Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1988 Supreme(SC) 715

SUPREME COURT OF INDIA
SABYASACHI MUKHARJI AND S. RANGANATHAN, JJ.
Ms/. Madan and Co., Appellant
Versus
Wazir Jaivir Chand, Respondent.
Civil Appeal No. 4146 of 1985
Decided on 28-11-1988.
Advocates appeared
Mr. Soli J. Sorabjee, Sr. Advocate, Mr. Harjinder Singh and Mr. Ranjan Mahapatra, Advocates with him, for Appellant; Mr. Anil Dev Singh, Sr. Advocate Dr. Meera Agarwal and Mr. R. C. Mishra,. Advocates with him, for Respondent.

Advocates:
ANIL DEV SINGH, Harjinder Singh, MIRA AGRAWAL, R.C.MISHRA, Ranjan Mahapatra, SOLI J.SORABJI

Headnote:
Civil Procedure Code,1908 - O. V. Rr. 17 to 19 - Jammu and Kashmir Houses and Shops Rent Control Act, 1966 – Section 11,12 and 12(3) - General Clauses Act – Section 27 - Recovery of possession - Seeking ejectment - Irregular in paying rent - Petitioner is a firm of which one is the managing partner - Firm was the tenant of respondent in respect of a portion of a building on a rent - According to respondent, petitioner had been irregular in paying the rent of the premises and had altogether stopped making payment of any rent - Respondent issued a notice to petitioner calling upon it to pay the arrears of rent - Notice also terminated the tenancy and called upon petitioner to vacate demised premises - This notice was first sent by post - Postman called at the address but, having failed to find there either addressee or any person authorised to receive notice on his be halt returned it with endorsement "left without address, returned to sender - Respondent caused a copy of notice to be affixed to one of doors of premises in question in presence of two inhabitants of the locality - No payment of rent was made subsequently by the petitioner - Respondent, filed a suit seeking ejectment to petitioner on ground that he had committed three defaults, each in payment of two month rent, within a period of 18 months - Whether notice sent by respondent by registered post can be said to have been served and petitioner can be said to have been in receipt of said notice – Held, evidence of postman is categorical that there was no servant at premises which was locked - He says he had learnt from enquiries in neighbourhood that tenant had not been living in the premises for the past few months - He admits that he knew there was a servant but says that the servant was also not there at the relevant time - His reference to servant working as a pheriwala at same place is in regard to time when he was giving evidence - It is not the case of the tenant that other partner, son of said one was available for service either - Sum and substance of the evidence on record is that the tenant had gone away from premises without intimating the landlord or neighbours of his correct address and without leaving behind any servant or agent to accept letters addressed to him. In this situation the landlord did the only thing he could - Court are quite conscious that provision in regard to the notice contemplated by statute is unsatisfactory and hope that legislature would soon set it right - But on provision as it stands, court cannot but hold that a landlord must be held to have complied with the statutory requirement by sending a notice correctly addressed to the tenant by registered post - Also, in the present case, court are satisfied - As indeed the lower Courts were that the landlord did his best to bring the notice to the knowledge of the tenant - He cannot be expected to do any more - His petition for eviction cannot be dismissed on this score -Court only wish to add that, having regard to fact that tenant had deposited arrears subsequently, court suggested to parties - That they should try to settle matter amicably between themselves but the submissions filed by the parties after the hearing show that this has not been possible - Court have, no alternative but to dismiss this appeal and court hereby do so - Appeal dismissed.

Judgement Key Points

Key Points: - The landlord is considered to have complied with the statutory requirement by sending a correctly addressed notice by registered post, where the postman cannot contact the addressee at the premises and the notice is affixed in the presence of locals; the court held this as adequate service given practical constraints (!) (!) (!) - The act protects tenants from eviction but allows relief if three rent payments are defaulted within eighteen months; non-compliance with payment notices can affect protection against eviction (!) (!) - The legislative framework requires a notice to be served under registered post for rent arrears to be considered in arrears, with the court calculating arrears and potential dismissal of the suit if the tenant deposits the specified sum by the ordered date (!) (!) (!) - Substituted service via affixture is not mandatory; the statute prescribes one method of service, and courts should not import additional or alternative services unless mandated by the statute (!) - Courts emphasized practical interpretation over literal adherence to the notice wording, recognizing difficulties in service when tenants are away and endorsing a flexible interpretation to ensure the landlord’s efforts are recognized (!) (!) (!)

How to determine if service of a notice by registered post under the Act constitutes valid service when the tenant is absent and no one at the premises is available to receive the notice?

What is the appropriate interpretation of the notice service requirement under the Act in situations where the addressee is away and the postman cannot effect delivery, to uphold tenant protection while allowing eviction proceedings to proceed?

What are the conditions under which the landlord’s attempts at substituted service (affixture) can be considered compliant with the statutory service requirement?

JUDGMENT

RANGANATHAN, J.:— This appeal involves the interpretation of S. 11 of the Jammu and Kashmir Houses and Shops Rent Control Act, 1966 (hereinafter referred it) as the Act).

2. The petitioner is a firm of which Sohan Singh Madan is the managing partner. The firm was the tenant of the respondent in respect of a portion of a building situated in Raghunath Bazar, Jammu, on a rent of Rs. 200/- p.m. According to the respondent, the petitioner had been irregular in paying the rent of the premises and had altogether stopped making payment of any rent from 1st April, 1976 onwards. On 26-11-1976, the respondent issued a notice to the petitioner calling upon it to pay the arrears of rent (Rs. 1,600). The notice also terminated the tenancy and called upon the petitioner to vacate the demised premises on or before 31-12-1976. This notice was first sent by post. The postman called at the address on 7-12-1976 and 8-12-1976 but, having failed to find there either the addressee or any person authorised to receive the notice on his be halt returned it with the endorsement "left without address, returned to sender". Thereupon, the respondent caused a copy of the notice to be affixed to one of the doors of the premises in question in the presence of two inhabitants of the locality on 9-12-76. No payment of rent was made subsequently by the petitioner. The respondent, therefore. filed a suit on 16-6-1977 seeking ejectment to the petitioner on the ground that he had committed three defaults, each in payment of two months rent, within a period of 18 months. This plea was accepted, and eviction of the petitioner decreed, by the Sub Judge. This was affirmed by the District Judge. A second appeal to the High Court was also unsuccessful. Hence this appeal by special leave.

3. Sections 11 and 12 of the Act. which are relevant in this context, may now be referred to. They read, in so far as is relevant for our present purposes, as follows :

Section 11 :

"Protection of a tenant against eviction-(1) Notwithstanding anything to the contrary in any other Act or law, no order or decree for & recovery of possession of any house or shop shall be made by any Court in favour of the landlord against a tenant xx xx xx

Provided that nothing in this sub-section shall apply to any suit for decree for such recovery of possession.

xxx xxx xxx

(i) subject to the provisions of S. 12, where the amount of two months rent legally payable by the tenant and due from him is in arrears by not having been paid within the time fixed by contract or in the absence of such contract by the fifteenth day of the month next following that for which the rent is payable or by not having been validly deposited in accordance with S. 14 :

Provided that no such amount shall be deemed to be in arrears unless the landlord on the rent becoming due serves a notice in writing through post office under a registered cover on the tenant to pay or deposit the arrears within a period of fifteen days from the date of the receipt of such notice and the tenant fails to pay or deposit the said arrears within the specified period.

Section 12 :

When a tenant can get the benefit of protection against eviction-

(1) If in a suit for recovery of possession of any house or shop from the tenant the landlord would not get a decree for possession but for Cl. (i) of the proviso to sub-sec. (1) of S. 11, the Court shall determine the amount of rent legally payable by the tenant and which is in arrears taking into consideration any order made sub-sec. (4) and effect thereof up to the date of the order mentioned hereafter, as also the amount of interest on such arrears of rent calculated at the rate of nine and three eights per centum per annum from the day when the rents became arrears up to such date, together with the amount of such costs of the suit as if fairly allowable to the plaintiff landlord, and shall make an order on the tenant for paying the aggregate of the amounts (specifying in the order such aggregate sum)

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