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Madhya Pradesh High Court · body

2011 DIGILAW 1052 (MP)

Rajkamal v. Prabha Grover

2011-09-06

A.K.SHRIVASTAVA

body2011
JUDGMENT 1. The judgement passed in this second appeal shall also govern the disposal of the connected Second Appeal No. 245/1994 (Smt. Prabha Grover v. Shri Raj Kamal, Neel Kamal and Ashish Kamal), since both the appeals have arisen from the common impugned judgment and decree. 2. This is tenants second appeal who has lost from both the Courts below. 3. The facts necessary for disposal of this appeal lie in narrow compass. Suffice it is to say that more than 24 years ago on 17.8.1987 a suit on the relationship of landlord and tenant was filed by the plaintiff for eviction on the ground envisaged under section 12 (1 ) (a) and (d) of the M.P. Accommodation Control Act, 1961 (for brevity "Act). During the pendency of the suit and after expiry of one year from the date of purchase of the suit property, the plaintiff sought eviction also on the added ground of bond fide requirement to reside in the suit premises envisaged under section 12 (1) (e) of the Act. 4. The original defendant was Tilak Raj Bakshi, who had died during the pendency of this appeal and his legal representatives have been brought on record. 5. The defendant denied the plaint averments by filing written statement. During the pendency of the suit, since there were defaults in depositing the monthly rent, the learned trial Court struck off the defence of the defendant and that order attained finality. The learned trial Court decreed the suit only on the ground under section 12 (1) (a) and (e) but dismissed the suit on the ground under section 12 (1) (d) of the Act. 6. The defendant filed first appeal before the appellate Court which has been partly allowed as learned First Appellate Court did not find the ground under section 12 (1) (e) of the Act to be proved and dismissed the suit of the plaintiff on that ground, however, affirmed the judgment and decreed of eviction and arrears of rent passed by learned Trial Court under section 12 (1) (a) of the Act. 7. In this manner this second appeal has been filed by tenant and connected Second Appeal No. 245/1994 (Smt. Prabha Grover v. Shri Raj Kamal & Anr.) has been filed by landlord. 8. 7. In this manner this second appeal has been filed by tenant and connected Second Appeal No. 245/1994 (Smt. Prabha Grover v. Shri Raj Kamal & Anr.) has been filed by landlord. 8. This second appeal of tenant was admitted on 29.2.1996 on the following substantial question of law:- "Whether the Court-below rightly passed a decree u/S. 12(1)(a) of the M.P. Accommodation Control Act, 1961, when as per section 12 notice of demand was not served upon the appellant?" 9. The connected second appeal No. 245/1994 was admitted on 4.7.1995 on the following substantial question of law:- "Whether, in a case where a suit has already been filed for eviction on any of the grounds mentioned in section 12 of M.P.A.C. Act and in the plaint it is also mentioned that he will make proper amendment with regard to bonafide need after expiry of one year from the date of its purchase and if the period of one year elapses during the pendency of such suit and the landlord by amending the plaint take a new ground under Clause E of M.P.A.C. Act and can be passed on that ground." Regarding substantial question of law framed in tenant's appeal No.86/1994. 10. The contention of Shri Pranay Venna, learned counsel is that the demand notice which was sent to the appellant was returned with an endorsement that premises is found locked. Learned counsel has invited my attention to address mentioned on the notice and submitted that suit has not been filed by mentioning the said address of appellant in the plaint but an altogether different address has been shown in the plaint and therefore firstly he submits that because the demand notice was not served upon the appellant which was mandatory before passing a decree under section 12 (1) (a) of the Act and secondly the suit has been filed mentioning altogether different address of the defendant and therefore no decree under this ground can be passed. In support of his contention, learned counsel has placed reliance on a Single Bench decision of this Court Babulal and others v. Mahendra Swarup Sexena, 1983 JLJ 287 . 11. In support of his contention, learned counsel has placed reliance on a Single Bench decision of this Court Babulal and others v. Mahendra Swarup Sexena, 1983 JLJ 287 . 11. On the other hand Shri Agrawal, learned counsel submits that address which has been mentioned in the notice of demand of arrears is of the tenanted premises and therefore rightly the notice was forwarded and sent by registered AD post on that address and because the defendant-tenant is not residing in the suit premises as he has shifted to reside at another place, therefore, the suit was filed on the address which is given in the plaint where the tenant is residing. Hence, it has been putforth by learned counsel that merely because the premises was found locked, it shall be deemed that notice has been served and in this context my attention has been drawn to Rule 15 of the M.P. Accommodation Control Rules, 1966 (in short "Rules"). 12. Having heard learned counsel for the parties, I am of the view that this appeal of tenant deserves to be dismissed. Regarding substantial question of law framed in second appeal of tenant :- 13. On going through the draft of notice (Ex. P/6) which has been proved by plaintiff, this Court finds that the same was sent on 1.5.1997 by registered AD post on the tenanted premises. On the notice the following name of addressee and address is mentioned :- "Shri Talakraj Bakshi, H.No. 41/17. Gorakhpur, (Karecha Quarters), Jabalpur (M.P.)' The envelope containing the demand notice which sent by registered AD post in Ex. P/9 which is still pasted and it has been opened by me in the Court. On the envelope there is an endorsement of postman that "premises is found locked" and hence it was returned to its sender. Admittedly, the tenanted premises is the same on which the notice of demand of arrears of rent (Ex. P/9) was sent. On bare perusal of Rule 15 of the Rules this Court finds that mode of service of notice has been given and I would like to quote this rule which reads thus :- "15. Services of notice etc. Admittedly, the tenanted premises is the same on which the notice of demand of arrears of rent (Ex. P/9) was sent. On bare perusal of Rule 15 of the Rules this Court finds that mode of service of notice has been given and I would like to quote this rule which reads thus :- "15. Services of notice etc. -- Unless otherwise provided by the Act, any notice or intimation required or authorized by the Act to be served on any person shall be served:- (a) xxx xxx xxx (b) By forwarding it "to the person by registered "post" with acknowledgement due." 14. On bare perusal of the aforesaid Rule, this Court finds that a notice shall be deemed to be served if it is sent by forwarding it to the person by registered AD Post. Needless to say that Ex. P/9 has been sent by registered post with acknowledgement due. It is not the case of defendant that the address on which the said notice was sent is not the tenanted premises and therefore I am of the view that notice of demand of arrears of rent has been validly served upon the tenant. Since the defendant started living at different place, in the plaint by mentioning that address the suit was filed. The decision of Babulal (supra) placed reliance by learned counsel for appellants is not applicable in the present case because in that case it was held that address was not proper. However, in the present case on the proper address where the tenanted premises is situated, the notice was served. 15. At this juncture, I would like to place reliance on section 28 of the M.P. General Clauses Act, 1957 which throws sufficient light on the meaning of service by post and which reads thus :- 28. However, in the present case on the proper address where the tenanted premises is situated, the notice was served. 15. At this juncture, I would like to place reliance on section 28 of the M.P. General Clauses Act, 1957 which throws sufficient light on the meaning of service by post and which reads thus :- 28. Meaning of service by post -- Where any Madhya Pradesh Act authorises or requires any document to be served by post, whether the expression "serve" or either of the expressions "give" or "send" or any other expression is used, then unless a different intention appears, the service shall be deemed to be effected by properly addressing, preparing and posting by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post." Under this provision also, the service shall be deemed to be effected if the same has been sent on proper address by registered post. Since Ex. P/9 has been sent by registered AD post on the tenanted premises and when it is not the case of tenant-defendant that the address on which said notice was sent was not proper, it shall be deemed that notice was served in terms of Rule 15 of the Rules. 16. The substantial question of law is thus answered that the notice of demand as required under section 12 of the Act was served on the tenant. Admittedly the defence of the defendant has been struck off as he did not deposit the rent in the trial Court as envisaged under section 13 of the Act and hence a decree of eviction under section 12 (1) (a) was rightly passed by learned trial Court and affirmed by learned First Appellate Court. 17. So far as the substantial question of law which has been framed in the appeal of landlord is concerned, since appeal of tenant is being dismissed it is not necessary to answer the substantial question of law of that appeal because the eviction decree has been upheld. 18. For the reasons stated hereinabove this appeal of tenant fails and is hereby dismissed. 19. At this juncture Shri Pranay Verma, learned counsel for appellants seeks some breathing time to vacate the suit premises, although, this prayer has been vigorously opposed by learned counsel for landlord. 18. For the reasons stated hereinabove this appeal of tenant fails and is hereby dismissed. 19. At this juncture Shri Pranay Verma, learned counsel for appellants seeks some breathing time to vacate the suit premises, although, this prayer has been vigorously opposed by learned counsel for landlord. On going through the record of the learned trial Court this Court finds that appellants are using the tenanted premises for years together, therefore, time to vacate the suit premises is granted. The appellants shall vacate the suit premises on or before 31.3.2012 on the following terms and conditions :- "(i) The appellants shall deposit the entire amount of rent, if any due, in the trial Court on or before 31.10.2011; (ii) The cost of learned two Courts below be also deposited on or before 31.10.2011 ; (iii) The appellants shall continue to deposit the monthly rent in terms of section 13 of the Act; (iv) The appellants shall not create any third party interest in the suit premises; and (v) a usual undertaking of aforesaid conditions be submitted in the trial Court/Executing Court on or before 31.10.2011. However, it is made clear that if any the conditions which are mentioned herein-above is violated by the appellants, the respondent-landlord shall be tree to execute the decree even prior to 31.3.2012. 20. Resultantly, this appeal fails and is hereby dismissed with costs. Counsel fee Rs.4000/-, if pre-certified. 21. S.A. No. 245/1994 filed by landlord is also accordingly disposed of since this appeal of tenant is dismissed. Pranay Verma for appellants; Sushil Agrawal for respondent.