R.B. Misra, J.
1. The present appeal is directed against the judgment and decree of the 2nd Additional Civil and Sessions Judge, Moradabad, dated 11th March, 1972.
2. The facts leading up to this appeal are as follows:--
Shamim Ahmad Alvi, the appellant occupied the disputed accommodation on 12th April, 1964, on a monthly rent of Rs. 45. The landlord, Azizul Rahman Khan, the respondent, sought to evict the tenant. He, therefore, sent a registered notice demanding the arrears of rent and terminating the contract of tenancy on 26th February, 1969. The registered notice was returned by the postal department with the endorsement of refusal. The landlord treating the refusal as service filed a suit for recovery of arrears of rent as also the damages for use and occupation, pendente lite and future and for the eviction of the tenant. He alleged that the disputed accommodation was post 1951 construction and, therefore, U. P. (Temporary) Control of Rent and Eviction Act (hereinafter referred to as the 'Old Act') had no application. The tenant was, therefore, not entitled to the protection of the said Act.
3. The claim was resisted by the tenant on grounds, inter alia, that the disputed accommodation was pre-1951 construction and, therefore, he was entitled to the protection of the old Act, that the notice terminating the tenancy of the appellant was not a valid notice nor was it served on him.
4. The Additional Munsif accepted the plaintiff's claim and decreed the suit for all the reliefs. He found that the accommodation in question was a post-1951 construction and, therefore, the appellant was not entitled to the protection of the old Act. He further found the notice under Section 106 of the Transfer of Property Act terminating the tenancy to be a valid one and the same havingbeen refused by the tenant will be deemed to have been served by him.
5, Feeling aggrieved by the judgment and decree of the Additional Munsif, the tenant preferred an appeal. The 2nd Civil and Sessions Judge, Moradabad, confirmed the findings of the trial court with the slight modification regarding the rate of pendente lite and future damages.
6. The defendant filed the present appeal. During the pendency of the appeal, the old Act was repealed. It was replaced by the U. P. Urban Buildings (Regulations of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the new Act). The appellant applied for addition of a ground seeking the protection of Section 39 read with Sections 20 and 40 of the new Act. Notice of this application was served on Sri K. C. Saxena, counsel for the respondent, and after affording an opportunity to him, the application was allowed and the appellant was permitted to add the following ground as ground No. 16:--
16. Because on account of the provisions of Sub-section (2) of Section 2 of U. P. Act 13 of 1972 which now clearly applies the appellant is not liable to ejectment under Section 39 read with Sections 40 and 20 of the said Act.'
7. Section 2 of the new Act provides for exemptions from operation of the Act. Section 2 provides various exemptions from operation of the new Act. Section 2 (2) of the new Act contemplates that nothing in this Act shall apply to a building during a period of ten years from the date on which its construction is completed. This necessitated an enquiry as to when the disputed construction was completed within the meaning of Section 2 (2) of the new Act. This Court, therefore, remitted the necessary issue for a finding to the lower appellate court. The lower appellate court has returned the following finding:--
'The construction, of the disputed accommodation was completed either in the end of the month of March 1964 or in the first week of April, 1964.'
8. The appellant filed an objectionchallenging the said finding. Sri Bashir Ahmad, appearing for the appellant, strenuously challenged the finding of the lower appellate court regarding the completion of the building. His contention was that the lower appellate court should have recorded the finding in the light of the Explanation added to Sub-section (2) of Section 2 of the new Act.
9. It will be convenient, at thisstage, to read the relevant section. Section 2 of the new Act, in so far as it ismaterial for the purposes of this case, reads:
'2. Exemptions from operation of Act-
(1) Nothing in this Act shall apply to-
(2) Except as provided in Sub-section (2) of Section 24 or Sub-section (3) of Section 29, nothing in this Act shall apply to a building during a period of ten years from the date on which its construction is completed.
Explanation.-- For the purposes of this section.
(a) the construction of a building shall be deemed to have been completed on the date on which the completion thereof is reported to or otherwise recorded by the local authority having jurisdiction, and in the case of a building subject to assessment, the date on which the first assessment thereof comes into effect and where the said dates are different, the earliest of the said dates and in the absence of any such report, record or assessment, the date on which it is actually occupied (not including occupation merely for the purposes of supervising the construction or guarding the building under construction) for the first time :
Provided that there may be different dates of completion of construction in respect of different parts of a building which are either designed as separate units or are occupied separately by the landlord and one or more tenants or by different tenants;
10. Sri Bashir Ahmad laid emphasis on Clause (a) of the Explanation added to Section 2 (2) of the new Act and contended that for the purposes of Section 2 (2) of the new Act, only the three dates mentioned in the Explanation will be the dates on which the construction will be deemed to be completed. The lower appellate court should, therefore, have recorded a finding in the light of Clause (a) of the Explanation added to Section 2 (2) of the new Act, but the lower appellate court has completely lost sight of the said Explanation.
11. Sri K. C. Saxena, appearing for the landlord, the respondent, however, contended that the Explanation only provides a legal fiction that the construction should be deemed to be completed on either of the three dates given in Clause (a) of the Explanation. But it does not mean that the Court is precluded from making an enquiry about the actual date of the completion of the construction. The decision of the question will hinge upon the interpretation of Section 2 (2) read with the Explanation added to it.
12. The proper function of an Explanation is to make plain or elucidate what is enacted and not to add or subtract from it. The construction of the explanation must depend upon its terms and no theory of its purpose can be entertained unless it is to be inferred from the language used.
13. In Burmah Shell Oil Storage & Distributing Co. of India Ltd. v. Commercial Tax Officer : 1SCR902 , the Supreme Court laid down the dictum that the Explanation must be interpreted according to its own tenor and it is meant to explain the section or clause and not vice versa.
14. In Abdul Latif Khan v. Mt. Abadi Begum , while dealing with the explanation to Section 22 of the Oudh Estates Act, the Privy Council held that:--
'The explanation to Section 22 was inserted ex abundanti cautela because of a groundless apprehension that the Crown Grants Act, 1895, which provides that all such grants shall operate according to their tenor, might be held to have nullified the provisions of Section 22 in so far as they depart from the terms of primogeniture sanad and also the amendment introduced into Section 3 by the amending Act.'
15. On an analysis of the aforesaid cases, the safest course is to apply the fundamental general rule to construe the explanation according to its own terms having regard to its context and setting.
16. Viewed in this light, the expression 'the date on which its construction is completed' should be construed in the light of the explanation. The explanation starts with the words 'For the purposes of this section.' The construction of the building shall be deemed to have been completed on either of the three dates, viz., either on the date on which the completion thereof is reported to or otherwise recorded by the local authority and in the case of a building subject to assessment, the date on which the first assessment was made and in case of difference, the earliest of the said dates and in the absence of any such report, record or assessment, the date on which it was actually occupied for the first time. The three dates contemplated in the explanation would cover the construction of any building within the municipal area. Therefore, the term 'completed' used in Section 2 (2) of the new Act will have to be construed in the light of the Explanation. The lower appellate court should have recorded a finding about the completion of the building in the light ofthe Explanation added to Section 2 (2) of the new Act, but he completely lost sight of the Explanation and has recorded a vague finding that the construction in question was completed either in the month of March, 1964, or in the month of April 1964. If he had taken into consideration the Explanation, he would not have recorded alternative findings. The case has not been considered by the lower appellate court in the light of the Explanation. His finding, therefore, cannot be sustained. I would have remanded the case again to the lower appellate court for recording a finding in the light of the Explanation added to Section 2 (2) of the new Act, but in the view that I propose to take on the other contention raised by Sri Bashir Ahmad with which I shall presently deal it is not necessary to remand the case for a fresh finding on the question of the completion of the disputed construction.
17. The next contention of Sri Bashir Ahmad is that there was no service of notice under Section 106 of the Transfer of Property Act on the tenant in the eye of law. The endorsement of refusal made by the postal department was wholly illegal inasmuch, as there was no offer to the appellant and, therefore, there was no question of refusal by him. Sri K. C. Saxena, appearing for the respondent, however, contended that the finding of fact recorded by the lower appellate court could not be challenged in second appeal.
18. There is no denying the fact that normally this Court cannot interfere with the finding of fact, but, in the instant case, on the evidence on the record, there was no offer to the appellant and the endorsement of refusal by the postal department was wholly illegal.
19. It may be stated that accordingly to the appellant, he was at Indore from 26th February, 1969, to 12th April, 1969, in connection with his service and he was certainly not at Moradabad. The case of the respondent, however, was that the appellant was at Moradabad. The de-position of the postman Om Prakash was placed before me in extenso. He deposed :
'Mai Prativadi ke pas (Liphapha) lekar gaya tha Tarikh 1-3-69 ko meri report yah hai 'Mile Nahin'. Jab mai 5-3-69 (?) ko yah Liphapha makan ke upar lekar gaya to maine awai lagai to Prativadi ke bhai aaya. Maine Prativadi ke Bhai se kaha ki Prativadi ke naam ki Dak Registery hai to Prativadi ke Bhai ne kaha ki Prativadi bahar gaye hain. Maine Prativadi ke Bhai se Prativadi ke baharka pata pucha, unhone pata batane se inkar kar diya to maine apni report Liphapheke upar likhi. Report me maine likha ki Bahar ka pata batane se inkar kar diya.'
20. From his deposition, it is clear that on the first day the postman could not meet the appellant The endorsement on the cover of the letter was, therefore, made 'not met'. Next day, he again went to the appellant's house but the postman was informed by the brother of the appellant that he was out of station and on the request of the postman, he refused to supply the address of the appellant. The endorsement of refusal made by the postal department was on the basis of the report given by the postman that the brother of the appellant refused to supply him the address of the appellant. On the evidence of the postman, it is not possible to hold that any offer was made by the postman to the appellant and in the absence of any offer, it is illegal to hold that the notice was refused by the appellant.
21. It is true that the lower appellate court has recorded a finding that the appellant was at Moradabad, as he must have come to meet the children during Id holidays and must have remained at Moradabad as Holi holidays followed the Id holidays. Sri Bashir Ahmad sought to challenge even that finding of the lower appellate court, but it is not necessary to enter into that question. I assume for the purposes of this case that the appellant was present at Moradabad on the relevant date, but unless the Court recorded a finding that he was present at home, the endorsement of refusal by the appellant would be wholly illegal. There is no finding by the lower appellate court that the appellant was present at home. The testimony of the postman, which is the only evidence on this material question, does not indicate that the appellant was present at home. He has not deposed that he offered the registered letter to the appellant and he refused to take the same. His evidence, on the other hand, clearly goes to show that he was not present at home and his brother refused to give the address. It is on this basis that the postal department has made the endorsement of refusal.
22. In Lakshmi Prasad Sharma v. Thakur Mahadeoji, (1971 All WR (HC) 622), it was held that unless there was an offer made, there could be no refusal. In this view of the matter, the finding that the appellant refused to receive the notice is wholly unwarranted on the evidence on the record. In my opinion, as there was no service of notice under Section 106 of the Transfer of Property Act on the appellant, there was no termination of his tenancy and the suit for ejectment could not possibly be decreed.
23. For the reasons given above, the appeal must succeed in part. It is, accordingly, allowed in part and the judgment and decree of the lower appellate court are modified. The suit for ejectment of the appellant from the disputed premises and for damages for use and occupation, pendente lite and future shall stand dismissed. The suit for arrears of rent at the rate of Rs. 45 per month shall stand decreed up to date on payment of necessary court-fee. In the circumstances of the case, the parties will bear their own costs.