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PETITIONER: MADAN & CO.

       Vs.

RESPONDENT: WAZIR JAIVIR CHAND

DATE OF JUDGMENT28/11/1988

BENCH: RANGNATHAN, S. BENCH: RANGNATHAN, S. MUKHARJI, SABYASACHI (J)

CITATION:  1989 AIR  630            1988 SCR  Supl. (3) 983  1989 SCC  (1) 264        JT 1988 (4)   520  1988 SCALE  (2)1408

ACT:     Jammu  and  Kashmir Houses and Shops Rent  Control  Act, 1966: Section 11--’Serves a notice in writing through post’- -Inter-pretation  of--Posting a pre-paid  registered  letter containing tenant’s  correct address--Sufficiency of.

HEADNOTE:     In November 1976, the respondent issued a notice to  the appellant  under section 11 of the Jammu & Kashmir Houses  & Shops  Rent  Control Act, 1966 calling upon it  to  pay  the arrears of rent. The notice also terminated the tenancy  and called  upon the appellant to vacate the  demised  premises. The notice sent by registered post was received back by  the respondent  with  the  endorsement  "left  without  address, returned to sender". Thereupon the respondent caused a  copy of  the   notice  to be fixed to one of  the  doors  of  the premises in question. No payment of rent was however made by the appellant subsequently. The respondent, therefore, filed a  suit in June 1977 seeking ejectment of  the appellant  on the  ground  of default in the payment of  rent.  The  Trial Court  ordered eviction. and the appellant’s appeals  before the District .Judge and the High Court against the order  of eviction failed.     Before  this Court the appellant  contends that (1)  the safeguards in ss. 11 and 12 of the Act  are intended for the benefit  and protection of the tenant and therefore,   where the  Act provides for the service of the  notice,  by  post. this requirement has to be strictly complied with; (2)  such postal service can neither be presumed nor considered to  be good service where The latter is returned to the sender  due to non-availability of the addressee; (3) in the absence  of any enabling provision, service by  some other mode, such as affixture,  cannot be treated as sufficient compliance  with the statute; and (4) where a power is given to do a  certain thing  in a certain way, the thing must be done in that  way or  not  at  all  and  other  methods  of  performance   are necessarily forbidden.     Dismissing the appeal, it was,     HELD: (1) The proviso to clause (i) of section 11(1) and the proviso to section 12(3) are intended for the protection                                                   PG NO 983

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                                                 PG NO 984 of  the tenant. A Nevertheless, it will be easy to see  that too strict and literal a compliance of their language  would be impractical and unworkable. [988H; 989Al     (2)  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 do 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. [989A-B]     (3)  To  interpret the provision as requiring  that  the letter must  have been actually delivered to the  addressee, would be virtually rendering it a dead letter. [989F]     (4) 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 compelled to be away  for some  time,  all  that he has to do is  to  leave  necessary instructions with the postal authorities. [989H; 990A]     (5)  The  more  reasonable,  effective,  equitable   and practical interpretation would be to read the words "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 will fit the situation  as  it  is simply  not  possible  for  a  landlord  to  ensure  that  a registered  letter  sent  by  him gets   served  on,  or  is received by the tenant. [990B-C]     (6)  The statute prescribes only one method  of  service for  the notice and none other. To require service  by  some other  method  to  be effected over  and  above  the  postal service would be to travel outside the statute. [99OF]     (7) Where the statute does not specify any 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 C.P.C. This Court 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. [990G]     (8)  The provision in regard to the notice  contemplated by  the  statute is unsatisfactory and it is hoped that  the                                                   PG NO 985 legislature would soon set it right. On the provision as  it stands,  a landlord must be held to have complied  with  the statutory   requirement  by  sending  a   notice   correctly addressed to the tenant by registered post. [991H; 992A]     Hare Krishna Das v. Hahnemann Publishing Co. Ltd.  1965- 66,  70 C.W.N. 252; Surajmull Ghanashamdas  v.  Samardarshan Sur,  ILR 1969 1 Cal 379; Taylor v. Taylor, 11875] 1 Ch.  D. 426.

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 4146  of 1985.     From  the  Judgment and Order dated  18.12.1984  of  the Jammu & Kashmir High Court in C.S.A. No. S of 1981.     Soli  J. Sorabjee, Harjinder Singh and Ranjan  Mahapatra for the Appellant.     Anil Dev Singh, Dr. Meera Agarwal and R.C.Misra for  the Respondent.

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   The Judgment of the Court was delivered by     RANGANATHAN,   J.   1.   This   appeal   involves    the interpretation  of  s. 11 of the Jammu &  Kashmir  Houses  & Shops  Rent  Control Act, 1966 (hereinafter referred  to  as ’the Act’).     2.  The petitioner is a firm of which Sohan Singh  Madan is  the  managing partner. The firm was the  tenant  of  the respondent in respect of a portion of a building situated in Raghunath  Bazar. Jammu, on a rent of Rs.200 p.m.  According to  the  respondent, the petitioner had  been  irregular  in paying  the rent of the premises and had altogether  stopped making payment of any rent from 1st April, 1976 onwards.  On 26.11.1976, the respondent issued a notice to the petitioner calling upon it to pay the arrears of rent (Rs. 1,600).  The notice  also  terminated  the tenancy and  called  upon  the petitioner  to  vacate  the demised premises  on  or  before 31.12. 1976. This notice was first sent by post. The postman called at the address on 7.12.1976 and 8.12.1976 but, having failed  to  find there either the addressee  or  any  person authorised to receive the notice on its behalf, returned  it with  the  endorsement "left without  address,  returned  to sender".  There-  upon, the respondent caused a copy of  the notice to be affixed to one of the doors of the premises  in question in the presence of two inhabitants of the  locality                                                   PG NO 986 on  9.12.1976. No payment of rent was made  subsequently  by the  petitioner. The respondent, therefore, filed a suit  on 16.6.1977 seeking ejectment of the petitioner on the  ground that  he  had committed three defaults, each in  payment  of two months’ rent within a period of 18 months. This plea was disputed, and eviction of the petitioner decreed, by the Sub Judge.  This was affirmed by the B District Judge. A  second appeal  to the High Court was also unsuccessful. Hence  this appeal by special leave.     Ss.  11  and 12 of the Act, which are relevant  in  this context, may now be referred to. They read, in so far as  is relevant for our present purposes, as follows:                         "Section 11:     "Protection   of  a  tenant  against  eviction--(  I   ) Notwithstanding anything to the contrary in any other Act or law,  no order or decree for the recovery of  possession  of any  house or shop shall be made by any court in  favour  of the landlord against a tenant xxx xxx xxx     Provided that nothing in this sub-section shall apply to any suit for decree for such recovery of possession           xxx               xxx               xxx     (i)  subject to the provisions of section 12. where  the amount of two months rent legally payable by the tenant  and due  from him is in arrears by not having been  paid  within the  time  fixed  by  contract or in  the  absence  of  such contract  by the fifteenth day of the month  next  following that  for which the rent is payable for by not  having  been validly deposited in accordance with section 14:     Provided  that no such amount shall be deemed to  be  in arrears unless the landlord on the rent becoming due  serves a  notice in writing through post office under a  registered cover  on the tenant to pay or deposit the arrears within  a period of fifteen days from the date of the receipt of  such a   notice and the tenant fails to pay or deposit  the  said arrears within the specified period.                                                    PG NO 987                         Section 12:     When a tenant can get the benefit of protection  against eviction--     (1) If in a suit for recovery of possession of any house

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or shop from the tenant the landlord would not get a  decree for  possession  but  for  clause  (i)  of  the  proviso  to subsection (1) of section 11, the Court shall determine  the amount of rent legally payable by the tenant and which is in arrears taking into consideration any order made  subsection (4) and effect thereof upto the date of the order  mentioned hereafter,  as also the amount of interest on such   arrears of rent calculated at the rate of nine and three eights  per centum per annum from the day when the rents became  arrears upto  such date, together with the amount of such  costs  of the  suit as if fairly allowable to the plaintiff  landlord, and  shall  make  an  order on the  tenant  for  paying  the aggregate  of  the  amounts (specifying in  the  order  such aggregate sum) on or before a date fixed in the order.     (2)  Such date fixed for payment shall be the  fifteenth day  from  the date of the order excluding the  day  of  the order.     (3)  If, within the time fixed in the order  under  sub- section  (1)  the  tenant  deposits in  the  Court  .he  sum specified in the said order, the suit so far as it is a suit for  recovery of possession of the house or shop,  shall  be dismissed by the court. In default of such payment the Court shall proceed with the hearing of the suit.     Provided  that the tenant shall not be entitled  to  the benefit  of protection against eviction under this  section, if,  notwithstanding the receipt of notice under proviso  to clause (i) of the proviso to sub-section (1) of section  11, he  makes  a default in the payment of rent referred  to  in clause  (i) of the proviso to sub-section (1) of section  11 on three occasions within a period of eighteen months.            xxx              xxx              xxx     On  the terms of the above sections, the controversy  in this case turned on the question whether the notice sent  by the respondent by registered post on 26.11.1976 can be  said to  have been served and the petitioner can be said to  have                                                   PG NO 988 been  in receipt of the said notice. If the answer  to  this question  is in the affirmative, as held by all  the  courts concurrently,  there  is  nothing further to  be  said.  The contention  of the  appellant--tenant however, is  that  the statute  postulates a factual service of the notice on,  and the  actual  receipt  of it by, the  tenant  and  that  this admittedly  not being the position in the present  case,  no eviction could have been decreed.     Shri  Soli Sorabjee, learned counsel appearing  for  the tenant submitted that the safeguards in Ss. 11 and 12 of the Act  are  intended  for the benefit and  protection  of  the tenant  and that, therefore, where the Act provides for  the service of the notice, by post, this requirement  has to  be strictly complied with. He referred to the decisions in Hare Krishna Das v. Hahnemann Publishing Co. Ltd ., [ 1965-66] 70 C.W.N.   262 and Surajmull Ghanshyamdas v. Samadarshan  Sur, ILR 1969--1 Cal. 379 to contend that such postal service can neither be presumed nor considered to be good service  where the  letter  is  returned  to the sender  due  to  the  non- availability  of  the  addressee. He  urges  that,  in   the absence  of any enabling provision such as the one  provided for  in  s.106 of the Transfer of Property Act,  service  by some  other  mode, such as affixture, cannot be  treated  as sufficient compliance with the statute. In this context,  he referred to the frequently applied rule in Taylor v. Taylor, [  1875]  1 Ch. D. 426 that where a power is given to  do  a certain  thing in a certain way, the thing must be  done  in that way or not at all and that other methods of performance are necessarily forbidden. He urged that even if service  by

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affixture  can  be considered to be permissible,  there  are stringent  pre-requisites for service by affixture, such  as those  outlined  in Order V rules 17 to 19, of the  Code  of Civil Procedure (C.P.C.) and that these pre-requisites  were not  fulfilled in the present case. He pointed out that even under  the CPC. service by such affixture can be  recognised as valid only if sincere and vigilant attempts to serve  the notice on the addressee personally are unsuccessful. In  the present  case, it is submitted, the evidence shows that  the postman made no serious efforts to ascertain the whereabouts of  the  addressee even though the evidence  showed  that  a servant of the petitioner firm was known to the postman  and was  present in the neighbourhood. He, therefore,  submitted that  the  High  Court should have dismissed  the  suit  for eviction  filed  by  the landlord on  the  ground  that  the requirements of S. 11 and 12 of the Act were not satisfied.     We are of opinion that the conclusion arrived at by  the courts  below  is correct and should be upheld. It  is  true that the proviso to (i) of section 11(1) and the proviso  to                                                    PG NO 989 section 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 posts. All that a landlord can do to  comply with this provision is to post a prepaid  registered  letter (acknowledgement 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  server   entrusted   with   the responsibilities  of  serving the summons of a  Court  under Order  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,  an  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

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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                                                   PG NO 990 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 B 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 words "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 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 landlord’s 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 consideration 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                                                   PG NO 991 it  is  only  in this view that we proceed  to  express  our findings in this regard.     Having  gone  through the facts stated  in  the  various

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orders,  we  think  that the landlord did his  best  in  the circumstances.  We  are   unable  to  accept  the   tenant’s contention  that  the  mere circumstances that  he  had  the notice affixed immediately on the day following the  date of return of the postal notice is an indication of mala  fides. What  is  material  is that his evidence that  he  took  the notice  to the premises and had it affixed on the  premises, as  he  could not find the tenant,   stands  uncontradicted. Indeed there is no doubt or dispute that the tenant was away from  Jammu at the relevant time. The  plaintiff’s  father’s evidence  is clear and categorical that neither  the  tenant nor  his servant was available. There is no suggestion  made to him that he made no real effort to ascertain the tenant’s address  even  though  a servant was there  who  could  have furnished the same. In the written  submissions, now  filed, it  is  admitted that the tenant and his servant  were  both away at Amritsar though it is said that this was due to  his illness. It is however stated that the servant was coming to Jammu every week to collect the dak and that the postman had failed  to  make   proper enquiry. If  this  was  true,  the servant  must have at least made enquiries and  learnt  from the  postman  that  a registered letter had  come  and  been returned and informed the tenant who could have taken  steps to pay the arrears of rent. On the other hand. the  evidence of the plaintiff’s father and witnesses to the affixture, of the postman and of the tenant’s own witness shows that there was no servant on the premises. The evidence of the  postman is  categorical  that there was no servant at  the  premises which  was locked. He says he had learnt from  enquiries  in the  neighbourhood  that the tenant had not been  living  in the premises for the past few months. He admits that he knew there  was a servant but says that the servant was also  not there  at  the relevant time. His reference to  the  servant working as a pheriwala at the same place is in regard to the time when he was giving evidence (i.e. in Dec. 1978). It  is not  the case of the tenant that the other partner,  son  of Sohan Singh, was available for service either. Thus the  sum and  substance of the evidence on record is that the  tenant had  gone  away  from the premises  without  intimating  the landlord  or neighbours of his correct address  and  without leaving  behind  any  servant or agent  to   accept  letters addressed  to  him. In this situation the landlord  did  the only thing he could.     We  are quite conscious that the provision in regard  to the notice contemplated by the statute is unsatisfactory and                                                   PG NO 992 hope  that the legislature would soon set it right. But,  on the  provision  as  it stands, we cannot  but  hold  that  a landlord  must be held to have complied with  the  statutory requirement  by sending a notice correctly addressed to  the tenant by registered post. Also, in the present case, we are satisfied--as   indeed  the  lower  courts  were--that   the landlord did his best to bring  the notice to the  knowledge of  the tenant. He cannot be expected to do  any  more.  His petition for eviction cannot be dismissed on this score.     We only wish to add that, having regard to the fact that the  tenant  had  deposited  the  arrears  subsequently,  we suggested to the parties that they should try to settle  the matter amicably between themselves but the submissions filed by  the  parties after the hearing  show that this  has  not been  possible.  We have, therefore, no alternative  but  to dismiss  this appeal and we hereby do so  without,  however, making any order as to costs. R.S.S.                                     Appeal dismissed.

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