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2019 DIGILAW 2454 (RAJ)

Murli Joshi v. Radhi Devi

2019-09-12

GOVERDHAN BARDHAR

body2019
JUDGMENT Goverdhan Bardhar, J. - The present first appeal under Section 96 CPC has been filed by the appellant-tenant against the judgment and decree dated 17.12.2013 passed by the learned Additional District Judge, Phalodi, District Jodhpur in Civil Suit No. 01/2011 titled as Smt. Radhi Devi vs. Murli Joshi whereby the learned Judge has decreed the suit for eviction, recovery of arrears of rent and mesne profit. 2. Brief facts of the case are that the respondent-landlord filed a suit against the appellant-tenant for eviction, recovery of arrears of rent in the sum of Rs. 55,400/- and for mesne profit before the learned Additional District Judge, Phalodi, District Jodhpur inter-alia stating therein that she is landlord of shop No. 4 & 10 detailed in para-1 of the suit which were given on rent to the appellant-tenant @ Rs. 1,700/- per month. The appellant-tenant is not running business in the said shops for last one year, therefore, respondent-landlord sought to evict the appellant-tenant from the said shops and for this purpose, she sent a notice dated 05.10.2010 through the registered post and through U.P.C. at the shop of the appellant-tenant and at his residential address, terminating the tenancy of the appellant-tenant from midnight of 31.10.2010. A total rent of Rs. 54,400/- of the aforesaid shops for the period from 01.03.2008 to 31.10.2010 i.e. total 32 months is also due against the appellant-tenant and after termination of tenancy of the appellant-tenant from midnight of 31.10.2010, the appellant-tenant was a trespasser in the aforesaid shops. The respondent-landlord also prayed for mesne profit @ of Rs. 5,000/- per month. 3. Upon service of notice, the appellant-tenant filed his written statement to the suit and denied the averments made therein. It was pleaded that he is not a trespasser in the shops and he is a tenant in the said shop, therefore, prayed for dismissal of the suit. 4. On the basis of the pleading of the parties, the learned trial court framed four issues including the issue of relief. Thereafter the oral as well as documentary evidence of the parties were recorded. 5. After hearing the parties, the learned trial court decreed the suit in favour of the respondent-landlord vide its judgment and decree dated 17.12.2013. 6. 4. On the basis of the pleading of the parties, the learned trial court framed four issues including the issue of relief. Thereafter the oral as well as documentary evidence of the parties were recorded. 5. After hearing the parties, the learned trial court decreed the suit in favour of the respondent-landlord vide its judgment and decree dated 17.12.2013. 6. Learned counsel for the appellant-tenant argued that it was the specific plea of the appellant-tenant that he has not received any notice terminating his tenancy for the aforesaid shops. The postman has not been examined, therefore the presumption of the refusal to accept the notice, as allegedly endorsed on the notice cannot be drawn. The trial court has erroneously held that the presumption is not rebutted by specific denial. In support of his case, the counsel for the appellant-tenant submitted that in the absence of examination of the postman, it was not permissible to draw an inference of refusal to accept notice. It was further pointed out that notice is purported to have been signed by the counsel and not by the respondent-landlord. Notice under Section 106 of Transfer of Property Act, 1882 (hereinafter shall be referred as "Act of 1882") is mandatory in law and the onus is on the landlord to plead and prove it. There was no service of notice to quit in accordance with Section 106 of the Act of 1882. The respondent-landlord failed to prove arrears of rent also. Counsel further argued that Section 106 of Act of 1882 lays down the requirement of a valid notice to terminate the tenancy, it must be in writing, signed by the person sending it and be duly delivered. Admittedly the validity of the notice itself is under challenge, therefore, the learned trial court has committed an error in decreeing the suit in favour of the respondent plaintiff. In support of his contentions, counsel has relied upon the judgment of the Hon'ble Supreme Court delivered in the case of A. Rama Rao & Ors. vs. Raghunath Patnaik & Ors., AIR 2007 SC 3036 , Park Street Properties (Pvt.) Ltd. (M/s.) vs. Dipak Kumar Singh & Anr., (2017) 1 CJ (Civ.) (SC) 167, Manakarani Hazra & Ors. vs. Mohinder Singh Jaggi & Anr., AIR 1968 ORISSA 113 . 7. Per contra, counsel for the respondent-landlord argued that the appellant-tenant evaded to receive the notice. vs. Raghunath Patnaik & Ors., AIR 2007 SC 3036 , Park Street Properties (Pvt.) Ltd. (M/s.) vs. Dipak Kumar Singh & Anr., (2017) 1 CJ (Civ.) (SC) 167, Manakarani Hazra & Ors. vs. Mohinder Singh Jaggi & Anr., AIR 1968 ORISSA 113 . 7. Per contra, counsel for the respondent-landlord argued that the appellant-tenant evaded to receive the notice. In paragraph 2 of the plaint there is specific averment regarding sending of notice to the appellant-tenant through post. Counsel further submits that statutory notice about the correctness of the postman endorsement has been rightly held to be applicable by the court below. In support of his contentions, counsel has relied upon the judgment of the Madras High Court in the case of P. Bala Subramanian vs. S.K. Kolandasamy, Criminal Revision Case No. 733/2010 decided on 24.04.2015. 8. Heard the learned counsel for the parties and perused the impugned judgment and decree dated 17.12.2013 passed by the learned trial court and perused the case law cited before me. 9. Admittedly in this case, relationship of landlord-tenant is not in dispute. In para 2 of the plaint, the respondent-landlord specifically averred that a notice for terminating the tenancy of the appellant-tenant in respect of shop Nos. 4 & 10 was sent through registered post on 05.10.2010. In para-2, it was also stated that the respondent-landlord terminated the tenancy of the appellant-tenant and claimed arrears of rent of Rs. 54,400/- due from 01.03.2008 to 31.10.2010 i.e. total 32 months @ Rs. 1,700/- per month and further stated that in the notice it was also made clear that from midnight 31.10.2010 the possession of the appellant-tenant in the shops in question shall be treated as trespasser. Acknowledgment is attached with the endorsement of refusal. Thus, the respondent-landlord has discharged her onus. The respondent-landlord clearly deposed that notice to quit has been served on the appellant-tenant. 10. PW-1 Smt. Radhi Devi W/o. Late Shri Chaturbhu deposed that vide notice dated 05.10.2010 the tenancy of the appellant-tenant was terminated and in cross-examination she deposed that the notice (Ex-1) was sent on the address of shop and address of house of the appellant-tenant. The original envelope could not be delivered and returned with the endorsement of refusal to accept. The notices are Ex-2 & Ex-3. Postal receipts are Ex-4 and Ex-5. The original envelope could not be delivered and returned with the endorsement of refusal to accept. The notices are Ex-2 & Ex-3. Postal receipts are Ex-4 and Ex-5. The appellant-tenant appeared in the witnesses box and examined himself as DW-1 and in his cross-examination he admitted that Ex-P/2 and Ex-P/3 are envelopes and on the address mentioned on the envelopes, he get his postal mails. 11. It is settled position of law that before an application for eviction is filed, the landlord is bound to serve a notice to quit the tenancy under Section 106 of the Act of 1882. The moment such a notice is served, the tenant would come forward with a further payment or tender of the entire rent due before the expiry of the period in the notice. That apart, the arrears of rent do not lose their character merely because a decree has been passed in respect thereof. 12. In the present case, it relevant to note that the landlord has sent the notice under Section 106 of the Transfer of Property Act, terminating the tenancy of the lessee at his correct address and merely the same was returned back with the endorsement "refused to accept", it cannot be said that the notice was not properly served. Hon'ble Supreme Court in the case of M/s. Madan & Co. vs. Wazir Jaivir Chand reported in, AIR 1989 SC 630 while considering this aspect of matter has held as under: "6. We are of the opinion that the conclusions arrived at by the courts below is correct and should be upheld. It is true that the proviso to C1. (i) of S. 11(1) and the proviso to S. 12(3) are intended for the protection of the tenant. Nevertheless it will be easy to see that too strict and literal a compliance of their language would be impractical and unworkable. The proviso insists that before any amount of rent can be said to be in arrears, a notice has to be served through post. All that a landlord can to comply with this provision is to post a prepaid registered letter (acknowledgment due or otherwise) containing the tenant's correct address. Once he does this and the letter is delivered to the post office, he has no control over it. It is then presumed to have been delivered to the addressee under S. 27 of the General Clauses Act. Once he does this and the letter is delivered to the post office, he has no control over it. It is then presumed to have been delivered to the addressee under S. 27 of the General Clauses Act. Under the rules of the post office, the letter is to be delivered to the addressee or a person authorised by him. Such a person may either accept the letter or decline to accept it. In either case, there is no difficulty, for the acceptance or refusal can be treated as a service on, and receipt by, the addressee. The difficulty is where the postman calls at the address mentioned and is unable to contact the addressee or a person authorised to receive the letter. All that he can then do is to return it to the sender. The Indian Post Office Rules do not prescribe any detailed procedure regarding the delivery of such registered letters. When the postman is unable to deliver it on his first visit, the general practice is for the postman to attempt to deliver it on the next one or two days also before returning it to the sender. However, he has neither the power nor the time to make enquiries regarding the whereabouts of the addressee; he is not expected to detain the letter until the addressee chooses to return and accept it; and he is not authorised to affix the letter on the premises because of the assessee's absence. His responsibilities cannot, therefore, be equated to those of a process service entrusted with the responsibilities of serving the summons of a Court under O. V of the C.P.C. The statutory provision has to be interpreted in the context of this difficulty and in the light of the very limited role that the post office can play in such a task. If we interpret the provision as requiring that the letter must have been actually delivered to the addressee, we would be virtually rendering it a dead letter. The letter cannot be served where, as in this case, the tenant is away from the premises for some considerable time. Also, as addressee can easily avoid receiving the letter addressed to him without specifically refusing to receive it. He can so manipulate matters that it gets returned to the sender with vague endorsements such as "not found", "not in station", "addressee has left" and so on. Also, as addressee can easily avoid receiving the letter addressed to him without specifically refusing to receive it. He can so manipulate matters that it gets returned to the sender with vague endorsements such as "not found", "not in station", "addressee has left" and so on. It is suggested that a landlord, knowing that the tenant is away from station for some reasons, could go through the motions of posting a letter to him which he knows will not be served. Such a possibility cannot be excluded. But, as against this, if a registered letter addressed to a person at his residential address does not get served in the normal course and is returned, it can only be attributed to the addressee's own conduct. If he is staying in the premises, there is no reason why it should not be served on him. If he is compelled to be away for some time, all that he has to do is to leave necessary instructions with the postal authorities either to detain the letters addressed to him for some time until he returns or to forward them to the address where he has gone, or to deliver them to some other person authorised by him. In this situation, we have to chose the more reasonable, effective, equitable and practical interpretation and that would be to read the word "served" as "sent by post", correctly and properly addressed to the tenant, and the word "receipt" as the tender of the letter by the postal peon at the address mentioned in the letter. No other, interpretation, we think, will fit the situation as it is simply not possible for a landlord to ensure that a registered letter sent by him it gets served on, or is received by, the tenant. 7. Much emphasis has been placed by the Courts below and counsel for the landlord on the attempt made by the landlord to serve the notice on the premises in the presence of the witnesses. 7. Much emphasis has been placed by the Courts below and counsel for the landlord on the attempt made by the landlord to serve the notice on the premises in the presence of the witnesses. While the counsel for the landlord would have it that the steps show the landlords bona fides, counsel for the tenant submits that the haste with which the 'substituted service' was effected and the lack of any real attempt to find out the whereabouts of the tenant (who had, according to him been compelled to be away at Amritsar for medical treatment) throw considerable doubts on the claim of bona fides. We do not think that any statutory significance can at all be attached to the service by affixture claimed to have been effected by the landlord. The statute prescribes only one method of service for the notice and none other. If, as we have held, the despatch of the notice by registered post was sufficient compliance with this requirement, the landlord has fulfilled it. But, if that is not so, it is no compliance with the statute for the landlord to say that he has served the notice by some other method. To require any such service to be effected over and above the postal service would be to travel outside the statute. Where the statute does not specify any such additional or alternative mode of service, there can be no warrant for importing into the statute a method of service on the lines of the provisions of the C.P.C. We would therefore not like to hold that a "substituted" service, such as the one effected by the landlord in the present case, is a necessary or permissible requirement of the statute. It may be even an impracticable, if not impossible, requirement to expect some such service to be effected in cases where the landlord lives outside the town, or the State in which the premises are situated. If, in the present case, the landlord attempted such service because he was in the same town, that can only show his bona fides and it is only in this view that we proceed to express our findings in this regard." 13. Section 106 of the Transfer of Property Act. Section 106 of the Transfer of Property Act is quoted below for ready reference: "Section. 106. Section 106 of the Transfer of Property Act. Section 106 of the Transfer of Property Act is quoted below for ready reference: "Section. 106. Duration of certain leases in absence of written contract or local usages:- (1) In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purpose shall be deemed to be a lease from year to year, terminable, on part of either lessor or lessee, by six months' notice; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days' notice. (2) Notwithstanding anything contained in any other law for the time being in force, the period mentioned in sub-section (1) shall commence from the date of receipt of notice. (3) A notice under sub-section (1) shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under that sub-section, where a suit or proceeding is filed after the expiry of the period mentioned in that sub-section. (4) Every notice under sub-section (1) must be in writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property." 14. Sub-section (4) of Section 106 of the Transfer of Property Act envisages four modes of service terminating the lease under sub-clause (1)(i) notice must be in writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it, or (ii) notice must be tendered or delivered personally to such party, or (iii) it should be offered to any member of his family or servants at his residence, or (iv)- if such tender or delivery is not practicable, notice may be affixed to a conspicuous part of the property. 15. 15. The co-ordinate Bench of this Court in the case of Mumtaz Khan vs. Bhanwar lal reported in, (2015) 3 RLW 2302 (Raj.) while considering the judgment rendered by Hon'ble Supreme Court in the case of M/s. Madan & Co. (Supra) has held as under:- "11. The word 'or' in these four different parts of sub-Section (4) of Section 106 of the T.P. Act makes these modes of service mutually exclusive and not dependent or connected with each other. In the present case, since the envelope of registered post containing such notice was admittedly tendered by the postman at the correctly given address, which address, the defendant himself during the course of evidence, has admitted that given address on notice was the correct address and he usually received his posts/"Dak" at this address, the Courts below, therefore, cannot be said to be at fault in drawing the presumption of service/receipt of the notice by the defendant-tenant in view of aforesaid postal remark. The Hon'ble Apex Court clearly held in para 6, quoted above, that the postman is not expected to act as a process server and is not expected to do what process server does under O. V of CPC, and go to the extent of affixture of the notice or, either to find out the whereabouts of the addressee, or wait for his return, if not found available at that time when such post is tendered for service. The burden of proving the Issue No. 2 in this regard was laid on the defendant-tenant, and upon the perusal of his statements, it does not even indicate that either he was permanently out from the said address or none of his family members or servants were available at the address given at that time. The provision of sub-Section (4) of Section 106 of the T.P. Act, speaks about service even on family members or servant at his residence. It is not the case of the defendant-tenant that he was not running some business at the given address and, therefore, it cannot be said that nobody was present at that time to take the notice. The defendant-tenant can hardly take advantage of the aforesaid postal remark written on the envelope that he was not found available at the given moment. The defendant-tenant can hardly take advantage of the aforesaid postal remark written on the envelope that he was not found available at the given moment. Mere tender of notice at his given address was thus sufficient to presume the "receipt" of the same or service of the same on the defendant-tenant." 16. The respondent-landlord has specifically pleaded about the refusal by the tenant to accept the valid notice to terminate the tenancy. Notice (Ex-2) can be sent by the person sending it or through the counsel for the respondent-landlord. 17. In view of the aforesaid discussion, the present first appeal being without merit is hereby dismissed. No orders as to costs. 18. The appellant-defendant-tenant shall hand over the peaceful and vacant possession of the suit premises to the respondent-plaintiff (landlord) within a period of five months from today, i.e., on or before 13.02.2020 and shall pay mesne profit @ Rs. 2,000/- per month commencing from the month of October, 2019 and will further continue to pay the mesne profits each month by 15th day of the next succeeding month or in advance to the respondent-plaintiff till the vacant possession is handed over to the plaintiff-respondent and in case there is any default in payment of mesne profit, the period of five months for eviction shall stand reduced and the decree of eviction would become executable forthwith. The appellant-tenant shall also clear all the arrears of the rent or mesne profit within three months from today, otherwise the amount shall bear interest @ 9% and executing Court may quantify such amount and recover the same as a money decree. The defendant-tenant shall also not sub-let, assign or part with the possession of the suit premises or any part thereof in favour of anyone else and would not create any third party interest in the same during the aforesaid period and the same would be treated as void. The appellant-defendant shall furnish a written undertaking incorporating the aforesaid conditions in the trial court within one month and one copy thereof along with affidavit, in this Court. The appellant-defendant shall furnish a written undertaking incorporating the aforesaid conditions in the trial court within one month and one copy thereof along with affidavit, in this Court. It is made clear that if the peaceful and vacant possession of the suit shop is not handed over or rent or mesne profits are not paid to the respondent-plaintiff/landlord within a period of five months from today, besides execution of the decree in normal course, the respondent-plaintiff shall also be entitled to invoke the contempt jurisdiction of this Court. Copy of this judgment be sent to the court below and parties concerned forthwith.