Madho Ram v. Sardar Punjab Singh — 1980 DIGILAW 1112 (ALL)

ORDER K.M. Dayal, J. - The present petition has been filed by the plaintiff. 2. The petitioner is the landlord and he filed a suit for ejectment of defendant No. 1 from the disputed accommodation. The other respondents Nos. 2 to 8 are the co-owners or co-landlords and as they did not support the case of the plaintiff, they have been impleaded as pro forma defendants. 3. The admitted case of the parties is that respondent No. 1 Sardar Punjab Singh was the tenant of the disputed accommodation. He fell in arrears of rent and a notice of ejectment terminating his tenancy under Section 106 of the Transfer of Property Act and for the demand under Section 20 (2)(a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 was issued to him. The respondent No. 1 was not available and he has sworn that he was out of station and the notice was received by his daughter Surendra Kaur on 10-7-1976. Thereafter the rent was remitted to the landlord in August, 1976 which was refused. Subsequently, the rent was again sent some times in the first week of September, 1976 and that money order was refused on 7th September, 1976. The contention of the respondent in para 8 of the written statement is that he was out of station on 10-7-1976 and he came back in the first week of August, 1976 (vide annexure 2 the writ petition). 4. The trial court held that the service of notice on the daughter of respondent No. 1 was sufficient and as the rent was tendered to the landlord by the money order on 7th September, 1976, a default was committed and the tenant was liable to be evicted on the ground. The service of notice was deemed to be sufficient under Section 20 (2)(a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. The suit was accordingly decreed. A revision was filed by the respondent No. 1. The lower revisional court did not agree with the finding of the trial court on facts as well as on law and allowed the revision by its judgment dated 25-11-1978. The lower revisional Court held that the service of notice was not personally on the tenant therefore, he could not be held to be a defaulter. The lower revisional court did not agree with the finding of the trial court on facts as well as on law and allowed the revision by its judgment dated 25-11-1978. The lower revisional Court held that the service of notice was not personally on the tenant therefore, he could not be held to be a defaulter. It further extended the benefit of sub-section (4) of Section 20 of U.P. Act No. 13 of 1972 and dismissed the suit. 5. The present petition before this Court was filed with some delay. Earlier a revision under Section 115 of the Code of Civil Procedure was filed on 2-2-1979. It was numbered as 285 of 1979 and dismissed on 23-7-79 as not maintainable in view of the case reported in 1979 All LJ 685: ( AIR 1979 All 218 ) (FB), Jupiter Chit Fund (Pvt.) v. Dwarka Diesh Dayal. The present petition was, therefore, presented on 26-9-1979. But it was returned by the Court as it was not accompanied by a fresh Vakalatnama. The petitioner has sworn in para 4 clause (c) of the petition and explained the delay. A supplementary affidavit was also filed swearing that the delay was on account of obtaining a fresh Vakalatnama. The petition was filed on 11th October, 1979. There can be no doubt that the petitioner has been acting diligently in contesting the case. The petition cannot be dismissed on the ground of laches. 6. Coming to the merits of the case, the revisional Court held that the respondent No. 1 was not a defaulter as the notice was not served on him personally. Learned counsel for the petitioner has relied upon a Full Bench case Ganga Ram v. Smt. Phulwati, reported in AIR 1970 All 446 : (1970 All LJ 336). In that case, notice was served by refusal. The notice under Section 106 of the Transfer of Property Act also contained a demand under Section 3 (1)(a) of the U.P. (Temporary) Control of Rent and Eviction Act, 1947. The argument before the Bench was that as the notice was refused, it could not be said that it was served on the tenant at all. The notice under Section 106 of the Transfer of Property Act also contained a demand under Section 3 (1)(a) of the U.P. (Temporary) Control of Rent and Eviction Act, 1947. The argument before the Bench was that as the notice was refused, it could not be said that it was served on the tenant at all. One of the questions before the Full Bench was "whether a notice under Section 3 of the U.P. (Temporary) Control of Rent and Eviction Act, even if combined with a notice under Section 106 of the Transfer of Property Act, has to be served on the tenant personally." The other questions were about the presumption that should be raised on the endorsement of refusal made by the postman. The answer was in the negative. Even a notice of demand, deemed or presumed to have been served on a tenant will be "service upon him of notice of demand". It was categorically held in that case that if a notice of demand was served and that notice also contained termination of tenancy, it will be deemed to be sufficient service. The notice under Section 106 of the Transfer of Property Act was validly served by refusal. Section 106 of the Transfer of Property Act permits service of notice either on the tenant or the landlord or one of the members of the family or servant. Obviously, notice under Section 106 of the Transfer of Property Act was effectively served on the tenant through his daughter. 7. The difficulty arises for the purposes of Section 20 (2)(a) of the U.P. Act No. 13 of 1972. The argument of the learned counsel for the respondent was that the notice should be served personally. The wordings of the aforesaid provisions were in consonance with Section 3 (1)(a) of the U.P. (Temporary) Control of Rent and Eviction Act. The Court below has relied upon a case reported in 1960 All LJ 213: ( AIR 1960 All 477 ), Balloo Ram Bookseller v. Chhedi Lal. In that case, it was held that the notice must be served personally on the tenant for the purposes of Section 3 (1)(a) of the U.P. (Temporary), Control of Rent and Eviction Act. It also held that it excluded the service on relations, servant etc. In that case, it was held that the notice must be served personally on the tenant for the purposes of Section 3 (1)(a) of the U.P. (Temporary), Control of Rent and Eviction Act. It also held that it excluded the service on relations, servant etc. So far as this controversy is concerned, it was held in Ganga Ram case supra that the service was to be presumed under Section 114 of the Evidence Act as well as under Section 27 of General Clauses Act. The present case is, however, different. In the present case, the notice for demand was received by the daughter. The tenant came back in the first week of August or so and when he came back he came to know about the notice. 8. The notice, in my opinion, is not merely a piece of paper but it is a communication to the person to whom it is intended to be sent. If a notice is sent to A, he can be said to have notice when its contents came to his knowledge. No doubt in a case where a notice is sent to an illiterate person who can have knowledge of the contents of the notice but for his own fault in not getting it read over to him, its service may be sufficient. But in case the contents of the notice cannot or may not be brought to the knowledge of the addressee, the notice cannot be said to be served on that person. If a notice is written in a language, which cannot be got translated in spite of efforts of the addressee and its contents cannot be understood by him, it will be no notice in spite of the fact it is personally served on him. 9. Under Section 106 of the Transfer of Property Act, it is provided that the service of notice may be made on any family member or servant. But there is no such provisions under Section 20 (2)(a) of the U.P. Act No. 13 of 1972. Therefore, in the instant case, the service of notice of demand on the tenant can be said to have been effected only when he got information about the notice from his daughter. But there is no such provisions under Section 20 (2)(a) of the U.P. Act No. 13 of 1972. Therefore, in the instant case, the service of notice of demand on the tenant can be said to have been effected only when he got information about the notice from his daughter. Learned counsel for the petitioner relied upon a case decided by a Hon'ble single Judge of this Court Shri Thakur Satyanarayanji v. Devi Das Khatri, Second Appeal No. 225 of 1968, 10th July, 1978, Reported in 1978 All. L.J. NOC 72. In that case, it was held that the post office would be deemed to be the agent of the tenant if they resided in the same postal zones. We need not enter into that controversy in the present case. From the facts of the case, it is clearly proved that the service was made on the daughter of respondent and, therefore, question of any presumption does not arise. 10. The other question was about the money order. It was refused on 7-9-1976. It was contended that the money order must have been sent only a day earlier. That also could not be held in the instant case because there is nothing on record to show that both the parties were residing in the same postal zone. If a person is residing within the circle of another post office, certainly it cannot be said that he was served by the same postal zone. The address of the parties shows that the petitioner is residing in 26, Purani Kotwali Rurkee whereas the respondent No. 1 is residing in House No. 155/4, Mohalla Amber Talab, Rurkee. There is no averment in the petition that both areas were being served by the same postal zone. Therefore, it cannot be held that the money order should have been served or notice may have been served a day later. 11. Learned counsel for the petitioner invited my attention to Section 114 of the Evidence Act. Section 114 of the Evidence Act provided that the court may presume the facts which would have happened in ordinary course. I cannot refrain from saying that looking to the working of the postal department, as it is, no such presumption can be drawn that the letter would be reaching within reasonable time. Section 114 of the Evidence Act provided that the court may presume the facts which would have happened in ordinary course. I cannot refrain from saying that looking to the working of the postal department, as it is, no such presumption can be drawn that the letter would be reaching within reasonable time. No time can be held to be reasonable looked to the circumstances of delivery of money orders as well. 12. Under these circumstances, the demand of the plaintiff cannot be said to have been notified to the defendant before he received the notice or information of the same from his daughter. It is not necessary that notice must be in writing. Even the information conveyed orally would constitute the notice. The acknowledgement of the same can be obtained even orally. That will be sufficient service of notice under Section 20 (2)(a) of the U.P. Act 13 of 1972. 13. After looking to the judgment of the revisional Court, I find that the revisional Court had entered into the controversy relating to the facts and set aside the finding of the trial court. Under Section 25 of the Provincial Small Cause Courts Act, after re-appreciating evidence, a revisional Court has no power to reverse the finding of fact recorded by the trial Court and come to its own conclusion. If it is not satisfied with the appreciation of the evidence by the trial Court, it could remand the same after making necessary directions as has been held in 1979 All WC 746, Laxmi Kishore v. Har Prasad Shukla. 14. In the result, the judgment of the Court below cannot be sustained and is quashed. The present petition is allowed. The case is sent down to the IV Additional District Judge, Saharanpur for deciding afresh after affording opportunity of hearing the parties in accordance with law and in the light of the observations made above. The parties are directed to bear their own costs.