Chhuttan v. Sheodhar — 1978 DIGILAW 761 (ALL)

JUDGMENT J.M.L. Sinha, J. - Both these appeals arise out of the judgment and decree dated 6.4.1968 passed by II Additional Civil Judge, Kanpur in C.A. No. 518 of 1867. 2. The facts giving rise to these two appeals, briefly stated, were as follows :- Smt. Chhuttan, hereinafter called the plaintiff appellant was the owner of premises No. 10/245, Khalasi Line, Kanpur. A portion of the said premises was in the occupation of Sheo Adhar, hereinafter called the defendant respondent, on a rental of Rs. 12/- per mensem. The respondent having fallen in arrears of rent, a notice was served on him demanding payment of arrears and terminating the tenancy. Since the respondent did not comply with it, a suit was filed for the eviction of the respondent from the premises in his tenancy and for recovery of arrears of rent. 3. The suit was resisted by the respondent, inter alias, on the ground that the rent of the accommodation in his possession was Rs. 10/- per mensem and not Rs. 12/- per mensem; that no notice was served on him, and further that in any case, the notice relied upon by the plaintiff appellant was not a valid notice. 4. The trial court on a consideration of the evidence on record held that the rent of the premises in suit was Rs. 10/- per mensem not Rs. 12/- per mensem. On the other points, the conclusion of the trial court went against the respondent. In result, therefore, the trial court decreed the suit for ejectment and for recovery of rent and mesne profits. 5. Feeling aggrieved against the judgment and decree of the trial court, the respondent filed an appeal in the Court of the District Judge, Kanpur. Learned II Additional Civil Judge, Kanpur, who heard the appeal, came to the conclusion that the notice sent by the plaintiff appellant was not a valid notice. In consequence of this finding; the lower appellate court dismissed the plaintiff's suit in so far as the relief of ejectment was concerned. In other respects, the decree passed by the trial court was maintained. 6. Feeling dissatisfied against the decision of the lower appellate court, the plaintiff has filed the appeal No. 1712 of 1968 while the defendant has filed cross appeal, No. 2380 of 1969. 7. I propose to dispose of these appeals by this common judgment. 8. In other respects, the decree passed by the trial court was maintained. 6. Feeling dissatisfied against the decision of the lower appellate court, the plaintiff has filed the appeal No. 1712 of 1968 while the defendant has filed cross appeal, No. 2380 of 1969. 7. I propose to dispose of these appeals by this common judgment. 8. Taking up the appeal filed by the plaintiff appellant, the contention raised by the learned counsel for the appellant before me was that the lower appellate court has mis-construed the notice. It was urged by him that the notice dated 2nd November, 1965 was in conformity with law and validly terminated the tenancy. 9. In order to appreciate the contention raised by the learned counsel for the appellant, it is necessary to refer to the relevant part of the notice. It reads as follows :- "I hereby ask you to vacate the premises as my clientess does not want to keep you as her tenant any more. Please also note that you have also to pay the entire arrears of rent due within a month of the service of this notice and after the expiry of the time, you will be deemed to be defaulter under the Rent Control Act and suit will be filed for ejectment and recovery of arrears of rent without the permission of the District Magistrate." 10. The lower appellate court interpreted this to mean that the plaintiff called upon the defendant to vacate the disputed premises immediately on receipt of the notice and did not allow thirty days time as required under the law. The lower appellate court held that it constituted a fatalflaw in the notice. 11. Having given my most anxious thought to the aforesaid language contained in the notice I am unable to agree with the conclusion drawn by the lower appellate court. In the case Mangi Lal v. Sugan Chand Rathi, AIR 1965 Supreme Court 101, a composite notice under section 4 of the Accommodation Act and section 106 of the Transfer of Property Act was given on March 11, 1959. By this notice, the plaintiff landlord called upon the tenant to remit the rent due within one month from the date of service of notice. It was further stated in the notice that in the event of defendant's failure to do so, it suit for ejectment would be filed against hint. By this notice, the plaintiff landlord called upon the tenant to remit the rent due within one month from the date of service of notice. It was further stated in the notice that in the event of defendant's failure to do so, it suit for ejectment would be filed against hint. The plaintiff also thereby called upon the defendant to vacate the premises by April 13, 1959. 12. Two questions were raised before the Supreme Court :- (a) That the notice did not purport to determine the tenancy as provided in Section 106 of the Transfer of Property Act. (b) That the notice fell short of the period of 15 days specified in section 106 of the Transfer of Property Act. Dealing with the first point, it was observed :- "The High Court has however treated this as a composite notice under Section 4(a) of the Accommodation Act and Section 106 of the Transfer of Property Act and in our opinion rightly. It has to be observed that the plaintiffs, after requiring the defendant to pay the rental arrears due up to the end of March 1969 within one month from the date of service of the notice, proceeded to say "failing which suit for ejectment will be filed." These recitals clearly indicate the intention of the landlord to terminate the tenancy of the defendant under the relevant provisions of both the Acts." Dealing with the second point, the Supreme Court took into account the fact that the defendant had been called upon to vacate by April, 13, 1959 and counting the period from the date of service, the period fell short by 15 days. 13. Now in the instant case, if the words 'I hereby ask you to vacate the premises' were not contained in the notice, the language would have been analogous to that used in the notice that was sent in the case referred to above. 'in the aforesaid case, the Supreme Court held the notice to be bad because it did not give 15 days' time to vacate. According to a local amendment, however, a landlord in this State has to give 30 days time and the notice given to the respondent did give that much of time and consequently the notice would have been valid. According to a local amendment, however, a landlord in this State has to give 30 days time and the notice given to the respondent did give that much of time and consequently the notice would have been valid. The question that, therefore, arises is whether the words' I hereby ask you to vacate the premises as my clientess does not want to keep you as her tenant any more", should be interpreted to mean that the appellant called upon the defendant respondent to vacate the premises for the with. Obviously, if these words are construed to mean that the defendant respondent was called upon to vacate the premises forthwith the notice would be defective because it did not give the statutory period of 30 days. 14. In the case Ahmad Ali v. Mohd. Jamul Uddin, AIR 1963 Allahabad 581. the notice that was served on the tenant stated :- "Since my client does not wish to keep you a tenant your tenancy is terminated" On these words occurring in the notice, an argument was raised that the tenancy had been terminated in presenti and, therefore, the notice was invalid. The argument was rejected with the following observations :- "It was contended by Shri Mangi Lal that the appellant by his notice terminated the respondent's tenancy on the date on which he gave the notice and not after thirty days but we do not read the notice in that sense. The appellant did not say in the notice that the respondent's tenancy was terminated on the date on which the notice was given; he wrote your tenancy is terminated today." Be used the present tense but it does not mean that he was terminating the tenancy in presenti; the present tense is quite consistent with the termination of the tenancy in future when the act by which the tenancy is to terminate in future is done in presenti." 15. I think what has been said in the above case applies to the present case also. I think what has been said in the above case applies to the present case also. As in that case, in the present case also, the words used are 'I. hereby ask you to vacate the premises' and not that "I, hereby ask you to vacate the premises today or immediately." By the words actually finding place in the notice, the defendant was only appraised of the fact that the landlady did not want to keep him as the tenant and, therefore, he had to vacate. The period within which he had to vacate was mentioned at the end and that period is one month. It has been held in Mishri Lal v. Jwala Prasad, 1962 A.L.J. 222, that the word 'Mah' (month) should not mean calendar month but 30 days. 16. It cannot, therefore, be accepted that the notice was invalid as it did not give the statutory period of 30 days to vacate the premises. 17. Learned counsel for the respondent then urged that, assuming that notice was valid, its service was not effected on the respondent. It was urged by the learned counsel that, in recording the conclusion to the effect that the notice had been served on the respondent, the court below acted on the presumptions under section 114 of the Indian Evidence Act and section 27 of the General Clauses Act. According to the learned counsel for the respondent, such a presumption cannot hold the ground when a defendant tenant entering the witness box states on oath that he never received the notice. According to the learned counsel for the respondent, the findings of the court below regarding service, therefore, suffers from a basic error. 18. Reliance was placed by the learned counsel for the appellant for his argument on the decision of the Supreme Court in case Puiwada Venkateshwra Rao v. Chidamana Venkata Ramana, AIR 1976 Supreme Court 869. My attention was invited to the following observations contained therein :- "A question raised before us by learned counsel for the respondent is whether the notice sent by the respondent landlord could be held not to have been served at all simply because the postman, who had made the endorsement of refusal, had not been produced. The Andhra Pradesh High Court had relied upon Meghji Kanji Patel v. Kundanmzal Chamanlal, AIR 1968 Bombay 387, to hold that the notice was not served. The Andhra Pradesh High Court had relied upon Meghji Kanji Patel v. Kundanmzal Chamanlal, AIR 1968 Bombay 387, to hold that the notice was not served. There, a writ of summons sought to be served by the registered post had been returned with the endorsement refused.' The Bombay High Court held that presumption of service had been repelled by the defendant's statement on oath that he had not refused it as it was never brought to him. In this state of evidence, it was held that, unless the postman, was produced the statement of the defendant on oath must prevail. An ex parte decree passed on the basis of such an alleged service was, therefore, set aside. On facts found, the view expressed could not be held to be incorrect." 19. In my opinion, however, the Supreme Court did not lay down a rule to the effect that whenever the tenant enters the witness box to deny the receipt of notice, the presumption under section 114 of the Indian Evidence Act and Section 27 of the General Clauses Act shall stand rebutted. It was in the context of particular facts of the case that went up before the Supreme Court that the Court approved the conclusion that was reached by the High Court concerned. In this connection, I may particularly refer to the following observations contained in the said decision :- "It may be that, on a closer examination of evidence on record, the Court could have reached the conclusion that the defendant had actually refused it knowingly. It is not always necessary, in such cases, to produce the postman who tried to effect service. The denial of service by a party may be found to be incorrect from its own admissions or conduct. We do not think it necessary to go into this question any further as we agree with the High Court on the first point argued before us." (emphasis supplied) 20. Learned counsel for the respondent also referred me to a Single Judge decision of this Court in case Amar Nath. v. Smt. Champa Devi., 1978(2) R.C.J. 221. We do not think it necessary to go into this question any further as we agree with the High Court on the first point argued before us." (emphasis supplied) 20. Learned counsel for the respondent also referred me to a Single Judge decision of this Court in case Amar Nath. v. Smt. Champa Devi., 1978(2) R.C.J. 221. I do not however think that any rule was laid down even in this case to the effect that if the tenant enters the witness box and states on oath that he did not receive the notice, the presumption under section 114 of the Indian Evidence Act and Section 27 of the General Clauses Act shall necessarily stand rebutted. What happened in that case was that the tenant entered the witness box to make a statement on oath that he did not receive the notice and that statement was not challenged in cross-examination. It was in that context that it was held that the presumption regarding notice was successfully rebutted. 21. In the instant case, the lower appellate court did not enter into the question regarding service of notice in view of its conclusion regarding validity of notice. The trial court, however, considered that question while answering issue No. 5 and, on a perusal thereof, I find that the trial court examined the statement on oath made by the defendant respondent and came to the conclusion that it could not be relied upon. I cannot reappraise the evidence of the defendant respondent in order to reach a contrary conclusion. In my opinion, therefore, there is no illegality in the finding of the trial court regarding service of notice and does not call for any interference. 22. In view of reasons aforesaid, Second Appeal No. 1712 of 1968 deserves to be allowed. 23. This takes me to the Second Appeal No. 2380 of 1969 filed by the defendant. Learned counsel for the appellant urged before me that on 9th February, 1966 a money order was sent by the respondent which had been received by the plaintiff appellant and it should be held that the money order was received in full and final settlement of the arrears of rent. Learned counsel for the respondent urged that consequently no decree could be passed against the defendant respondent for arrears of rent. I regret my inability to accept this argument. 24. Learned counsel for the respondent urged that consequently no decree could be passed against the defendant respondent for arrears of rent. I regret my inability to accept this argument. 24. According to the plaintiff appellant, the rent was outstanding against the defendant respondent with effect from 2nd of July, 1956 The plea of the defendant respondent was that the rent for the period before September, 1965 was personally given to the husband of the plaintiff appellant. According to the concurrent findings recorded by the courts below the rent for the period before 1965 had not been paid. Now so far as the money order was concerned, it contained a statement to the effect that the amount remitted thereby was on account of rent for the period from September, 1965 to January, 1966. It is therefore apparent that the money order was sent in full and final settlement of the entire amount of rent that was due. According to the plaintiff appellant the rent sent by the money order was adjusted for the period prior to January, 1965. In this context, it can also not be urged that the money order was accepted in full and final settlement of the entire amount that was outstanding till January, 1966. 25. No other contention having been raised, I find that Second Appeal No. 2380 of 1959 filed by the defendant has no substance and must fail. 26. In the result, Second Appeal No. 1712 of 1968 is allowed. The judgment and decree of the lower appellate court are set aside and that of the trial court are restored. 27. Second Appeal No. 2380 of 1969 fails in to and is hereby dismissed. 28. In the particular circumstances of the case, I make no order as to costs of these two appeals.