IMPORTANT POINT
UPC not reliable method of proving service of notice.

Valmiki, J. Mehta, J.—This Second Appeal is filed by the appellant/plaintiff against the concurrent judgments of the Courts below; of the Trial Court dated 5.3.2012 and the First Appellate Court dated 4.10.2013; by which the suit of the appellant/plaintiff for possession and recovery of damages/mesne profits with respect to premises being ground floor and basement of property bearing No. 10, Community Centre, First Floor, Lawrance Road, Industrial Area, Delhi was dismissed. The suit was dismissed because the Courts below have held that the respondent/ defendant had exercised the option in terms of clause 3(d) of the rent agreement Ex. PW 1/C 30 days before expiry of the lease period on 17.10.2008. The option is said to have been exercised by means of the letter dated 15.9.2008 issued by the respondent/defendant to the appellant/plaintiff.

The facts of the case are that the appellant/plaintiff let out the suit property to the respondent/defendant on a monthly rent of Rs.15,000 for a period of five years commencing from 18.10.2003 and expiring on 17.10.2008. In terms of the clause 3(d) of the registered lease agreement, respondent/ defendant could exercise the option of extending the lease for a further period of five years subject to increasing rent by 20%. Whereas the case of the appellant/plaintiff was that she did not receive the renewal option notice dated 15.9.2008, the respondent/defendant claimed that after the renewal option notice dated 15.9.2008 was refused when the same was sent personally through the peon of the respondent/ defendant thereafter the same was sent by Courier and UPC to the appellant/plaintiff. As already stated above, the Courts below have held that renewal option notice has been served upon the appellant/plaintiff and consequently the suit for possession has to be dismissed.

2. The relevant observations of the First Appellate Court in this regard, are contained in para 12 of the impugned judgment and which reads as under:

“12. After hearing the arguments and going through the record. I found that there was a lease agreement reached between the parties which is Ex.PW1/C. In this lease deed clause 3(d) specifically provides that the lessee i.e. defendant/ respondent herein if an option for exercise of lease period for two of 5 years each after the expiration of the period of the lease entered into by Ex. PW1/C. This option was to be exercised atleast 30 days before the day of expiry of the earlier lease and in writing. Admittedly the lease deed was going to expire on 17.10.08, therefore, this option was to be exercised one month prior to that i.e. on or before 17.9.2008. There is a letter written by the defendant/respondent to the plaintiff/appellant on 15.9.2008 and is Ex. DW1/2, though the plaintiff/appellant has denied having received the same but there is evidence on record showing that this letter was delivered to them. Firstly there is statement of the peon PW2, who deposed that he took the letter to the plaintiff after making entry in the peon book, copy of which is prove on record as Ex. DW1/5. According to this entry plaintiff/ appellant refused to receive the same. It is important to note here that plaintiff/appellant resides on the first floor, whereas defendant is on the ground floor. The notice was also sent through Courier and by UPC. UPC receipt has been proved on record as Ex. DW1/4. Witness from post office was examined as DW4, who stated that this UPC was sent through post office. Keshav Puram Delhi, though it was argued that it is manipulated document but no such evidence has come on record that UPC is manipulated which is Ex. DW1/4. Under the circumstances the presumption arises that notice was received by the plaintiff/ appellant which is not rebutted by the plaintiff/appellant. Merely saying that the plaintiff/appellant has not received the notice will not rebut the evidence which has come on record. It has to be shown under what circumstances it could not have been r