Advocates:
['RAMAKANT DUBEY', '', 'ANUBHAV CHANDRA', 'Neeraj Tiwari', '', 'EKANSH VARMA', 'PANKAJ AGARWAL', 'SANJAY AGARWAL', 'B N AGARWAL', 'NIRAJ TIWARI']

Court No. - 18

Case :- CIVIL REVISION No. - 642 of 2012

Revisionist :- Rakesh Kumar Kuchiya

Opposite Party :- Ashok Kumar Jain

Counsel for Revisionist :- Ramakant Dubey,Anubhav Chandra

Counsel for Opposite Party :- Neeraj Tiwari,B.N.

Agarwal,Ekansh Varma,Niraj Tiwari,Pankaj Agarwal,Sanjay

Agarwal

Hon'ble Ajit Kumar,J.

1. Heard Sri Anubhav Chandra, learned counsel for the revision

petitioner and Sri Neeraj Tiwari, learned counsel for the

contesting respondent-landlord.

2. In this revision petition judgment and decree passed by

Judge, Small Cause Courts dated 15.09.2022 is chiefly

challenged on the point of service of notice to maintain a suit

for recovery of arrears and ejectment.

3. The argument advanced by Sri Anubhav Chandra, learned

counsel for the revision petitioner is that in the first instance

presumption ought not to have been raised regarding due

service of notice to determine the tenancy, by the trial Judge

and secondly even in the event it is held that the presumption

was rightly raised that presumption stood rebutted in view of

not only the fact that his client denied service of notice but also

for the fact that he had moved an application bearing paper no.

67-C seeking request for the court to ask landlord-respondent to

produce acknowledgement upon which signature had been

made by the recipient of the notice. Extending the argument

further he submits that the landlord's own statement before the

trial court that there were two addresses given on one envelope

also created doubt about the due service as it would not have

been certain for the Postal Department to fasten the Postman

with duty and responsibility to deliver envelop containing

notice on a particular address so as to raise valid presumption in

law with regard to service of notice. Learned counsel for the

petitioner in support of his argument has relied upon two

authorities: (i) Satish Chandra @ Satish Pandit v. Manohar

Lal Gera, 2016 (3) ARC 336; and (ii) Ashraf v. Kailash

Prasad (since deceased) & Another, 2017 (1) ARC 292. Both

the judgments by two different concurrent benches of this

Court.

4. Per contra it is submitted by learned counsel for the

respondent-landlord that once the notice had been sent on a

correct address given upon an envelope and registry receipt of

notice sent by registered post along with the copy of notice was

filed before the trial court, then the burden upon the landlord to

prove service of notice stood discharged and a valid

presumption in law will be raised. He submits that though the

presumption in law is rebuttable but the tenant-petitioner failed

to rebut the same by leading any cogent evidence, inasmuch as,

the tenant-petitioner also failed in getting the Postman

examined regarding service of notice in the face of the fact that

undelivered cover did not reach back. He submits that the duty

of the landlord or otherwise person sending the notice is

complete once the envelope is delivered with the postal

department and registered receipt is obtained. He would submit

that even in case the endorsement is to the effect that "noticee

not met" the valid presumption in law will be raised regarding

service of notice and the onus will shift upon the noticee to

prove otherwise. He has relied upon judgment of Supreme

Court in the case of C.C. Alavi Haji v. Palapetty Muhammed

& Anr, 2007 (5) Supreme 277.

5. Having heard learned counsel for the respective parties and

their arguments raised across the bar and having gone through

the judgment and order of the trial Judge, I find point no. 4 to

be relevant issue.

6. The facts as have come to be detailed out in the discussion

part of the judgment qua point no. 4, the plaintiff sent notice by

registered post on 20.08.2010 under Section 106 of Transfer of

Property Act which he claimed to have been duly serviced upon

the tenant-respondent on 28.08.2010 besides the fact that he had

file