Harcharan Singh Vs. Shiv Rani &
Ors [1981] INSC 44 (20 February 1981)
TULZAPURKAR, V.D.
TULZAPURKAR, V.D.
DESAI, D.A.
SEN, A.P. (J)
CITATION: 1981 AIR 1248 1981 SCR (2) 962 1981
SCC (2) 535 1981 SCALE (1)401
ACT:
Service be refusal-Notice demanding arrears
and seeking eviction is sent by registered post but refused by the
tenant-Whether the tenant could be imputed the knowledge of the contents
thereof so that upon his failure to com ply with the notice the tenant could be
said to have committed willful default in payment of rent-U.P. Cantonment
(Control of Rent and Eviction), (Central Act X), 1952, section 14(1) scope
of-General Clauses Act 1897, section 27, Indian Evidence Act, section 114.
HEADNOTE:
The appellant was inducted in the year 1964
as a tenant of the suit premises on an yearly rental payable by December 31,
every year. Since the appellant did not pay the rent for the years 1965, 1966 a
combined notice dated November 9, 1966 demanding payment of arrears and seeking
ejectment on termination of tenancy, was sent by registered post by the
respondents. The appellant refused to receive the notice on November 10, 1966.
On his failure to comply with the requisitions contained in the notice, the
respondents filed a suit against the appellant seeking eviction as well as
recovery of rents and mensne profits.
Having lost before the trial court and the
first appellate court, the respondents came up before the High Court in second
appeal. The High Court accepted the finding of fact recorded by the first
appellate court that there was service of the notice on the appellant by
refusal and held that when notice was tendered to the tenant and when the
latter refused to accept the same know ledge of the contents of the notice must
be imputed to him. The High Court allowed the landlords' appeal and granted
three months time to the appellant to vacate the shop. Hence, the tenant's
appeal after obtaining special leave from this Court.
Dismissing the appeal, the Court
HELD: (By majority) Per Tulzapurkar, J. (On
behalf of A. P. Sen, J. and himself).
1:1. The presumptions that are raised under
section 27 of the General Clauses Act, 1897 and section 114 of the Indian
Evidence Act, make it clear that, when service is effected by refusal of a
postal communication, the addressee must be imputed with the knowledge of the
contents thereof.
[971 E-F] 1:2. Before the knowledge of the
contents of the notice could be imputed, it is not necessary that the sealed
envelope must be opened and read by the addressee or when the addressee happens
to be an illiterate person the contend should be read over to him by the
post-man or someone else.
Such things do not occur when the addressee
is determined to decline to accept the sealed envelope. [971 D-E] 963 Vaman
Vithal Kulkarni and Ors. v. Khanderao Ram Rao Sholapurkar, A.I.R. 1935 Bom.
247, explained and dissented from.
Mahboob Bi v. Alvala Lachmiah, A.I.R. 1964
A.P. 324, held inapplicable.
Shri Nath and another v. Smt. Saraswati Devi
Jaiswal, A.I.R. 1964 All. 52; Fanni Lal v. Smt. Chironja, (1972) Allahabad Law
Journal 499; Ganga Ram v. Smt. Phulwati, (1970) Allahabad Law Journal 336 (FB);
Kodali Bapayya and Ors. v. Yadavalli Venkataratnam and Ors., A.I.R. 1953 Mad.
approved.
Harihar Banerji and Ors. v. Ramshashi Roy and
Ors., A.I.R. 1918 P.C. 102, referred to.
2: 1. The suit under section 14(1) of the
U.P.
Cantonment (Control of Rent & Eviction)
Act (Central Act X of 1952), in the instant case was maintainable. Under
section 14(1) of the Central Act, which in pari materia with section 3(1) of
the U.P. (Temporary) Control of Rent and Eviction Act, 1947, permission of the
District Magistrate was required if the landlord sought eviction of the tenant
on any ground other than those specified in clauses (a) to (f) and not when it
was sought on any of the grounds specified in clauses (a) to (f). [973 E-P]
Bhagwan Dass v. Paras Nath, [1969] 2 SCR 297, followed.
2:2. All the courts rightly dealt with the
matter as being governed by the U.P. Cantonments (Control of Rent &
Eviction) Act, X of 1952-a Central Act and not by U.P.
(Temporary) Control of Rent and Eviction Act,
1947 much less by the later U.P. (Rent & Eviction) Act, 1972. [966 E-F] Per
Desai. J. Contra.
1. Uttar Pradesh Urban Buildings (Regulation
of Letting, Rent & Eviction) Act, 1972 is a socially beneficient statute
and should be construed according to well recognised canons of construction.
The words used in the statute, if they are plain and unambiguous must be
applied as they stand, however, strongly it may be suspected that the result
does not represent the real intention of the legislature. However, if two
constructions are possible and legitimate ambiguity arises from the language
employed that which enlarges the protection of a socially beneficient statute
rather than one which restricts it should be preferred and adopted. In other
words the construction which would be more consistent with the policy and
attainment of the legislation which is to protect the possession of the tenant
unless the landlord establishes a ground for eviction should be preferred.
Further where two constructions are possible the one which would accord with
reason and justice must be preferred. [975 G-H, 976 A, D, G] Inland Revenue
Commissioners v. Hinchy, 1960 A.C. 748, H. L. at 767= (1960) 1 All India
Reports 505 at 512; River Wear Commissioners v. Adamson, (1877) 2 A.C. 743
& 765, quoted with approval.
Mohd. Shafi v. Additional District &
Sessions Judge (VII), Allahabad and Others, [1977] 2 S.C.C. 226; Gurucharan
Singh v. Kamla Singh & Ors. [1976] 2 S.C.C. 152; H. H. Maharajadhiraja
Madhav Rao Jivaji Rao Scindia Bahadur of Gwalior & Ors. v. Union of India
& Another, [1971] 1 S.C.C. 85, reiterated.
964 2:1. The substitution of the expression,
"arrears of rent for not less than four months" in sub-clause (a) of
sub-section (2) of section 20 of the Uttar Pradesh Urban Buildings (Regulation
of Letting Rent & Eviction) Act, 1972 is a contemporaneous legislative
exposition bringing out clearly the legislative intention that the landlord
would be entitled to evict the tenant if the rent is in arrears for not less
than four months. Before the landlord can commence action under sub-clause (a):
(i) the tenant must have committed default in Payment of rent for a period of
four months, and (ii) a notice has to be served, giving the tenant locus
poeniteniae to repair the default within month.
[978 B-C] 2:2. Two ingredients emerge from
the expression "the tenant is in arrears of rent for not less than four
months":
(i) that the rent is payable by month and
(ii) the tenant has committed default in payment of rent for four different
months and that this default subsists and continues on the date when the
land-lord invokes the provision of clause (a) and proceeds to serve a notice of
demand. Again, if within a period of one month from the date of receipt of
notice, the tenant pays up the arrears of rent he does not lose the protection
of the Rent Act. [978 G-H 979] 2:3. It is implicit in the expression "the
tenant is in arrears of rent for not less than four months" that the
legislature clearly intended to cover those cases Of default in payment of rent
under clause (a) where the contract of lease provided for payment of rent every
month meaning thereby that the unit for liability to pay rent is one month and
secondly the tenant has committed default on four different occasions of four
different months or four different units agreed upon for payment of rent and
that too after the liability to pay the same has accepted. [979 A-C] 2:4.
Section 20(2)(a) of the Rent Act, 1972 does not attract cases where the
landlords accept rent on an yearly basis. The language of the section does not
admit of a construction, namely, that even if the rent is payable by year, once
the year is over and a period of four months has elapsed he could be said to be
"a tenant in arrears, of rent for not less than four months". In the
instant case, the parties are ad idem that the rent is payable by year at the
rate of Rs. 100/- per annum. In such a case it could not be said that this
tenant was in arrears of rent for not less than four months. His case would not
be covered by section 20(2) of the Rent Act and, therefore, the landlord would
not be entitled to a decree for eviction on this ground and that was the sole
ground on which eviction has been ordered. [980 C-D, 981 A-B]
3. The amended section 100 of the Civil
Procedure Code restricted the jurisdiction of the High Court to entertain a
second appeal only if the High Court was satisfied that the case involved a
substantial question of law. Sub-section G(4) cast a duty on the court to
formulate such substantial question of law and the appeal has to be heard on
the question so formulated. It would also be open to the respondent at the
hearing of he appeal to contend that the case does not involve such a question.
Thus, the High Court ordinarily cannot and did not interfere with the
concurrent findings of fact arrived at by the courts below. [981 G-H, 982 A] In
the facts of this case, there was a concurrent finding that the statutory
notice as required by section 20(2)(a) was not served upon the tenant and,
therefore, the High Court was in error in interfering with this finding of
fact. [982 B-C] 965 R. Ramachandran Ayyar v. Ramalingam Chettiar, [1963] 3
S.C.R. 605; Mst. Durga Chaudhrain v. Jawahar Choudhary, 1890 LR 17 IA, 122;
Goppulal v. Dwarkadhishji, [1969] 3 S.C.R.
reiterated.
4:1. Mere refusal of a registered letter
would not permit a presumption to be raised that not only the service was
legal, but the refusal was the conscious act flowing from the knowledge of the
contents of the letter. [987 C] 4:2. This concept that the registered envelope
properly addressed and returned with an endorsement of refusal must permit a
rebuttable presumption that the addressee refused it with the knowledge of the
contents is wholly borrowed from the western jurisprudence. Not considering the
specific Indian conditions and the approach of rural Indian to registered
letters, but merely going in with the technical rules of Evidence Act would
cause more harm and lead to injustice through law. [985 G-H, 986 A] 4:3. The
Rent Act does not seek to evict a mere defaulter. That is why a provision for
notice has been made.
If even after notice the default continues,
the tenant can be condemned as willful defaulter. He could not be dubbed guilty
of conscious, willful, contumacious, intentional conduct even when he did not
know what was in the registered env`elope. It would be atrocious to impute any
such knowledge to a person who has merely been guilty of refusing to accept the
registered notice. Where service of notice is a condition precedent, a dubious
service held established by examining the postman who must be delivering
hundreds of postal envelopes and who is ready to go to the witness box after a
long interval to say that he offered the envelope to the addressee and he
refused to accept the same, would be travesty of justice. And if this condition
precedent is not fully satisfied, the subsequent conduct cannot be said to be
willful. [987 E-G] Fannilal v. Smt. Chironja, (1972) All. Law J. 499 (D.B.)
dissented to.
Appabhai Motibhai v. Laxmichand Zaverchand
& Co., A.I.R. 1954 Bom. 159, held inapplicable.
Mahboob Bi v. Alvala Lachmiah, A.I.R. 1964
A.P. 314;
Amarjit Singh Bedi v. Lachman Das; Waman
Vithal Kulkarni & Others v. Khandera Ram Rao Sholapurkar, A.I.R. 1935 Bom.
247, quoted with approval.
5. The argument that it would be impossible
to serve the notice as statutorily prescribed, once it is held that no
knowledge of the contents of the refused letter could be imputed to the tenant,
is incorrect. The notice is required to be served in the manner prescribed by
section 106 of Transfer of Property Act which, inter alia, provides for
affixing a copy of the notice on the premises in possession of the tenant.
Therefore, it cannot be said that the approach of the Court would render it
impossible for the landlord to meet with the statutory requirement of service
of notice before commencing the action for eviction [1988 C] 966
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1402 of 1979.
Appeal by Special Leave from the Judgment and
Order dated 16-2-1979 of the Allahabad High Court in Second Appeal No. 430/70.
P. C. Bhartari for the Appellant.
L. M. Singhvi and Pramod Swarup for the
Respondent.
The Judgment of V. D. Tulzapurkar, J. and A.
P. Sen, J.
was delivered by Tulzapurkar, J. D. A. Desai,
J. gave a dissenting Opinion.
TULZAPURKAR, J. This is a tenant's appeal by
special leave directed against the judgment and decree passed by the Allahabad
High Court on February 16, 1979 in Second Appeal No. 430 of 1970 whereby the
High Court decreed the respondents' (landlords) suit for ejectment against the
appellant (tenant) and the only question of substance raised in the appeal is
whether when the landlords' notice demanding arrears and seeking eviction is
sent by registered post and is refused by the tenant the latter could be
imputed the knowledge of the contents thereof 60 that upon his failure to
comply with the notice the tenant could be said to have committed willful
default in payment of rent ? The question arises in these circumstances: The
appellant occupied shop No. 5 in Ivanhoe Estate, situated at Landure
Cantonment, Mussorie, originally owned by one Parvij Waris Rasool, on an yearly
rental of Rs. 250 payable by December 31, every year. The property at all
material times was admittedly governed by the U.P. Cantonment, (Control of Rent
& Eviction) Act, X of 1952-a Central Act and, in my view, all the Courts
below rightly dealt with the matter as being governed by that Act and not by
U.P. (Temporary) Control of Rent and Eviction Act, 1947, much less by the later
U.P. (Rent and Eviction) Act, 1972. The respondents purchased the aforesaid
Estate form its previous owner on November 27, 1964 and the previous owner
attorned the tenancy of the appellant to the respondents along with the rental
due from him for the year 1964. The appellant continued to be the tenant of the
shop during the years 1965 and 1966 as well but since he did not pay the rent
the respondents on November 9, 1966 gave a combined notice demanding payment of
arrears and seeking ejectment on termination of tenancy which was refused by
him on November, 10, 1966. On his failure to comply with the requisitions
contained in the notice the respondents filed a suit against the appellant
seeking eviction as well as recovery of rents and mesne profits.
967 The suit was resisted by the appellant,
inter alia, on the ground that the rent of the accommodation payable to the
previous owner was Rs. 250 per annum less 10% rebate on account of repairs;
that in 1964 at the intervention of some common friends he agreed to vacate and
did surrender the residential portion of the shop comprising two rooms, one
kitchen, one bath room and one varandah at the back of the shop in
consideration of respondents relinquishing the rental of Rs. 250 due from him
for the year 1964; that for the years 1965 and 1966 the rental for the
remaining shop was reduced by agreement to Rs. 50 per annum less rebate for
repairs and that he had sent a cheque for the amount due to the respondents. He
denied that he has committed default in payment of rents and averred that no
notice of demand and ejectment was served on him and consequently prayed for
dismissal of the suit.
On an appreciation of the evidence led by the
parties before it the Trial Court came to the conclusion that initially the
rent fixed was Rs. 250 per year but after the respondents' purchase of the
property the appellant vacated the residential portion of the shop under an
agreement arrived at between the parties where under there was relinquishment
of rent due for 1964 and that the rent for the main shop was fixed at Rs. 100
per annum and that no rebate of any kind had been agreed to at any time on
account of repairs. Regarding the arrears of rent outstanding against the
appellant the Trial Court held that rent for the years 1965 and 1966 had not
been paid and was due from him but it held that the notice dated November 9,
1966 was not served on the appellant and hence he could not be held to have
committed willful default in payment of arrears of rent. In this view of the
matter the Trial Court dismissed the suit insofar as the relief of eviction was
concerned but decreed it for arrears of rent at the rate of Rs. 100 per annum.
Aggrieved by that judgment and decree the respondents filed an appeal to the
District Court, Dehradun. The learned District Judge concurred with the
findings of the Trial Court that the rental for the year 1964 had been
relinquished and that the rental of the front portion of the shop had been
fixed at Rs. 100 per annum. He further held that the notice was tendered to the
appellant on November 10, 1966 but he declined to accept it and hence there was
service by refusal, but in his opinion despite such service it could not be
presumed that the appellant had knowledge about the contents of that notice and
consequently he could not be said to have committed any willful default in the
payment of rent. In the result the appeal was dismissed. The respondents
preferred Second Appeal No. 430 of 1970 to the High Court. In that appeal the
tenant sought to reagitate the question 968 whether or not the notice was
tendered to him and was refused by him on the ground that the finding had been
recorded by the District Court without application of mind to the statement on
oath made by him to the effect that no postman had ever gone to him with a
registered letter either on 9th or 10th November, 1966 and he had not declined
to receive any registered letter but the High Court refused to entertain the
contention inasmuch as it found that the learned District Judge had referred to
this part of the appellant's evidence as also the postman's evidence on the point
and that on an appreciation of such rival evidence on record he had recorded a
finding that the notice was tendered to the appellant but it was refused by
him; in other words in the absence of animus being attributed to the postman
the District Judge had preferred the postman's evidence to that of the
appellant's. The High Court, therefore, accepted the finding of fact recorded
by the District Court that there was service of the notice on the appellant by
refusal. On the further question as to whether when such refusal had been
established, the appellant could be imputed with the knowledge of the contents
of the notice, the High Court, following its two previous decisions in Shri
Nath and another v. Smt. Saraswati Devi Jaswal and Fanni Lal v. Smt. Chironja,
held that when notice was tendered to the tenant and when the latter refused to
accept the same, knowledge of the contents of the notice must be imputed to
him. The District Judge's view in this behalf was thus reversed and since there
was failure on the part of the appellant to pay the rent within one month of
the service of notice upon him, the High Court held that he had committed
willful default within the meaning of s. 14(a) of the Act.
Accordingly the High Court allowed the appeal
and the respondents' prayer for ejectment was granted but the appellant was
given three months" time to vacate the accommodation. The tenant has come
up in appeal to this Court.
Counsel for the appellant vehemently
contended before us that the High Court was in error in taking the view that
when service by refusal had been effected the tenant must be deemed to have
knowledge about the contents of the notice, for, no such presumption could be
drawn especially when it was clear on evidence that neither the registered
envelope was opened either by the tenant or by the postman nor the contents
thereof read before the same was returned to the postman. He further urged that
the envelope bore the seal of Shri S. P. Singh, Advocate and the appellant
could not, therefore, know that the notice was from his landlords; he also
pointed out that the appellant was illiterate and did not know English and
since the address on the envelope as 969 well as the seal of the lawyer were in
English the appellant could not even know who the sender of the notice was.
Counsel, therefore, urged that in the
peculiar circumstances of the case the learned District Judge had rightly
recorded a finding that the knowledge of the contents of the notice could not
be imputed to the appellant and, therefore, the appellant could not be regarded
as a willful defaulter in the matter of payment of rent. In support of this
contention strong reliance was placed by him on the decision of the Bombay High
Court in the case of Vaman Vithal Kulkarni and Ors. v. Khanderao Ram Rao
Sholapurkar where the following observations of Beaumont, C. J., appear at page
251:
"In case of defendants 4 and 5 a
registered letter containing the notice was sent to them duly addressed, and
service : is alleged to have been refused. In fact the refusal was not proved,
as the postman who took the letter and brought it back was not called. But in
any case, even if the refusal had been proved, I should not be prepared to hold
that a register ed letter tendered to the addressee and refused and brought
back unopened, was well served. There are, I know, some authorities in this
Court to the contrary, but it seems to me impossible to say that a letter has
been served so as to bring the contents to the notice of the person to whom the
letter is addressed, if the agent for service states that in fact the notice
was not served, although the reason may have been that the addressee declined
to accept it. One cannot assume that because an addressee declines to accept a
particular sealed envelope he has guessed correctly as to its contents "
Counsel also referred to some other decisions including that of the Andhra
Pradesh High Court in Mahboob Bi v. Alvala Lachmiah but these other decisions
do not touch the aforesaid aspect of visiting the addressee with the knowledge
of the contents. Of the refused notice but have expressed the view that refusal
of registered notice without more may not amount to proper service and hence it
is unnecessary to consider them. But placing strong reliance upon the
observations of Chief Justice Beaumont quoted above counsel for the appellant
urged that the High Court ought to have confirmed the finding of the learned
District Judge that the appellant could not be presumed to have known the
contents of the notice or that the notice was one demanding arrears of rent
simply because he refused to accept the same.
On the other hand, counsel for the
respondents contended before us that both under s. 27 of the General clauses
Act, 1897 and s. 114 of 970 the Indian Evidence Act presumption of due service
could arise if the notice was sent to the tenant by properly addressing the
same, prepaying and sending the same by registered post and it was pointed out
that in the instant case as against the denial by the appellant there was
positive oath of postman (Kund Ram P.W. 2) who was examined by the respondents
to prove the fact that the registered letter containing the notice was tendered
to the appellant and when he declined to accept it the postman had made
endorsement in his hand on the envelope "Refused. Returned to the
sender". Counsel, therefore, urged that in view of such positive evidence
of postman led by the respondents which had been accepted by the learned
District Judge, the High Court was justified in holding that the appellant must
be imputed with the knowledge of the contents of the notice.
In this behalf counsel for the respondents
placed reliance on the Privy Council decision in Harihar Banerji and Ors. v. Ramshashi
Roy and Ors and Madras decision in Kodali Bapayya and Ors. v. Yadavalli
Venkataratnam and Ors and the two decisions of the Allahabad High Court relied
upon by the High Court. Counsel pointed out that the Madras High Court in
Kodali Bapayya's case (supra) and the Allahabad High Court in its Full Bench
decision in Ganga Ram v. Smt.
Phulwati have dealt with the Bombay decision
and have expressed their disagreement with the view expressed therein.
Section 27 of the General Clauses Act, 1897
deals with the topic 'Meaning of service by post' and says that where any
Central Act or Regulation authorises or requires any document to be served by
post, then unless a different intention appears, the service shall be deemed to
be effected by properly addressing, pre-paying and posting it by registered
post, a letter containing the document, and unless the contrary is proved, to
have been effected at the time at which the letter would be delivered in the
ordinary course of post. The section thus arises a presumption of due service
or proper service if the document sought to be served is sent by properly
addressing, pre-paying and posting by registered post to the addressee and such
presumption is raised irrespective of whether any acknowledgement due is
received from the addressee or not.
It is obvious that when the section raises
the presumption that the service shall be deemed to have been effected it means
the addressee to whom the communication is sent must be taken to have known the
contents of the document sought to be served upon him without any thing more.
Similar presumption is raised under Illustration (f) to s. 114 of the Indian
Evidence Act whereunder it is stated that the Court 971 may presume that the
common course of business has been followed in h a particular case, that is to
say, when a letter is sent by post by pre-paying and properly addressing it the
same has been received by the addressee. Undoubtedly, the presumptions both
under s. 27 of the General Clauses Act as well as under s. 114 of the Evidence
Act are rebuttable but in the absence of proof to the contrary the presumption
of proper service or effective service on the addressee would arise. In the
instant case, additionally, there was positive evidence of the postman to the
effect that the registered envelope was actually tendered by him to the
appellant on November 10, 1966 but the appellant refused to accept. In other
words, there was due service effected upon the appellant by refusal. In such
circumstances, we are clearly of the view, that the High Court was right in
coming to the conclusion that the appellant must be imputed with the knowledge
of the contents of the notice which he refused to accept. It is impossible to accept
the contention that when factually there was refusal to accept the notice on
the part of the appellant he could not be visited with the knowledge of the
contents of the registered notice because, in our view, the presumption raised
under s. 27 of the General Clauses Act as well as under s. 114 of the Indian
Evidence Act is one of proper or effective service which must mean service of
everything that is contained in the notice. It is impossible to countenance the
suggestion that before knowledge of the contents of the notice could be imputed
the sealed envelope must be opened and read by the addressee or when the
addressee happens to be an illiterate person the contents should be read over
to him by the postman or someone else. Such things do not occur when the
addressee is determined to decline to accept the sealed envelope. It would,
therefore, be reasonable to hold that when service is effected by refusal of a
postal communication the addressee must be imputed. with the knowledge of the
contents thereof and in our view, this follows upon the presumptions that are
raised under s. 27 of the General Clauses Act, 1897 and s. 114 of the Indian
Evidence Act.
Turning to the Bombay decision in Vaman
Vithal's case (supra), We would like to point out two aspects that emerge
clearly from the very observations which have been strongly relied upon by
counsel for the appellant. In the first place, the observations clearly show
that the refusal to accept the notice was not satisfactorily proved in the case
inasmuch as the postman who took the letter and brought it back had not been
examined; consequently the further observations made by the leaned Chief
Justice were unnecessary for decision on the point and as such will have to be
regarded as obiter.
972 Secondly, while making those observations
the learned Chief Justice WAS himself conscious of the fact that there were
some authorities of that Court taking the contrary view.
Having regard to these aspects it is
difficult to hold that the concerned observations lay down the correct legal
position in the matter. In any event we approve of the view taken by the
Allahabad High Court in its three decisions, namely, Sri Nath's case, Fanni
Lal's case and Ganga Ram's case (supra) and would confirm the High Court's
finding on the point in favour of the respondents.
Counsel for the appellant then faintly argued
that the respondents suit was not maintainable under s. 14(1) of the Act
inasmuch as no permission of the District Magistrate had been obtained by the
respondents before filing the suit as required by s. 14 and in this behalf
reliance was placed on s. 14(a) of the Act which ran thus:
"14. Restrictions on eviction. No suit
shall, without the permission of the District Magistrate, be filed in any Civil
Court against a tenant for his eviction from any accommodation except on one or
more of the following grounds, namely:
(a) that the tenant has willfully failed to
make payment to the landlord of any arrears of rent within one month of the
service upon him of a notice of demand from the landlord." According to
counsel for the appellant the aforesaid provision clearly shows that under the Act
two safeguards were available to a tenant- (i) eviction could not be had by any
landlord except on one or more of the grounds specified in cls. (a) to (f) of
s. 14 and (ii) no suit for eviction even on those grounds specified in cls. (a)
to (f) could be instituted without the permission of the District Magistrate,
and admittedly the landlords in the instant case had filed the suit against the
appellant without obtaining the permission of the District Magistrate. He,
therefore, urged that the Civil Court had no jurisdiction to entertain the suit
and the decree was without jurisdiction.
It must be observed that no such contention
was raised by the appellant in any of the Courts below presumably because the
appellant as well as this lawyer knew how an identical provision contain ed in
s. 3(1) of the U.P.
(Temporary) Control of Rent and Eviction Act,
1947, an allied enactment, had been judicially interpreted by in this Court in
Bhagwan Dass v. Paras Nath Section 3 of the U.P. Act 3 of 1947 ran thus:
973 "3. Restrictions on
evictions.-Subject to any order passed under sub-section (3), no suit shall
without the permission of the District Magistrate, be filed in any Civil Court
against a tenant for his eviction from any accommodation, except on one or more
of the following grounds:
(a) that the tenant is in arrears of rent for
more than three months and has failed to pay the same to the landlord within
one month of the service upon him of a notice of demand." This Court in
Bhagwan Dass case Asupra) has explained at page 305 of the report the legal
position arising on a grammatical construction of s. 3(1) thus:
"Section (3) 1 does not restrict the
landlord's right to evict his tenant on any of the grounds mentioned in cls.
(a) to (g) of that sub-section.
But if he wants to sue his tenant for
eviction on any ground other than those mentioned in those clauses then he has
to obtain the permission of the District Magistrate whose discretion is subject
to any order passed under sub-s. (3) of s. 3 by the Commissioner. These are the
only restrictions placed on the power of a landlord to institute a suit for
eviction of his tenant." It would be conducive to judicial discipline to
interpret an identical provision contained in s. 14(1) of the U.P.
Cantonment (Control of Rent & Eviction)
Act, 1952 in a similar manner. In other words, under s. 14(1) of the concerned
Central Act permission of the District Magistrate was required if the landlord
sought eviction of his tenant on any ground other than those specified in cls.
(a) to (f) and not when it was sought on any of the grounds specified in cls.
(a) to (f). (If may be stated that both the enactments have since been
repealed). It is, therefore, not possible to accept the contention of the
counsel for the appellant that the instant suit filed by the respondents
against the appellant could not be entertained by the Civil Court.
In the result the appeal fails and is
dismissed.
However, having regard to all the facts and
circumstances of the case there will be no order as to costs and we grant the
appellant six months time to vacate.
DESAI, J.-I have very carefully gone through
the judgment prepared by my learned brother Mr. Justice V. D. Tuzapurkar, but I
regret my inability to agree with the same.
974 The relevant facts leading to the appeal
by special leave have been succinctly set out in the main judgment and
therefore, I would straightway proceed to deal with the three important
questions raised in this appeal.
The first and the principal question which
goes to the root of the matter is about the construction of section 20(2) (a)
of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent &
Eviction) Act, 1972 ('Rent Act' for short). It reads as under:
"20. Bar of suit for eviction of tenant
except on specified grounds:- (2) A suit for the eviction of a tenant from a
building after the determination of his tenancy may be instituted on one or
more of the following grounds namely:
(a) that the tenant is in arrears of rent for
not less than four months, and has failed to pay the same to the landlord
within one month from the date of service upon him of a demand :" There is
a proviso to this sub-section which is not material for the purpose of this
appeal.
A brief resume of concurrently found facts
which would high light the question of construction would be advantageous.
Appellant was inducted as a tenant of the premises by its former owner on a
rent of Rs. 250/- per annum in the year 1964, on a request by the then
landlord, appellant-tenant surrendered a portion of the premises, comprising
two rooms, a kitchen, a bathroom and a verandah at the back of the shop,
retaining only possession of the shop, consequently reducing the rent by
agreement between the parties at the rate of Rs. 100/- per annum. It is thus an
agreed and incontrovertible fact that the appellant- tenant is a tenant of a
shop on an yearly rent of Rs. 100/-, payable at the end of every year.
The focus should immediately be turned to the
provision of law under which the landlord seeks to evict this tenant.
According to respondent-landlord she served
notice dated November 9, 1966, terminating the tenancy of the appellant as the
appellant-tenant was a defaulter within the meaning of s. 20(2) (a) and,
therefore, she all was entitled to a decree for eviction as she has
satisfactorily proved all the requirements or ingredients of s. 20(2) (a).
Accepting the finding of fact that the appellant is a tenant liable to pay rent
975 @ Rs. 100/- per annum, the crux of the matter is whether his case is
covered by s. 20(2) (a).
What does s. 20(2) (a) postulate and what are
its components which when satisfied, the landlord would be entitled to evict
the tenant? On analysis following ingredients of s. 20(2) (a) would emerge each
of which will have to be satisfied before the landlord 1 would be eligible to
obtain a decree for eviction, viz:
(i) Tenant must be a tenant of premises
governed by the Rent Act;
(ii) That the tenant is in arrears of rent
for not less than four months;
(iii) That such a tenant has to pay rent in
arrears within a period of one month from the date of service upon him of a
notice of demand.
In this case, the tenant is a tenant of
premises governed by tho Rent Act.
The crucial question is whether the second
ingredient, as extracted above, is satisfied by the landlord. The attention has
to be focused on the expression 'in arrears of rent for not less than four
months'. What does this expression signify ? As contended on behalf of the
respondent that whatever be the default in payment of rent, the notice can be
served after the default has continued for a period of four months, and failure
to comply with the requisition in the notice would disentitle the tenant to the
protection of Rent Act. Alternatively it was contended that the expression in
arrears of rent for not less than four months' on a literal grammatical
construction would signify that rent is payable by the month and that the
tenant has committed a default in payment of four months' rent and further
failed to comply with the requisition made in the notice within the stipulated
period of one month and only then the protective umbrella of the Rent Act would
be removed and the tenant would be exposed to a decree for eviction.
The two rival constructions raised a question
of construction of a sub-section in a statute primarily enacted as can be
culled out from the long and short title of the Rent Act, being regulation of
letting and rent and arbitrary eviction of tenant from the premises to which
the rent Act would apply. It is a socially beneficent statute and in construing
such statute certain well recognised canons of construction have to be borne in
mind. Undoubtedly, the dominant purpose in construing the statute is to
ascertain the intention of the legislature. This intention, and, therefore, the
meaning of the statute, is primarily to be sought ill the words used in the
statute itself, which must, if they are plan and unambiguous, be applied as
they stand, however strongly it may be suspected that the result does not re
present the real intention of legislature (see Inland Revenue Commissioner v.
Hinchy). In approaching the matter from this angle, it is a duty of the Court
to give fair and full effect to statute which is plain and unambiguous without
regard to the particular consequence in a special case. Even while giving
liberal construction to socially beneficent legislation, if the language is
plain and simple the making of a law being a matter for the legislature and not
courts, the Court must adopt the plain grammatical construction (see River Wear
Commissioners v. Adamson) The Court must take the law as it is. And,
accordingly, it is not entitled to pass judgment on the propriety or wisdom of
making a law in the particular form and further the Court is not entitled to
adopt the construction of a statute on its view of what Parliament ought to
have done. However, when two constructions are possible and legitimate
ambiguity arises from the language employed, it is a plain duty of the Court to
prefer and adopt that which enlarges the protection of a socially beneficent
statute rather than one which restricts it. In Mohd. Shafi v. Additional
District & Sessions Judge (VII), Allahabad and Others, this Court while
interpreting the explanation (iv) to s. 21 of the Rent Act observed that where
the language is susceptible of two interpretations, the Court would prefer that
which on larges the protection of the tenants rather than one which restricts
it. It was further observed that the construction that the Court adopted would
be more consistent with the policy and attainment of the legislation which is
to protect the possession of the tenant unless the landlord establishes a
ground for eviction. Similarly in Gurucharan Singh v. Kamla Singh & Ors.
while interpreting the provision of s. 6 of the Bihar Land Reforms Act, 1950,
this Court observed that the Court was called upon to interpret a land reforms
law are not just an ordinary state and, therefore, the socioeconomic thrust of
the law in these areas should not be retarded by judicial construction but
filliped by the legal process without parting from the object of the Act. It
must also be emphasised that where two constructions are possible, the one that
must be preferred is one which would accord with reason and justice (see H. H.
Maharaja- 977 dhiraja Madhav Rao Jivaji Rao Scindia Bahadur of Gwalior &
Ors. v. Union of India & Another.
Bearing in mind this interpretative approach
let us hark back to the expression used in s.20(2)(a) and ascertain whether the
exception is susceptible of one construction only or more than one construction
and whether there is ambiguity and if so, in which direction the interpretative
jurisprudence must move.
The expression "the tenant is in arrears
of rent for not less than four months" may suggest that the tenant is in
arrears of rent for one or any number of months and that the arrears have
fallen due four months back meaning thereby that within four months there was
no attempt on the part of the tenant to pay up the arrears and cure the
default. This construction would imply that if the tenant is in arrears of rent
for one month only, an action under the relevant clause can be commenced
against him if this infault has continued for a period of four months even if
the tenant has paid rent for subsequent months and on the expiry of the period
of four months from the date on which the rent had become due and payable for
one month a notice of demand can be served and on the failure of the tenant to
comply with the requisition made in the notice he would be liable to be
evicted. In other words, a period of four months must elapse between the date
of default and the service of notice irrespective of the fact whether the
default is in payment of one month's rent or more than one month's rent. In
this constriction it is implicit that failure to pay rent for four different
months is not a sine qua non for commencing action under s. 20(2) (a). What is
of the essence of matter is that a period of four months must elapse between
the date of default complained of and service of notice under s. 20(2) (a). It
was said that the legislature has given locus poenitentiae to the tenant to
repair the default within the period of four months. This approach overlooks
the obvious that before action can be commenced under s. 20(2) (a) a notice has
to be served and tenant is given locus poenitentiae to repair the default
within one month. It appears that by s. 43 of the Rent Act the United Provinces
(Temporary) Control of Rent and Eviction Act, 1947 ('Repealed Act' for short)
was repealed. Section 3 of the Repealed Act enumerated grounds on which a
tenant could be evicted. Sub-clause (a) of s. 3 provided that the landlord
would be entitled to eviction of a tenant if the tenant was 'in arrears of rent
for more than three months' and had failed to pay the same to the landlord
within one month of the service upon him of the notice of demand. The language
employed in the repealed provision led 978 the Court to hold that whatever be
the default in payment of rent, a period of three months should have expired
from the date of default where after alone the landlord would be entitled to
serve a notice as provided in the relevant sub- clause. It was so held by the
Allahabad High Court in Ram Saran Das v. L. Bir Sain, but this decision was
overruled in Jitendra Prasad v. Mathur Prasad. In order to avoid ally such
controversy, in the Repealing statute the expression 'arrears of rent for more
than three months' has been substituted by the expression 'arrears of rent for
not less than four months'. This is contemporaneous legislative exposition
which clearly brings out the legislative intention that the landlord would be
entitled to evict the tenant if the rent is in arrears for not legs than four
months. Therefore, it would clearly imply that before the landlord can commence
action under sub-clause (a), the tenant must have committed default in payment
of rent for a period of four months. Therefore, the first suggested
construction is not borne out by the language employed in the section.
The question still remains: what does the
expression 'in arrears of rent for not less than four months' signify ? It is
implicit in the expression that the rent must be payable by month. Irrespective
of the fact whether the tenancy is a yearly tenancy or a monthly tenancy, it is
implicit in sub-clause (a) that either by the contract of lease or by oral
agreement or by long usage the tenant is liable to pay rent at the end of every
month. In other words, the unit for computation of rent is one month, that is,
rent becomes due and payable every month. It is only such a tenant who may fall
in arrears for a period of four months. Every month the tenant would be liable
to pay the rent in the absence of a contract to the contrary. Thus the rent
becomes due and payable at the end of every month. As soon as the month is over
the rent becomes due and payable and failure on the part of the tenant to pay
the same would dub him as a tenant in arrear of rent for one month. If this
process goes on meaning thereby that a period of four months having expired and
for each of the four months the rent when It became due and payable was not
paid, then alone the tenant could be said to be a tenant in arrears of rent for
not less than four months. Two definite ingredients emerge from the expression
'the tenant is in arrears of rent for not less than four months' (i) that the
rent is payable by month; and (ii) the tenant has committed default in payment
of rent for four different months and that this default subsists and continues
on the date when the landlord invokes the 979 provision of clause (a) and
proceeds to serve a notice of demand. Again, if within a period of one month
from the date of receipt of the notice the tenant pays up the arrears of rent
he does not lose the protection of the Rent Act. The legislature clearly
intended to cover those cases of default in payment of rent under clause (a)
where the contract of lease provided for payment of rent every month meaning
thereby that the unit for liability to pay rent is one month and secondly the
tenant has committed default on four different occasions of four different
months or four different units agreed upon for payment of rent and that they
differ the facility to pay the same has accrued. As stated earlier this is
implied in the expression 'the tenant is, in arrears of rent for not less than
four months.
In this connection one can profitably refer
to s. 12(3) (a) of the Bombay Rents, Hotel & Lodging House Rates Control
Act, 1947, which reads as under:
"Where the rent is payable by the month
and there is no dispute regarding the amount of standard rent or permitted
increases, it such rent or increases are in arrears for a period of six months
or more and the tenant neglects to make payment thereof until the expiration of
the period of one month after notice referred to in sub-section (2), the (2)
(Court shall pass a decree) for eviction in any such suit for recovery of
possession." The expression used there is that the rent is payable by
month and the tenant is in arrears for a period of six months. In the Rent Act
under discussion, a conjoint expression is used that a tenant is in arrears of
rent for a period of not less than four months. It only means that where the
rent is payable by month and the tenant is in arrears of rent for not less than
four months, and that is the clearest intention discernible from the language
used in the relevant clause.
It was, however, contended that this
construction would give an undeserved advantage to the defaulting tenant where
the rent is not payable by month. The contention is that a landlord who had
agreed to accept rent on an yearly basis would be at the mercy of the tenant
because even if the default is contumacious the landlord would not be entitled
to evict the tenant and that such could not be the intention of the
legislature. It was, therefore, said that the expression 'the tenant is in
arrears of rent for not less than four 980 months' is also susceptible of the
meaning that where the rent is payable by year and after the year is over and
the rent has become due and payable if the tenant has not paid the rent for
four months his case would be covered by clause (a). If a tenant is under a
contract with the landlord to pay rent at the end of a specific year agreed to
between the parties, could he be said to be a tenant arrears for not less than
four months even if he has defaulted in payment of rent at the end of one year
l How can a tenant who is to pay rent on the expiry of a specified year be in
arrears of rent for not less than four months ? And if that construction is
adopted, a tenant who has committed default in payment of rent for one month
and the default has continued without repair for a period of Four months even
though he has paid rent for subsequent months he would be liable to be evicted,
a construction which ought to be rejected on legislative exposition by change
in expression adopted in the repealed Act and substituted in the present Act
discussed herein above. If that construction is rejected it would be difficult
to accept the construction that even of the rent is payable by year once the
year is over and a period of four months has elapsed he could be said to be a
tenant in arrears of rent for not less than four months. The language does not
admit of this construction. Therefore, where the rent is payable by the year
clause (a) is not attracted. Now the wild apprehension expressed on behalf of
the landlord that such a construction would give an unfair advantage to a
tenant who is liable to pay yearly rent need not detain us because the wisdom
of enacting a law in a certain manner is for the legislature to decide and not
for the court to impose. It may be that the legislature would have intended
that such landlords who relied on the income from rent month after month must
have a sanction which can be applied if the tenant commits default in payment
of rent of four different months but a landlord who apparently does not depend
upon the rental income by agreeing to accept yearly rent need not have that
sanction and it would be still open to such a landlord to file a suit merely
for recovery of rent and not for eviction. Such a thing is not unknown to law
because in permanent tenancy and in tenancies of long duration the landlords
can only sue for rent and not for eviction on the tenant committing default in
payment of rent. Therefore, on examining both the rival constructions one which
extends the protection deserves to be accepted in view of the fact that the
legislature never intended to provide a ground for eviction for failure to pay
rent in case of leases where yearly rent was reserved. Rent Act was enacted to
fetter the right of re-entry of landlord and this construction accords with the
avowed object of the Rent Act.
981 In the instant case the parties are ad
idem that the rent is payable by year at the rate of Rs. 100/- per annum.
In such a case it could not be said that this
tenant was in arrears of rent for not less than four months. His case would not
be covered by s. 20(2) (a) of the Rent Act and, therefore, the landlord would
not be entitled to a decree for eviction on this ground and that was the sole
ground on which eviction has been ordered.
The second contention is that the High Court
was in error in interfering with the concurrent finding of facts while hearing
second appeal in February, 1979 and that too without framing the point of law
which arose in the appeal.
The disputed finding of fact is about the
service of notice.
If a landlord seeks eviction on the ground of
tenant's default in payment of rent under s. 20(2) (a) it is obligatory upon
him to serve a notice of demand of the rent in arrears On the tenant and can
only seek eviction if the tenant fails to comply with the requisition made in
the notice. The appellant tenant in terms contended that no notice was served upon
him. On the assertion of the respondent landlord that notice dated November 9,
1966, was served upon the appellant tenant on November 10, 1966, but he refused
to accept the same and the refutation thereof by the tenant that no notice was
offered to him by the postman nor was any notice refused by him, a triable
issue arose between the parties. The learned trial judge framed Issue No. 7 on
the question of service of notice. He recorded a finding that the appellant
tenant was not served a notice of demand and of ejectment and answered the
issue in favour of the appellant tenant. On appeal by the respondent landlord
the appellate court framed point no. 2 on the question of service of notice and
answered it by observing that the defendant tenant refused to accept the
registered notice but no knowledge can be attributed to him of the contents of
the registered envelope and, therefore, the tenant could not be said to be
guilty of wilful default on the expiry of one month after the service of
notice. He accordingly confirmed the finding of the trial court that the
plaintiff landlord is not liable to a decree of eviction on the ground
mentioned in s. 20(2)(a). The landlord approached the High Court in second
appeal.
When this appeal was heard, section 100 of
the Civil Procedure Code after its amendment of 1976 was in force. It
restricted the jurisdiction of the High Court to entertain a second appeal only
if the High Court was satisfied that the case involved a substantial question
of law. Sub-section 4 cast a duty on the court to formulate such a substantial
question of law and the appeal has to be heard on the question so formulated.
It would also be open to the respondent 982 at the hearing of the appeal to
contend that the case does not involve such a question. Even prior to the
amendment of Section 100, the High Court ordinarily did not interfere with the
concurrent findings of fact. This position has been repeatedly asserted and one
need not go in search of precedent to support the proposition. However one can
profitably refer to R. Ramachandran Ayyar v. Ramalingam Chettiar. After
examining the earlier decisions and the decision of the Privy Council in Mst.
Durga Chaudhrain v.
Jawahar Choudhary Gajendragadkar J. speaking
for this Court in terms spelt out the jurisdiction of the High Court in second
appeal as under:
"But the High Court cannot interfere
with the conclusions of fact recorded by lower appellate Court however
erroneous the same conclusions may appear to be to the High Court, because, as
the Privy Council observed, however gross or in excusable the error may seem to
be, there is no jurisdiction under s. 100 to correct that error".
This view was re-affirmed in Goppulal v.
Dwarkadhishji wherein after reproducing the concurrent finding of fact this Court
observed that this concurrent finding of fact was binding on the High Court in
second appeal and the High Court was in error in holding that there was one
integrated tenancy of six shops.
In the facts of this case, there was a
concurrent finding that the statutory notice as required by s. 20(2) (a) was
not served upon the tenant and, therefore, the High Court was in error in
interfering with this finding of fact.
However, it is not necessary to base the
judgment on this conclusion because it was rightly said on behalf of the
respondent that whether the notice was offered to the petitioner tenant and he
refused to accept the same the finding is not concurrent because the appellate
court has held that the notice was offered but the tenant refused to accept the
same and, therefore, on the refusal to accept the notice there was no
concurrent finding. This contention is legitimate because the appellate court
held that notice as required by law was not served because even if the tenant
refused to accept the notice the knowledge of the contents of the registered
envelope not opened by him cannot be imputed to him, and, therefore, there was
no service of notice as required by s. 20(2) (a). The first appellate court was
of the view that in the absence of knowledge of the demand of rent in arrears
as alleged in the notice the tenant cannot be said 983 to be guilty of wilful
default so as to be denied the protection of the Rent Act.
This accordingly takes me to the third
contention in this appeal. The third contention is that even if this Court
agrees with the High Court in holding that the notice in question was tendered
by the postman to the appellant tenant and he refused to accept the same n:
and, therefore, this refusal amounts to service within the meaning of s. 20(2)(a),
yet as the knowledge of the contents of the notice would reflect on subsequent
conduct as wilful or contumacious, it is not sufficient that a notice is served
or tendered and refused but it must further be shown that in the event of
refusal the tenant did it with the knowledge of the contents of the registered
envelope and his subsequent conduct is motivated. The question then is; What
would be the effect of a notice sent by registered post and refused by a tenant
on the question of his knowledge about the contents of the notice and his
failure to act? Would it tantamount to an intentional conduct evidencing wilful
default on his part? This aspect cannot be merely examined in the background of
some precedents or general observations. One has to examine this aspect in the
background of Indian conditions or in the words of Krishna Iyer, J., 'the legal
literacy in rural areas and the third world jurisprudence.' Before we blindly
adhere to law bodily imported from western countries we must not be oblivious
to the fact that the statutes operating in the western countries are meant for
a society if not 100 per cent., 99 per cent. literate.
We must consciously bear in mind that our
society especially in the semi-urban and rural areas is entirely different and
wholly uncomparable to the western society. A literate mind will react to a
problem presented to him in a manner other than an illiterate mind because
illiteracy breeds fear and fear oriented action cannot be rationally examined
on the touchstone of legal presumptions. To articulate the point as it arises
in this case, let one put his feet in the shoes of a rural illiterate person to
whom a registered envelope by a postman is presented. Does it require too much
of imagination to conclude that he will be gripped with fear and he may react
in a manner which will be his undoing? He would believe that by refusing to
accept the registered envelope he would put off the evil rather than accept the
same and approach a person who can advise him and meet the situation. Can this
action of fear gripped mind inflict upon the person an injury flowing from the
assumption that he not only refused the registered envelope with the conscious
knowledge of the fact that it contained a notice by a lawyer on behalf of his landlord
and that it accused him of wilful 984 default in payment of rent and that if he
would act rationally he would repair the default by tendering the rent within
the period of one month granted by the statute? If he is deemed to have acted
consciously is it conceivable that he would invite injury by sheer refusal to
accept the registered envelope rather than know the con tents or make them
knowable to him and meet the charge of wilful default.
As was said, again by Krishna Iyer, J., which
bears quotation:
"The Indian Courts interpret laws the
Anglo-Indian way, the rules of the game having been so inherited.
The basic principles of jurisprudence are
borrowed from the sophisticated British system, with the result that there is
an exotic touch about the adjectival law, the argumentative method and the
adversary system, not to speak of the Evidence Act with all its
technicalities".
Lord Devlin recently said:
"If our business methods were as
antiquated as our legal methods, we would be a bankrupt country....There is
need for a comprehensive enquiry into the rules of our procedure backed by a
determination to adopt it to fit the functions of the welfare State".
This is much more apposite in the conditions
of our society and this was noticed by Beaumost, C. J. way back in fourth
decade of this century in Waman Vithal Kulkarni & Others. v. Khanderao Ram
Rao Sholapurkar. An exactly identical question arose before the Division Bench
of the Bombay High Court.
The facts found were that the registered
letter containing the notice was sent to defendants 4 & 5 duly addressed
and service was alleged to have been refused. The contention was two-fold that
the refusal was not proved but alternatively it was contended that even if it
was proved, the addressee could not be imputed with the knowledge of the
contents of the registered envelope. The pertinent observation is as under:
"In the case of defendants 4 and 5 a
registered letter containing the notice was sent to them duly addressed, and
service is alleged to have been refused.
In fact the refusal was not proved, as the
postman who took the letter and brought it back was not called. But in any
case, even if the refusal had been proved, I should not be prepared to hold 985
that a registered letter tendered to the addressee and refused and brought back
unopened, was well served.
There are, I know, some authorities in this
Court to the contrary, but it seems to me impossible to say that a letter has
been served so as to bring the contents to the notice of the person to whom the
letter is addressed, it the agent for service states that in fact the notice
was not served, although the reason may have been that the addressee declined
to accept it. One cannot assume that because an addressee declines to accept a
particular sealed envelope he has guessed correctly as to its contents. Many
people in this country make a practice of always refusing to accept registered
letters, a practice based, I presume, on their experience that such documents
usually contain something unpleasant. To that, it is clear that this notice was
not served on three of the defendants".
Learned counsel for the respondent tried to
distinguish this decision by observing that the court did hold that the refusal
was not proved, therefore, the rest of the observation was obiter. It is not
far a moment suggested that the decision of the Division Bench of the Bombay
High Court is binding on this Court but the reasoning which appealed to the
Division Bench in 1935 is all the more apposite at present. The Division Bench
noticed that in the society from which the defendants came, there was a feeling
that such registered letters usually contained something unpleasant. Is there
anything to suggest that this feeling is today displaced or destroyed? The
Division Bench further noticed that many people in India make a practice of
always refusing to accept registered letters and the practice according to the
Division Bench was based on their experience that such documents usually
contained something unpleasant. The reaction is to put off the evil by not
accepting the envelope. Could such ignorant illiterate persons be subjected to
a legal inference that the refusal was conscious knowing the contents of the
document contained in the registered envelope? To answer it in the affirmative
is to wholly ignore the Indian society. And this concept that the registered
envelope properly addressed and returned with an endorsement of refusal must
permit a rebuttable presumption that the addressee refused it with the
knowledge of the contents is wholly borrowed from the western jurisprudence. I
believe it is time that we ignore the illusion and return to reality. Reference
was also made to Appabhai Motibhai v. Laxmichand Zaverchand & Co., but that
case does not touch the point. In Mahboob Bi v. Alvala 986 Lachmiah, an almost
identical question figured before the Andhra Pradesh High Court. In that case
the Rent Controller issued a notice in respect of the proceedings initiated
before him by the landlord for the eviction of the tenant, to the tenant by
registered post and the envelope was returned with the endorsement of refusal
and the Rent Controller set down the proceedings for ex parte hearing and
passed a decree for eviction. The tenant under the decree of eviction preferred
an appeal in the City Small Causes Court.
A preliminary objection was raised by the
respondent- landlord that the appeal was barred by limitation as it was filed
six days after the time allowed for filing the appeal.
The appellant-tenant countered this by saying
that he had no knowledge of the proceedings before the Rent Controller and that
he was never served with the notice of proceedings before the Rent Controller.
The relevant rule permitted service of notice by registered post. After
examining the relevant rule the Court accepted the contention of the tenant
observing as under:
"Moreover nothing has been placed before
me to show that there is any duty cast upon any person to receive every letter
or notice sent by registered post, nor does the refusal to receive has been
made the subject-matter of any presumption which may arise under sec. 114 of
the Evidence Act. Then again, there is the practical difficulty of having to
import the knowledge of the date of hearing or the precise proceedings with
which the registered notice is concerned in the case of a mere refusal to
receive a registered notice".
The Court thus was of the view that even if
refusal amounted to service, yet it is not service as required by law to fasten
a liability on the tenant because no presumption can be raised that the refusal
war, with the conscious knowledge of the contents of the registered envelope.
Undoubtedly, our attention was also drawn to a contrary view taken by a
Division Bench of the Allahabad High Court in Fannilal v. Smt. Chironja. It was
contended that even if the registered letter was refused no presumption of
knowledge of the contents of the letter could in law the raised against the
tenant. In support of the submission reliance was placed on Amarjit Singh Bedi
v. Lachchman Das, an unreported decision of a single judge of the Allahabad
High Court and the decision of Beaumont, C.J. in Waman Vithal Kulkarni's case.
The Division Bench of the Allahabad High Court did not accept the view of
Beaumont, C.J. The Court was of the opinion that a presumption of fact would
arise under 987 s. 114 of the Evidence Act that the refusal was with the
knowledge of the contents of the registered envelope. The Court has not
considered the specific Indian conditions, the approach of rural Indians to
registered letters and has merely gone by the technical rules of Evidence Act,
which, as experience would show, could sometimes cause more harm and lead to
injustice through law. The contrary Allahabad decision does not commend to me.
On the contrary, the Bombay view is in accord with the conditions of society in
rural India and I do not propose to make any distinction even with regard to
urban areas where also there are a large number of illiterates Even in the case
of a semi-literate person who is in a position to read and write he could not
be accused of legal literacy. Therefore, it is not possible to accept the
submission that mere refusal would permit a presumption to be raised that not
only the service was legal but the refusal was the conscious act flowing from
the knowledge of the contents of the letter.
How dangerous this presumption is can be
easily demonstrated, and how it would lead to miscarriage of justice can be
manifestly established. Once knowledge of the contents of the registered
envelope is attributed to a person to whom a registered envelope is sent and
who has refused to accept the same, that this was an act accompanied by the
conscious knowledge of the contents of the letter he who may be an innocent
defaulter or presumably no defaulter at all, would be charged with a
contumacious conduct of being a wilful defaulter. The Rent Act does not seek to
evict a mere defaulter that is why a provision for notice has been made. If
even after notice the default continues, the tenant can be condemned as wilful
defaulter. Could he be dubbed guilty of conscious, wilful, contumacious,
intentional conduct even when he did not know what was in the registered
envelope? In my opinion, it would be atrocious to impute any such knowledge to
a person who has merely been guilty of refusing to accept the registered
notice. Where service of notice is a condition precedent, a dubious service
held established by examining the postman who must be delivering hundreds of
postal envelopes and who is ready to go to the witness box after a long
interval to say that the offered the envelope to the addressee and he refused
to accept the same, would be travesty of justice.
And if this condition precedent is not fully
satisfied, the consequent conduct cannot be said to be wilful. In a slightly
different context in Commissioner of Income-tax, Kerala v. Thayaballi Mulla
Jeevaji Rapasi (decd.), this Court held that service of the notice under 988 s.
34(1)(a) of the Income-tax Act, 1922, within the period of limitation being a condition
precedent, to the exercise of jurisdiction, if no notice is issued or if the
notice issued is shown to be invalid, then the proceedings taken by the
Income-tax Officer without a notice or in pursuance of an invalid notice would
be illegal and void.
It was, however, contended that if the Court
accepts the legal contention as canvassed on behalf of the appellant it would
be impossible to serve the notice as statutorily prescribed. This wild
apprehension is wholly unfounded. The notice is required to be served in the
manner prescribed by s. 106 of Transfer of Property Act which, inter-alia,
provides for affixing a copy of the notice on the premises in possession of
tenant. Therefore, it cannot be said that the approach of the Court would
render it impossible for the landlord to meet with the statutory requirement of
service of notice before commencing the action for eviction.
Having, therefore, examined the three vital
contentions, in my opinion the suit of the landlord must fail on the ground
that the rent was not payable by month and, therefore, section 20(2) (a) is not
attracted. And further, even if it is attracted, as the statutory notice as
required by s. 20(2) (a) was not served, a decree for eviction cannot be passed
on the only ground of default in payment of rent.
I would accordingly allow this appeal and
dismiss the suit of the respondent for eviction but with no order as to costs
in the circumstances of the case.
S.R. Appeal dismissed.
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