TMI Blog1981 (2) TMI 199X X X X Extracts X X X X X X X X Extracts X X X X ..... g eviction is sent by registered post and is refused by the tenant the latter could be imputed the knowledge of the contents thereof so that upon his failure to comply with the notice the tenant could be said to have committed wilful default in payment of rent ? 2. 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. Cantoment, (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 we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espondents 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 wilful 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 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 regist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... since the address on the envelope as 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 wilful 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 A.I.R. 1935 Bom. 247 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 registered letter tendered to the addressee and refused and brought back unopened, was well ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondents placed reliance on the Privy Council decision in Harihar Banerji and Ors. v. Ramshashi Roy and Ors. A.I.R. 1918 P.C. 102 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 1970 A.L.J. 336 have dealt with the Bombay decision and have expressed their disagreement with the view expressed therein. 7. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Section 27 of the General Clauses Act, 1897 and Section 114 of the Indian Evidence Act. 8. 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. Secondly, while making those observations the learned Chief Justice was himself conscious of the fact that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Section 3(1) thus : Section (3)1 does not restrict the landlord's right to evict his tenant on any of the grounds mentioned in Clauses (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-section (3) of Section 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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. 17. 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 Section 20(2)(a) and, therefore, she was entitled to a decree for eviction as she has satisfactorily proved all the requirements or ingredients of Section 20(2)(a). Accepting the finding of fact that the appellant is a tenant liable to pay rent @ Rs. 100/- per annum, the crux of the matter is whether his case is covered by Section 20(2)(a). 18. What does Section 20(2)(a) postulate and what are its components which when satisfied, the landlord would be entitled to evict the tenant? On analys ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot represent the real intention of legislature (see Inland Revenue Commissioner v. Hinchy) 1960 A.C. 748, H.L. at 767; (1960) 1 All E.R. 505 at 512. 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 beneficient 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) [1877] 2 A.C. 743 765. 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 beneficient statute rather than one which restric ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved 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 construction it is implicit that failure to pay rent for four different months is not a sine qua non for commencing action under Section 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 Section 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 Section 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 Section 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in payment of rent at the end of one year? 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 966, 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 Section 20(2)(a). The landlord approached the High Court in second appeal. 30. When this appeal was heard, Section 100 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cept 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 Section 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 to be guilty of wilful default so as to be denied the protection of the Rent Act. 32. 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 and, therefore, this refusal amounts to service within the meaning of Section 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refusal to accept the registered envelope rather than know the contents 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 and Ors. v. Khanderao Ram Rao Sholapurkar AIR 1935 Bom. 247. An exactly identical question arose before the Division Bench of the Bombay High Court. The facts fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce 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. hut that case does not touch the point. In Mahboob Bi v. Alvala 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 evic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d arise under Section 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. 36. How dangerous this presumption is can be easily demonstrated, and how it would lead to miscarriage of justice can be manifestly established. Onc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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