Om Prakash Kaptiyal And Others vs R.K. Mensal

Sharad Kumar Sharma, J

The petitioners before this Court are the landlords of the tenement, more appropriately defined at the foot of the plaint as constituting to be a house

situated at Patel Marg, Kotdwar Garhwal, Nagar Palika Parishad Pauri Garhwal. The retirement constituted of one room, one latrine, one bathroom, a

kitchen carrying a rent of Rs. 187 per month, plus water and civil taxes. The chauhaddi of the property under the tenancy too has been described at

the foot of the plaint.

-

-

-

- “

The case of the petitioner is that prior to the institution of the proceedings by way of SCC Suit No. 3 of 1998, the respondent who was inducted as a

tenant defaulted in remittance of rent and was liable to pay the defaulted rent @ Rs.187 p.m., which he committed default w.e.f. November, 1995 till

September, 1997, as such, it is the case of the landlord that he has sent a registered legal notice on 20.10.1997 through his counsel invoking Section

106 of the Transfer of the Property Act, raising demand for the remittance of the rent for the defaulted period from November, 1995 to September,

1997, totalling Rs.4,301/-within period of 30 days. It is a specific case of the petitioners that registered notice under Section 106 of Transfer of

Property Act was refused to be accepted by the tenant and an endorsement to the said effect finds place on the envelope of the notice made by the

Process Server on 22nd October, 1997 (copy of envelope bearing an endorsement of refusal is annexed as Annexure 2 to the Writ Petition), the same

was send back to the sender.

The contention of the learned counsel for the petitioner is that when despite of the expiry of the period as provided in the notice, tenement was not

vacated and peaceful possession was not handed over, the petitioner had to file the suit for recovery of arrears of rent, damages and eviction from the

property. In the plaint the petitioner has taken a specific plea in paragraph 5 and 8 that, registered notice dated 20.10.1997 would be deemed to be

served by refusal, since the condition of notice was not complied within stipulated time hence the Suit.

22.10.97

() 22.10.97

22.10.97

1995 -

22.10.97 22.10.97

30

On institution of the proceedings of the SCC suit, admittedly, the notices were issued by the Court, which was served on the respondent and,

consequent thereto, to the service of the notice, the respondent had put in appearance and filed her written statement on 4th March, 1999. Tenant

respondent in the Writ Petition pleaded that earlier the landlord has instituted PA Case No. 25 of 1992; under Section 21(1)(a) of Act No. 13 of 1972,

showing his bonafide need, but landlord failed in those proceedings. Respondent further submitted that the landlord had earlier issued notice under

Section 106 on 08.09.1993 for eviction of the tenement. Thereafter landlord instituted Case No. 01 of 1993-94, but the landlord failed in those

proceedings too. Tenant’s case is that landlord had issued a third notice on 11.04.1994. In paragraph 17 of Writ Petition respondent admitted to

have defaulted in payment of rent for two months only.

During the course of the proceedings of the suit, the principal landlord Daulat Ram met with the sad demise, his heirs were substituted, his son now

petitioner number one have in the petition appeared in the witness box and recorded his statement as PW1 on 16th October, 1999. The respondent had

appeared and recorded her statement as DW1 and she gave her sole testimony in support of her contention raised in the written statement. The

learned Judge Small Cause Courts, while considering the rival pleadings raised between the parties, has recorded his findings on two points of

determination, firstly :

(i) as to whether the respondent had committed a default in remittance of rent w.e.f. November, 1995 to September, 1997 and;

Secondly, whether the notice was properly served on the respondent tenant or not, and its effect on the proceedings.

In support of his contention petitioner no. 1 appeared in the witness box and recorded his statement, and reiterated the stand regarding notice dated

20.10.1997 and its refusal by tenant by endorsement of process server dated 22.10.1997. There was specific statement recorded that on first date of

hearing, no rent as claimed in notice or in the plaint, was paid by the respondent in compliance of provisions under Section 20 (4) of the Act No. 13 of

1972.

The Judge Small Causes Court on considering the rival contention and taking into consideration the fact that the notice sent on 20th October, 1997 was

received back with refusal to accept on 22nd October, 1997, held that since it is the service by the refusal under law, it would be deemed to be

sufficiently served, accordingly, the issue was decided against respondent tenant. One of plea raised by respondent before Judge Small Causes was

that there is some interpolation in the date mentioned on the envelope with regard to the date of service of notice, plead that plaintiff had made the

interpolation in the date of service of notice. Court declined to accept the said defense of the tenant on the ground that if the tenant had gathered the

knowledge of interpolation after appearance in the Suit and if she alleges interpolation burden to prove the same shifts on him he ought to have

summoned the postman for this examination, but no such steps was taken by her. Tenants plea regard, effect of under Section 20(2)(a) of U.P. Act

No. 13 of 1972, regard default to be of minimum period of four months.

A specific finding has been recorded by Trial Court that the conditions of under Section 20(4) and Order 15 Rule 5 was not complied with as no

deposit was made on the fist date of hearing, this fact of having not deposited the amount was admitted by her in her cross-examination. Hence tenant

respondent legally has lost her right of defense.

.. ...

With regard to the arrears, the Court has recorded a finding that the respondent did committed a default and, accordingly, decreed the suit by the

judgment dated 5th August, 2002, directing eviction from the tenement, in question and the remittance of arrears of rent as determined by the Court.

Being aggrieved against the said order, the respondent / tenant has preferred a Revision under Section 25 of the Provincial Small Cause Courts Act,

which was numbered as Revision No. 1 of 2003. In the Memorandum of Revision, the respondent primarily had taken a ground pertaining to the effect

of non service of the notice under Section 106 of the Transfer of the Property Act. The relevant grounds taken read as under:-

20 (2) 0 106

/ 1997

37

20/10/97

1995 1997 30 ,

/ 22/10/97 “

He has also taken a ground that as a matter of fact the finding with regard to default in remittance of rent w.e.f. November 1995 to September 1997,

has not been rightly recorded for the reason that he has continuously been remitting the rent till November, 1997 and, hence, as a matter of fact, there

happens to be no fault, thus tenancy cannot be terminated by notice under Section 106 of Transfer of Property Act. The Revisional Court, by virtue of

the impugned order, had allowed the Revision vide its judgment dated 20th April, 2009 and, thereby, set aside the judgment of the Judge Small Cause

Courts dated 5th August, 2002 and allowed the Revision. It is this order, which has been put to challenge by the landlord in the instant writ petition.

The argument as extended by the learned counsel for the petitioner is that as far as the issue pertaining to the default is concerned that may not bother

the present proceedings of the writ petition for the reason that both the Courts have recorded a concurrent finding of fact pertaining to the default

w.e.f. November, 1995 till 21st November, 1997, which may not be falling within the scope of scrutiny under Article 227 of Constitution of India, until

the respondent sustain a challenge by establishing perversity. This aspect stands settled is judgment of Hon’ble Apex Court in Ranjit Singh’s

case.

Looking to the controversy now as it stands, the Court is supposed to answer the second question with regard to the service of notice under Section

106 of the Transfer of the Property Act. For the said purpose, the intention why the provision of Section 106 of the Transfer of Property Act has been

made mandatory for service of notice on the tenant prior to the initiation of the proceedings is to enable the tenant to put his house right, so that he

may not be placed in an uncomfortable position and to have an alternative arrangement made for himself and that is why the language of Section 106

of the Transfer of Property Act reads as under:-

“[106. Duration of certain leases in absence of written contract or local usage.â€"(1) In the absence of a contract or local law or usage to the

contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the

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.]â€​

On a simple reading of the provision contained under Section 106, it uses the word “durationâ€​. The Legislature in its wisdom while using the word

“durationâ€​ was an enabling provision for the tenant its as a word of caution from the landlord to the tenant of his intention to eject vacated the

premises as a consequence of determination or snapping of duration i.e. the period permitted by the landlord permitting tenant to continue to occupy

the premises, in a situation where tenancy is not created as a consequence of written contract or a lease, in the instant case admittedly their was no

lease or allotment, and if from the date of knowledge of the proceedings, if eviction proceedings are initiated or it culminates after the expiry of the

period of 30 days as contemplated therein, it would lead to a conclusion that the intention and purpose of Section 106 of the Transfer of Property Act

is met with. That is why at times its tenant has a responsibility to show that he made efforts to look for alternative place as per recognized procedure

under law and has failed to get one. Thus the intention of notice is to give breathing time to the tenant to make his arrangement. But as far as this case

is concerned, this case is based on altogether a different situation.

In the instant case as per the process server report, the notice sent on 20th October, 1997 was returned back with the refusal with an endorsement

made on 22nd October, 1997. The refusal itself under law would be treated to be a service sufficient and knowledge. In that eventuality, the reasoning

which has been given by the learned Revisional Court with regard to the impact of the pleadings raised by the respondent tenant that he was not

served with notice under Section 106 of the Transfer of the Property Act would not be fatal for the reason being that after issuance of notice in the

suit, he has put in appearance and has contested the proceedings by filing the written statement denying the plaint averments.

Coming to the arguments as extended by the learned counsel for the respondent, it is necessary and inevitable for the Court to scrutinize the pleadings

raised in the written statement. Admittedly, the landlord/petitioner in para 4, 5 and 6 of his plaint has categorically pleaded with regard to the notice

sent and its receipt by refusal as appointment by the endorsement of process server.

The respondent landlord in his written statement has vaguely denied the aforesaid assertions pertaining to the service of the notice sent to him. What is

to be seen is that all wisdom which was argued by respondent at the revisional stage pertaining to the impact of notice, propriety of the description of

the address are dehors to the pleadings raised by the respondent tenant in additional pleadings at the first opportunity raised in his written statement,

there was no such pleading raised or which could be said to have been raised at the Revisional stage. In the written statement, there is no such plea

raised by the respondent that the address given in the notice was not correct and it was because of that the service could not be effected upon.

Let us look at this controversy, regarding address raised for the first time at the revisional stage. The notices under Section 106 was sent on the

following address-

“Smt. R.K. Mensal (Nurses Government Hospital), Tenant Daulat Ram Kaptiyal, Patel Nagar, Kotdwar, Garhwalâ€​

In the plaint, the address of respondent described was as:

“Smt. R.K. Mensal, aged about 42 years W/o unknown (Nurse Government Hospital) (Tenant) Kaptiyal Bhawan, Patel Nagar, Kotdwar,

Garhwalâ€​

There is no controversy to the affect that notices send on this address in the suit was received by respondent, who appeared and filed the written

statement. In both the addresses given above there is no such major difference. The difference which is there is apparently of “Kaptiyal

Bhawanâ€​ only. In the hills there are small townships people live in cohesive societies and know each other, this minor difference will not have an

effect to conclude that the notices were not served due to this reason.

Further more in this Writ Petition the address given of respondent is Smt. R.K. Mensal W/o Alivan Mensal R/o Kaptiyal Bhavan, Patel Nagar,

Kotdwar, Pauri Garhwal. Admittedly the notice sent on this address by the High Court on 10.06.2009 was served upon the respondent. Hence the

plea of address on the notice under Section 106 as compared to address given in Plaint, Revision and Writ Petition will not have significant bearing.

That too the said plea was only raised at the revisional stage.

To support the contention, a precise scrutiny of the statement of PW1 which has been recorded before the Court below is also required to be taken

into consideration. To support the contention of service of notice, a specific statement and document has also been placed on record by landlord as

evidence by way of paper 7-Ga and 9-Ga which is the notice as well as the refusal of notice by the respondent tenant. The learned counsel for the

respondent has placed reliance on the cross examination of the tenant as held on 16th December, 1999 for the reason what has been already observed

in the aforesaid paragraph, since the controversy now which was required to be settled by this Court was with regard to the impact of service of

notice, as a mater of fact, the cross examination too or the statement of DW1 is silent with regard to the notice 9-Ga and its receipt 7-Ga. The

Revisional Court in a revision being preferred by the respondent has settled down the bone of controversy from two aspects which was never disputed

by the revisionist / respondent. As a matter of fact, looking to the findings which has been recorded, the Revisional Court too has concurred to the

findings of arrears of rent and default committed and the said issues as decided by the Judge Small Cause Court was not disturbed. Thus, the

interpretation which has been given by the Revisional Court pertaining to the non service of notice is contrary to the evidence on record and contrary

to the case as developed by the respondent herself.

Hence, this Court would not be hesitant to record that the Revisional Court has traveled beyond its scope of Section 25 of the Provincial Small Cause

Courts Act by recording perverse finding.

Consequently, the writ petition is allowed. The impugned order dated 22nd April, 2009 is set aside. The judgment and order as passed by the Judge

Small Cause Courts dated 5th August, 2002 is upheld. The respondent is granted six months’ time to vacate the premises and also to pay the

entire arrears and damages as claimed for and decreed by the Trial Court and would also pay the rent which has fallen due during the pendency of the

present writ petition till the date of handing over of possession (if not already paid). The learned Trial Court is directed to determine the amount due

based on the rent payable positively within six weeks’ from the date of service of the order and will ensure that the same is paid by respondent

tenant at time of execution of decree.

Accordingly, the writ petition is allowed. There would be no order as to costs.