9911796707
TMI Blog1981 (2) TMI 199X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 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. 3. The suit was resisted by the appellant, inter alia, on the ground ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 preferre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 gu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 serve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct. 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 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 Math'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. 9. Counsel for the appellant the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eport 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 contained in Section 14(1) of the U.P. Cantonment (Control of Rent & Eviction) Act, 1952 in a similar manner. In other words, under Section 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 Clauses (a) to (f) and not when it was sought on any of the grounds specified in Clauses (a) to (f). (If may be stated that both the enactments have since been repealed). It is, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 analysis following ingredients of Section 20(2)(a) would emerge each of which will have to be satisfied before the landlord 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. 19. In this case, the tenant is a tenant of premises go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re 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 restricts it. In Mohd. Shaft v. Additional District & Sessions Judge (VII), Allahabad and Ors. this Court while interpreting the explanation (iv) to Section 21 of the Rent Act observed that where the language is susceptible of two interpretations, the Court would prefer that which enlarges 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atter 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 which a tenant could be evicted. Sub-clause (a) of Section 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 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 whereafter alone the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ayable 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 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. 25. In this connection one can profitably refer to Section 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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opted 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 landlo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 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 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 at the hearing of the appeal to contend that the case does not involve such a question. Even prior to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enant 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 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 observa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 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 exparte 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dia 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. 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 te ..... X X X X Extracts X X X X X X X X Extracts X X X X
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