Presumption of service of notice under Section 27 of the General Clauses Act, 1897, and the insignificance of an omission in impleading the correct party.

( 1 ) THIS revision is directed against the judgment and decree dated 1. 9. 2007 decreeing the suit of plaintiff-opposite parties against defendant-revisionists for ejectment and arrears of rent.

( 2 ) THE plaintiff-opposite parties had filed a suit for ejectment of the defendant-revisionists from a part of H. No. 8/5 Vikramaditya Marg, Lucknow in their tenancy and arrears of rent.

( 3 ) PLAINTIFF-OPPOSITE parties case is that the defendants were tenants on monthly basis in the premises in question which is not governed by provisions of u. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (Act no. XIII of 1972), as the rent of the premises is more than Rs. 2,000/- per month. It was further alleged that as the tenants failed to pay rent since January, 2004, a notice was issued terminating their tenancy and demanding arrears of rent but they failed to vacate the premises and deliver possession to the landlords, hence the suit.

( 4 ) THE suit was contested by defendant-revisionists who did not dispute that the plaintiff-respondents are landlords of the premises in question but alleged that M/s. Transworld Export, of which Sri Ghulam Waris Khan is the sole proprietor, is the tenant and that since it was referred as M/s. Transworld alone as party, the suit was not maintainable. It was further alleged that after receipt of information that the house in question was earlier owned by Mukul ghosal, has been purchased by plaintiff-opposite parties, rent at the rate of rs. 5,175/- as claimed by plaintiff-opposite parties also, was sent through pay order since January, 2003 in a registered cover and that the same was accepted also by the plaintiff-opposite parties who continued to accept rent till december, 2003. However, when the rent for the month of January, 2004 was sent through pay order dated 29. 12. 2003, plaintiff-respondent No. 1 did not accept the same and it was returned with the endorsement of refusal. It has been further alleged that inspite of best efforts made by defendant-revisionists, the plaintiff-opposite parties did not accepted the same. Therefore, the same was deposited alongwith 9% interest in the suit in compliance of Order XV, Rule 5, c. P. C. Defendant-revisionists denied the service of any legal and valid notice on them either through registered post or under postal certificate. Parties adduced evidence in support of their respective contentions. Upon consideration of material on record, learned Trial Court decreed the suit. Feeling aggrieved, the defendant-revisionists have come up in revision before this Court.

( 5 ) I have heard Sri M. A. Khan, learned Senior Advocate assisted by Sri mohiuddin Khan, for revisionists and Sri Siddharth Dhaon, for respondents.

( 6 ) LEARNED Counsel for the revisionist vehemently submitted that revisionist was never served of the notice through registered post as claimed by revisionist. He submitted that the registered envelope containing the notice was returned with the endorsement "not claimed" and not with endorsement of "refusal" raising a presumption in favour of revisionist for service.

( 7 ) ON the other hand, the contention raised on behalf of opposite parties is that as per endorsement the postman visited revisionist repeatedly but when notice was not received and was refused, the same was returned as "not claimed" which amounts to refusal and therefore, under the General Clauses act, 1897 revisionist shall be deemed to have been served of the said notice.

( 8 ) THUS, the main question for consideration in this case is whether learned Trial Court committed any error on the facts of the case in holding that revisionist was served of the notice.

( 9 ) THE record reveals that the notices were sent to the revisionists by registered post in addition to the notices sent under postal certificate. The opposite parties have filed receipts regarding sending of the notices under postal certificate and also the receipt regarding issue of not