presumptions are to be employed while
considering the question of service of
notice under Section 138 of the NI Act. The
relevant paragraphs read as under:

"13. According to Section 114 of the
Act, read with Illustration (f) thereunder,
when it appears to the Court that the
common course of business renders it
probable that a thing would happen, the
Court may draw presumption that the thing
would have happened, unless there are
circumstances in a particular case to show
that the common course of business was not
followed. Thus, Section 114 enables the
Court to presume the existence of any fact
which it thinks likely to have happened,
regard being had to the common course of
natural events, human conduct and public
and private business in their relation to the
facts of the particular case. Consequently,
the court can presume that the common
course of business has been followed in
particular
cases.
When
applied
to
communications sent by post, Section 114
enables the Court to presume that in the
common course of natural events, the
communication would have been delivered
at the address of the addressee. But the
presumption that is raised under Section 27
of the G.C. Act is a far stronger
presumption. Further, while Section 114 of
Evidence
Act
refers
to
a
general
presumption, Section 27 refers to a specific
presumption. For the sake of ready
reference, Section 27 of G.C. Act is
extracted below:

"27. Meaning of service by post.-
Where any Central Act or regulation made
after the commencement of this Act
authorizes or requires any document to be
served by post, whether the expression
''serve' or either of the expressions ''give' or
''send' or any other expression is used,
then, unless a different intention appears,
the service shall be deemed to be effected
by properly addressing, pre-paying and
posting by registered post, a letter
6 All. Smt. Kaisar Jahan & Ors. Vs. Pashupati Colonizer Pvt. Ltd.
143
containing the document, and, unless the
contrary is proved, to have been effected at
the time at which the letter would be
delivered in the ordinary course of post".

14. Section 27 gives rise to a
presumption that service of notice has been
effected when it is sent to the correct
address by registered post. In view of the
said presumption, when stating that a
notice has been sent by registered post to
the address of the drawer, it is unnecessary
to further aver in the complaint that in spite
of the return of the notice unserved, it is
deemed to have been served or that the
addressee is deemed to have knowledge of
the notice. Unless and until the contrary is
proved by the addressee, service of notice is
deemed to have been effected at the time at
which the letter would have been delivered
in the ordinary course of business. This
Court has already held that when a notice
is sent by registered post and is returned
with a postal endorsement ''refused' or ''not
available in the house' or ''house locked' or
''shop closed' or ''addressee not in station',
due service has to be presumed. [Vide
Jagdish Singh Vs. Natthu Singh (1992) 1
SCC 647; State of M.P. Vs. Hiralal & Ors.
(1996) 7 SCC 523 and V.Raja Kumari Vs.
P.Subbarama Naidu & Anr. (2004) 8 SCC
74] It is, therefore, manifest that in view of
the presumption available under Section 27
of the Act, it is not necessary to aver in the
complaint under Section 138 of the Act that
service of notice was evaded by the accused
or that the accused had a role to play in the
return of the notice unserved."

It is thus clear that Section 114 of the
Evidence Act enables the Court to presume
that in the common course of natural
events, the communication would have
been delivered at the address of the
addressee. Section 27 of the GC Act gives
rise to a presumption that service of notice
has been effected when it is sent to the
correct address by registered post. It is not
necessary to aver in the complaint that in
spite of the return of the notice unserved, it
is deemed to have been served or that the
addressee is deemed to have knowledge of
the notice. Unless and until the contrary is
proved by the addressee, service of notice is
deemed to have been effected at the time at
which the letter would have been delivered
in the ordinary course of business."

25. Revisionists-defendants have
raised issue about the examination of
postman regarding the notice has been
served at the correct address or not. This
issue has also been considered by the Apex
Court in the matter of P.T. Thomas (supra),
which
has
held
that
under
such
circumstances once the requirement of
Section 27 of the Post Office Act has been
complied with and endorsement has been
made by the postman with regard to service
of notice, there is no requirement to
examine the postman in Court. Relevant
paragraph of the aforesaid judgment is
quoted below;-

"The High Court, in our view, has also
misinterpreted Section 27 of the Post Office
Act. The requirement of Section has been
complied with in this case. The reasoning
of the High Court on this issue is not
correct and not in accordance with factual
position. In the notice issued, the Postman
has
made
the
endorsement.
This
presumption is correct in law. He had given
notice and intimation. Nevertheless, the
respondent did not receive the notice and it
was returned unserved. Therefore, in our
view, there is no obligation cast on the
appellant to examine the Postman as
assumed
by
the
High
Court.
The
presumption under Section 114 of the
Evidence Act operates apart from that
under the Post Office Act, 1898. "
144 INDIAN LAW REPORTS ALLAHABAD SERIES

26. The last issue raised by the
revisionists-defendants
is
improper
communication of sale deed. This cannot
be accepted for the reason that notice has
properly
been
served,
revisionistsdefendants have accepted the change of
landlordship in their written statements and
also payment of Rs. 32/- per month under
Section 30 of U.P. Act No. 13 of 1972. It
clearly shows that they are having full
knowledge of change of landlordship after
receiving the notice and admitted the same
in their written statements. Once they have
knowledge of change of landlordship, that
cannot be without having knowledge of
sale deed, therefore, this cannot also be
ground for interference by this Court.

27. Therefore, under such facts of the
case and law laid down by the Courts, I
found no good reason to interfere in the
impugned judgment and order. Revision
lacks merit and is accordingly, dismissed.
No order as to costs.
----------
(2022)06ILR A144
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 30.05.2022

BEFORE

THE HON'BLE SHREE PRAKASH SINGH, J.

Application U/S 378 No. 3 of 2022

Lal Chandra Shukla ...Applicant
Versus
State of U.P. ...Opp. Party

Counsel for the Applicant:
Rama Pati Shukla

Counsel for the Respondents:
G.A.

Criminal
Law
-
Code
of
Criminal
Procedure, 1973 - Section 254, 256, 262,
263, 264, 265 and 378(4) - Indian
Negotiable Instrument Act, 1881 - Section
138, 143, 145: - Application to grant
'Special Leave to Appeal' - Rejection of a
Complaint case in a summery trial by
invoking provisions of Summon trial -
Court
below
travelled
beyond
its
jurisdiction
-
Application
allowed
-
impugned judgment & order set aside -
Trial
court
directed
to
proceed
accordingly. (Para - 15, 17, 18, 19, 21)

Application
(U/s
378)
is
allowed,
judgment and order of Trial court is set
aside. (E-11)

List of Cases cited: -

1. Suo Moto WP (Criminal) No. 2/2020 Decided
on 16.04.2021,

2. Pooja Sharma Vs Suresh Kumar, Criminal
Appeal No. 469 of 2018 decided on 04.01.2019

3. C.K. Sivaraman Achari Vs D.K. Agarwall &
ors., 1978 CriLJ 1376

(Delivered by Hon'ble Shree Prakash
Singh, J.)

1. Heard Sri Rama Pati Shukla,
learned counsel for the applicant/appellant,
Sri Anirudh Kumar Singh, learned A.G.A.-I
for the State, and perused the record.

2. This application has been filed with
the prayer to grant Special Leave to
Appeal, which is sought to be preferred
against the order dated 23rd of December
2021 passed by the Additional Court,
Faizabad whereby the Complaint Case No.
222 of 2021 filed by the complainant under
Section 138 of the Negotiable Instruments
Act, 1881 (hereinafter referred to as 'the
N.I. Act'), Police Station Kotwali Ayodhya,
District Faizabad was rejected.

3. Learned counsel for the applicant
submits that legal question is involved in