JUDGMENT Krishna Murari, J.
1. Heard Sri K. K. Dubey learned Counsel for the petitioner and Sri Ram Jee Saxena appearing for the contesting respondent No. 2.
2. The facts relevant for the purpose of the case are that landlord respondents No. 2 to 6 filed S.C.C. suit against the petitioner for arrears of rent and ejectment from the shop In dispute. The suit was contested by the tenant-petitioner by filing written statement. The trial court framed following 5 issues :
(i) Whether shop in dispute was constructed in 1984 and if yes, its effect?
(ii) Whether service of notice is sufficient?
(iii) Whether tenant is entitled to the benefit of Sections 39 and 20(4) of the U.P. Act XIII of 1972?
(iv) Whether the suit is maintainable?
(v) Any other relief.
3. Both the parties led evidence on the basis of which, the trial court held that shop was constructed In 1984 and is not within the purview of the Act XIII of 1972, the tenant-petitioner is not entitled to the benefit of Sections 39 and 20(4) of the Act and decided the issues No. 1 and 3 accordingly.
4. In so far as issue Nos. 2 and 4 are concerned the trial court held that service of notice under Section 106 of Transfer of Property Act terminating the tenancy was not sufficient and as such suit Is not maintainable. Only landlord respondent filed a revision. The tenant-petitioner did not challenge the finding on issues No. 1 and 3 which were against him. The revisional court set aside the finding recorded by the trial court on issue No. 2 and remanded the case back. The rest of the findings of trial court were confirmed.
5. It has been urged by the learned Counsel for the petitioner that revisional court has wrongly reassessed the evidence and substituted its own finding with regard to service of notice and it was beyond its jurisdiction. It has further been contended that by the impugned judgment the case has been remanded back to the trial court but in view of the finding that notice has been validly served and finding on other two issues having been confirmed the suit virtually stands decreed. In reply learned Counsel for the respondents has tried to Justify the impugned order.
6. I have considered the arguments advanced by the learned Counsel for the parties and perused the record.
7. It was pleaded by the landlord-respondent that petitioner-tenant was In arrears of rent since 4.7.1986. Notices dated 10.9.1986, 26.10.1987, 15.7.1988 and 16.8.1988, demanding arrears of rent and terminating the tenancy were sent by registered post. Notice dated 10.9.1986 was though served but acknowledgement was returned back without any signature of the tenant-petitioner. The other three notices were sent back unserved In connivance with the postman. Thereafter, the copy of notice dated 16.8.1988 was annexed as Annexure-2 to the affidavit filed by respondent-landlord in another case No. 303 of 1988 between the parties which was duly received by the counsel representing the tenant-petitioner in that case.
8. The trial court held that since notice has not been served in accordance with provision of Section 106, Transfer of Property Act as such the service of notice was not in accordance with law and was not sufficient.
9. However, revisional court has recorded a finding that notice by registered post were sent on the same address which was given by the tenant-petitioner in his written statement. However, the same were returned back with endorsement of the postman that inspite of having visited a number of times addressee was not available as such same Is being returned back. The revisional court further held that notices were sent at the correct address but the tenant-petitioner was deliberately avoiding the service as such it was deemed to have been served. It has also been held that he has received the notice alongwith affidavit which was served upon his counsel in case No. 303 of 1988. On the basis of aforesaid finding the revisional court held that notice was validly served upon the tenant-petitioner.
10. Section 106 of Transfer of Property Act reads as under :
106. Duration of certain leases in absence of written contract or local usage.(1) In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months' notice ; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days' notice.
(2) Notwithstanding anything contained in any other law for the time being in force, the period mentioned in Sub-section (1) shall commence from the date of receipt of notice.
(3) A notice under Sub-section (1) shall not be deemed to be Invalid merely because the period mentioned therein falls short of the period specified under that sub-section, where a suit or proceedings is filed after the expiry of the period mentioned In that Sub-section.
(4) Every notice under Sub-section (1) must be In writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property.
11. A bare reading of the aforesaid section indicates that lease of immovable property for the purpose other than agricultural or manufacturing process shall be deemed to be lease from month to month terminable on the part of either lessor and lessee by 15 days notice and the said period shall commence from the date of receiving of notice. Sub-section (3) of the said section provides a notice shall not be deemed to be Invalid merely because It falls short of the prescribed period in case a suit or proceeding is filed after the expiry of the prescribed period. It is thus clear that notice terminating the lease is required to be given before filing of the suit. The purpose of giving notice is to communicate to the lessee, the intention of the lessor to terminate the tenancy and to provide him time to vacate the premises failing which the suit can be filed. Thus, giving notice is a pre-condition to the filing of the suit and If there is no valid notice the suit must fall. It is no doubt correct that notice under Section 106 of the Transfer of the Property Act is not to be very minutely construed. In case the notice contains the clear Intention of the lessor to terminate the lease giving time specified by the statute to vacate the premises it would be a valid notice. Service of notice prior to filing of the suit is also a necessary ingredient.
12. In the instant case, the suit was filed on 24.5.1989. It was pleaded in the plaint that copy of notice dated 16.8.1988, was annexed with an affidavit filed in some other case between the parties and was received by the counsel representing the petitioner-tenant in that case and as such he was duly served with the notice. In paragraph No. 22 of the written statement it was pleaded by the tenant-petitioner that he came to know about the alleged notice after filing of the present case. From the aforesaid pleadings, it is clear that copy of notice dated 15.8.1988, was received by the petitioner after the suit for ejectment was filed. Such a notice cannot be said to be a notice issued in compliance of Section 106 of Transfer of the Property Act as It was received by the tenant-petitioner after filing of the suit and was only a copy of original notice. A copy of the notice served on the tenant after filing of the suit cannot be said to a valid notice as it does not conform to the requirement of Section 106, Transfer of Property Act. The trial court rightly held that service of copy of notice and in the manner as it was served cannot be held to be a valid service of notice.
13. It is no doubt correct that where a notice is sent on correct address of the addressee by registered post and the same is received back with endorsement of the refusal there is presumption that notice was duly served. However, such a presumption is rebutable and can stand rebutted on the denial by the addressee on oath but such statement has to be considered in the light of evidence brought on record having regard to the conduct of the parties concerned. In the case of Anil Kumar v. Nanak Chandra Verma , it has been held by the Hon'ble Apex Court though there can be no hard and fast rule on the question where a statement on oath by a tenant taking the tender and refusal to accept the delivery was sufficient to rebut the presumption of service. Unchallenged testimony of a tenant in certain cases may be sufficient to rebut the presumption, but if the testimony is unreliable position may be different. It is also a question of fact in different case whether there was sufficient evidence from the tenant to discharge the initial burden.
14. Thus, question whether presumption stands rebutted is always a question of fact and should be considered having regard to all surroundings, circumstances and conduct of the parties concerned. In the instant case the trial court though rightly held that copy of notice annexed with an affidavit filed in some other case received by the counsel representing the tenant-petitioner in that case will not be a valid service of notice but in so far as the question whether return of the registered post with endorsement of the postman can be deemed to be sufficient service and whether the tenant-petitioner has been able to rebut the presumption has not at all been considered by the trial court. It was the duty of the trial court to have recorded a clear finding whether notices were sent at the correct address and whether the tenant-petitioner has been successful in rebutting the presumption of service in the light of evidence brought on record and the entire facts and circumstances as also the conduct of the tenant-petitioner. However, the revisional court after reassessing the evidence has recorded a finding himself. While exercising the power conferred under Section 25 of Small Causes Court Act, this could have not been done by the revisional court. There appears to be force in the arguments advanced by the learned Counsel for the petitioner that revisional court has exceeded its jurisdiction. In view of the foresaid discussions, the finding of both the courts below on issue No. 2 cannot be sustained and are hereby quashed. However, finding on the rest of the issue stand confirmed.
15. As a result the writ petition stands allowed in part. The case is remanded back to the trial court to record finding a fresh on issue No. 2 in accordance with law and in the light of observation made hereinabove and thereafter pass a fresh orders accordingly within a period of six /months from the date of production of certified copy of this order before him.