TMI Blog1993 (9) TMI 336X X X X Extracts X X X X X X X X Extracts X X X X ..... y of the notice was affixed on the outer-door of the tenanted premises, yet another was sent by registered post. However, as none appeared on behalf of the tenant, the Estate Officer proceeded ex parte and thereupon passed an order of eviction. Aggrieved by that order the tenant preferred an appeal which was allowed by the learned Additional District Judge holding that the notice issued under sub section (1) of section 4 of the Act had not been served in accordance with sub-section (3) of section 4 of the Act read with Rule 4 of the Rules on the ground that the notice which was required to be sent by registered post acknowledgement due had actually been sent by registered post only. It was thereupon the turn of the Bank to feel aggrieved. Hence this writ petition. It was contended on behalf of the petitioner that since notice had been served by affixation in terms of sub-section (3) of section 4 of the Act ana as it had also been sent by registered post though not by registered post acknowledgment due, I think the stage has come for me to first peep into sub sections (1) and (3) of Section 4 of the Act and so also Rule 4 of the Rules framed under the Act. Here they are: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is no adult member of the family of such person, a copy of the notice or the order as the case may be shall be affixed on the outer door or some other conspicuous part of the ordinary residence or usual place of business of such person and the original shall be returned to the estate officer who issued the notice or the order as the case may be, with a report endorsed thereon or annexed thereto staling that a copy has been so affixed, the circumstances under which it was done so and the name and address of the person, if any, by whom the ordinary residence or usual place of business was identified and in whose presence the copy was affixed. (4) If a notice under sub section (1) of Section 4 or sub-section (2) of Section 5A or sub-section (1) of Section 5B or sub-section (1) or sub-section (1-A) of Section 6 or an order issued under sub-section (1) of Section 5 or sub-section (1) or sub-section (2) or sub-section (5) of Section 5B or sub-section (1) or sub-section (2) of Section 5C or sub-section (1) or sub-section (2) of Section 7 of the said Act cannot be served in the manner provided in sub-rule (1), the estate officer may, if he thinks fit, direct that such notice or orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... because of its long tradition, and it is known to all the lawyers of the world. However, scholars of recent generations increasingly recognize the fact that the view embedded within it, that the rule - if only the "clear" rule - may speak for itself, is too facile. Someone else's idea cannot work within us unless we absorb it,unlesswe give the cooperation that constitutes the interpretive process; whether the interpretation is difficult and exhausting, or mere child's play. And, even in the latter case. whatever the interpretation, it is precisely the ease and confidence with which it is made, that permit us to conclude that the text or the behavior at issue is clear. The holding of the Latin saying we quoted is no more correct - if such a comparison may be permitted us - than that which asserts that light foods do not require digestion. For even here, the ease and speed of the digestion are exactly what prove the lightness of the food. Otherwise, no meaning whatsoever should be ascribed to a holding such as this." While finding the way or making it himself the approach of the judge can neither be arbitrary nor mechanical. He is not entitled to flip a coin. Where the words are pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts of our own Supreme Court and in this connection reference may be made only to few, namely, K.P. Verghese v. Ito ,Som PrakashRathi v.Unionoflndia ,andBabaji Kondaji v. Nasik Merchants Coop. Bank, . Guided by the light of the principles noticed above I turn to Rule 4 of the Rules. Even a cursory look at the Rule would go to show that it has been introduced primarily to protect the occupants. The legislature was not satisfied with service of notice being affected by affixation only as it could be exploited or even abused to deprive the occupants from putting in appearance and setting up a defense. Additional protection was thus afforded by introducing Rule 4 which insists upon service through a letter sent by registered post acknowledgment due. Rule 4 in its entirety would go to show that the emphasis is on service of notice which is evidenced by writing. The writing evidencing receipt of notice may be on the acknowledgment due if the notice is sent by registered post or on the copy of the notice or any other document. This then is the essence of the requirement. As, in the present case, the service of notice is not evidenced by writing of the occupant or the adult me ..... X X X X Extracts X X X X X X X X Extracts X X X X
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