l^. 'Z^J^ ^ ,<^^^'" ^l'' ^^'- ^<OSI...-^ ^'". IN THB HIGH COURT OF JUDICATURB AT BILASPUR APPBLLANT ^FENDANT h^ RESPONDBNT ?TIFF F.A. N0. CHHAmSGARH [i^ ./2006 Sandeep Kuraar Sahu, Aged about 28 years, ^' ^.. S/o. Shri Jawaiiarlal Saiiu, Proprietor, Kanchan Grih Udypg R/o. 6/4 Park Street, Choubey Colony, Raipur^ Tahsil & District Raipur (CG) VERSUS Njrmala Devi Majethiya,. Aged about b^yrs, W/o. Jayantilal Mafethiya, R/o* Geeta ragar (Choubey Colpny) Tahsil and Disttict Raipur (CG), Through:-Power of Attomey Holder- Jayantilal Majethiya, Aged about 70 years, S/o* Late Durlabhji Bhai Majethiya, R/o. Geeta Nagar (Choubey Colony) Tahsil and District Raipur (CG) FmST APPEAL UNDER SECTION 96 QF CQDE QF CP."L PRQCE^WRE APPELLANT RESPONDENT HK3H COURT OF CHHMTISGARH AT BILASPUR Sinale Bench: Hon'ble Shri Justice Prashant Kuraar Mishra FA.No. 115/2006 Sandeep Kurnar Sahu Versus Smt. Ninnala Devi Maj^hiya Shri Manpl Paranjpe aml ShriVikram Dbdt, coumetforfte a^peUant. Shri G.D. Vaswani, couns^l forfiherespondent. FIRST APPEAL UNDER SECTION 96 OF THE CODE OF CIVIfc. PROCEDURE /' ":' 1;;":'1':~~ ORALJUDGMENT (19.10.2010) This is an appeal under Section 96 of C.P.C. by the defenclantftenant against whom the triat Court has passed a decree for his eviction from the suft premfees (Godown) on ground covered under Section 12(1)(a) of the Chhaffisgarh Accwnmodatton Controt Act, 1961. (2) Facts of the cs^e, in shwt, are that ttw a^^lant fe a t^»ntof the ptaintiff/responctent in the two Godowns, which are sutyect matter of the suit. Acconling to the plaintiff the defendant exeputed two rent not^ victe Ex.P/2 and P/3 on 23-09-2000 & 28-02-2001 and the consoHdated monthly rent of^ both the accommodation was Rs.5750/- on the date offilingotthesuit.The defendant paid rent Wt November 20(^,howewr he stopped jMiying rent from December 2003 and was in arrears. Ptaintiff served legal notice dated 21-06-2004 (Ex.P/4), however in spite of receipt of notice the defendant clid not vacate the premises, necessttating fiting of the present suft in the month ofOctober.2004. - 2,- (3) According to the plaintiff the defendant was in arrears from December 2003 and the totat amount of arreare on the date of filing of the suft was 51,750/- and thus ttie defendant deseived to be evicled on the grounds enumerated uncter ctause (a) sub section (1) of Sectfon 12 ofthe Act, 1961, (4) The defendant denied the pteint avermente and stated that he has paid the rent till Aprit, 2005 to the plaintHTs husband who never used to issue any receipt regarding payment of rent. tt was stated by the defendantthat he has not received any tegal notice as stated by the ptaintiff in paca 8 of the ptaint. (5) After receipt of summons th®defendant dkl not tender payment of arrears of rent nor deposited the monthly rent regulariy before the trial Court as required under Sectk>n 13(1) of the Act, 1961. The triat Court, vide tts order dateci 25-04-2006 attowed the ptaintifTs applteatton under Section 13(6) ofthe Act, 1961 and ttie appellantftenant's defencewas strudc of. Thus,the appeltant was not atlowed to raise any defence qua a tenant and after ctosure of the plaintifrs evidence he did not tender himsetf as witness box to (ead wnctence availabte to him under common law. (6) The frial Court decreed the suit after recording a finding that the defendant was in arrears of rent and deserves to be evicted from ttie suit prwnises. (7) Shri Manoj Paranjpe, leamed counsel for the appeltant has argued that even after the striking out of the defenc®,ttie plaintiff was uneter a tegat obdgation to prove the ground under Section 12(1)(a) of the Act in tenns of the provision and fhat in the present case service of notfce on the defendant •^which is a pre-requisite for frting a sirit under Section 12(1)(a) ofthe Act.has ~l2>- not been proved. He would also argue that the ptaintiff has not entered the wftness box and the statement of her husbanct has been recorded, therefore ttie leamed trial Court should have dismissed the suit. (8) Shri G.D. Vaswani, teamed counsel for the respondent, on the other hand, would submitthat legal noBce Ex.P/4 was properiy addressed and sent by registered post to the defendant on his resklentrat as well as commercial address and thus the plaintftf hss Aity proved servfce of notice as required under taw. He has also argued that the present is not a case where the plaintiff was roquired to prove any fact whlch was peraonat to the ptaintiff/landlady, therefore, the examination of power of attomey holder is not fatal for the plaintifTs case. He woutd also argue fhat it is ttte (jtefendant's own case that he paid rent to the landlady's h^band, who is in fact the attorney holder, therefore, the defendant's assertion regarding payment of rent could have been denled onfy by the plaintifTs attomey hotder who has entered the wtness box and thus his examinatlon was su^ient to pfwe plaintifTs case. (9) Issue regarding serwce of n<^ce 'm the terms required uncter Secfion 12(1)(a) of the Act, 1961 is no longer res integra in view ofthe law (aid down t^f ttie Supreme Court in the case of M/s. Maflam and Co. vs. Wazfr Jawfr Chanct reported in AfR 1989 SC 630. In the saicl case the Hon'bte Supreme Court was dealing with a similar provfeton of the J. & K. Hoises and Shops Rent Control Act, 1966 and after referring to the provision contained in Sections 11 and 12 of the sakjl Act the Hon'bte Supreme Court has held thus in paragraph 6 of thereport:- "We are of opinion that the conclusion amved at by the courte betowls con?ect and shoutd be upheld. It is truethatthe Y proviso to Cl. 0) of S. 11(1) and the proviso to S.12(3) are '%.. y.,t ^•^/ \.^ ^s^^ ^ -^- intendect for tt»protection of the tenant. Nevertheless it will be easy to see that too strict and titeral a comptiance of their tanguage would b®impractical and unworkabte. The proviso insist that before any amount of rent can be said to be in arrears, a notice has to be served ^mwgh posfc Ml that a tandlord can do to comply with this provision ts to posfe a prepaicl registered tetter (acknowledgement due or (^herwtee) containing the tenant's correct address. Once he does thte and the tetteris delwered to the post office, he has no control over ft. It is then pr^>imed to have been delwered to the addressee uncterS. 27 of ti|te General Claus^ Act. Under the rules of the post office, the letter is to be detivered to Ihe addressee w a penson auttiorised by him. Such a peraw rroiy eittier sfficep* the tetterw decline to accept tt. (n either case, there te no difficutty, for the aeceptance or refusal can be treated as a servtee on, and receipt by, the addressee. The d'rfRcufty is where ttie postman calls at the 8 ldress menttoned and is unable to contactthe addressee or a person authorised to receive the tetter. A(l that he can then do is to retum ft to ttie sender. The Indian Post Office Rules do not prescribe any detaited procedure regarding the detivery of sudi regfetered lettera. Wtwn ttie posbroin is unabto to deliver it on hte first visit, tiie general praffitice is Tor the postman to attempt to deliver it on ttie ne)d one or two days atso before retuming it to the sender. However, he has neither the power nor the time to make enquiries regarding the whereabouts ofthe addressee; he is not expected to detain the tetter untit the addressee chooses to retum and accept it, and he te not authorised to afRx the tetter on the premises because of the assessee's absence. His responsibilities cannot, therefore, be equated to those of a |yoc^s server entrusted with the responsibitities of serving the summons of a court under O. V ofthe CPC. The statutory provision has to be interpreted in the contexl of this difficulfy and in the light of the very Umited role that the post office can ptay in such a task. If we interpret the provision as requiring thatthe tetter must have been actuaNy delivered to tiie acklr^see, we woutel be virfcially renderir^ ft a - 5 dead tetter. The tetter cannot be served where, as in this case, the tenant is away from the premises for some considerabte time. Also, as addressee can easily avoid receiving the l^ler addressed to him wfthout specificaUy refusing to receh/e it. He can so manipulate mattere that it gets r^umed t6 the sencler with vague endorsements such as "not found", "not in station", "addressee has teft" and soon.tt is suggested that a tencltord, knowing that the tenant is away from station for some reasons, coutei 90 through the mofions of postlng a (etter to him whteh he knows wilt not be sen/ecl. Such a possibtlity cannot be excluded. But, as against this, if a registered tetter acklressed to a person at his residential address does not get senfed in the nQmiiat couree and is retumed, 'rt can only be attributed to the addr^see's own conduct. tf he is staying in the premises, there is no reason why tt should not be served on him. If he is compelled to be away for some time, all that he has to do is to teave necessary instructions wtth the postat authorities either to detain the letters addressed to him for some time untit he retums or to forward them to the address where he has gone, or to deliver them to some olher person authorised by him. In thfe situation, we have to choose the more reasonabte. effective, equttabte and practical interpretation and that would be to read the word "seived" as "sent by post", correctly and property addressed to the tenant, and the word "receipt" as the tender of the tetter by the postal peon at the address menttoned in the tetter. No other interpretation, we think, will fd the sftuation as it is simply not possibte for a landtord to ensure that a regtetered (etter sent by him gets seived on. or is recewed by, the tenant" (10) tn the present case the address of the defendant mentfoned in the ptaint as well as in the tesal notice and the rent note has not been denied or disputed by the defendant The notice ExP/4 was senft to his residential as well as commerciat address. Thus, the notlce was property addressed and was sent by registered post. The postat receipt has been pnwed by the plaintifT as Ex.P/Sand P/6. Though the ctefendant has denied to have 3f^- - fc- ^- l^o. ., ^ received (he notiro but since he ha»not entered ttie witnws box arvcl wen otherwise the notice was sent on his address by registered post, the (aw taid-down by the Hon'bte Supreme Court in the case of M/s. Macten ancf Co. vs. Wazir Jafvfr Cftancf (supra) would be applicabte and therefore it is held that the plaintiff has proved service of nottee on the defendant as required ynder Section 12(1)(a) ofthe Act. (11) Non-examination of the ptaintiff landlady in the present case wouM not be fatal because the present is not a case where the plaintitf was required to prove any fect which was personal to the plaintiff and tt was only the plaintiff landtedy's who coukt have proved the said fact. (12) Even otherwise, it was the defendant's own case that he used to pay rent to the ptaintifrs husband and that receipt was never issued to him. Plaintiffs husband is the power of attomey hotder who has entered the witn^s box as PW/1. Thus, the stand takwi by the d^enciant couW have been controverted only by examining the plainWs husband who has appeared in the suit as PW/1 and thus rather being fatal, (t js found that hfe &)®minationwas necessary on behaff of plaintiff to prove Ihe cs^e of non- payment of rent by ttie defendant. (13) Undisputedly the d^endant h8»not paid the arreara of rent. He made efforte to pay rent for some months during pendency of the suft butthe triat Court did not altow him as the payment was not r^gular and lw never offered to pay the arreare of rent as required under Section 13(1) of the Act. He has not paid any amount a©directed by this Court whlte gcanting interim wder on 29-06-2006. 7 -7- ® (14) In view of the above discussion, this Court is of the consktered opinion that the plaintiff has proved hfe case for evictton of the defendant's on the ground of non-payment of rent under Section 12(1)(a) of the Act and the trial Court has not committed any itlegality in ctecreeing the plaintiffs suit. (15) Consequendy, this appeal faite and is hereby distnlssed. There shalt be no oreler as to costs. (16) A decree be drawn-up accordingly. Sd//- Prashant Kumar Mishra Judge /<-