Balloo Ram Bookseller v. Chhedi Lal

Dhavan, J.:— This is a tenant's second appeal against a decree for ejectment. The suit for ejectment was dismissed by the Trial Court, but, on appeal, decreed by the learned Judge. The appellant Balloo Ram is the tenant of the plaintiff-respondent Chhedi Lal. The accommodation in dispute is situate in Banda. The landlord served notice on Balloo Ram to pay the rent within one month. As he did not receive it, he filed the suit for ejectment. Balloo Ram contested the suit on the ground that, the notice was received in his absence while he was away on business. He alleged that on his return his wife informed him of the notice which had been received in his absence. According to him, this was the first time he came to know about it. On the very next day he sent the amount due to the plaintiff, but the latter had already filed a suit and refused to accept the amount tendered by Balloo Ram. The defendant contended that the suit for ejectment was not maintainable as he had tendered the rem within one month of the service of notice on him. The trial court held that the defendant had not committed default in payment of rent and was, therefore, not liable to ejectment. On appeal the learned Temporary Additional Civil Judge, Banda, held that, as the notice was admittedly received in the defendant's absence, the onus was on him to prove that the person who signed the postal receipt was not his agent. He accordingly held that the plaintiff had served a valid notice which the defendant had failed to comply with within the prescribed period of one month. The learned Judge reversed the decision of the trial Court and decreed the suit for ejectment. Aggrieved by this decision the defendant Balloo Rain had come to this Court in second appeal.

2. It is common ground that the landlord did issue a notice. It is also admitted that the notice was handed over to the defendant by his wife and son on his return to Banda. The finding of the trial court that the tenant was away on business when the notice was delivered was not seriously challenged before the appellate Court. The defendant's case was that the notice must have been received by some unauthorised person who handed it over to his wife or son. The plaintiff's case was that the identity of the person receiving the notice was within the exclusive knowledge of the defendant and the onus was on him to prove that the person who received it and passed it on to his family had no authority on behalf of the defendant. As he had failed to discharge this onus it must be held that the notice was received by his agent and was duly served. The learned Munsif believed the evidence of the defendant that he was out of station when the notice was received in his absence. He rejected the plaintiff's contention that, under the presumption arising from Sec. 114 of the Evidence Act, the notice must be presumed to have reached the defendant at the time mentioned in the acknowledgement. He took the view that as the presumption under the section was rebuttable the defendant had rebutted it by his sworn testimony that he was out of station when the notice was delivered. He accordingly held that no notice had been served on the defendant under Sec. 3(1)(a) before the filing of the suit.

3. In appeal the learned Judge held that there was a presumption that the notice addressed to the defendant's shop must have been delivered there. He took the view that the notice would be deemed to be received by an authorised agent unless the defendant proved the contrary. In view of the fact that the defendant had produced the notice from his custody, the learned Judge held that he was in exclusive possession of the knowledge of the identity of the person who received the notice. Accordingly, he held that there was a valid service of the notice under Sec. 3(1)(a).

4. This appeal raises the question whether the plaintiff should be deemed to have received the notice under Sec. 3(1)(a) on the date when he got it or on the earlier date when it was received in his absence.

5. The notice demanding rent was sent by the plaintiff respondent by registered post on 15-11-1954. The acknowledgement receipt showed that it was received by some one who described himself as Ram Charan. The name of the appellant's son is not Ram Charan. According to the defendant, he was out of station on that date and was absent till 12th January, 1955, when he returned home. Both in his reply to the notice and in the written statement he stated that he came to know of the notice on the day when he returned, and that on the next day he tendered the entire amount claimed by the landlord, who refused to accept It.

6. This case raises the question of law whether a notice of demand under Sec. 3(1)(a) of the Control of Rent and Eviction Act will be deemed to have been served on the tenant even if it is received by some one else in his absence.

7. Learned counsel for the respondent argued that it was not necessary that the notice should be served on the tenant personally. He contended that it would be enough if it is served in accordance with Sec. 106 of the Transfer of Property Act. He also relied on Sec. 3 of that Act as well as on Or. V.R 15 C.P.C

8. The purpose of the notice under Sec. 106 of the Transfer of Property Act is fundamentally different from that of the notice under Sec. 3 of the Control of Rent and Eviction Act, though in practice landlords usually combine both in a single document. The object of the former is to terminate the tenancy, while that of the latter is to give the tenant an opportunity to continue it. The notice under Sec. 106 of the Transfer of Property Act merely informs him that his tenancy is at an end. Its essential requirement is that it should indicate a clear decision by the landlord determining the tenancy. It gives the tenant an opportunity of vacating the accommodation and thus avoiding the trouble and costs of a suit for ejectment. There is nothing the tenant can do on the receipt of the notice except to quit. It is not very material if the news of termination of the tenancy reaches him direct or through a servant or member of the family. For these reasons, Sec. 106 permits modes of service other than personal service: it provides that the notice terminating the tenancy may be sent either by post to the party to be bound by it or be tendered or delivered personally to him or to one of his family or servants at his residence or (if such tender or delivery is not practicable) even affixed to a conspicuous part of the property in respect of which the tenancy is sought to be terminated. The alternative modes of service are permitted because the purpose of the notice is merely to inform the tenant and not to ask him to do anything.

9. But the purpose of notice under Sec. 3(1)(a) is fundamentally different. Its object is not to inform the tenant that he is a defaulter and his tenancy is at an end, but to give him an opportunity to save the tenancy by paying off the arrears of rent. The tenant has, within a month of the receipt of the notice to do something which no one else would ordinarily do on his behalf. Its purpose is to compel the landlord to give the defaulting tenant an opportunity to pay up the rent before filing a suit. Unless the tenant gets this notice it would not be possible for him to comply with the landlord's demand. For this reason, Sec. (3)(1)(a) has, unlike Sec. 106 of the Transfer of Property Act, provided for no alternative mode of service of notice on the tenant other than personal service. The relevant words of Cl. (a) are:—

“the tenant is in arrears of rent for more than three months and has failed to pay the same to the landlord within one month of the service upon him of a notice of demand.”

10. The word “service on him” mean personal service and exclude service on a servant or member of the family. Learned counsel for the respondent had to concede in the end that Sec. 3 of the Rent Control and Eviction Act does not provide for any alternative mode of service.

11. The policy and purpose of this section would also support the view that the notice under Sec. 3 must be served on the tenant personally. The tenant is required to pay the arrears of rent within one month. This interval has been given to enable him to raise the money if he happens to be short. But if service on a member of family or on an agent or a servant were permitted, the result in many cases may be that the tenant may find, when he actually receives the notice that the period for making good the default has already expired. This is precisely what happened in the present case, for the notice was received in the absence of the defendant and when, on his return he immediately tendered the rent to his landlord, he refused to accept it on the ground that it was being offered after the expiry of one month. For these reasons and also to exclude the chances of fraud at the expense of the tenant, the legislature used the words “Service on him” and excluded vicarious service.

12. It is not necessary for me to consider the situation when the tenant deliberately avoids service of notice, for there is no allegation in the present case that the appellant had evaded service. Mr. Chaudhary relied on a few observations of the learned Judge to prove that the defendant's allegation that he was out of station should be disbelieved. But the learned Judge gave no finding on the question whether the defendant was or was not out of station when the landlord's notice was delivered by the post office. The trial Court, however, believed the defendant's evidence and held that the notice was received in his absence. I have examined the evidence on the record and find that no cross-examination worth the name was directed against this part of the defendant's evidence. The landlord was not ignorant of the tenant's case for the latter had informed him in his reply to the notice that he was not aware when it was received. The defendant had also contested the suit, inter alia, on this very ground. The landlord led no evidence to disprove the defendant's statement that the notice was served in his absence. In these circumstances, this Court would be justified under O. 41, R. 24 C.P.C in confirming the view of the trial. Court that the notice was received in the absence of the defendant.

13. An attempt was made by the landlord to prove that the notice must be deemed to have been validly served as it was received by the defendant's son in his absence. This son is ten years old and the trial court held that the son's signature was different from the signature on the acknowledgement receipt. This contention must be rejected. Sec. 3(1)(a) of the Control of Rent and Eviction Act requires that the notice by the landlord demanding arrears of rent from the tenant must be served on him personally and it will not be deemed to have been validly served on the tenant if it is served in his absence on a minor son whose age is ten years. Both the language and the purpose of Sec. 3(1) show that the service of this notice cannot be vicarious. The appellant must therefore be deemed to have received the notice of demand when it was shown to him on his return, and as he had tendered the rent on the next day, he was not a defaulter.

14. There is another reason why the plaintiff's suit must fail. Under Sec. 3(1)(a), as it was worded at the time of service of notice, the suit for ejectment could be filed only if the tenant had wilfully failed to pay the arrears of rent within one month of the service of notice of demand upon him. In this case the tenant paid the amount on the day after the notice was communicated to him, but the landlord refused to accept it.

15. Therefore, it cannot be said that the tenant in the present case had committed wilful default.

16. For these reasons I allow the appeal and dismiss the plaintiff's suit for ejectment. The decree for arrears of rent will stand. As the appellant has succeeded in the real issue in this case, he shall be entitled to his entire costs throughout.

17. I do not think this is a fit case for special leave. Leave to appeal is refused.

18. Appeal allowed.