ivil Appeal No 4146 of 1985
From the Judgment and Order dated 18121984 of the Jammu  Kashmir High Court in CSA No S of 1981
Soli J Sorabjee Harjinder Singh and Ranjan Mahapatra for the Appellant
Anil Dev Singh Dr Meera Agarwal and RCMisra for the Respondent
The Judgment of the Court was delivered by RANGANATHAN J
1
This appeal involves the interpretation of section 11 of the Jammu  Kashmir Houses  Shops Rent Control Act 1966 hereinafter referred to as the Act 
The petitioner is a firm of which Sohan Singh Madan is the managing partner
The firm was the tenant of the respondent in respect of a portion of a building situated in Raghunath Bazar
Jammu on a rent of Rs200 pm
According to the respondent the petitioner had been irregular in paying the rent of the premises and had altogether stopped making payment of any rent from 1st April 1976 onwards
On 26111976 the respondent issued a notice to the petitioner calling upon it to pay the arrears of rent Rs 1600
The notice also terminated the tenancy and called upon the petitioner to vacate the demised premises on or before 3112
This notice was first sent by post
The postman called at the address on 7121976 and 8121976 but having failed to find there either the addressee or any person authorised to receive the notice on its behalf returned it with the endorsement left without address returned to sender
There upon the respondent caused a copy of the notice to be affixed to one of the doors of the premises in question in the presence of two inhabitants of the locality PG NO 986 on 9121976
No payment of rent was made subsequently by the petitioner
The respondent therefore filed a suit on 1661977 seeking ejectment of the petitioner on the ground that he had committed three defaults each in payment of two months  rent within a period of 18 months
This plea was disputed and eviction of the petitioner decreed by the Sub Judge
This was affirmed by the B District Judge
A second appeal to the High Court was also unsuccessful
Hence this appeal by special leave
Ss 11 and 12 of the Act which are relevant in this context may now be referred to
They read in so far as is relevant for our present purposes as follows Section 11 Protection of a tenant against eviction  I  Notwithstanding anything to the contrary in any other Act or law no order or decree for the recovery of possession of any house or shop shall be made by any court in favour of the landlord against a tenant xxx xxx xxx Provided that nothing in this sub section shall apply to any suit for decree for such recovery of possession xxx xxx xxx i subject to the provisions of section 12
where the amount of two months rent legally payable by the tenant and due from him is in arrears by not having been paid within the time fixed by contract or in the absence of such contract by the fifteenth day of the month next following that for which the rent is payable for by not having been validly deposited in accordance with section 14 Provided that no such amount shall be deemed to be in arrears unless the landlord on the rent becoming due serves a notice in writing through post office under a registered cover on the tenant to pay or deposit the arrears within a period of fifteen days from the date of the receipt of such a notice and the tenant fails to pay or deposit the said arrears within the specified period
PG NO 987 Section 12 When a tenant can get the benefit of protection against eviction 1 If in a suit for recovery of possession of any house or shop from the tenant the landlord would not get a decree for possession but for clause i of the proviso to subsection 1 of section 11 the Court shall determine the amount of rent legally payable by the tenant and which is in arrears taking into consideration any order made subsection 4 and effect thereof upto the date of the order mentioned hereafter as also the amount of interest on such arrears of rent calculated at the rate of nine and three eights per centum per annum from the day when the rents became arrears upto such date together with the amount of such costs of the suit as if fairly allowable to the plaintiff landlord and shall make an order on the tenant for paying the aggregate of the amounts specifying in the order such aggregate sum on or before a date fixed in the order
2 Such date fixed for payment shall be the fifteenth day from the date of the order excluding the day of the order
3 If within the time fixed in the order under sub section 1 the tenant deposits in the Court he sum specified in the said order the suit so far as it is a suit for recovery of possession of the house or shop shall be dismissed by the court
In default of such payment the Court shall proceed with the hearing of the suit
Provided that the tenant shall not be entitled to the benefit of protection against eviction under this section if notwithstanding the receipt of notice under proviso to clause i of the proviso to sub section 1 of section 11 he makes a default in the payment of rent referred to in clause i of the proviso to sub section 1 of section 11 on three occasions within a period of eighteen months
xxx xxx xxx On the terms of the above sections the controversy in this case turned on the question whether the notice sent by the respondent by registered post on 26111976 can be said to have been served and the petitioner can be said to have PG NO 988 been in receipt of the said notice
If the answer to this question is in the affirmative as held by all the courts concurrently there is nothing further to be said
The contention of the appellant tenant however is that the statute postulates a factual service of the notice on and the actual receipt of it by the tenant and that this admittedly not being the position in the present case no eviction could have been decreed
Shri Soli Sorabjee learned counsel appearing for the tenant submitted that the safeguards in Ss 11 and 12 of the Act are intended for the benefit and protection of the tenant and that therefore where the Act provides for the service of the notice by post this requirement has to be strictly complied with
He referred to the decisions in Hare Krishna Das vs Hahnemann Publishing Co Ltd   and Surajmull Ghanshyamdas vs Samadarshan Sur ILR 1969 1 Cal 379 to contend that such postal service can neither be presumed nor considered to be good service where the letter is returned to the sender due to the non availability of the addressee
He urges that in the absence of any enabling provision such as the one provided for in s106 of the Transfer of Property Act service by some other mode such as affixture cannot be treated as sufficient compliance with the statute
In this context he referred to the frequently applied rule in Taylor vs Taylor  that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden
He urged that even if service by affixture can be considered to be permissible there are stringent pre requisites for service by affixture such as those outlined in Order V rules 17 to 19 of the Code of Civil Procedure CPC and that these pre requisites were not fulfilled in the present case
He pointed out that even under the CPC
service by such affixture can be recognised as valid only if sincere and vigilant attempts to serve the notice on the addressee personally are unsuccessful
In the present case it is submitted the evidence shows that the postman made no serious efforts to ascertain the whereabouts of the addressee even though the evidence showed that a servant of the petitioner firm was known to the postman and was present in the neighbourhood
He therefore submitted that the High Court should have dismissed the suit for eviction filed by the landlord on the ground that the requirements of section 11 and 12 of the Act were not satisfied
We are of opinion that the conclusion arrived at by the courts below is correct and should be upheld
It is true that the proviso to i of section 111 and the proviso to PG NO 989 section 123 are intended for the protection of the tenant
Nevertheless it will be easy to see that too strict and literal a compliance of their language would be impractical and unworkable
The proviso insists that before any amount of rent can be said to be in arrears a notice has to be served through posts
All that a landlord can do to comply with this provision is to post a prepaid registered letter acknowledgement due or otherwise containing the tenant s correct address
Once he does this and the letter is delivered to the post office he has no control over it
It is then presumed to have been delivered to the addressee under section 27 of the General Clauses Act
Under the rules of the post office the letter is to be delivered to the addressee or a person authorised by him
Such a person may either accept the letter or decline to accept it
In either case there is no difficulty for the acceptance or refusal can be treated as a service on and receipt by the addressee
The difficulty is where the postman calls at the address mentioned and is unable to contact the addressee or a person authorised to receive the letter
All that he can then do is to return it to the sender
The Indian Post Office Rules do not prescribe any detailed procedure regarding the delivery of such registered letters
When the postman is unable to deliver it on his first visit the general practice is for the postman to attempt to deliver it on the next one or two days also before returning it to the sender
However he has neither the power nor the time to make enquiries regarding the whereabouts of the addressee he is not expected to detain the letter until the addressee chooses to return and accept it and he is not authorised to affix the letter on the premises because of the assessee s absence
His responsibilities cannot therefore be equated to those of a process server entrusted with the responsibilities of serving the summons of a Court under Order V of the CPC
The statutory provision has to be interpreted in the context of this difficulty and in the light of the very limited role that the post office can play in such a task
If we interpret the provision as requiring that the letter must have been actually delivered to the addressee we would be virtually rendering it a dead letter
The letter cannot be served where as in this case the tenant is away from the premises for some considerable time
Also an addressee can easily avoid receiving the letter addressed to him without specifically refusing to receive it
He can so manipulate matters that it gets returned to the sender with vague endorsements such as not found not in station addressee has left and so on
It is suggested that a landlord knowing that the tenant is away from station for some reasons could go through the motions of posting a letter to him which he knows will not be served
Such a possibility cannot be excluded
But as against this if a registered letter addressed to a person at his residential address does not get served in the normal PG NO 990 course and is returned it can only be attributed to the addressee s own conduct
If he is staying in the premises there is no reason why it should not be served on him
If he is compelled to be away for some time all that he has to do is to leave necessary instructions with the postal authorities either to detain the letters addressed to him for some time until he returns or to forward them to the address where he has B gone or to deliver them to some other person authorised by him
In this situation we have to chose the more reasonable effective equitable and practical interpretation and that would be to read the words served as sent by post correctly and properly addressed to the tenant and the word receipt as the tender of the letter by the postal peon at the address mentioned in the letter
No other interpretation we think will fit the situation as it is simply not possible for a landlord to ensure that a registered letter sent by him gets served on or is received by the tenant
Much emphasis has been placed by the courts below and counsel for the landlord on the attempt made by the landlord to serve the notice on the premises in the presence of the witnesses
While the counsel for the landlord would have it that the steps show the landlord s bona fides
counsel for the tenant submits that the haste with which the substituted service  was effected and the lack of any real attempt to find out the whereabouts of the tenant who had according to him been compelled to be away at Amritsar for medical treatment throw consideration doubts on the claim of bona fides
We do not think that any statutory significance can at all be attached to the service by affixture claimed to have been effected by the landlord
The statute prescribes only one method of service for the notice and none other
If as we have held the despatch of the notice by registered post was sufficient compliance with this requirement the landlord has fulfilled it
But if that is not so it is no compliance with the statute for the landlord to say that he has served the notice by some other method
To require any such service to be effected over and above the postal service would be to travel outside the statute
Where the statute does not specify any such additional or alternative mode of service there can be no warrant for importing into the statute a method of service on the lines of the provisions of the CPC We would therefore not like to hold that a substituted service such as the one effected by the landlord in the present case is a necessary or permissible requirement of the statute
It may be even an impracticable if not impossible requirement to expect some such service to be effected in cases where the landlord lives outside the town or the State in which the premises are situated
If in the present case the landlord attempted such service because he was in the same town that can only show His bona fides and PG NO 991 it is only in this view that we proceed to express our findings in this regard
Having gone through the facts stated in the various orders we think that the landlord did his best in the circumstances
We are unable to accept the tenant s contention that the mere circumstances that he had the notice affixed immediately on the day following the date of return of the postal notice is an indication of mala fides
What is material is that his evidence that he took the notice to the premises and had it affixed on the premises as he could not find the tenant stands uncontradicted
Indeed there is no doubt or dispute that the tenant was away from Jammu at the relevant time
The plaintiff s father s evidence is clear and categorical that neither the tenant nor his servant was available
There is no suggestion made to him that he made no real effort to ascertain the tenant s address even though a servant was there who could have furnished the same
In the written submissions now filed it is admitted that the tenant and his servant were both away at Amritsar though it is said that this was due to his illness
It is however stated that the servant was coming to Jammu every week to collect the dak and that the postman had failed to make proper enquiry
If this was true the servant must have at least made enquiries and learnt from the postman that a registered letter had come and been returned and informed the tenant who could have taken steps to pay the arrears of rent
On the other hand
the evidence of the plaintiff s father and witnesses to the affixture of the postman and of the tenant s own witness shows that there was no servant on the premises
The evidence of the postman is categorical that there was no servant at the premises which was locked
He says he had learnt from enquiries in the neighbourhood that the tenant had not been living in the premises for the past few months
He admits that he knew there was a servant but says that the servant was also not there at the relevant time
His reference to the servant working as a pheriwala at the same place is in regard to the time when he was giving evidence ie in Dec 1978
It is not the case of the tenant that the other partner son of Sohan Singh was available for service either
Thus the sum and substance of the evidence on record is that the tenant had gone away from the premises without intimating the landlord or neighbours of his correct address and without leaving behind any servant or agent to accept letters addressed to him
In this situation the landlord did the only thing he could
We are quite conscious that the provision in regard to the notice contemplated by the statute is unsatisfactory and PG NO 992 hope that the legislature would soon set it right
But on the provision as it stands we cannot but hold that a landlord must be held to have complied with the statutory requirement by sending a notice correctly addressed to the tenant by registered post
Also in the present case we are satisfied as indeed the lower courts were that the landlord did his best to bring the notice to the knowledge of the tenant
He cannot be expected to do any more
His petition for eviction cannot be dismissed on this score
We only wish to add that having regard to the fact that the tenant had deposited the arrears subsequently we suggested to the parties that they should try to settle the matter amicably between themselves but the submissions filed by the parties after the hearing show that this has not been possible
We have therefore no alternative but to dismiss this appeal and we hereby do so without however making any order as to costs
RSS Appeal dismissed


Summary:
The respondent is the manufacturer of electric fans
The company brought into its factory nameplates under Tariff Item 68 of the Central Excise Tariff
The nameplates were affixed to the fans before marketing them
The respondent claimed the benefit of proforma credit in terms of Notification No 20179 dated 4 6 1979 which stated that all excisable goods on which duty of excise was leviable and in the manufacture of which any goods falling under Tariff Item No 68 being the input6  had been used were exempt from so must of the duty of excise leviable thereon was equivalent to the duty of excise already paid on the inputs
The respondent claimed the benefit of proforma credit for the goods ie nameplates on the plea that the goods were intended to be used as inputs in the manufacture of electric fans
The Asstt
Collector Central Excise disallowed the proforma credit
The respondent preferred an appeal before the Collector Appeals Central Excise and the same was allowed treating the said goods as inputs in terms of the June l979 Notifications
The Department appealed to the Customs Excise and Gold Control Appellate Tribunal which held that even though electric fans could function without the nameplates no electric fan was removed from the factory for being marketed without the nameplates as the Affixation of the nameplate was considered an essential requirement from the point of view of the Excise Tariff
The Department therefore filed an appeal under Section 35 Lb of the before this Court
Dismissing the appeal this Court
PG NO 998 PG NO 999 HELD 1
The Department s instructions requiring every manufacturer to affix the nameplates on the fans indicate that nameplate was an essential ingredient to complete the process of manufacture  for marketable electric fans
1001E 2
The Tribunal was right in arriving at the conclusion that the nameplate was not a piece of decoration
Without the nameplates the electric fans as such could not be marketed and that the dealer was entitled to the benefit of the Notification No 20179 CE for the purpose of obtaining proforma credit
1001F G 3
Fans with nameplates have certain value which the fans without the nameplates do not have
If that be so then the value added for the accretion of nameplate was entitled to proforma credit in terms of the said notification
It is true that an electric fan may perform its essential functions without affixation of the nameplate but that is not enough
Electric fans do not become marketable products without affixation of nameplates
1001G H