SAMI ULLAH Vs. MOHAMMAD ZAHOOR

JUDGEMENT

(1.) THIS is a revision by a tenant against the order of the learned District Judge, Lucknow dismissing his revision under Sec tion 25 of the Provincial Small Cause Courts Act and maintaining the decree for ejectment and arrears of rent passed by the Judge Small Cause Courts. The applicant was a tenant of the building in question at the rate of Rs 15/- p. m. The case of the opposite party was that he had not paid rent since September, 19 0 in spite of composite notice for determination lease, arrears of rent and damages from 1-10-1970 one of the points raised before the trial as well as the learned revisional Court was that the notice was not served upon him at all. Initially the case of the plaintiff-opposite party was that it had been served upon the applicant but later on it was alleged that actually it was served upon his son Chhabban alias Abdul Hamid. The applicant had denied that he had any son of the name of Chhabban also. Both the Courts below had, however, held that Chhabban was the son of the applicant and he had received notice and it was due service upon the applicant. The applicant here again contends that Chhabban was not his son and service upon him was not to be regarded as sufficient. It was also pointed out that there was a wrong address on the envelope and so no presumption of service could be made under Section 27 General Clauses Act. However, it was a finding of fact that Chhabban was son of applicant and the notice had been served upon him and so it could not be taken up in the lower Court and certainly not in this Court. It is then contended that in any case the service upon Chabban would not be service upon the applicant under Section 3 of U. P. Act No. III of 1947. He contends that there is a difference in the manner of service of notices under Section 106 of the Transfer of Property Act and that under Section 3 of Act No. III of 1947. In the case of notice under Section 106 of the Transfer of Property Act service upon a male member of the family could be regarded as service upon the applicant. But there is no such pro vision for service of notice under Section 3 of U. P. Act No. III of 1947 according to which it must be personally upon the tenant vide Balloo Ram v. Chhedi Lal 1960 A.L.J. 213. It is contended that this aspect of the case was not touched by either Court. The learned counsel for the opposite party, however, contends that the view taken in Balloo Ram v. Chhedi Lal (supra), appears to be impliedly over ruled by the view taken in Ganga Ram v. Smt. Phulmati A.I.R. 1970 Alld. 446 (F.B.), wherein it was observed in para 30 of this case that two standards of service with regard to two parts of the same notice cannot be applied and, therefore, if a notice under Section 106 Transfer of Property Act is deemed to have been served it would follow that the same part of that notice which contains a demand under Section 3 of U. P. Act No. III of 1947 must also be deemed to have been served. The learned Counsel for the applicant, however, contends that these observations may be obiter and that this ruling can be applied only to the questions referred to the Full Bench and no such question, as appears from this observation, was referred to the Full Bench. THIS contention is not correct. It is true that this specific question had not been referred to but even from the questions referred to the Bench the conclusions as pointed out in the above observation would follow. One of the questions referred to the Bench was as follows :- 1. Whether a notice under Section 3 of U. P. (Temporary) Control of Rent and Eviction Act, even if combined under Section 106 of the Transfer of Property Act, has to be served on the tenant personally. The answer to this question is in the negative implying thereby that no personal service need be made and it was further clarified that even if notice of demand was deemed to have been served on a tenant it will be service upon him of a notice of demand. In reply to question No. 3 it was pointed out that a presumption regard ing service of such a notice has not only to be made under Section 114 of the Evidence Act but also under Section 27 of the General Clauses Act. Thus, in view of the Full Bench, service upon a tenant of a notice of demand con templated by Section 3 of U. P. Act No. III of 1947 would include service of the notice deemed or presumed to have been served upon him under Section 27 of the General Clauses Act or under Section 114 of the Evidence Act. It has, therefore, to be seen whether in the present case notice was deemed to have been served upon him under Section 27 of the General Clauses Act or under Section 114 of the Evidence Act. In the present case the presumption under Section 27 of the General Clauses Act would not apply because the notice was admittedly not served upon the applicant but was served upon his son Chhabban. However, the presumption under Section 114 of the Evidence Act can be raised. It has been held in Commissioner of Hazaribagh Municipality v. Fulchand Agarwal A.I.R. 1966 Patna 434, that when a letter was sent by registered post and the acknow ledgment signed by some one at the other end, i. e., at the address of the addressee, a presumption would be that it was received on behalf of the addressee. Here notice given to the applicant was received by his son as held by the Court below. The presumption, therefore, would be that it was received on behalf of the applicant. That presumption, no doubt, is rebut table, but the applicant has failed to rebut that presumption. In order to rebut that presumption, he had stated that Chhabban was not his son at all and that the letter was received by someone else in the name of Chhabban. But both the Courts below have found that Chhabban who received a notice was the son of the applicant. So it is clear that the applicant was not telling the truth while trying to rebut the presumption. It was, therefore, rightly held by the Courts below that the notice was received by Chhabban on behalf of the applicant and as such the notice would be deemed to have been properly served upon the applicant even in accordance with Section 3 of U. P. Act No. III of 1947. In the result there is no force in this revision and it is dismissed with costs.