Skip to content


Smt. Amina Khatoon and ors. Vs. Smt. Johra Bibi and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 421 of 1963
Judge
Reported inAIR1971All372
ActsCode of Civil Procedure (CPC) , 1908 - Order 41, Rule 27; Transfer of Property Act, 1882 - Sections 106
AppellantSmt. Amina Khatoon and ors.
RespondentSmt. Johra Bibi and ors.
Appellant AdvocateN.D. Srivastava and ;Umesh Chandra, Advs.
Respondent AdvocateKalbe Abbas, Adv.
DispositionApppeal dismissed
Excerpt:
.....1882 - evidence recorded by trial court does not disclose whether notice was signed by landlord - additional evidence can be adduced in appeal. (ii) service of notice - presumption - refusal by tenant - served properly - section 106 of transfer of property act, 1882. - - that court further agreed with the finding of the trial court that this notice sent by registered post was refused by the tenant and as such it shall be deemed to have been duly served on him on 26-8-1960. the lower appellate court was further of the opinion that this notice complied with the requirements of section 106 transfer of property act and as such it validly terminated the tenancy when the tenant failed to vacate the premises after the expiry of 30 days from the service of this notice. in my opinion this..........act the permission was granted. the landlords also sent a notice dated 24/25-8-1960 to the tenant by registered post requiring him to pay the ten months' arrears of rent due at that tune within a month from the date of service of the notice, and simultaneously they also purported to terminate the tenancy of the tenant by the same notice under the provisions of section 106 transfer of property act by requiring the tenant to vacate the house within one month. the tenant refused to accept the notice which was sent by registered post and the same was returned to the landlords. the plaintiff-landlords then filed a suit in the court of the munsif for recovery of arrears of rent and for possession.2. the suit was contested by the defendant-appellants. the main ground on which the.....
Judgment:

Jagmohan Lal, J.

1. This second appeal arises out of a suit for ejectment and recovery of arrears of rent filed by the plaintiff-respondents against Niyamatullah, predecessor of the defendant-appellants, who died during the pendency of the suit in the trial court and after his death the defendant-appellants were brought on record as his legal representatives. The property in dispute consisted of a house situate in the town of Pratapgarh which had been let out by the plaintiffs to Niyamatullah at the rate of Rs. 10/- per month. The tenant fell in arrears of rent for more than three months. Besides, the landlords required the house for their own residence and for this purpose they moved the District Magistrate for granting permission to sue the tenant under the provisions of Section 3 of the U. P. (Temporary) Control of Rent and Eviction Act The permission was granted. The landlords also sent a notice dated 24/25-8-1960 to the tenant by registered post requiring him to pay the ten months' arrears of rent due at that tune within a month from the date of service of the notice, and simultaneously they also purported to terminate the tenancy of the tenant by the same notice under the provisions of Section 106 Transfer of Property Act by requiring the tenant to vacate the house within one month. The tenant refused to accept the notice which was sent by registered post and the same was returned to the landlords. The plaintiff-landlords then filed a suit in the court of the Munsif for recovery of arrears of rent and for possession.

2. The suit was contested by the defendant-appellants. The main ground on which the plaintiffs' claim for ejectment was challenged was that no valid notice under Section 106 Transfer of Property Act had been served on the tenant and for that reason the tenancy could not be terminated.

3. The trial court found that though the notice dated 24/25-8-1960 had been sent under registered cover by the landlords to Niyamatullah tenant which was refused by him on 26-8-1960, the contents of that notice had not been duly proved according to law and further that notice was also invalid because it required the tenant to vacate the premises within one month and not on the expiry of 30 days from the service of this notice. On both these grounds it was held that the defendants were not liable to ejectment though the plaintiffs' claim for arrears of rent was decreed.

4. On an appeal filed by the plaintiffs, the lower appellate court admitted additional evidence to prove the notice (Ext 8) to have been written under the instructions of the plaintiffs and signed by them. After this additional evidence it was found that the notice had been duly proved to have been signed by the plaintiffs-landlords. That Court further agreed with the finding of the trial court that this notice sent by registered post was refused by the tenant and as such it shall be deemed to have been duly served on him on 26-8-1960. The lower appellate court was further of the opinion that this notice complied with the requirements of Section 106 Transfer of Property Act and as such it validly terminated the tenancy when the tenant failed to vacate the premises after the expiry of 30 days from the service of this notice. On these findings the plaintiffs' claim for ejectment was also decreed by the lower appellate court.

5. The defendants have come before this Court by filing this second appeal. I heard the learned counsel for the parties.

6. The first point that was argued on behalf of the appellants was that the lower appellate court was not justified in admitting the additional evidence to fill up the lacuna in the evidence left by the plaintiff due to their own negligence. In this connection he referred to two decisions of this Court in Khadim Ali v. Jagannath. 1940 Oudh WN 999 = (AIR 1941 Oudh 77) and Munia v. Manoharalal, 1941 Oudh WN 648 = (AIR 1941 Oudh 429) and a decision of the Supreme Court in Arjan Singh v. Kartar Singh : [1951]2SCR258 . It was held by the Supreme Court that

'the discretion given to the appellate court by Order 41 Rule 27 of the Code of Civil Procedure to receive and admit additional evidence is not an arbitrary one, but is a judicial one circumscribed by the limitations specified in that rule. If the additional evidence is allowed to be adduced contrary to the principles governing the reception of such evidence, it will be a case of improper exercise of discretion and the additional evidence so brought on the record will have to be ignored and the case decided as if it is non-existent.'

7. It was further observed in this case that the legitimate occasion for the application of Order 41 Rule 27 is when, on examining the evidence as it stands, some inherent lacuna or defect becomes apparent, not where a discovery is made, outside the Court, of fresh evidence and the application is made to import it. The true test, therefore, is whether the appellate court is able to pronounce iudgment on the materials before it without taking into consideration the additional evidence sought to be adduced.

8. Similar observations had been made by the erstwhile Oudh Chief Court in the two cases referred to above.

9. So far as the facts of this case are concerned it appears that one of these plaintiffs named Gulam Mohammed had examined himself as a witness and he had deposed that the notice (Ext. 8), which was sent by registered post and was subsequently received back with an endorsement of refusal, had been sent by him and that it was the same notice which had been sent. The trial court held that this statement of Gulam Mohammad was not sufficient to prove the contents of the notice. In my opinion this observation of the trial court which was impliedly endorsed by the lower appellate court also, was not to the point. When a person says that this particular notice is the same which had been sent to the tenant by him the contents of the notice are available therein and there can be no mistake about the contents. In fact, what the law requires is that the notice so sent should be signed by the landlord or by someone on his behalf and it was in this respect that there was a lacuna in the evidence adduced in the trial Court. Gulam Mohammad had not stated that this notice was signed by him and his co-plaintiffs, as required by Section 106 Transfer of Property Act. When the matter went to the lower appellate Court and it examined the evidence, as it stood that court rightly discovered that there was an inherent lacuna or defect in this evidence on the point whether or not this notice had been signed by the landlords and in order to pronounce its judgment on this material point it considered necessary to admit additional evidence. That evidence was admitted by examining the scribe of this notice who deposed that all the plaintiffs had signed or thumb-marked this notice in his presence which he had written under their instructions. In my opinion, no exception can be taken if the lower appellate court exercised its discretion in these circumstances by admitting this additional evidence. There was no specific issue in the trial court whether or not that had been signed by the plaintiffs and that was, perhaps, responsible for this evidence not being adduced there- So this objection raised by the learned counsel for the appellants to the admission of additional evidence under Order 41 Rule 27 C. P. C. has no force.

10. The next objection of the learned counsel for the appellants related to the service and validity of the notice. So far as the service of the notice is concerned both the courts below recorded as concurrent finding of fact that this notice (Ext. 8) which was correctly addressed to the tenant Nivamatullah was taken by the postman to him on 26-8-1960, but he refused to accept it and then the postman after making an endorsement of refusal on this notice returned it to the plaintiffs. This is a finding of fact which cannot be challenged in the second appeal. In view of this finding it shall be deemed that this notice was duly served on the tenant.

11. It was, however, argued that there was nothing on record to show that the contents of the notice had been brought to the knowledge of Niyamatullah before he had refused to accept it, and unless this fact is proved it will not be deemed to be a proper service of notice. In this connection reliance was placed on a decision of the Bombay High Court in Vaman Vithal Kulkarni v. Khanderao Ramrao Sholapurkar AIR 1935 Bombay 247. In that case even the refusal of that notice which was sent by registered post to the defendants 4 and 5 had not been proved, as the postman who took the letter and brought it back was not examined as a witness. After recording this finding of fact Beaumont C. J. in his judgment made the following observations at p. 251 of the report:--

'But in any case, even if the refusal had been proved, I should not be prepared to hold that a registered letter tendered to the addressee and refused and brought back unopened, was well served. There are, I know, some authorities in this Court to the contrary but it seems to me impossible to say that a letter has been served so as to bring the contents to the notice of the person to whom the letter is addressed, if the agent for service states that in fact the notice was not served, although the reason may have been that the addressee declined to accept it. One cannot assume that because an addressee declines to accept a particular sealed envelope he has guessed correctly as to its contents. Many people in this country make a practice of always refusing to accept registered letters, a practice based. I presume on their experience that such documents usually contain something unpleasant. So that, it is clear that this notice was not served on three of the defendants.'

So far as this Court is concerned a contrary view was held in Chanda Babu v. Chaugani Ram. : AIR1963All250 in which it was held by Dhavan, J. that--

'where a tenant knows that he is in arrears of rent and receives a registered letter from the landlord but refuses to accept it it will be presumed that he did it because he thought it contained a notice of demand and the onus is on him to rebut this presumption.'

12. In fact all that is required by law is the service of a notice under Section 106 Transfer of Property Act on the tenant either by personally delivering that notice to him or by his refusal to accent the same when it is sent to him by registered post. There is no further requirement that the contents of that notice should also be brought home to him. In any case there is no such onus on the landlords to prove this fact. If a tenant on actual receipt of notice under Section 106 keeps it in his pocket and does not care to read it, he cannot be heard to plead that he had no knowledge of the contents of the notice. Once it is proved that this notice under Section 106 was sent to the tenant by registered post and it was tendered to him by the postman but the tenant refused to accept it, it will be deemed as a valid service of notice on him under that section.

13. The last point argued by the learned counsel relating to the validity of this notice centered on the language used in the notice (Ext. 8) which is dated 24/25-8-60 and shall be deemed to have been served on the tenant on 26-8-60 on which date he refused to accept it and the postman returned it after making an endorsement of refusal. The landlords had given this composite notice under Section 3 (a) of the U. P. (Temporary) Control of Rent and Eviction Act as well as under Section 106 Transfer of Property Act. After stating that the tenant was in arrears of rent for ten months, the tenant was required to pay the arrears of rent within a month of the service of this notice. To that extent the notice fully complied with the requirements of Section 3 (a) of the U. P. (Temporary) Control of Rent and Eviction Act. It was further stated in this notice:--

'Apki kirayedari bhi is notice dwara hamlong samapt kar rahe hain.'

This language was in conformity with the requirement of Section 106 Transfer of Property Act except to this extent that at this place the time was not mentioned when this notice of termination of tenancy would take effect. But in a subsequent part of the notice it was clearly mentioned that if the tenant did not within one month of the receipt of the notice pay the arrears of rent amounting to Rs. 160/- and vacate the house, the landlords would be compelled to take legal proceedings against him for ejectment and recovery of arrears of rent under Section 106 Transfer of Property Act as amended in its application to this State, the tenancy which is from month to month can be terminated by thirty days notice on the part of the lessor. August is a month of thirty-one days. In the present case the tenant was allowed to vacate the house within one month of the service of the notice on him which means that he could do so at any time within thirty days of such service. This was more than enough time as required by a notice under Section 106 Transfer of Property Act, I, therefore, see no invalidity in this notice. The suit of the plaintiffs has, therefore, been rightly decreed and this appeal has no force. The learned counsel for the appellants pravs that the appellants may be allowed at least three months' time to vacate the premises.

14. The appeal is dismissed with costs. The defendant-appellants are, however, allowed two months time to vacate the premises and if they fail to do so, the plaintiffs shall be entitled to execute their decree for possession. The stay order dated 2-2-1965 is vacated.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //