1981 Supreme(SC) 114

SUPREME COURT OF INDIA
V.D. TULZAPURKAR, D.A. DESAI AND A.P. SEN, JJ.**
Har Charan Singh, Appellant
Versus
Shiv Rani and others, Respondents.
Civil Appeal No. 1402 of 1979, D/- 20-2-1981.
Advocates appeared
Mr. P. C. Bhartari, Advocate, for Appellant; Dr. L. M. Singhvi, Sr. Advocate and Mr. Pramod Swarup, advocate, for Respondents.

Headnote:

U. P. Cantonment (Control of Rent and Eviction) Act, 1952 - Sections 14(a),14(1),20(2)(a),21 - U. P. (Temporary) Control of Rent and Eviction Act, 1947, - Section 3(1) - Evidence Act,1872 – Section 114 - General Clauses Act, 1897 - Section 27 - Bihar Land Reforms Act, 1950 - Section 6 - demanding payment of arrears - seeking ejectment on termination of tenancy - 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. Cantonments (Control of Rent and 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 from 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 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 - 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 per cent 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 – 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 with 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? - 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 - hether when such refusal had been established, the appellant could be imputed with the knowledge of the contents of the notice - whether any acknowledgment due is received from the addressee or not. - whether the second ingredient, as extracted above. is satisfied by the landlord. The attention has to be focussed on the expression in arrears of rent for not less than four months. What does this expression, signify? - ascertain whether the expression 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 - whether the default is in payment of one months rent or more than one months 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 S. 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 - 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 - Held, 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 All LJ 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 be 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 Kulkarnis case (AIR 1935 Bom 247). 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 - 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 ex parte hearing and passed a decree of eviction. The tenant under the decree of eviction preferred an appeal in the City Small Cause 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 - 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 - Appeal dismissed