Mumtaz Khan vs Bhanwar Lal

Dr. Vineet Kothari, J.—The appellant-defendant-tenant has filed the present second appeal before this Court under Section 100 of CPC on 09.12.2010 being aggrieved by the concurrent decree of eviction dated 08.04.2008 granted by the learned Trial Court of Civil Judge (Senior Division), Bhadra in Civil Original Suit No. 52/2004- "Bhanwar Lal v. Mumtaz Khan", which judgment and decree has also been upheld by the learned First Appellate Court below of Additional District Judge, Bhadra, District Hanumangarh vide the judgment and decree dated 30.10.2010, while dismissing the appeal filed by the defendant-tenant being Civil Appeal No. 3/2008 - "Mumtaz Khan v. Bhanwar Lal."

The respondent-plaintiff-landlord came with a case before the learned Trial Court that the suit premises in question viz. a shop situated in front of Krishna Talkies at Town Bhadra, was given on rent to the appellant-defendant in the year 1996, the monthly rent of the suit shop was Rs. 1,000/- per month and with effect from 02.10.1996, the rent was agreed to be increased by 20% per year. It was further averred by the plaintiff that he sent a notice dated 10.11.2003 by registered AD post to the appellant-defendant terminating the lease under Section 106 of the Transfer of Property Act with effect from 01.12.2003 but the said notice returned back with the postal remark that the "unclaimed". The suit was thus filed on 26.04.2004 seeking ejectment of the defendant-tenant and claiming arrears of rent. Both the learned courts below have concurrently granted decree of eviction against the defendant-appellant, against which the present appeal has been filed by the defendant-tenant.

The relevant portion of the discussion made by the learned Trial Court, while decreeing the suit of the plaintiff, vide its judgment and decree dated 08.04.2008, is quoted herein below for ready reference:--

The relevant portion of the discussion made by the learned First Appellate Court, while dismissing the appeal of the defendant and affirming the judgment and decree dated 08.04.2008, vide its judgment and decree dated 30.10.2010, is quoted herein below for ready reference:--

The present second appeal filed by the defendant-tenant was admitted for consideration by this Court on 26.04.2011 and the following substantial questions of law were framed, which are quoted herein below for ready reference:

"(i) Whether two courts below were justified in decreeing the plaintiff''s suit for eviction against the appellant in respect of the suit accommodation?

(ii) Whether two courts below were justified in holding that notice dated 10.11.2003 given by plaintiff i.e. lessor to defendant (tenant) i.e. lessee under Sec. 106 of the Transfer of Property Act rightly determined the monthly tenancy as provided by Sec. 106 ibid thereby entitling the plaintiff to claim eviction of the appellant on such determination from the suit accommodation ?

(iii) Whether two courts below were justified in holding that notice sent to the defendant (lessee) returned with an endorsement "unclaimed" tantamount to valid service of the notice on the defendant within the meaning of Sec. 106 ibid and thereby it resulted in determination of the month to month tenancy of the defendant for claiming his eviction from the suit accommodation ?"

The learned counsel Mr. Bheemkant Vyas with Ms. Preety Keshwani, urged following contentions on behalf of the defendant-tenant: -

"(i). that the case is not covered by the Rajasthan Premises (Control of rent and Eviction) Act, 1950, but the case is covered by the Transfer of Property Act. The tenancy was terminated by the landlord (Lessor) under the notice dated 10.11.2003, which was only sent by registered AD post to the defendant-tenant, Mumtaz Khan, however, the said notice was returned back with the postal remark that the "unclaimed". The learned counsel Mr. Bheemkant Vyas submitted that under the amended provisions of Section 106 of the Transfer of Property Act, the "receipt" of the notice by the defendant-tenant is important and unless the notice is actually served upon him, the same cannot be treated as served with the aforesaid postal remark; and consequently, the courts below have erred in decreeing the suit for eviction. The learned counsel submitted that in the present case the notice dated 10.11.2003 sent by the lessor (landlord) to the lessee (tenant) was actually not received by the lessee, therefore, it could not be said that the tenancy of the lessee was validly terminated. He further submitted that the notice dated 10.11.2003 was returned back with the endorsement "unclaimed". The learned counsel further submitted that the appellant-defendant-tenant (lessee) has gone out of India, i.e., to Nepal during the period in question and he remained in Nepal for three months and, therefore, both the learned Courts below have erred in granting decree of eviction and the same is liable to be reserved and the substantial questions of law, as quoted herein above, deserve to be answered in favour of the appellant (lessee). In support of his contentions, he relied upon following case laws:

Shiv Dutt Singh Vs. Ram Dass, AIR 1980 All 280 .

K. Bhaskaran Vs. Sankaran Vaidhyan Balan and Another, AIR 1999 SC 3762 : (2005) 3 BC 158 : (2000) 99 CompCas 268 : (1999) CriLJ 4606 : (1999) 3 Crimes 212 : (1999) 3 CTC 358 : (1999) 7 JT 558 : (2000) 124 PLR 113 : (1999) 6 SCALE 272 : (1999) 7 SCC 510 : (1999) 3 SCR 271 Supp : (1999) 2 UJ 1529 : (1999) AIRSCW 3809 : (1999) 8 Supreme 608 "

On the other hand, the learned counsel Dr. A.A. Bhansali appearing for the respondent-plaintiff (landlord) has duly supported the decree of eviction granted by the two Courts below in favour of the lessor. The learned counsel further submitted relied upon a decision of this Court in the case of Om Prakash v. LRs of Dev Raj (CSA No. 857/2011), decided on 14.08.2012 and submitted that the notice dated 10.11.2003 sent by the lessor to the lessee at his correct address, therefore, the service of notice should be deemed to have been properly effected and the decree of eviction granted by the two Courts below deserves to be upheld. It is also informed that the lessee has not been carrying on any business in the suit shop for last so many years.

Having heard the learned counsels for the parties, this Court is satisfied that the present appeal of the defendant-tenant (lessee) deserves to be dismissed and the substantial questions of law deserve to be answered in favour of the respondent-landlord (lessee). In the present case, it is noticed 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 "unclaimed", it cannot be said that the notice was not properly served. This Court in the case of Om Prakash v. LRs of Dev Raj (supra) has dealt with a decision of Hon''ble Supreme Court in the case of M/s. Madan and Co. Vs. Wazir Jaivir Chand, AIR 1989 SC 630 : (1988) 4 JT 520 : (1988) 2 SCALE 1408 : (1989) 1 SCC 264 : (1988) 3 SCR 983 Supp : (1989) 1 UJ 98 . The relevant Para/s 6 and 7 of which are quoted herein below for ready reference:

"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 Cl. (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. 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. 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.

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."

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 subsection (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."

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.

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. 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.

Essentially, it remains a finding of fact that whether the notice in question terminating the lease was properly served or not, and the findings arrived at in the present case by the courts below, are not perverse in any manner. But, on the contrary, the same are perfectly in accord with the law laid down by the Hon''ble Apex Court in the case of M/s. Madan and Co. (supra).

The judgment relied upon by the learned counsel for the appellant-defendant-tenant about the "receipt" of notice in the case of K. Bhaskaran v. Sankaran Vaidhyan Balan and Anr. (supra) does not render any help to the tenant, as the case was dealing with the provisions of Negotiable Instruments Act, 1881 and, therefore, the same is not applicable to the facts of the present case.

Accordingly, the present second appeal filed by the appellant-defendant-tenant-Mumtaz Khan S/o Sadule Khan is dismissed. The substantial questions of law are answered in favour of the respondent-plaintiff-landlord and against the appellant-defendant-tenant. No orders as to costs. A copy of this judgment may be sent to both Courts below and both the parties concerned forthwith.

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 30.09.2015 and shall pay mesne profit @ Rs. 2,000/- per month commencing from the month of May, 2015 and will further continue to pay the mesne profits each month by 15th day of the next succeeding month or in advance to the respondents-plaintiffs till the vacant possession is handed over to the plaintiffs-respondents and in case there is any default in payment of mesne profit, the period of six 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 any one 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. 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 six months from today, besides execution of the decree in normal course, the respondents-plaintiffs shall also be entitled to invoke the contempt jurisdiction of this Court. Copy of this judgment be sent to the courts below and parties concerned forthwith.