Inder Mohan Singh vs Messrs Harnam Singh Gurjit Singh

D.K. Mahajan, J.—This second appeal is directed against the decision of the learned District Judge, Chandigarh reversing on appeal the decision of the trial Court decreeing the Plaintiff''s suit.

Plaintiff is the owner of the premises in dispute. The present suit was filed for eviction of the tenant The suit was resisted by the tenant on technical grounds. It was pleaded that the tenancy had not been validly terminated by notice dated 31st March, 1967, and that the Defendants were joint tenants of the Plaintiff and, therefore, notice to one tenant would not be notice to all.

On the pleadings of the parties, the following two issues were framed: -

Whether tenancy was validly terminated by notice dated 31st March, 1967 ?

Whether the Defendants are joint tenants of the Plaintiff ? If so, its effect ?

The trial Court found both the issues against the Defendants and decreed the suit. The lower appellate Court affirmed trial Court''s decision on the second issue but reversed it on the first issue. The appeal was allowed and the decision of the trial court was reversed and the suit was dismissed. The Plaintiff has therefore, come up in second appeal to this Court.

The contention of the learned Counsel for the Plaintiff is that the only ground on which he has been non suited is that the notice was not served on the brother of the Respondent at the residence of the brother tenant. It is not disputed that the notice was served on the brother of the Respondent at the shop rented by him and which is the subject matter of the present litigation. Relying on Harihar Banerji v. Ramshashi Roy AIR 1918 P.C. 102, the learned District Judge came to the conclusion that vicarious service in order to be effective has to be at the residence of the party to be served.

After hearing the learned Counsel for the parties, I am of the view that the decision of the learned District Judge cannot be sustainned. In the first place it has to be seen what meaning is to be assigned to the word ''residence'' u/s 106 of the Transfer of Property Act. ''Residence'' is a word of a very wide connotation. Its interpretation will depend in the context of each particular statute where it is used ; as to in what sense it had been used, namely whether it is merely used to denote a place where a person sleeps and eats or also a place where he normally and regularly carries on his profession or business. In other words, whether it will include business premises. The object of Section 106 of the Transfer of Property Act is to see that the notice under this provision reaches the person who is the tenant. Therefore it must go to a place where he normally will be found. The object of Section 106 is to serve him personally and only in a limited circumsta-nces vicarious service is deemed as personal service. If the object of the statutory provision is satisfied, there can be no objection to put a wider interrelation on the word ''residence''. For example, take the case of a person who rents out business premises to carry on the business of selling merchandise and is present everyday at the shop during the usual hours. A notice aldressed at his shop-address arid received by his brother would in my opinion, be sufficient seivice within the meaning of Section 106 because in this context, residence will very well include, his shop. It cannot be contemplated that the Legislature used the word ''residence'' in a restricted sense in action 106. I have referred to Stroud''s Judicial Dictionary to find out the connotation of the word ''residence'' and I find that the word ''residence'' has been interpreted in a variety of ways, and at No. 4, it is said that the word ''residence'' may also include a man''s business abode, the place where he is to be found daily. Therefore, I am clearly of the view that the service at the shop on the brother of the tenant would in fact be service on the tenant himself. I cannot conceive that the brother after receiving the registered notice did not pass it on to his brother, and in any event, the tenant did not production his brother to prove what be did with the notice which he received. The learned District Judge felt this difficulty and had to come to the conclusion that but for the use of the word ''residence'' in Section 1 6, he would have been driven to the conclusion that the notice was a valid notice. The only difficulty which he found was that it had not been delivered at the residence. According to the learned District Judge residence only meant a place where the tenant normally sleeps and eats. It was forgotten that in this country shop keepers normally have their afternoon meals at the business premises and he could have taken judicial notice of this fact. In my opinion, therefore, the notice was served on the brother of the tenant at the residence and the technical rule as to service land down in Section 106 has been complied with.

There is another way of looking at the matter. Section 106 interms doss not apply to Punjab and after the reorganisation of the Punjab it has not been made specifically applicable to Chandigarh by any notification issued by the Chief Commissioner. Therefore, it is only the general principles, underlying this provision that are applicable It as been repreatedly held that technical rules embodied in the provisions of the Transfer of Property Act do not apply to the places where the Act is not applicable, but the rules embodied in these provisions apply as rules of justice, equity and good conscience. So far as the service of the notice at the residence is concerned it is purely a technical rule. What is of substance is that notice should be served on the tenant. It will have to be determined on the facts and circumstances of each case whether it has been served on the tenant or not. It will of matter in what form or manner the service took places.

The facts, as I have already indicated, are quite eloquent. A notice was sent by registered post ; it was received by the brother and the brother has not been produced. It will not be unreasonable to assume that the notice was delivered by the brother to the tenant. It must, therefore, be held that there was effective and proper service on the tenant u/s 106 of the Act.

No other contention has been advanced.

For the reasons recorded above, I allow this appeal, set aside the judgment and decres of the learned District Judge and restore that of the trial court.

The learned Counsel for the tenant has made a prayer that he may be permitted a reasonable time to vacate the premises. I grant him three months''time, the tenant would be entitled to this time provided he deposits the monthly rent for this period in advance by 5th of each month. If the tenant is in arrears with regard to past rent he will pay the appears within one month from today. In case of noncompliance, the landlord will be entitled to take ejectment proceedings.

There would be no order as to costs.