- (1.) THE appellant-defendant-tenant has filed the present second appeal before this Court under Section 100 of CPC on 21.11.2011 being aggrieved by the concurrent decree of eviction dated 04.08.2007 granted by the learned trial court of Civil Judge (Jr. Division), Desuri in Civil Original Suit No.03/2004- LR's of Dev Raj Vs. Om Prakash, which judgment and decree has also been upheld by the learned first appellate court below of Additional District Judge, Bali, District Pali vide the judgment and decree dated 15.10.2007 while dismissing the appeal filed by the defendant-tenant being Civil APPEAL NO.19/2007- OM PRAKSH VS.LRS OF DEV RAJ.
(2.) THE respondents-plaintiffs-landlord came with a case before the learned trial court that the suit premises in question viz. house situated at Rani Station, Naino-ki-Gali, Main Bazar, was given on rent to the appellant-defendant in the year 1981 on monthly rent of Rs.10/- per month. The defendant-tenant, however, failed to make regular payment of rent, therefore, the plaintiffs sent a notice (Ex.3) dated 15.12.2003 by registered AD post to the appellant-defendant terminating the lease under Section 106 of the Transfer of Property Act. However, the said notice (Ex.3) returned back with the postal remark that the "addressee not found at the given address". The suit was thus filed on 28.01.2004 seeking ejectment 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. Mr. N.M. Lodha, Sr. Advocate assisted by Mr. V.D. Dadhich, 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 (Exhibit-3) dated 15.12.2003, which was only sent by registered AD post to the defendant-tenant, Om Prakash, however, the said notice was returned back with the postal remark that the "addressee not found available on the given address". Mr. N.M. Lodha, Sr. Advocate therefore, 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. (ii). He further submitted that though the plot of land in question was initially given on rent to the defendant-tenant in the year 1981 by the father of the respondents-plaintiffs for the purposes of residence at monthly rent of Rs.10/-; and for last ten years, prior to serving of the notice terminating the lease, admittedly, the defendant was running an ice factory in the said premises, therefore, as per provisions of Section 106 of the Transfer of Property Act, a notice of minimum six months as against the fifteen days, was required to be given. In support of his contentions, he relied upon following case laws: 1. Jankibai Tukaram Vs. Nagpur Improvement Trust, Nagpur reported in AIR 1960 Bombay 499. 2. Idandas Vs. Anant Ramchandra Phadke (dead by LR's reported in AIR 1982 SC 127. 3. Smt. A.N. Kapoor Vs. Smt. Pushpa Talwar, reported in AIR 1992 SC 799. 4. Dr. Gopal Dass Verma Vs. Dr. S.K. Bhardwaj and Anr. reported in AIR 1963 SC 337. . On the other hand, Mr. C.S. Kotwani, learned counsel appearing for the respondents-plaintiffs (landlord) relied upon a decision of Hon'ble Supreme Court in the case of M/s Madan & Co. Vs. Wazir Jaivir Chand reported in AIR 1989 SC 630, the relevant Para/s 6 & 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 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. 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. 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."
(3.) LEARNED counsel for the respondents-plaintiffs-landlord, Mr. C.S. Kotwani, also pointed out that the defendant-tenant has not paid any rent to the landlord though it was only @ Rs.10/- per month since the long period and is using the said premises for last so many years.;