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TMI Blog1988 (11) TMI 348X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... um 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne or to deliver them to some other person authorised by him. In this situation, we have to choose 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. W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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