Supreme Court of
India
Supreme Court of
India
Harcharan Singh
vs Smt. Shivrani And Ors. on 20 February, 1981
Equivalent
citations: AIR 1981 SC 1284 a, 1981 (1) SCALE 401, (1981) 2 SCC 535
Author:
Tulzapurkar
Bench: V
Tulzapurkar, D Desai, A Sen
JUDGMENT
Tulzapurkar, J.
Hari Charan Singh Vs.
Siv Rani, AIR 1981 SC 1284: (1981) 2 SCC 535)
1.
This is a tenant's 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 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 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 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 1966 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.
4.
On an appreciation of the evidence led
by the parties before it the Trial Court came to the conclusion that initially
the rent fixed 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 whereunder there was relinquishment of
rent due for 1964 and that the rent for the main shop was fixed at Rs. 100 per
annum 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 wilful
default in payment of arrears of 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 decree the respondents 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 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 preferred the postman's
evidence to that of the appellant's. 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 Anr. v. Smt. Saraswati Devi Jaswal and Fanni Lal v.
Smt. Chironja 1972 A.L.J. 499, 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 Judge's 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 wilful default
within the meaning of Section 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.
5.
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 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 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
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 A.I.R. 1964 A.P. 324 but these other
decisions do not touch the aforesaid aspect of visiting fee addressee with the
knowledge of the contents of the refused 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.
6.
On the other hand, counsel for the
respondents contended before us that both under Section 27 of the General
Clauses Act, 1897 and Section 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. 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 authorizes 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 served upon him without anything more. Similar
presumption is raised under Illustration (f) to Section 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 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 addreseee. Undoubtedly, the presumptions both under
Section 27 of the General Clauses Act as well as under Section 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 accept. 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 Section 27 of the General Clauses Act as well as under Section 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 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 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 then faintly
argued that the respondents suit was not maintainable under Section 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 Section 14 and in this
behalf reliance was placed on Section 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 Clauses (a)
to (f) of Section 14 and (ii) no suit for eviction even on those grounds
specified in Clauses (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
contained in Section 3(1) of the U.P. (Temporary) Control of Rent and Eviction
Act, 1947,-an allied enactment, had been judicially interpreted by 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 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
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, 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.
11.
In the result the appeal fails and is
dismissed. However, having regard to all the facts and circumstances of the case there will be no order as to costs
and we grant the appellant six months time to vacate. Desai, J.
12.
I have very carefully gone through the
judgment prepared by my learned brother Mr. Justice V.D.
Tulzapurkar,
but I regret my inability to agree with the same.
13.
The relevant facts leading to the appeal
by special leave have been succinctly set out in the main judgment and
therefore, I would straightway proceed to deal with the three important
questions raised in this appeal.
14.
The first and the principal question
which goes to the root of the matter is about the construction of Section
20(2)(a) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent
& Eviction) Act, 1972 ('Rent Act' for short). It reads as under: 20. Bar of
suit for eviction of tenant except on specified grounds;-
(2)
A suit for the eviction of a tenant from a building after the determination of
his tenancy may be instituted on one or more of the following grounds namely:
(a)
That the tenant is in arrears of rent for not less than four months, and has
failed to pay the same to the
Landlord
within one month from the date of service upon him of a demand:
15.
There is a proviso to this sub-section
which is not material for the purpose of this appeal.
16.
A brief resume of concurrently found
facts which would highlight the question of construction would be advantageous.
Appellant was inducted as a tenant of the premises by its former owner on a
rent of Rs. 250/- per annum in the year 1964, on a request by the then
landlord, appellant-tenant surrendered a portion 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 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 governed by the Rent Act.
20.
The crucial question is whether the
second ingredient, as extracted above, is satisfied by the landlord. The attention
has to be focused on the expression 'in arrears of rent for not less than four
months'. What does this expression signify ? As contended on behalf of the
respondent that whatever be the default in payment of rent, the notice can be
served after the default has continued for a period of four months, and failure
to comply with the requisition in the notice would disentitle the tenant to the
protection of Rent Act. Alternatively it was contended that the expression in
arrears of rent for not less than four months' on a literal grammatical construction
would signify that rent is payable by the month and that the tenant has
committed a default in payment of four months' rent and further failed to
comply with the requisition made in the notice within the stipulated period of
one month and only then the protective umbrella of the Rent Act would be
removed and the tenant would be exposed to a decree for eviction.
21.
The two rival constructions raised a
question of construction of a sub-section in a statute primarily enacted as can
be culled out from the long and short title of the Rent Act, being regulation of
letting and rent and arbitrary eviction of tenant from the premises to which
the rent Act would apply. It is a socially beneficient statute and in
construing such statute certain well recognised canons of construction have to
be borne in mind.
Undoubtedly,
the dominant purpose in construing the statute is to ascertain the intention of
the legislature.
This
intention, and, therefore, the meaning of the statute, is primarily to be
sought in the words used in the
statute
itself, which must, if they are plain and unambiguous, be applied as they
stand, however strongly it
may
be suspected that the result does not 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 beneficent
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 beneficent 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 possession of the tenant
unless
the landlord establishes a ground for eviction. Similarly in Gurucharan Singh
v. Kamla Singh and Ors. while interpreting the provision of Section 6 of the
Bihar Land Reforms Act, 1950, this Court observed that the Court was called
upon to interpret a land reforms law are not just an ordinary state and,
therefore, the socio-economic thrust of the law in these areas should not be
retarded by judicial construction but filliped by the legal process without
parting from the object of the Act. It must also be emphasised that where two constructions
are possible, the one that must be preferred is one which would accord with
reason and justice (see H.H. Maharajadhiraja Madhav Rao Jivaji Rao Scindia
Bahadur of Gwalior and Ors. v. Union of India and Anr. .
22.
Bearing in mind this interpretative
approach let us hark back to the expression used in Section 20(2)(a) and
ascertain whether the exception is susceptible of one construction only or more
than one construction and whether there is ambiguity and if so, in which
direction the interpretative jurisprudence must move.
23.
The expression "the tenant is in
arrears of rent for not less than four months" may suggest that the tenant
is in arrears of rent for one or any number of months and that the arrears have
fallen due four months back meaning thereby that within four months there was
no attempt on the part of the tenant to; pay up the arrears and cure the
default. This construction would imply that if the tenant is in arrears of rent
for one month only, an action under the relevant clause can be commenced
against him if this infault has continued for a period of four months even if
the tenant has paid rent for subsequent months and on the expiry of the period
of four months from the date on which the rent had become due and payable for
one month a notice of demand can be served and on the failure of the tenant to
comply with the equisition 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 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 landlord would be entitled to serve a notice
as provided in the relevant sub-clause. It was so held by the Allahabad High
Court in Ram Saran Das v.L.B.ir Sain 1958 Allahabad Weekly Reports 62, but this
decision was overruled in Jitendra Prasad v. Mathur Prasad 1960 Allahabad Law
Journal 211. In order to avoid any such controversy, in the Repealing statute
the expression 'arrears of rent for more than three months' has been
substituted by the expression 'arrears of rent for not less than four months'.
This is contemporaneous legislative exposition which clearly brings out the legislative
intention that the landlord would be entitled to evict the tenant if the rent
is in arrears for not less than four months. Therefore, it would clearly imply
that before the landlord can commence action under Sub-clause (a), the tenant
must have committed default in payment of rent for a period of four months. Therefore,
the first suggested construction is not borne out by the language employed in
the section.
24.
The question still remains : what does
the expression 'in arrears of rent for not less than four months' signify ? It
is implicit in the expression that the rent must be payable by month.
Irrespective of the fact whether the tenancy is a yearly tenancy or a monthly
tenancy, it is implicit in Sub-clause (a) that either by the contract of lease
or by oral agreement or by long usage the tenant is liable to pay rent at the
end of every month. In other words, the unit for computation of rent is one
month, that is, rent becomes due and payable every month. It is only such a
tenant who may fall in arrears for a period of four months. Every month the tenant
would be liable to pay the rent in the absence of a contract to the contrary.
Thus the rent becomes due and payable at the end of every month. As soon as the
month is over the rent becomes due and payable and 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 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 and there is no dispute regarding the amount of standard rent or permitted
increases, it such rent or increases are in arrears for a period of six months
or more and the tenant neglects to make payment thereof until the expiration of
the period of one month after notice referred to in Sub-section (2), the (2)
(Court shall pass a decree) for eviction in any such suit for recovery of
possession.
26. The expression used there is that the rent is
payable by month and the tenant is in arrears for a period of six months. In
the Rent Act under discussion, a conjoint expression is used that a tenant is
in arrears of rent for a period of not less than four months. It only means
that where the rent is payable by month and the tenant is in arrears of rent
for not less than four months, and that is the clearest intention discernible
from the language used in the relevant clause.
27.
It was, however, contended that this
construction would give an undeserved advantage to the defaulting tenant where
the rent is not payable by month. The contention is that a landlord who had
agreed to accept rent on an yearly basis would be at the mercy of the tenant
because even if the default is contumacious the landlord would not be entitled
to evict the tenant and that such could not be the intention of the
legislature. It was, therefore, said that the expression 'the tenant is in
arrears of rent for not less than four months' is also susceptible of the
meaning that where the rent is payable by year and after the year is over and
the rent has become due and payable if the tenant has not paid the rent for
four months his case would be covered by Clause (a). If a tenant is under a
contract with the landlord to pay rent at the end of a specific year agreed to between
the parties, could he be said to be a tenant in arrears for not less than four
months even if he has defaulted 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 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 landlord to file a suit merely for recovery of
rent and not for eviction. Such a thing is not unknown to law because in
permanent tenancy and in tenancies of long duration the landlords can only sue
for rent and not for eviction on the tenant committing default in payment of
rent. Therefore, on examining both the rival constructions one which extends
the protection deserves to be accepted in view of the fact that the legislature
never intended to provide a ground for eviction for failure to pay rent in case
of leases where yearly rent was reserved. Rent Act was enacted to fetter the
right of re-entry of landlord and this construction accords with the
avowed
object of the Rent Act.
28.
In the instant case the parties are ad
idem that the rent is payable by year at the rate of Rs. 100/- per annum. In
such a case it could not be said that this tenant was in arrears of rent for
not less than four months. His case would not be covered by Section 20(2)(a) of
the Rent Act and, therefore, the landlord would not be entitled to a decree for
eviction on this ground and that was the sole ground on which eviction has been
ordered.
29. The second contention is that the High Court
was in error in interfering with the concurrent finding of facts while hearing
second appeal in February, 1979 and that too without framing the point of law
which arose in the appeal. The disputed finding of fact is about the service of
notice. If a landlord seeks eviction on the ground of tenant's default in
payment of rent under Section 20(2)(a) it is obligatory upon him to serve a
notice of demand of the rent in arrears on the tenant and can only seek
eviction if the tenant fails to comply with the requisition made in the notice.
The appellant tenant in terms contended that no notice was served upon him.
On
the assertion of the respondent landlord that notice dated November 9, 1966,
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
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 the amendment of
Section 100, the High Court ordinarily did not interfere with the concurrent
findings of fact. This position has been repeatedly asserted and one need not
go in search of precedent to support the proposition. However one can
profitably refer to R. Ramachandran Ayyar v Ramalingam Chettiar [1963] 3 S.C.R.
605. After examining the earlier decisions and the decision of the Privy Council
in Mst. Durga Chaudhrain v. Jawahar Choudhary 1890 LR 17 IA 122 Gajendragadkar
J. speaking for this Court in terms spelt out the jurisdiction of the High
Court in second appeal as under : But the High Court cannot interfere with the
conclusions of fact recorded by lower appellate Court however erroneous the
same conclusions may appear to be to the High Court, because, as the Privy
Council observed, how ever gross or excusable the error may seem to be, there
is no jurisdiction under Section 100 to correct that error.This view was
re-affirmed in Goppulal v. Dwarkadhishji wherein after reproducing the
concurrent finding of fact this Court observed that this concurrent finding of
fact was binding on the High Court in second appeal and the High Court was in
error in holding that there was one integrated tenancy of six shops.
31. In the facts of this case, there was a
concurrent finding that the statutory notice as required by Section 20(2)(a)
was not served upon the tenant and, therefore, the High Court was in error in
interfering with this finding of fact. However, it is not necessary to base the
judgment on this conclusion because it was rightly said on behalf of the
respondent that whether the notice was offered to the petitioner tenant and he
refused to accept the same the finding is not concurrent because the appellate
court has held that the notice was offered but the tenant refused to accept the
same and, therefore, on the refusal to accept 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 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 observations. One has to
examine this aspect in the background of Indian conditions or in the words of Krishna
Iyer, J., 'the legal literacy in rural areas and the third world
jurisprudence.'
33.
Before we blindly adhere to law bodily
imported from western countries we must not be oblivious to the fact that the
statutes operating in the western countries are meant for a society if not 100
per cent., 99 per cent literate. We must consciously bear in mind that our
society especially in the semi-urban and rural areas is entirely different and
wholly uncomparable to the western society. A literate mind will react to a
problem presented to him in a manner other than an illiterate mind because
illiteracy breeds fear and fear oriented action cannot be rationally examined
on the touchstone of legal presumptions. To articulate the point as it arises
in this case, let one put his feet in the shoes of a rural illiterate person to
whom a registered envelope by a postman is presented. Does it require too much
of imagination to conclude that he will be gripped with fear and he may react
in a manner which will be his undoing ? He would believe that by refusing to accept
the registered envelope he would put off the evil rather than accept the same
and approach a person who can advise him and meet the situation. Can this
action of fear gripped mind inflict upon the person an injury flowing from the
assumption that he not only refused the registered envelope with the conscious
knowledge of the fact that it contained a notice by a lawyer on behalf of his
landlord and that it accused him of wilful default in payment of rent and that
if he would act rationally he would repair the default by tendering the rent
within the period of one month granted by the statute ? If he is deemed to have
acted consciously is it conceivable that he would invite injury by sheer
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 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 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
guessed correctly as to its contents. Many people in this country make a practice
of always refusing to accept registered letters, a practice based, I presume,
on their experience that such documents usually contain something unpleasant.
So that, it is clear that this notice was not served on three of the
defendants.
34. Learned counsel for the respondent tried to
distinguish this decision by observing that the court did hold that the refusal
was not proved and, therefore, the rest of the observation was obiter. It is
not for a moment suggested that the decision of the Division Bench of the
Bombay High Court is binding on this Court but the reasoning which appealed to
the Division Bench in 1935 is all the more apposite at present. The Division Bench
noticed that in the society from which the defendants came, there was a feeling
that such registered letters usually contained something unpleasant. Is there
anything to suggest that this feeling is today displaced or destroyed? The
Division Bench further noticed that many people in India make a practice 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 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 knowledge of the proceedings before the
Rent Controller and that he was never served with the notice of proceedings
before the Rent Controller. The relevant rule permitted service of notice by
registered post. After examining the relevant rule the Court accepted the
contention of the tenant observing as under :
Moreover
nothing has been placed before me to show that there is any duty cast upon any
person to receive every letter or notice sent by registered post, nor does the
refusal to receive has been made the subject-matter of any presumption which
may arise under Section 114 of the Evidence Act. Then again, there is the
practical difficulty of having to import the knowledge of the date of hearing
or the precise proceedings with which the registered notice is concerned in the
case of a mere refusal to receive a registered notice.
35.
The Court thus was of the view that even
if refusal amounted to service, yet it is not service as required by law to
fasten a liability on the tenant because no presumption can be raised that the
refusal was With the conscious knowledge of the contents of the registered
envelope. Undoubtedly, our attention was also drawn to a contrary view taken by
a Division Bench of the Allahabad High Court in Fannilal v. Smt. Chironja
(1972) 70 Allahabad Law Journal 499. It was contended that even if the
registered letter was refused no presumption of knowledge of the contents of
the letter could in law the raised against the tenant. In support of the submission
reliance was placed on Amarjit Singh Bedi v. Lachchman Das, an unreported
decision of a single judge of the Allahabad High Court, and the decision of
Beaumont, C.J. in Waman Vithal Kulkarni's case. The Division Bench of the
Allahabad High Court did not accept the view of Beaumont, C.J. The Court was of
the opinion that a presumption of fact would 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. 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 tenant can be condemned as wilful
defaulter. Could he be dubbed guilty of conscious, wilful, contumacious,
intentional conduct even when he did not know what was in the registered envelope
? In my opinion, it would be atrocious to impute any such knowledge to a person
who has merely been guilty of refusing to accept the registered notice. Where
service of notice is a condition precedent, a dubious service held established
by examining the postman who must be delivering hundreds of postal envelopes
and who is ready to go to the witness box after a long interval to say that he
offered the envelope to the addressee and he refused to accept the same, would
be travesty of justice. And if this condition precedent is not fully satisfied,
the consequent conduct cannot be said to be wilful. In a slightly different
context in Commissioner of Income-tax, Kerala v. Thayaballi Mulla Jeevaji
Rapasi (decd.) [1968] 8 Supreme Court Journal 91, this Court held that service
of the notice under Section 34(1)(a) of the Income-tax Act, 1922, within the
period of limitation being a condition precedent, to the exercise of
jurisdiction, if no notice is issued or if the notice issued is shown to be
invalid, then the proceedings taken by the Income-tax Officer without a notice
or in pursuance of an invalid notice would be illegal and void.
37.
It was, however, contended that if the
Court accepts the legal contention as canvassed on behalf of the appellant it
would be impossible to serve the notice as statutorily prescribed. This wild
apprehension is wholly unfounded. The notice is required to be served in the
manner prescribed by Section 106 of Transfer of Property Act which, inter-alia,
provides for affixing a copy of the notice on the premises in possession of tenant.
Therefore, it cannot be said that the approach of the Court would render it
impossible for the landlord to meet with the statutory requirement of service
of notice before commencing the action for eviction.
38.
Having, therefore, examined the three
vital contentions, in my opinion the suit of the landlord must fail on the
ground that the rent was not payable by month and, therefore, Section 20(2)(a)
is not attracted. And further, even if it is attracted, as the statutory notice
as required by Section 20(2)(a) was not served, a decree for eviction cannot be
passed on the only ground of default in payment of rent.
39.
I would accordingly allow this appeal and
dismiss the suit of the respondent for eviction but with no order as to costs
in the circumstances of the case.
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