HARCHARAN SINGH v. SHIV RANI AND ORS

Citation: [1981] 2 S.C.R. 962

Court: Supreme Court of India

Bench: V.D. TULZAPURKAR, D.A. DESAI, A.P. SEN

Case summary

430 of 1970 whereby the High Court decreed the respondents' (landlords) suit for ejectment against the appellant (t~nant) 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...

Judgment text

HARCHARAN SINGH v. smv RANI AND ORS. February 20, 1981 [V. D. TULZAPURKAR, D. A. DESAI AND A. P. SEN, JJ. J Service by refusal-Notice den1anding arrears and seeking eviction is sen' by registered post but refused by the tenant-Whether the tenant could be imputed rhe knowledge of the contents thereof so that upon his failure to com~ ply with the notice the tenant could be said to have committed wilful default in payment of rent-U. P. Cantonment (Control of Rent and Eviction), (Central Act X), 1952, section 14(1) scope of-General Clauses Act 1897, section 27, Jndtan Evidence Act, section 114. The appellant was inducted in the year 1964 as a tenant of the suit premises on an yearly rental payable by December 31, every year. Since the appellant did not pay the rent for the years 1965, 1966 a combined notice dated November 9, 1966 demanding payment of arrears and seeking ejectment on tern1ination of tenancy, was sent by registered post by the respondents.

The appellant 0 refused to receive the notice on November 10, 1966. On his failure to comply with the requisitions contained in the notice, the respondents filed a suit against the appe11ant seeking eviction as well a'i recovery of rents and mesne profits. Having lost before the trial court and the first appellate court, the respon· dents came up before the High Court in second appeal. The High Court accepted the findin of fact recorded by the first appellate court that there was i:tervice of the notice on the appellant by refusal and 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 High Court allowed the landlords' appeal and granted three months time to the appellant to vacate the shop. Hence, the tenant's appeal after obtaining special leave from this Court. Dismissing the appeal, the Court HELD: (By majority) Pu Tulzapurkar, J. (On behalf of A. P. Sen, J.

and himself). 1 : t. The presumptiom that are raised under section 27 of the General Chtuseli . Act, 1897 and section 114 of the Indian Evidence Act, make it clear that, when service is effected by refusal of a postal communication, the addressee must be imputed with the knowledge of the contents thereof. [971 E-Fl 1:2. Before the knowledge of the contents of the notice could be imputed1 it is not necessary tlmt the sealed envelope must be opened and read by the addres•ee or when the addressee happens to be an illiterate pef'on the contents ihould be read over to him by the post·man or someone else. Such things do ·not occur when the addressee is determined to decline to accept the sealed Harihar Banerji and Ors. v. Ramshashi Roy and Ors. , A. I. R. 1918 P. C. 102, referred to. 2: I. The suit under section 14(1) of the U. P. Cantonment (Control of --. \ Rent & Eviction) Act (Central Act X of 1952), in the instant case was maintainabae.

Under section 14(1) of the Central Act, which in pari materia with 0 section 3(1) of the U. P. (Temporary) Control of Rent and Eviction Act, 1947, permission of the District Magistrate was required if the landlord sought eviction of the 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). [973 E-F] B/wgwa11 Dass v. Paras Nath, [1969] 2 SCR 297, followed. 2 : 2. All the courts rightly dealt with the matter as being governed by the U. P. Cantonments (Control of Rent & Eviction) Act, X of 1952--a Central Act and not by U. P. (Temporary) Control of Rent and Eviction Act, 1947 much less by the later U. P. (Rent & Eviction) Act, 1972. [966 E-FJ Per Desai, J. Contra. !. Uttar Pradesh Urban Buildings (Regulation of Letting, Rent & Eviction) Act, 1972 is a socially beneficient statute and should be construed according to well recognised canons of construction.

The words used in the statute, if they are plain and unambiguous must be applied as they stand, however, strongly it may be suspected that the result does not represent the real intention of the legislature. However, if two constructions are possible and legitimate ambiguity arises from the language employed that which enlarges the protection of a socially beneficient statute rather than one which restricts it should be preferred and adopted. In other words the construction which 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 should be preferred. Further where two constructions are possible the one which would accord with reason and justice must be preferred. [975 G-H, 976 A, D, G] Inland Revenue Comn1issio11ers v. Hinchy, 1960 A. C. 748, H. L. at 767= F (1960) 1 All India Reports 505 at 512; River Wear Commissioners v. Adam- "' son, (1877) 2 A. C.

743 & 765, quoted with approval. Mohd. Shafi v. Additional District & Stssions Judge (VII), Allahabad antl Others, [1977] 2 S. C. C. 226; Gurucharan Singh v. Kamla Singh & Ors. , [1976] 2 S. C. C. 152; H. H. Maharajadhiraja Madhav Rao Jivaji Rao Scindia B"/:_°! _uedrof Gwalior & Ors. v. Union of India & Another, [1971] 1 S. C. C. 85, ... ,... ,,. 1 . , 2 : 1. The substitution of the expression, "arrears of rent for not less than four months'" in sub-clause (a) of sub·section (2) of section 20 of the Uttar Pradesh Urban Buildings (Regulation of Letting Rent & Eviction) Act, 1972 is a contemporaneous legislative exposition bringing out clearly the legislative in· tention that the landlord would be entitled to evict the tenant if the rent is ill arrears for not less than four months.

Before the landlord can commence action under sub-clause (a): (i) the tenant must have committed default in payment of rent for a period of four months, and (ii) a notice has to be served, giving the tenant locus poenitentiae to repair the default within month. . • [978 B-CJ . , 2 : 2. Two 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 land· lord 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 notice, the tenant pays up thy arrears of rent he does not lose the protection of the R~nt Act. [978 G-H, 979 Al 2 : 3.

It is implicit in the expression "the tenant is in arrears of rent for not less than four months" that the legislature clearly intended to cover those cases of default in payment of rent under clause (a) where the contract of lease pro-vided for payment of rent every month meaning thereby that the unit for liabi· lity 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 too after the liability to pay the same has acoepted. [979 A-CJ - 2 : 4. Section 20(2) (a) of the Rent Act, 1972 does not attract cases whert• the landlords ac:cept rent on an yearly basis. The language of the section doesnot admit of a construction, namely, that even if 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".

In tbe 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 nt ! hat case does not touch the point. In Mahboob Bi v. Alva/a • (l) AIR 1954 Born. 159 Lachmiah,(') an almost identical question figured before the Andhra Pradesh High Court. In that case the Rent Controller issuro 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 allowro 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 11otice 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 sec. 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".

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 o'n the tenant because no presumption can be raised that the refu! al 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 Fanni/al v. Smt. Chironja. (') 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 Amariil Singh Btdi 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 Kulkarn;'s case. The Division Bench of the Allahabad ( High Court did not accept the view of Beaumont, C. J.

Tho Court was of the opinion that a presumption of fact would arise under (I) A1R 1964 A. P. 314. (2) (1972) 70 Allahabad Law Journal 499. HARCHARAN SINGH v. SHIVRANI (Desai,!. ) s. 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 h:gal but the refusal was the conscious act flowing from the knowledge of the contents of the letter. 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 wonld 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 Commis· sioner of Income-tax, Keral,a v. Thayaballi Mulla Jeevaji Kapasi (deed. ),(') this Court held that service of the notice under (1) [1968] 8 Supreme Court Journal 91. s.

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 Ollicer without a notice or in pursuance of an invalid notice would be illegal and void. It was, however, contended that if the Court accepts the legal contention as canvassed on behalf of the appellant it would be im- • possible tc serve the notice as statutorily prescribed. This wild it , apprehension is wholly unfounded. The notice is required to be served in the manner prescribed by s. 106 of Transfer of Property Act which, inter-alia, provides for affixing a copy of the notice 011 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.

Having, therefore, examined the three vital contentions, in my ·n 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) i~ not attracted. And further, even if it is attracted, as the statutory notice as required by s. 20(2) (a) was not served, a decree for eviction cannot be passed on the only ground of default in payment of rent. 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. S. R. Appeal dismissed. • ( ,.