Judgment

SAWANT, J.:- This appeal is by a tenant against the order of his eviction which is confirmed by two courts below. The eviction suit was filed on the ground of arrears of rent and on the ground that a permanent structure was erected in the suit premises without the previous permission in writing of the landlord. The Small Causes Court, Bombay granted a decree of eviction in favour of the respondent-landlord only on the ground of the arrears of rent holding that the other ground, viz., the construction of a permanent structure by the tenant without the authority of the landlord was not proved. This decision was confirmed in appeal by the Appeal Bench of the Small Cause Courts, Bombay. The writ petition filed in the High Court against the said judgment was dismissed summarily.

2. The only point which was canvassed before us was whether the appellant had received the notice dated September 3, 1963 demanding the arrears of rent and whether the appellant had failed to pay the arrears of rent within thirty days of the receipt of the said notice as required under the relevant provisions of the Bombay Rent Act (hereinafter referred to as the "Act"), there being no dispute that the rent in arrears was for more than six months. The notice was dated September 3, 1963 and the rent due was from March 1, 1963 till August 31, 1963. It was sent by registered post acknowledgment due. The acknowledgment is on record with a copy of the notice as Ex.E (colly). The suit premises are used for business purposes and the appellant is a proprietary concern, and its proprietor, Amarjeet Singh denied that he had received the notice. The finding of the two courts of fact is that notwithstanding the denial of Amarjeet Singh, the notice was in fact received at the suit premises. To come to this conclusion, the courts have given several reasons. They have pointed out that it was addressed correctly in the name of the appellant and at the suit premises. The earlier notices were also addressed similarly at the same address and the appellant had admitted the receipt thereof. They are on record as Ex.2, Ex.B (colly.) Ex.F (colly.). There is a legal presumption that the communication sent by post properly addressed to the addressee is received by him in due course of business and that the acknowledgment was received back from the post office duly signed with the recipients signature and that acknowledgment is on record. The notice was sent by the respondent-landords advocate and the acknowledgment was received at his office. The court further held that Amarjeet Singh, the proprietor of the premises was in the habit of changing his signature from time to time and had signed different documents in different styles. The appellant further did not lead sufficient evidence to rebut the presumption of service. It was admitted by Amarjeet Singh that either he himself or his brother or his employee would always be present in the suit premises. Although he came out with an alibi that he was not present in the premises on the date on which the postal acknowledgment is signed, he has not stated that nobody else was present in the shop on that day and hence nobody could have received the said notice on behalf of the appellant. The courts, therefore, held that the service of the notice on the appellant was proved. Since the rent was admittedly not paid within thirty days of the receipt of the said notice, according to the mandatory provisions of the Act, the appellant was liable to be evicted.

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