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Supreme Court of India
Krishna Swaroop Agarwal(D) Thr. Lr vs Arvind Kumar on 16 July, 2025
Author: Sanjay Karol
Bench: Sanjay Karol, Prashant Kumar Mishra
2025 INSC 859
NON-REPORTABLE
SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9518 OF 2025
(Arising out of SLP(C)No.26340/2017)
KRISHNA SWAROOP AGARWAL
(DEAD) THR. LR. … APPELLANT
VERSUS
ARVIND KUMAR … RESPONDENT
JUDGMENT
SANJAY KAROL J.
Leave Granted.
2. The present appeal arises from the final judgment and
order dated 7th October 2016, passed by the High Court of
Judicature at Allahabad in Civil Revision No.22 of 2012,
whereby the judgment and order dated 26th November 2011
Signature Not Verified
passed in S.C.C. Suit No.23 of 2000 by the Additional District
Digitally signed by
RAJNI MUKHI
Date: 2025.07.16
Judge, Hathras, was set aside.
17:29:49 IST
Reason:
CA@ SLP (C) 26340 of 2017 Page 1 of 12
3. The principle question of law that falls for consideration
of this Court in the present litigation is whether the High Court
was justified in setting aside the ejectment decree passed by the
Trial Court in favour of the appellant on the sole ground that the
notice under Section 106 of Transfer of Property Act, 1882, was
not served upon the respondent, as the postal letter was returned
with endorsement “ND” which denotes “Not Delivered”.
4. Brief facts giving rise to the appeal are:
4.1. Appellant is the landlord of a property situated at
Sadabad Gate, Agra Road in Hathras1. The respondent
took the suit property on rent at Rs.3,000/- per month,
including the water tax and house tax. The said tenancy
begins from the first date of the English month and ends
on the last date of the same month. The tenant failed to
deposit the rent for the period from 1 st June 1999 to 11th
September 2000, totaling to a sum of Rs.38,416/- along
with Rs.3,841/- towards water tax and Rs.3,841/- towards
house tax.
4.2 On the default of the respondent herein in paying
the rent and other occupational charges, the appellant
issued legal notices dated 12th September 2000 and 1st
November 2000 through Registered A.D. Post asking the
respondent to make good the default; to deposit the
outstanding amount along with interest @ 10% per
1 hereinafter referred to as “Suit Property”CA@ SLP (C) 26340 of 2017 Page 2 of 12
annum thereon; to pay expenses towards legal notice; and
also to hand over the vacant possession of the suit
property.
5. The proceedings before the Civil Judge, Hathras, began
on 06th December 2000. Summons were issued to the
respondent on 12th February 2001. No appearance was entered.
On 13th April 2001, it was recorded that the service through the
Registry was deemed sufficient and the proceedings against the
respondent would continue ex-parte. For the next so many
dates, no progress was made in the matter. Parties to the lis filed
various applications, which did not lead to any constructive
outcome. The order sheet of 27th October 2004 records that the
defendant had not filed his written statement and, therefore, the
suit would proceed ex-parte. On 17th February 2005, both
parties were present. An application under Order IX Rule 7 was
filed stating that on the day his right to file a written statement
was closed, he had to, on account of a medical emergency, rush
to Agra. The Court, however, refused to accept this contention
on the ground that the service of notice was completed on 13th
April 2001, yet, as on 27th October 2004, he had not filed his
counterclaim nor had he filed a written statement under Order
VIII Rule 1 and Rule 10 of the Civil Procedure Code, 1908 2.
The order dated 25th March 2006 records the opposing
2 Hereinafter referred to as “CPC”
CA@ SLP (C) 26340 of 2017 Page 3 of 12
submissions of the learned Advocates for the parties, with the
landlord saying that no rent had been deposited till the said
date; on the other hand, the tenant submitted that an ‘Out of
Court Compromise’ had been entered into between the parties
and in accordance with which the amounts due uptil October
2005, stood paid. The only amount outstanding was in respect
of five months, for which period the tenant was ready and
willing to deposit the rent in the Court. The Court recorded that
the tenant could save himself from eviction and also submit his
written statement, should he pay Rs.300/- as costs to the
landlord and also deposit the remaining amount in the Court.
6. On the next date, an adjournment was sought by the
tenant on account of the fact that the revision petition has been
preferred against the order dated 25th March 2006.
Adjournment, however, was rejected, and the date was fixed for
depositing the amount and filing a written statement.
7. The Revision Petition, being Civil Revision No.212 of
2006, was dismissed by order dated 19th May 2006 by the High
Court as meritless. On 17th May 2007, an interim application
was filed by the tenant before the Trial Court objecting to the
evaluation of the suit and court fees paid in respect thereto. It
was also recorded that no compromise had been arrived at. Such
application was rejected with a direction to put up the case next
on 29th May 2007 for cross-examining PW-1. On such date no
CA@ SLP (C) 26340 of 2017 Page 4 of 12
one was present on behalf of the tenant and, as such, their right
to cross-examine was closed. On 8th February 2008, the landlord
filed an application under Order XV Rule 5 of CPC. It was
prayed that despite the passage of seven years, neither has the
amount claimed been deposited nor disputed by the tenant and,
therefore, the opportunity of defence to lead evidence should be
struck off. This contention was accepted. Aggrieved thereby, the
tenant filed an application under Order VII Rule 11 for rejection
of plaint which was dismissed by the Trial Court for the reason
that prior orders of the Court were not being complied with qua
depositing of costs etc. The case continued with the tenant
neither having deposited the rent nor handed over the
possession of the suit property to the landlord.
8. The suit was decreed vide order dated 27th May 2011. It
was concluded with the observations that –
“Therefore, keeping in view of the totality of facts as
above, it is clear that the Respondent had admitted the
rental property of petitioner and also admitted that the
same was carrying the rent of Rs.2500/- per month.
Respondent’s this statement can not be withdrawn.
Hence this modification is not acceptable. While on the
other hand Respondent has earlier admitted the
petitioner as the owner of the property. Case is pending
since year 2000. As such the application filed at this
stage, carries no justification. The application for
amendment is not filed with bonafide nature. Hence the
application is dismissed. The case be listed for
2.7.2011.”
CA@ SLP (C) 26340 of 2017 Page 5 of 12
9. The corresponding decree dated 26th November 2011
reads as under :
“Case called out for argument. Judgment
pronounced on separate sheet. The suit is decreed partly
with cost suit regarding ejectment and arrears of rent
from 1.6.99. Mesne profit @ Rs.2500/- per month is
decreed with cost. The suit regarding recovery of
arrears at house tax, water tax and for the damages per
use area, occupation of the roof of dispute property is
rejected.
It is directed to vacate the disputed property and
hand over the peaceful possession to the plaintiff within
one month from today and also to deposit the entire
amount of rent due from 1.6.99 and mesne profit @
Rs.2500 /- per month with 9 % per annum interest upto
the date of delivery of the vacant possession of the
disputed property.
In the event of default of any of the said conditions,
the plaintiff land lord will be at liberty to proceed
enforcing the above order through court.”
10. It is against this order and decree passed by the Trial
Court that the revisional jurisdiction of the High Court was
invoked by the tenant. The arguments raised by the tenant were
that the notice terminating tenancy under Section 106 of
Transfer of Property Act, 1882 was not served upon him and,
therefore, the findings returned by the Trial Court were
perverse, having observed that service through the registered
notice was sufficient even when the same was returned by the
postal department with the endorsement ‘ND’.
11. The High Court, by way of short order, held as follows :
“5. In my view, decisions relied by courts below have
been mis-appreciated and misapplied and view taken byCA@ SLP (C) 26340 of 2017 Page 6 of 12
court below with regard to service of notice is also
illegal and perverse. It was admitted position that
sealed letter was returned by Postal Department with
the endorsement ‘ND’ and these documents are
Exhibits Ka-14, Ka-15 and Ka-16. Plaintiff read ‘ND’
as ‘Not Claimed’. The words ‘ND’ cannot be read as
‘Not Claimed’. Though it is not mentioned what ‘ND’
would mean but during course of argument, it is
admitted that it is not delivered.
6. Hence learned counsels agree that postal authorities
mention the words ‘ND’ and it denotes ‘Not Delivered’
7. When a document was not delivered by the Postal
Department and it was not on account of revisionist or
that he avoided service, it could not have been said that
notice was served upon defendant-revisionist. Hence,
issue regarding service of notice decided against
defendant- revisionist and in favour of plaintiff-
respondent is patently illegal. In these circumstances,
the decree of eviction could not have been passed and
cannot be sustained”.
12. The effect of the Trial Court order finding service to be
sufficient is ‘deemed service’.
13. Section 27 of the General Clauses Act, 18873 deals with
service by post :
“27. Meaning of Service by post.- Where any
[Central Act] or Regulation made after the
commencement of this Act authorizes or requires any
document to be served by post, whether the expression
“serve” or either of the expressions “give” or “send” or
any other expression is used, then, unless a different
intention appears, the service shall be deemed to be
effected by properly addressing, pre-paying and posting
by registered post, a letter containing the document,
and, unless the contrary is proved, to have been effected3 Hereinafter referred to as “GC Act”
CA@ SLP (C) 26340 of 2017 Page 7 of 12
at the time at which the letter would be delivered in the
ordinary course of post”.
14. The concept of deemed service has been discussed by this
Court on various occasions. It shall be useful to refer to some
instances:
14.1 In M/s. Madan and Co. v. Wazir Jaivir Chand4
which was a case concerned with the payment of arrears
of rent under the J&K Houses and Shops Rent Control
Act, 1966. The proviso to Section 11 which is titled as
“Protection of a Tenant against Eviction” states that
unless the landlord serves notice upon the rent becoming
due, through the Post Office under a registered cover, no
amount shall be deemed to be in arrears. Regarding
service of notice by post, it was observed that in order to
comply with the proviso, all that is within the landlord’s
domain to do is to post a pre-paid registered letter
containing the correct address and nothing further. It is
then presumed to be delivered under Section 27 of the
GC Act. Irrespective of whether the addressee accepts or
rejects “there is no difficulty, for the acceptance or
refusal can be treated as a service on, and receipt by the
addressee.”4 (1989) 1 SCC 264
CA@ SLP (C) 26340 of 2017 Page 8 of 12
14.2 In the context of Section 138 of the Negotiable
Instruments Act, 18815 it was held that when the payee
dispatches the notice by registered post, the requirement
under Clause (b) of the proviso of Section 138 of the NI
Act stands complied with and the cause of action to file a
complaint arises on the expiry of that period prescribed in
Clause (c) thereof. [See: C.C. Alavi Haji v. Palapetty
Mouhammed & Anr.6]
14.3 The findings in C.C. Alavi (supra) were followed
in Vishwabandhu v. Srikrishna7. In this case, summons
issued by the Registered AD post was received back with
endorsement “refusal”. In accordance with Sub-Rule (5)
of Order V Rule 9 of CPC, refusal to accept delivery of
the summons would be deemed to be due service in
accordance with law. To substantiate this view, a
reference was made to the judgment referred to supra.
14.4 A similar position as in C.C. Alavi (supra) stands
adopted by this Court in various judgments of this Court
in Greater Mohali Area Development Authority & Ors.
v. Manju Jain & Ors.8; Gujarat Electricity Board v.
Atmaram Sungomal Posani9; CIT v. V. K. Gururaj 10;
5 Hereinafter referred to as “NI Act”
6 (2007) 6 SCC 555
7 (2021) 19 SCC 549
8 (2010) 9 SCC 157
9 (1989) 2 SCC 602
10 (1996) 7 SCC 275
CA@ SLP (C) 26340 of 2017 Page 9 of 12
Poonam Verma v. DDA11; Sarav Investment &
Financial Consultancy (P) Ltd. v. Lloyds Register of
Shipping Indian Office Staff Provident Fund 12; Union
of India v. S.P. Singh13; Municipal Corpn., Ludhiana v.
Inderjit Singh14; and V.N. Bharat v. DDA15.
15. Undisputedly, notice was sent to the respondent by
Registered Post in compliance with Section 106 of the Transfer
of Property Act. The High Court, as we have observed, held that
since the endorsement on the notice read “ND”, the notice was
not delivered and, therefore, any and all proceedings arising
therefrom would be bad in law and, hence, the decree of
ejectment was set aside. We are of the view that the High Court
was plainly in error in coming to this conclusion. The impugned
order was passed without consideration of Section 27 of GC
Act, which provides that if services are made through
Registered Post, it is deemed to have been made in accordance
with law.
16. In Ram Murti Devi v. Pushpa Devi16, this Court
discussed the scope of the power of revision in a case arising
out of the UP Urban Building (Regulation of Letting, Rent and
11 (2007) 13 SCC 154
12 (2007) 14 SCC 753
13 (2008) 5 SCC 438
14 (2008) 13 SCC 506
15 (2008) 17 SCC 321
16 (2017) 15 SCC 230
CA@ SLP (C) 26340 of 2017 Page 10 of 12
Eviction) Act, 1972, with reference to a case titled Hari
Shankar v. Rao Girdhari Lal Chowdhury17, which, in turn,
cited a case concerning the Provincial Small Cause Court Act of
the Bombay High Court, wherein Beaumont, CJ (as he then
was) held as under:
“4. The section does not enumerate the cases in
which the Court may interfere in revision, as does,
Section 115 of the Code of Civil Procedure, and I
certainly do not propose to attempt an exhaustive
definition of the circumstances which may justify such
interference; but instances which readily occur to the
mind are cases in which the Court which made the
order had no jurisdiction, or in which the Court has
based its decision on evidence which should not have
been admitted, or cases where the unsuccessful party
has not been given a proper opportunity of being heard,
or the burden of proof has been placed on the wrong
shoulders. Wherever the court comes to the conclusion
that the unsuccessful party has not had a proper trial
according to law, then the Court can interfere. But, in
my opinion, the Court ought not to interfere merely
because it thinks that possibly the Judge who heard the
case may have arrived at a conclusion which the High
Court would not have arrived at.”Although, not an exhaustive list, we find that none of the
most basic criteria laid down therein, such as lack of
jurisdiction; the decision of the lower Court being based on
evidence that ought not to have been admitted; lack of proper
opportunity of hearing etc., to have been met in this case. The
impugned order does not speak of any other reason or
17 AIR 1963 SC 698
CA@ SLP (C) 26340 of 2017 Page 11 of 12
circumstance which compelled the Court to exercise its power
under the CPC.
17. In that view of the matter, the appeal succeeds, and it is,
accordingly, allowed. The ejectment decree passed by the Trial
Court in S.C.C. Suit No.23/2000 is restored. The tenant is
directed to hand over vacant and peaceful possession of the suit
property to the landlord within three months from the date of
communication of this judgment. Within the same time frame,
he shall also clear all arrears of rent/occupational charges,
mesne profit as also arrears of tax (water, house or otherwise).
18. The Registry is directed to forward a copy of this
judgment to the Registrar General of the High Court of
Judicature at Allahabad, who shall ensure a dispatch of a copy
of this judgment to the concerned Court at Hathras, Uttar
Pradesh, for necessary compliance.
Pending application(s), if any, shall stand disposed of.
…………………….J.
(Sanjay Karol)
…………………….J.
(Joymalya Bagchi)
July 16, 2025;
New Delhi.
CA@ SLP (C) 26340 of 2017 Page 12 of 12
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