Notice Sent Under Certificate Of Posting Is Sufficient Where Mode Of Giving Notice Is Not Mentioned : SC [Read Judgment]

"It may be so that mere receipt of notice having been sent under certificate of posting, in itself, may not be sufficient proof of service, but if the same is coupled with other facts and circumstances which go to show that the party had notice, the same could be held to be sufficient service on the party".

This observation was first made by the top court in Sumitra Devi v. Sampuran Singh, (2011) 3 SCC 556. There the Supreme Court had held that notice sent under certificate of posting is sufficient service, and the same may be determined from a case to case basis.

The bench also referred to the decision in in the case of V.S. Krishnan vs. Westfort Hi­Tech Hospitals (2008) 3 SCC 363, which held that service of notice sent under certificate of posting would be sufficient where "there are materials to show that notices were sent, the burden is on the addressee to rebut the statutory presumption

The decision in Ranju vs. Rekha Ghosh (2007) 14 SCC 81 was also referred, which had held that that service of notice sent under certificate of posting was sufficient where the mode of service was not mentioned.

In the present case, the top court was again faced with the issue of proof of service of notice. A bench of Justice R. Banumathi and Justice Vineet Saran was hearing an appeal filed by a landlord, challenging the order of the Allahabad High Court whereby the release application filed by him had been rejected.

In the backdrop, the Appellant-landlord had bought a shop, already in occupation of the Respondent-tenant. Seeking vacation of the same, the Appellant had approached the Prescribed Authority, Lucknow which allowed the release application while observing that the Appellant had complied with Section 21(1)(a) of the Rent Control Act inasmuch as:

(i) release application was filed after the expiry of three years of Sale Deed obtained by the Appellant;

(ii) Appellant had given six months prior notice to the Respondent-tenant.

On the contrary, the High Court held that six months prior notice was not given to the Respondent-tenant, while hearing the appeal against the order of the Prescribed Authority.

Thus, the issue in dispute before the Supreme Court was proof of service of notice.

Findings

The Supreme Court firstly observed that Section 21 of the Rent Control Act does not prescribe any particular mode of giving notice to the tenant.

"From the perusal of the aforesaid Proviso to the said Section, it is clear that no particular mode of giving notice by the landlord to the tenant has been provided for, meaning thereby that the same could be given orally or in writing; and if in writing, it is not necessary that it should be sent only by registered post. What is required is that "the landlord has given a notice in that behalf to the tenant," it observed.

The bench then noted, in terms of the judgment in Sumitra Devi (supra) that Notice sent under Certificate of Posting is sufficient proof of service, and the same depends on the facts of each case.

On an assessment of the facts of the present case, the court noted that Appellant had filed the copy of receipt dated 25.07.2006 of having sent the notice under certificate of posting; whereas, in the year 2007, the Respondent-tenant admitted that the Appellant was his landlord and thereafter filed an application to deposit rent in Court in the year 2007.

On the basis of the chain of events as illustrated above, the court held that the Respondent-tenant "had notice" of the proceedings.

"It may be so that mere receipt of notice having been sent under certificate of posting, in itself, may not be sufficient proof of service, but if the same is coupled with other facts and circumstances which go to show that the party had notice, the same could be held to be sufficient service on the party. In the present case, the law permits filing of a document (receipt of under certificate of posting in this case) to be filed along with an affidavit, which has been done so in this case. Further, there was clear admission of the respondent (tenant) that the appellant was his landlord (for which sale deed had been supplied to the tenant) and subsequent act of the respondent (tenant) depositing the rent under Section 30(1) of the Rent Control Act in the Court and other attending circumstances, as have been considered by the Prescribed Authority, would all clearly go to show that there was sufficient proof of service of notice, which finding of fact has been affirmed by the Appellate Authority, and we see no reason for the Writ Court to have unsettled such concurrent findings of fact," the bench thus held.

Lastly, the court noted that the Appellant faced "comparative hardship" and thus, he was entitled to get the premises vacated.

"The judgment of the Writ Court is set aside and the release application of the appellant (landlord), which was allowed by the Prescribed Authority, and affirmed by the Appellate Authority, stands affirmed. The respondent (tenant) is directed to vacate the premises in question and hand over possession to the appellant (landlord) within six months from today," the Court directed.

Case Details:

Case Title: Mohd. Asif Naseer v. West Watch Company Through Its Proprietor

Case No.: CA No. 2375/2020

Quorum: Justice R. Banumathi and Justice Vineet Saran

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