The Hon’ble Supreme Court while dealing with issue
pertaining to notice sent by post, in similar circumstance, in the
case of M/s. Madan & Co. (supra) in a case under J & K Houses
and Shops Rent Control Act, 1966, wherein the requirement of
the provision was 'due service' of notice in writing through Post
Office under a registered cover, observed and held as under:-
“6. We are of opinion that the conclusions arrived at by
the Courts below is correct and should be upheld. It is
true that the proviso to C1.(i) of S.11 (1) and the
proviso to S.12(3) are intended for the protection of
the tenant. Nevertheless it will be easy to see that too
strict and literal a compliance of their language would
be impractical and unworkable. The proviso insists that
before any amount of rent can be said to be in arrears,
a notice has to be served through post. All that a
landlord can do to comply with this provision is to post
a prepaid registered letter (acknowledgment due or
otherwise) containing the tenant's correct address.
Once he does this and the letter is delivered to the post
office, he has no control over it. It is then presumed to
have been delivered to the addressee under S.27 of the
General Clauses Act. Under the rules of the post office,
the letter is to be delivered to the addressee or a
person authorised by him. Such a person may either
accept the letter or decline to accept it. In either case,
there is no difficulty, for the acceptance or refusal can
be treated as a service on, and receipt by, the
addressee. The difficulty is where the postman calls at
the address mentioned and is unable to contact the
addressee or a person authorised to receive the letter.
All that he can then do is to return it to the sender. The
Indian Post Office Rules do not prescribe any detailed
procedure regarding the delivery of such registered
letters. When the postman is unable to deliver it on his
first visit, the general practice is for the postman to
attempt to deliver it on the next one or two days also
before returning it to the sender. However, he has
neither the power nor the time to make enquiries
regarding the whereabouts of the addressee; he is not
expected to detain the letter until the addressee
chooses to return and accept it; and he is not
authorised to affix the letter on the premises because
of the assessee's absence. His responsibilities cannot,
therefore, be equated to those of a process server
entrusted with the responsibilities of serving the
summons of a Court under O. V of the C.P.C. The
statutory provision has to be interpreted in the context
of this difficulty and in the light of the very limited role
that the post office can play in such a task. If we
interpret the provision as requiring that the letter must
have been actually delivered to the addressee, we
would be virtually rendering it a dead letter. The letter
cannot be served where, as in this case, the tenant is
away from the premises for some considerable time.
Also, as addressee can easily avoid receiving the letter
addressed to him without specifically refusing to
receive it. He can so manipulate matters that it gets
returned to the sender with vague endorsements such
as “not found”, “not in station”, “addressee has left”
and so on. It is suggested that a landlord, knowing that
the tenant is away from station for some reasons,
could go through the motions of posting a letter to him
which he knows will not be served. Such a possibility
cannot be excluded. But, as against this, if a registered
letter addressed to a person at his residential address
does not get served in the normal course and is
returned, it can only be attributed to the addressee's
own conduct. If he is staying in the premises, there is
no reason why it should not be served on him. If he is
compelled to be away for some time, all that he has to
do is to leave necessary instructions with the postal
authorities either to detain the letters addressed to him
for some time until he returns or to forward them to
the address where he has gone, or to deliver them to
some other person authorised by him. In this situation,
we have to chose the more reasonable, effective,
equitable and practical interpretation and that would
be to read the word “served” as “sent by post”,
correctly and properly addressed to the tenant, and the
word “receipt” as the tender of the letter by the postal
peon at the address mentioned in the letter. No other,
interpretation, we think, will fit the situation as it is
simply not possible for a landlord to ensure that a
registered letter sent by him it gets served on, or is
received by, the tenant.”
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
:JUDGMENT:
S.B. CIVIL SECOND APPEAL NO.125/2013
Radha Kishan
Vs.
Smt. Radha Devi
23.05.2014
PRESENT
HON'BLE MR. JUSTICE ARUN BHANSALI
Citation;AIR 2014(NOC) 587 RAJ
The facts in brief may be noticed thus: the plaintiff-
respondent filed a suit for recovery of arrears of rent and
possession of the house, inter alia, with the averments that a
house of the ownership of the plaintiff is situated at Bilara in
Chawanda Colony, which was let out to the defendant at a
monthly rent of Rs.3,100/- on 06.09.2006 for which a rent-note
was executed; the tenancy was for 11 months; the defendant
2
did not pay the rent as per the rent-note and, therefore, a legal
notice
was
served
through
registered
post
and
UPC
on
21.05.2007 terminating the tenancy. The defendant avoided
notice; whereafter, the plaintiff published the notice in ‘Dainik
Bhaskar’ newspaper on 08.06.2007 and the service of the notice
on the defendant was sufficient. It was prayed that a decree for
arrears of rent and possession be passed against the defendant.
A written statement was filed by the appellant-defendant,
wherein the ownership and possession of the suit property was
claimed, landlord-tenant relationship between the parties was
denied, it was alleged that the rent-note was got signed on
account of misrepresentation; the receipt of notice was denied.
The trial court framed as many as ten issues. On behalf of
the plaintiff, three witnesses were examined and on behalf of the
defendant, the defendant himself was examined.
After hearing the parties, the trial court came to the
conclusion that the rent-note was executed by the defendant;
the tenancy was legally terminated; the plaintiff was entitled to
arrears of rent alongwith interest; the plaintiff was entitled to
injunction against the defendant from demolishing the house and
transferring the same; the plaintiff was not in possession of the
suit property; it cannot be said that the sale-deed and the rent-
note was got executed fraudulently; the trial court had pecuniary
jurisdiction; the rent tribunal had no jurisdiction and defendant
was not entitled to any special cost and, consequently, decreed
the suit filed by the plaintiff.
3
Feeling aggrieved, first appeal was filed by the appellant,
wherein the first appellate court after hearing the parties, upheld
the findings recorded by the trial court and upheld the decree
passed by the trial court.
It is submitted by learned counsel for the appellant that
both the courts below have committed grave error of law in
decreeing the suit filed by the plaintiff by treating the notice
under Section 106 of the Transfer of Property Act (‘the Act’),
terminating the tenancy as valid; from the record it is proved
that the notice (Ex.-4), which was sent by registered post,
acknowledgement due was not served on the appellant and,
therefore, both the courts below fell in error in presuming the
service on the appellant; the publication of notice (Ex.-6) in the
daily newspaper seeking terminating the tenancy has no warrant
in law and the said publication cannot be treated as compliance
of provisions of Section 106 of the Act and, consequently, the
appeal filed by the appellant deserves to be admitted on the
issue of sufficiency of notice.
Reliance was placed on Parmanand and Anr. V. Smt.
Anandi Bai and Ors.: AIR 1974 Rajasthan 65; Gumanmal v.
Kanwar Lal : 1971 RLW 407; M/s. Green View Radio Service v.
Laxmibai Ramji and Anr.: AIR 1990 Supreme Court 2156;
Mobarik Ali Ahmed v. The State of Bombay : AIR 1957 Supreme
Court 857.
Per contra, learned counsel for the respondent submitted
that both the courts below had concurrently found against the
4
appellant regarding the sufficiency of service of notice under
Section 106 of the Act and the finding in this regard being
concurrent does not call for any interference. It is further
submitted that the notice (Ex.-4) was sent through Post Office
and the same was correctly and properly addressed to the
defendant and the same was not received by the defendant and,
therefore, the service as envisaged by Section 106 of the Act is
sufficient and it cannot be said that both the courts below fell in
error in treating the service as complete.
Reliance was placed on M/s. Madan and Co. v. Wazir Jaivir
Chand : AIR 1989 Supreme Court 630; Nirmala Devi (Smt.) &
Ors. v. Smt. Tulsi Devi : 2013(1) DNJ (Raj.) 35; Vandana Gulati
v. Gurmeet Singh alias Mangal Singh : 2014(1) CCC 89 (All.).
I have considered the rival submissions.
The provisions of Section 106(4) envisage that every
notice under Sub-section (1) must be in writing, signed by or on
behalf of the person giving it and either be sent by post to the
party, who is intended to be bound by it or be tendered or
delivered personally to such party, or to any of his family or
servants at his residence, or (if such tender or delivery is not
practicable) affixed to a conspicuous part of the property.
There is no dispute in preposition that the Section
envisages only three modes of service of notice (i) sent by post,
(ii) tendered or delivered personally to such party or to any of
his family or servants at his residence and (iii) affixation to a
conspicuous part of the property if tender or delivery is not
5
practicable as held by this Court in the case of Pramanand
(supra) and Gumanmal (supra).
In view of the above, so far as the validity of notice,
published by the appellant has evidenced by Ex.-6 is concerned,
such publication does not fall in any of the three categories and,
therefore, it cannot be said that the notice published by the
plaintiff was in consonance with the requirements of Section 106
of the Act.
However, a bare look at the notice (Ex.-4), which was
issued by counsel for the plaintiff and was sent by registered
post, acknowledgement due vide Ex.-9 (receipt) indicates that
the same on account of non-delivery remained deposited with
the Post Office for seven days and, thereafter, it was returned to
the sender i.e. the counsel for the plaintiff. A significant aspect
needs to be noticed in the present case that the defendant
Radha Kishan had admitted that he has been working for over
30 years at the Post Office and that his daughter is also working
at the Post Office.
The Hon’ble Supreme Court while dealing with issue
pertaining to notice sent by post, in similar circumstance, in the
case of M/s. Madan & Co. (supra) in a case under J & K Houses
and Shops Rent Control Act, 1966, wherein the requirement of
the provision was 'due service' of notice in writing through Post
Office under a registered cover, observed and held as under:-
“6. We are of opinion that the conclusions arrived at by
the Courts below is correct and should be upheld. It is
true that the proviso to C1.(i) of S.11 (1) and the
6
proviso to S.12(3) are intended for the protection of
the tenant. Nevertheless it will be easy to see that too
strict and literal a compliance of their language would
be impractical and unworkable. The proviso insists that
before any amount of rent can be said to be in arrears,
a notice has to be served through post. All that a
landlord can do to comply with this provision is to post
a prepaid registered letter (acknowledgment due or
otherwise) containing the tenant's correct address.
Once he does this and the letter is delivered to the post
office, he has no control over it. It is then presumed to
have been delivered to the addressee under S.27 of the
General Clauses Act. Under the rules of the post office,
the letter is to be delivered to the addressee or a
person authorised by him. Such a person may either
accept the letter or decline to accept it. In either case,
there is no difficulty, for the acceptance or refusal can
be treated as a service on, and receipt by, the
addressee. The difficulty is where the postman calls at
the address mentioned and is unable to contact the
addressee or a person authorised to receive the letter.
All that he can then do is to return it to the sender. The
Indian Post Office Rules do not prescribe any detailed
procedure regarding the delivery of such registered
letters. When the postman is unable to deliver it on his
first visit, the general practice is for the postman to
attempt to deliver it on the next one or two days also
before returning it to the sender. However, he has
neither the power nor the time to make enquiries
regarding the whereabouts of the addressee; he is not
expected to detain the letter until the addressee
chooses to return and accept it; and he is not
authorised to affix the letter on the premises because
of the assessee's absence. His responsibilities cannot,
therefore, be equated to those of a process server
entrusted with the responsibilities of serving the
summons of a Court under O. V of the C.P.C. The
statutory provision has to be interpreted in the context
of this difficulty and in the light of the very limited role
that the post office can play in such a task. If we
interpret the provision as requiring that the letter must
have been actually delivered to the addressee, we
would be virtually rendering it a dead letter. The letter
cannot be served where, as in this case, the tenant is
away from the premises for some considerable time.
Also, as addressee can easily avoid receiving the letter
addressed to him without specifically refusing to
receive it. He can so manipulate matters that it gets
returned to the sender with vague endorsements such
as “not found”, “not in station”, “addressee has left”
and so on. It is suggested that a landlord, knowing that
the tenant is away from station for some reasons,
could go through the motions of posting a letter to him
which he knows will not be served. Such a possibility
cannot be excluded. But, as against this, if a registered
letter addressed to a person at his residential address
does not get served in the normal course and is
returned, it can only be attributed to the addressee's
own conduct. If he is staying in the premises, there is
no reason why it should not be served on him. If he is
compelled to be away for some time, all that he has to
do is to leave necessary instructions with the postal
7
authorities either to detain the letters addressed to him
for some time until he returns or to forward them to
the address where he has gone, or to deliver them to
some other person authorised by him. In this situation,
we have to chose the more reasonable, effective,
equitable and practical interpretation and that would
be to read the word “served” as “sent by post”,
correctly and properly addressed to the tenant, and the
word “receipt” as the tender of the letter by the postal
peon at the address mentioned in the letter. No other,
interpretation, we think, will fit the situation as it is
simply not possible for a landlord to ensure that a
registered letter sent by him it gets served on, or is
received by, the tenant.”
Further this Court in Om Prakash v. LR’s of Dev Raj : S.B.
Civil Second Appeal No.857/2011 decided on 14.08.2012,
relying on the judgment of Hon’ble Supreme Court in the case of
M/s. Madan & Co. (supra), came to the conclusion that the
endorsement ‘addressee not found available on the given
address’ by the post office as sufficient to presume service.
Similar view has been taken in the case of Nirmala Devi (supra).
Allahabad High Court in the case of Vandana Gulati (supra) again
relying on judgment of Hon’ble Supreme Court in the case of
M/s. Madan & Co. (supra) held that endorsement of ‘not
claimed/not met’ on the envelope could be due service under
provisions of Section 106 of the Act.
From the law laid down by Hon’ble Supreme Court in the
case of M/s. Madan & Co. (supra), which has consistently been
followed by this Court, it is apparent that for the purpose of
compliance of provisions of Section 106 of the Act what is
required by the plaintiff is to ‘sent by Post to the party’
the
notice and when the provision of ‘due service’ has been held to
have been duly complied with by Hon’ble Supreme Court, the
8
sending by post as envisaged by Section 106 of the Act can very
well be deemed to have been complied with.
As noticed hereinbefore, besides the fact that the service
of notice vide Ex.-4 is sufficient, the fact that the appellant and
his daughter both were serving at the Post Office wherein the
notice remained deposited for 7 days, cannot be lost site of at a
small place like Bilara.
The fact that another notice Under Certificate of Posting
(U.P.C.) (Ex.-7), was also sent to the appellant further complete
the requirement of law.
So far as the judgment in the case of M/s. Green View
Radio Service (supra) is concerned, a mere denial by the
appellant was not sufficient, as it was not appellant's case that
the address indicated on the notice was incorrect and/or he did
not reside at the said address.
The judgment in the case of Mobarik Ali Ahmed (supra)
cited by the learned counsel for the appellant also has no
application to the facts and circumstances of the case especially
in view of law laid down by Hon’ble Supreme Court in the case of
M/s. Madan & Co. (supra).
In view of the above discussion, the finding recorded by
both the courts below regarding validity of the notice under
Section 106 of the Transfer of Property Act is perfectly justified
and the same does not give rise to any substantial question of
law. No other point was pressed by the learned counsel for the
appellant.
9
Consequently, there is no substance in the present second
appeal
and
the
same
is,
therefore,
dismissed. The
stay
application is also dismissed. However, the appellant is granted
time to vacate the suit premises by 30th November, 2014 on the
following conditions:-
(i)
the appellant shall submit an undertaking supported by
affidavit before the trial court within 3 weeks from today
to the effect that on or before 30th November, 2014 he
shall handover the peaceful and vacant possession of the
suit premises to the plaintiff-respondent. He shall also
undertake not to cause any damage to the suit premises
nor to make any alternation and not to assign/sublet or in
any manner part with possession to any other person and
not to put the premises to any use other than the present
use and not to cause any nuisance.
(ii)
the appellant shall deposit within three weeks the arrears,
if any, of the rent/mesne profit and of the decreetal
amount and till November, 2014 shall continue to pay to
the landlord the amount of mesne profit per month or
deposit the same in the saving bank account of the
respondent month by month on or before 15th day of the
next month.
The respondent or learned counsel for the
respondent will give the details of the bank account, in
which, the arrears of rent or mesne profit/month to month
mesne profit will be deposited, to the appellant or counsel
for the appellant within a period of two weeks from today.
10
(iii)
it is made clear that in case the appellant does not comply
with any of the aforesaid conditions or violate any terms of
the undertaking, then it will be open for the respondent
landlord
to
get
the
decree
executed
forthwith
in
accordance with law.
No costs.
(ARUN BHANSALI), J.
PKS-115
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