Court No. - 30
Case :- MATTERS UNDER ARTICLE 227 No. - 4890 of 2018 Petitioner :- Mohammad Afzal Respondent :- Smt. Ramesh Kumari Counsel for Petitioner :- Nitin Kumar Agrawal Counsel for Respondent :- Amitabh Agarwal
Hon'ble Vivek Kumar Birla,J.
Heard Sri Nitin Kumar Agrawal, learned counsel for the petitioner and Sri Pradeep Kumar, learned counsel who has filed his Vakalatnama today alongwith Sri Uma Nath Pandey, learned counsel appearing for the landlord - respondent.
Present petition has been filed seeking setting aside of the impugned order dated 18.5.2018 passed by the Additional District Judge, Court No. 8, Bulandshahr in S.C.C. Revision No. 5 of 2017, Mohammad Afzal Vs. Smt. Ramesh Kumari and the order dated 30.5.2017 passed by the Judge Small Causes Court/Civil Judge (Senior Division), Bulandshahr in S.C.C. Suit No. 27 of 2015, Smt. Ramesh Kumari Vs. Mohammad Afzal filed as Annexures 1 and 2 to the petition.
The suit filed by the landlord respondent was allowed by the trial court holding that the first assessment of the shop in question is of the year 1992 and as such the provisions of U.P. Act 13 of 1972 are not applicable. The notice sent by registered post was found to have been served by refusal holding that the same was sent on the correct address and consequently the suit was allowed. The revision filed by the tenant petitioner herein was also dismissed.
The sole ground for challenging the impugned judgment and order is that the notice was invalid inasmuch as the same was not served in accordance with the provisions of Section 106 of the Transfer of Property Act. Learned counsel for the petitioner submitted that the requirement of Section 106 (4) of the Transfer of Property Act are one, that it may be sent by post, second, or personally, third, may be served either on member of a family or servants at his residence and fourth, in case the notice could not be served the same has to be pasted on the property on which notice has been sent.
Submission of learned counsel for the petitioner is that there was specific denial on the part of the tenant - petitioner that the notice was not served on him and the refusal is collusive. He further submitted that in the plaint mode of sending notice has not been mentioned. Attention of this Court has been drawn to paragraph 8 of the plaint and paragraph 5 of the written statement to contend that the averment regarding refusal of notice is categorical in nature. He further submitted that under such circumstances the burden was on the plaintiff to prove service of notice, which has not been discharged and as such, the same is invalid. He further submitted that the assertion made in the written statement was not denied by the landlord respondent. He further submitted that the trial court has not recorded any finding on the issue as to whether the service is valid or not. In support of his argument, learned counsel for the petitioner has placed reliance of judgment of the Hon'ble Apex Court in the cases of (i) A. Rama Rao and others Vs. Raghunath Patnaik and others AIR 2007 SC 3036 and (ii) Anil Kumar Vs. Nanak Chandra Verma AIR 1990 SC 1215 in support of his argument.
Per-contra, learned counsel appearing for the respondent has submitted that the mode of service has been specified in paragraphs 7 and 8 of the written statement in which it has been clearly asserted that the notice was served by refusal and there is no dispute about the fact that the original registry receipts with endorsement of refusal were placed on record of the trial court and the law is settled that once the notice has been sent on correct address and has returned with refusal, service is sufficient.
I have considered the rival submissions and have perused the record.
On perusal of paragraph 7 of the plaint it is very much clear that the earlier notice dated 9.4.2015 which was also sent undisputedly on the same address was returned with the endorsement "not met". In paragraph 8 it has been asserted that again a notice dated 27.6.2015 was sent on the correct address, which was refused to be received on 30.6.2015 and was returned with the endorsement that he has refused to accept the same. A perusal of the registry receipts at page 76 of the paper book clearly indicates that on 29.6.2015 the premises was found closed and on 30.6.2015 the defendant refused to accept the same. A perusal of paragraph 5 of the written statement indicates that notice dated 27.6.2015 has been refused by saying that it did not reach the defendant and the defendant did not refuse to receive the same. It is important to note that it has also been stated that the plaintiff has got endorsement of refusal in connivance with the postman. Under such circumstances, mode of service of notice is very much clear. A reference may also be made to the statement made by the defendant before the court below as P.W. 1 which clearly indicates that the earlier notice was received by him on the address of the shop (the same address) and on perusal of the registry he categorically stated the address is correct and he receives the post on this address only. Under such circumstances, admittedly, the notice was sent on correct address and the service of notice was done by refusal. It is also pertinent to note that in previous proceedings the notice dated 4.3.2005 terminating the vacancy under Section 106 of the Transfer of Property Act was sent to the tenant petitioner on the same address and was returned with the remark "not met" and was undisputedly, challenged by the petitioner upto this Court. All these circumstances clearly indicate that there was no confusion of any mode of service and the notice was served on the petitioner by refusal. Law on service of notice by refusal by registered post sent on correct address is well settled. I do not wish to burden my judgment with the rulings on this issue.
In so far as the ground taken that no finding has been recorded by the trial court that the notice is valid or not, I find that specific issue was framed in this regard and the entire evidence as well as law on this issue has been discussed in detail thereafter, finding was recorded by the trial court. Even otherwise, the revision was filed on this sole ground as to whether notice was valid or not and the same has been discussed in detail by the revisional court and therefore, I do not find that the no finding on this issue has been recorded and that the grounds taken to challenge the notice have not been taken into consideration by the courts below.
A reference may be made in this regard to the Constitutional Bench
judgment of the Hon'ble Apex Court in the case of Hindustan Petroleum Corporation Ltd. Vs. Dilbahar Singh (2014) 9 SCC 78 according to which no interference is warranted in such findings of fact. It is also settled law that jurisdiction under Article 227 of the Constitution of India is akin to revisional jurisdiction and the scope of interference in the findings of fact is also very limited.
In the facts and circumstances of the case discussed above, I find that the rulings relied upon by the learned counsel for the petitioner are distinguishable.
I do not find any legal infirmity or jurisdictional error in the orders impugned herein.
This petition is devoid of merit and is, accordingly, dismissed. No order as to costs.
Order Date :- 26.7.2018 p.s.