MAHENDRA KAUR v. VIth ADDITIONAL DISTRICT JUDGE, PILIBHIT
2007-07-02
PRAKASH KRISHNA
body2007
DigiLaw.ai
JUDGMENT Hon’ble Prakash Krishna, J.—The landlady, petitioner herein, instituted SCC suit No. 43 of 1984 against the respondent No. 2, the tenant, for his ejectment, recovery of Rs. 1,460/- towards the arrears of rent, Rs. 432/- towards the damages and Rs. 241.14 towards the house tax and water tax etc. on the ground that the defendant tenant has failed to pay the arrears of rent in pursuance of the notices dated 8.9.1983 served on 10.9.1983 and of 27th of January, 1984. The said suit was contested denying the allegations of default and also by denying the other plaint allegations. It is not necessary to refer them in detail in view of the controversy presently involved in the petition. 2. The only controversy involved in the present writ petition is whether the notice dated 8.9.1983 was served on the petitioner and if so the deposit made by the defendant who is respondent herein under Section 30 of the U.P. Act No. 13 of 1972 is valid. In other words, whether the defendant tenant is a defaulter within the meaning of Section 20 (2)(a) of the U.P. Act No. 13 of 1972 [U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972]. 3. The case of the petitioner was that by means of the notice dated 8th of September, 1983, the tenant was asked to pay her the arrears of rent, taxes and electricity charges. The said notice was served on the defendant tenant on 10th of September, 1983. In spite of service of aforesaid notice, the tenant continued to deposit the rent in Misc. Case No. 38 of 1983 before the Munsif Court under Section 30 of the Act. By means of the subsequent notice dated 27th of January, 1984 again the arrears of rent was demanded. By means of the said notice tenancy was also terminated. In reply to the notice dated 27th of January, 1984, the tenant came forward with the case that he has already deposited the rent in the Misc. Case No. 38 of 1983 and therefore, there is no default. The case of the defendant tenant was that notice dated 8th of September, 1983 was never served on him. 4.
In reply to the notice dated 27th of January, 1984, the tenant came forward with the case that he has already deposited the rent in the Misc. Case No. 38 of 1983 and therefore, there is no default. The case of the defendant tenant was that notice dated 8th of September, 1983 was never served on him. 4. The trial Court decreed the suit for ejectment by the judgment and decree dated 16th of March, 1991 and granted a decree for recovery of arrears of rent from 8th of August, 1983 to 27th of February, 1984, damages etc. The said decree has been set aside in SCC revision No. 21 of 1991 by the impugned judgment dated 9th of August, 1994. The revisional Court found that service of notice dated 8.9.1983, paper No. 69-C has not been proved and therefore, the defendant tenant has not committed any default as the rent was deposited in Misc. Case No. 38 of 1983. Secondly, it was of the view that no notice of demand under Section 30 of the Act was given by the landlady, therefore, the deposit made by the tenant under Section 30 of the Act in Misc. Case No. 38 of 1983 is valid. 5. The contention of the learned Counsel for the petitioner is that the finding recorded by the revisional Court that notice dated 8.9.1983 was not served, is legally unsustainable as the said notice was sent by registered post and postal receipt is already on the record. Even if the acknowledgement receipt due has not been filed, there is a presumption of valid service under law, in respect of registered articles. He further submits that there is no requirement of giving notice under Section 30 of the Act. Elaborating the argument, he submits that no information or notice was served by the Munsif Court informing the landlady that the rent is being deposited under Section 30 of the Act by the tenant. In response, the learned Counsel for the tenant supports the impugned judgment. 6. The first question which requires consideration is whether the finding of the revisional Court that notice dated 8th of September, 1983 was not served is legally sustainable. The said notice was sent by registered post and the postal receipt is on the record, as noted by the trial Judge.
6. The first question which requires consideration is whether the finding of the revisional Court that notice dated 8th of September, 1983 was not served is legally sustainable. The said notice was sent by registered post and the postal receipt is on the record, as noted by the trial Judge. In this Court alongwith rejoinder affidavit, the petitioner has filed a copy of letter dated 3rd of December, 1983 addressed to the Postmaster, Head Post Office, Pilibhit, requesting him to intimate the date on which the registered letter was delivered to Shri Ram Naresh to whom a registered letter with acknowledgement due was sent on 8.9.1983 vide receipt No. 3787. The reply thereof has been given by the Assistant Post Master, Pilibhit. The said reply is dated 3rd of December, 1983 and is reproduced below:- “Certified that Pilibhit, H.O., RL No. 3787 Dated 8.9.83 was delivered to party on 10th of September, 1983.” Sd. Assistant Dak Pal 3.12.83.” 7. In this regard, the necessary averment has also been made by the petitioner in her plaint in para 5 thereof. The denial of the reeipt of such letter has been pleaded in defence. The trial Court found that the said letter dated 8.9.1983 was served on 10.9.1983. The revisional Court in absence of acknowledgement due in a very cursory manner without entering into any discussion, in one sentence, has observed that service of the notice dated 8.9.1983 is not proved, vide para 15 of the judgment. The said approach of the revisional Court, to say least, cannot be legally approved. It has totally overlooked the legal presumption which a registered letter carries regarding its service on the addressee. There is a presumption though rebuttal that a registered letter correctly addressed is presumed to be served on the addressee unless otherwise is proved. It is not in dispute that the notice was correctly addressed. The tenant in his deposition has admitted that his correct address is Ram Naresh son of Murari lal, resident of Mohalla Dori Lal, Pilibhit on which the notice dated 8.9.1983 was sent. Coupled with the fact that certificate issued by the Postal Department, the revisional Court committed illegality in observation that notice dated 8.9.1983 was not served on the tenant.
The tenant in his deposition has admitted that his correct address is Ram Naresh son of Murari lal, resident of Mohalla Dori Lal, Pilibhit on which the notice dated 8.9.1983 was sent. Coupled with the fact that certificate issued by the Postal Department, the revisional Court committed illegality in observation that notice dated 8.9.1983 was not served on the tenant. In this regard, the learned Counsel for the petitioner has placed reliance upon a judgment of Apex Court in AIR 1976 SC 869 , Puwada Venkateswara Rao v. Chidamana Venkata Ramana. 8. A Full Bench decision of this Court in AIR 1970 All 446 Ganga Ram v. Smt. Phoolwati has also taken the same view. 9. In this view of the matter, the finding of the revisional Court that notice dated 8.9.1983 was not served legally cannot be sustained. 10. The next ground for reversing the decree of the trial Court, taken by the revisional Court is that notice as required under Section 30 of the Act was not given by the landlady. Even if it is assumed that notice dated 8.9.1983 was served, “the landlady has not expressed willingness to accept the rent directly”, says the revisional Court. Therefore, the rent deposited under Section 30 of the U.P. Act No. 13 of 1972 is valid. Reliance has been placed on a judgment of this Court on Khacheru and others v. Jagdish Prasad and others, 1988 (2) ARC 159. 11. I have given careful consideration to the aforesaid submission. A copy of the said notice dated 8.9.1983 has been annexed as Annexure 1 to the writ petition. In the said notice it has been stated as follows : “Atah Apko Is Notice Ke Dwara Suchit Kiya Jata Hai Ki Ap Tameel Notice Se Ek Mah Ke Andar Samast Vazib Kiraya Va Tax Majkoor Ada Kar Den.” 12. The said notice on its true and proper construction signifies willingness of the landlady to accept the rent. However, the learned Counsel for the respondent contends that the said notice is a notice of demand and it does not fulfil the requirement of Section 30 (1) of the Act, as held by this Court in the case of Khacheru (supra).
The said notice on its true and proper construction signifies willingness of the landlady to accept the rent. However, the learned Counsel for the respondent contends that the said notice is a notice of demand and it does not fulfil the requirement of Section 30 (1) of the Act, as held by this Court in the case of Khacheru (supra). In the case of Khacheru (supra) this Court has held only this much that a landlord has to signify in writing his willingness and readiness to accept the rent and it is only then the tenant can be held to be defaulter, if he deposits rent and not otherwise. Notice was held invalid in that case on the peculiar facts of the case. 13. In that case there were several landlords and tenant was depositing rent under Section 7-C of the Old Act since long. In the case on hand the landlady is an individual. She was not made aware that the tenant is depositing the rent under Section 30 of the Act. Here the case in the Court below was that as a matter of fact no notice of deposit was ever served on her due to non deposit of the requisite amount i.e. process fees as envisaged under Rule 21 (3) and (5). The said plea was pressed before the trial Judge as well as before the revisional Court. But the revisional Court has refused to examine the said plea on the supposition that it was not pressed before the trial Court, which is not correct. 14. It is acknowledged legal position that a notice should be interpreted in a reasonable manner and not in a pedantic manner as held by the Privy Council in the case of Hari Har Banerjee v. Ramshashi Roy, AIR 1918 PC 102. A notice should not be read to pick holes and find fault with it. The aim of interpretation should be only to ascertain whether the person receiving the notice has understood the same. A liberal construction would always enable to do practical justice to the cause. 15. The revisional Court has proceeded on the assumption that an independent notice under Section 30 of the Act by a landlord signifying his willingness to accept the rent is contemplated. It is not so.
A liberal construction would always enable to do practical justice to the cause. 15. The revisional Court has proceeded on the assumption that an independent notice under Section 30 of the Act by a landlord signifying his willingness to accept the rent is contemplated. It is not so. In the notice under Section 106 of the Transfer of Property Act demanding arrears of rent, the willingness of landlord to accept the rent is implicit and explicit. 16. The petitioner’s Counsel has rightly placed reliance on Chotey Lal v. 14th Addl. District Judge, 1994 (1) ARC 289 wherein this Court has held that mere deposit of rent under Section 30 of the Act is not sufficient compliance. A tenant is required to take steps so that a notice about the deposit could have been served to the landlord. In subsequent deposits for continuation of depositing the amount of rent, a fresh application was not necessary but process fee and the notice in form ‘F was necessary and it is a mandatory requirement. 17. In view of the above discussion, the judgment of the revisional Court suffers with manifest error of law and cannot be sustained. The impugned judgment dated 9th of August, 1994 of the Court below is, therefore, set aside and the judgment and decree of the trial Court is restored. 18. The writ petition succeeds and is allowed with costs of Rs. 3,000/- (Rupees three thousand only). ————