Case: Harcharan Singh Vs. Shiv Rani and Others

TULZAPURKAR, J.1. This is a tenants appeal by special leave directed against the judgment and decree passed by the Allahabad High Court on February 16, 1979 in Second Appeal No. 430 of 1970 whereby the High Court decreed the respondents (landlords) suit for ejectment against the appellant (tenant) and the only question of substance raised in the appeal is whether when the landlords notice demanding arrears and seeking eviction is sent by registered post and is refused by the tenant the latter could be imputed the knowledge of the contents thereof 60 that upon his failure to comply with the notice the tenant could be said to have committed willful 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. Cantonment, (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 1 966 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 h is 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.The suit was resisted by the appellant, inter alia, o n the ground that the rent of the accommodation payable to the previous owner was Rs. 250 per annum less 10% rebate on account of repairs; that in 1964 at the intervention of some common friends he agreed to vacate and did surrender the residential portion of the shop comprising two rooms, one kitchen, one bath room and one varandah at the back of the shop in consideration of respondents relinquishing the rental of Rs. 250 due from him for the year 1964; that for the years 1965 and 1 966 the rental for the remaining shop was reduced by agreement to Rs. 50 per annum less rebate for repairs and that he had sent a cheque for the amount due to the respondents. He denied that he has committed default in payment of rents and averred that no notice of demand and ejectment was served on him and consequently prayed for dismissal of the suit.3. On an appreciation of the evidence led by the parties before it the Trial Court came to the conclusion that initially the rent fix ed was Rs. 250 per year but after the respondents purchase of the property the appellant vacated the residential portion of the shop under an agreement arrived at between the parties where under there was relinquishment of rent due for 19 64 and that the rent for the main shop was fixed at Rs. 100 per a nnum and that no rebate of any kind had been agreed to at any time on account of repairs. Regarding the arrears of rent outstanding against the appellant the Trial Court held that rent for the years 1965 and 1966 had not been paid and was due from him but it held that the notice dated November 9, 1966 was not served on the appellant and hence he could not be held to have committed willful default in payment of arrears o f rent. In this view of the matter the Trial Court dismissed the suit insofar as the relief of eviction was concerned but decreed it for arrears of rent at the rate of Rs. 100 per annum. Aggrieved by that judgment and d ecree the respondents filed an a ppeal 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 a nnum. 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 t he appellant had knowledge about the contents of that notice and consequently he could not be said to have committed any willful 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 ref used to entertain the contention inasmuch as it found that the learned District Judge had referred to this part of the appellants evidence as also the postmans evidence on the point and that on an appreciation of such rival evidence on reco rd 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 preferred the postmans evidence to that of the appellants. The High Court, therefore, accepted the finding of fact recorded by the District Court that there was service of the notice on the appellant by refusal. On the further question as to whether when such refusal had been established, the appellant could be imputed with the knowledge of the contents of the notice, the High Court, following its two previous decisions in Shri Nath and another v. Smt. Saraswati Devi Jaswal and Fanni Lal v. Smt. Chironja, held that when notice was tendered to the tenant and when the latter refused to accept the same, knowledge of the contents of the notice must be imputed to him. The District Judges view in this behalf was thus reversed and since there was failure on the part of the appellant to pay the rent within one month of the service of notice upon him, the High Court held that he had committed willful default within the meaning of s. 14(a) of the Act. Accordingly the High Court allowed the appeal and the respondents prayer for ejectment was granted but the appellant was given three months" time to vacate the accommodation. The tenant has come up in appeal to this Court.4. Counsel for the appellant vehemently contended before us that the High Court was in error in taking the view that when service by refusal had been effected the tenant must be deemed to have knowledge about the contents of the notice, for, no such presumption could be drawn especially when it was clear on evidence that neither the registered envelope was opened either by the tenant or by the postman nor the contents thereof read before the same was returned to the postman. He further urged that the envelope bore the seal of Shri S. P. Singh, Advocate and the appellant could not, therefore, know that the notice was from his landlords; he also pointed out that the appellant was illiterate and did not know English and 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 willful 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 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 bee n proved, I should not be prepared to hold that a register ed 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 see ms 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 guessed correctly as to its contents "Counsel also referred to some other decisions including that of the Andhra Pradesh High Court in Mahboob Bi v. Alvala Lachmiah but these other decisions do not touch the aforesaid aspect of visiting the addressee with the knowledge of the contents. Of the refus ed notice but have expressed the view that refusal of registered notice without more may not amount to proper service and hence it is unnecessary to consider them. But placing strong reliance upon the observations of Chief Justice Beaumont quoted above counsel for the appellant urged that the High Court ought to have confirmed the finding of the learned District Judge that the appellant could not be presumed to have known the contents of the notice or that the notice was one demanding arrears of rent simply because he refused to accept the same.5. On the other hand, counsel for the respondents contended before us that both under s. 27 of the General clauses Act, 1897 and s. 114 of the Indian Evidence Act presumption of due service could arise if the notice was sent to the tenant by properly addressing the same, prepaying and sending the same by registered post and it was pointed out that in the instant case as against the denial by the appellant there was positive oath of postman (Kund Ram P.W. 2) who was examined by the respondents to prove the fact that the registered letter containing the notice was tendered to the appellant and when he declined to accept it the postman had made endorsement in his hand on the envelope "Refused. Returned to the sender". Counsel, therefore, urged that in view of such positive evidence of postman led by the respondents which had been accepted by the learned District Judge, the High Court was justified in holding that the appellant must be imputed with the knowledge of the contents of the notice. In this behalf counsel for the respondents placed reliance on the Privy Council decision in Harihar Banerji and Ors. v. Ramshashi Roy and Ors 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 Bapayyas case (supra) and the Allahabad High Court in its Full Bench decision in Ganga Ram v. Smt. Phulwati have dealt with the Bombay decision and have expressed their disagreement with the view expressed therein.6. Section 27 of the General Clause s 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 deem ed 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 served upon him without any thing more. Similar presumption is raised under Illustration (f) to s. 114 of the Indian Evidence Act whereunder it is stated that the Court may presume that the common course of business has been followed in h a particular case, that is to say, when a letter is sent by post by pre-paying and properly addressing it the same has been received by the ad dressee. Undoubtedly, the presumptions both under s. 27 of the General Clauses Act as well as under s. 114 of the Evidence Act are rebuttable but in the absence of proof to the contrary the presumption of proper service or effective service on the addressee would arise. In the instant case, additionally, there was positive evidence of the postman to the effect that the registered envelope was actually tendered by him to the appellant on November 10, 1966 but the appellant refused to ac cept. In other words, there was due service effected upon the appellant by refusal. In such circumstances, we are clearly of the view, that the High Court was right in coming to the conclusion that the appellant must be imputed with the knowledge of the contents of the notice which he refused to accept. It is impossible to accept the contention that when factually there was refusal to accept the notice on the part of the appellant he could not be visited with the knowledge of the contents of the registered notice because, in our view, the presumption raised under s. 27 of the General Clauses Act as well as under s. 114 of the Indian Evidence Act is one of proper or effective service which must mean service of everything that is contained in the notice. It is impossible to countenance the suggestion that before knowledge of the contents of the notice could be imputed the sealed envelope must be opened and read by the addressee or when the addressee happens to be an illiterate person the contents should be read 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 w hen 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 s. 27 of the General Clauses Act, 1897 and s. 114 of the Indian Evidence Act.7. Turning to the Bombay decision in Vaman Vithals 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.8. 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 Naths case, Fanni Lals case and Ganga Rams case (supra) and would confirm the High Courts finding on the point in favour of the respondents.9. Counsel for the appellant then faintly argued that the respondents suit was not maintainable under s. 14(1) of the Act inasmuch as no permission of the District Magistrate had been obtained by the respondents before filing the suit as required by s. 14 and in this behalf reliance was placed on s. 14(a) of the Act which ran thus:"14. Restrictions on eviction. 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, namely:(a) that the tenant has willfully failed to make payment to the landlord of any arrears of rent within one month of the service upon him of a notice of demand from the landlord."According to counsel for the appellant the aforesaid provision clearly shows that under the Act two safeguards were available to a tenant- (i) eviction could not be had by any landlord except on one or more of the grounds specified in cls. (a) to (f) of s. 14 and (ii) no suit for eviction even on those grounds specified in cls. (a) to (f) could be instituted without the permission of the District Magistrate, and admittedly the landlords in the instant case had filed the suit against the appellant without obtaining the permission of the District Magistrate. He, therefore, urged that the Civil Court had no jurisdiction to entertain the suit and the decree was without jurisdiction.10. It must be observed that no such contention was raised by the appellant in any of the Courts below presumably because the appellant as well as this lawyer knew how an identical provision contain ed in s. 3(1) of the U.P. (Temporary) Control of Rent and Eviction Act, 1947, an allied enactment, had been judicially interpreted by in this Court in Bhagwan Dass v. Paras Nath Section 3 of the U.P. Act 3 of 1947 ran thus:"3. Restrictions on evictions.-Subject to any 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 evict ion 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 s. 3(1) thus:"Section (3) 1 does not restrict the landlords right to evict his tenant on any of the grounds mentioned in cls. (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-s. (3) of s . 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."11. It would be conducive to judicial discipline to interpret an identical provision contained in s. 14(1) of the U.P. Cantonment (Control of Rent &Eviction) Act, 1952 in a similar manner. In other words, under s. 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 cls. (a) to (f) and not when it was sought on any of the grounds specified in cls. (a) to (f). (If may be stated that both the enactments have since been repealed). It is, therefore, not possible to accept the contention of the counsel for the appellant that the instant suit filed by the respondents against the appellant could not be entertained by the Civil Court.12.

Decision reasoning: 0[ds]In the instant case, additionally, there was positive evidence of the postman to the effect that the registered envelope was actually tendered by him to the appellant on November 10, 1966 but the appellant refused to ac cept. In other words, there was due service effected upon the appellant by refusal. In such circumstances, we are clearly of the view, that the High Court was right in coming to the conclusion that the appellant must be imputed with the knowledge of the contents of the notice which he refused to accept. It is impossible to accept the contention that when factually there was refusal to accept the notice on the part of the appellant he could not be visited with the knowledge of the contents of the registered notice because, in our view, the presumption raised under s. 27 of the General Clauses Act as well as under s. 114 of the Indian Evidence Act is one of proper or effective service which must mean service of everything that is contained in the notice. It is impossible to countenance the suggestion that before knowledge of the contents of the notice could be imputed the sealed envelope must be opened and read by the addressee or when the addressee happens to be an illiterate person the contents should be read 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 w hen 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 s. 27 of the General Clauses Act, 1897 and s. 114 of the Indian Evidenceto the Bombay decision in Vaman Vithals 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 aswhile 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 Naths case, Fanni Lals case and Ganga Rams case (supra) and would confirm the High Courts finding on the point in favour of theCourt in Bhagwan Dass case Asupra) has explained at page 305 of the report the legal position arising on a grammatical construction of s. 3(1)(3) 1 does not restrict the landlords right to evict his tenant on any of the grounds mentioned in cls. (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-s. (3) of s . 3 by the Commissioner. These are the only restrictions placed on the power of a landlord to institute a suit for eviction of hiswould be conducive to judicial discipline to interpret an identical provision contained in s. 14(1) of the U.P. Cantonment (Control of Rent &Eviction) Act, 1952 in a similar manner. In other words, under s. 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 cls. (a) to (f) and not when it was sought on any of the grounds specified in cls. (a) to (f). (If may be stated that both the enactments have since been repealed). It is, therefore, not possible to accept the contention of the counsel for the appellant that the instant suit filed by the respondents against the appellant could not be entertained by the Civil Court.