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Ramesh Chand Vs. Delhi Cloth and General Mills Co. Ltd. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal Nos. 18, 139, 152 and 206 of 1971
Judge
Reported inILR1973Delhi383B; 1972RLR153
ActsTransfer of Property Act, 1882 - Sections 106; Delhi Rent Control Act, 1958 - Sections 14; ;General Clauses Act, 1897 - Sections 27
AppellantRamesh Chand
RespondentDelhi Cloth and General Mills Co. Ltd.
Advocates: P.K. Seth and; J.K. Seth, Advs.
Cases ReferredB. Prasad v. Ram Dev
Excerpt:
transfer of property act (1882) - section 106-notice terminating the tenancy of a tenant or demanding arrears of rent sent through a lawyer-no indication of the name of the landlord on the envelope or cover-whether invalid-refusal by tenant-whether good service-delhi rent control act, 1958 - section 14 & general clauses act 1897-section 27. ; that there is no provision of law which requires that an envelope or cover containing a notice signed on behalf of the person giving it must indicate the name of the person giving it. there can be no practical necessity of such an indication because the tenant has only to take delivery of the enveloper or cover and read the notice contained there in to know the contents. ; that refusal of notice implies service because it is only after its..........him. however, where a central act or regulation authorises or requires a document to be served by post, service shall be deemed to be effected by properly addressing, prepaying and posting by registered post, a letter containing the document. this is provided by section 27 of the general clauses act which is in these terms :- 'whereany central act or regulation made after the commencement of this act authorizes or requires any document to be served by post, whether the expression 'serve' or either of the expressions 'give' or 'send' or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, aletter containing the document, and, unless the contrary is proved, to.....
Judgment:

S.N. Andley, J.

(1) When these second appeals against orders came up before Deshpande J., either at the stage of admission or at the time of hearing, he referred them to a larger Bench in view of the decision of Kapur J. in Kaku Mall v. Smt. Dharmi Devi (S.A.O. No. 417 of 1968) decided on February 5, 1971

(2) In the case dealt with by Kapur J., a notice was sent by registered acknowledgement due post by the counsel (Mr. G.R. Chopra, Advocate) for the landlord to the tenant. It was returned with the remark ''refused'. Kapur J. noticed that there was nothing to show from the envelope that it contained a notice from the landlord and he observed:-

'THErefusal of the notice by the tenant, even if it is established. could not be deemed to be the refusal of a notice by the tenant unless there was something on the envelope itself or on the acknowledgement due receipt attached to it, to indicate that it was from the landlord.'

(3) The notice in this case was one of demand for arrears of rent under clause (a) of the proviso to sub-section (1) of section 14 of the Delhi Rent Control Act, 1958, which required it to be served in the manner provided in section 106 of the Transfer of Property Act.

'KAPUR,J. then expressed the view that section 106 of the Transfer of Property Act-requires the notice to be signed by the landlord or by some body on his behalf. As there is nothing on the evelope or on the attached receipt, to show that it is signed by Mr. Chopra on the landlord's behalf, it cannot be said to show that the tenant was ever aware that he was refusing the landlord's notice. I am saying this on the assumption that the tenant did in fact 17 refuse the notice, and on the view that there was a presumption that the service had been effected on him. In this view of the matter, I come to the conclusion that the landlord is not entitled to a decree for ejectment as the service of notice is not established.'

(4) Later, another S.A.O. No. 256 of 1971 in re: B. Prasad v. Ram Dev was decided by Kapur J. on April 24, 1972. This appeal arose out of an application for eviction on the ground, inter alia, of personal bona fide requirement. In this case also a notice under section 106 of the Transfer of Property Act was served on the tenant before filing the application for eviction and this notice was also through a lawyer without indicating the name of the landlord on the envelope containing the notice. Kapur J. distinguished his previous judgment in Kaku Mall v. Smt. DharmiDevi (supra). He observed with reference to Kaku Mall v. Smt. Dharmi Devi -

'IT is now necessary to deal with the question whether the notice terminating the tenancy was validly served on the tenants in the present case. It is submitted by Mr. Makhija that the present case is covered by the decision given in Kaku Mall v. Smt. Dharamvati, S.A.O. No. 417 of 1968 decided on 5th February, 1972 by myself. In that case, it was held that a notice sent by registered post by the Advocate of the landlord is not properly served on the tenant if it is refused by him. The reason that prompted me to hold so was that it could not be said that the tenant knew that the envelope in question contained a notice from his landlord demanding arrears of rent. It may be noted that a notice of demand under section 14(l)(a) of the Delhi Rent Control Act, 1958 has to be served in the manner provided by section 106 of the Transfer of Property Act. If it is a case of second default, the only way in which the tenant can avoid ejectment is to deposit or pay the arrears of rent to the landlord within the two month's period prescribed by law. If the tenant does not learn that there is a a demand he cannot possibly comply with it within the limited time available to him. It, thereforee, becomes very important in such a case to establish that the tenant did know that the registered letter contained a notice of demand. If the letter in question contains an indication on its cover that it is from the landlord then it can be said that the tenant has avoided receiving the notice and the same may be deemed to be served on him. In such a case it will be for the tenant to establish that in fact he did not refuse the notice and the noting on the registered envelope concerning his refusal to accept the same was wrong. This principle does not fully apply to a notice terminating a tenancy under section 106 of the Transfer of Property Act. In such a case, the tenant has nothing to do. The notice is a mere information to the tenant that the tenancy has been terminated. It is of course open to the tenant to contend that the notice was not served on him but the time element is not of any importance.'

Kapur, J., was, thereforee, of the view in the later case that a notice under section 106 of the Transfer of property Act terminating the tenancy does not require indication of the name of the landlord on the envelope or cover containing the notice because 'in such a case. the tenant has nothing to do. The notice is a mere information to the tenant that the tenancy has been terminated.' His view in the earlier case that such indication was necessary in the case of a notice of demand under clause (a) of the proviso to sub-section (1) of section 14 of the Delhi Rent Control Act, 1958 was based on the rigour of the proviso to sub-section (2) of section 14.

(5) In the appeals before us S.A.O. No. 152 of 1971 is by the landlord and the other three appeals are by the tenants. On behalf of the tenants, the argument is that the correct view is the one expressed by Kapur, J., in Kaku Mall's case (S.A.O. No. 417 of 1968, supra) and it applies to all notices whether terminating the tenancy or making a demand of arrears of rent and that the view expressed by his lordship in the later case of B. Prasad v. Rum Dev (S.A.O. No. 256 of 1971, supra) is not correct.

(6) The only point which we shall decide on these references in these appeals is whether while serving a notice either under section 106 of the Transfer of Property Act terminating the tenancy or demanding arrears of rent under clause (a) of the proviso to sub-section (1) of section 14 of the Delhi Rent Control Act, 1958 through a lawyer it is necessary to indicate the name of the landlord on the envelope or cover containing the notice so as to inform the tenant that it is a notice from the landlord and whether in the absence of such indication and upon refusal of the tenant to accept delivery of the notice, the tenant can be said to have been duly served.

(7) Before dealing with this question, it is necessary to clear some ground. The notice in S.A.Os. Nos. 152 of 1971, 18 of 1971 and 206 of 1971 were sent through a lawyer by registered acknowledgement due post while the notice in S.A.O. No. 139 of 1971 was sent through a lawyer under postal certificate. There was no indication of the name of the landlord on any of the envelopes or covers containing the notices. Delivery of all these notices is alleged to have been refused by the tenants. We are deciding the question mentioned earlier on the assumption that there was in fact such a refusal. Whether or not there was in fact such refusal will be a matter for determination by the learned Single Judge when the appeals are dealt with by him on merits.

(8) Section 106 of the Transfer of Property Act provides for duration of certain leases in the absence of a written contract or local usage. The first part of this section provides for the period of notice for terminating a tenancy. Then, the second part provides the manner in which such notice is to be given. It says,-

'EVERYnotice under this section must be in writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants, at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property.'

(9) In so far as the controversy before us is concerned, this part of the section would read as under:-

'EVERYnotice under this section must be in writing, signed by or on behalf of the person giving it, and ..........be sent by post to the party who is intended to be bound by it........ ..... .at his residence. . . . . .'

(10) This part of the section is concerned with the notice itself and not with the envelope or cover in which it is sent. It gives the requirements of a valid notice; that is, (1) it must be in writing, (2) it must be signed by or on behalf of the person giving it, (3) it is sent by post to the party who is intended to be bound by it and (4) it is sent at the residence of such party. The section does not require that the notice should be sent by registered post or registered acknowledgement due post or under postal certificate. It requires only that the notice be sent by post. For the purposes of these appeals we proceed on the assumption that the notices were in writing; that they were signed by a lawyer on behalf of the landlord, that is, the person giving it; that they were sent by post and that they were sent to the residence of the tenant.

(11) Actual retention of the notice by the addressee is not required by the section. In other words, shortly stated, the section requires only the sending of a notice by post. The section does not speak of the envelope or cover containing the notice nor does it require the indication of the name of the person sending it on such envelope or cover.

(12) The view of Kapur, J., in Kaku Mall's case (supra) that there should be an indication on the envelops or cover that it is from the landlord was based on two reasons, viz. (1) that under clause (a) of the proviso to sub-section (1) of section 14 the tenant has to deposit or pay the arrears of rent within two months from the date of service of the notice of demand, and, thereforee, he should have knowledge that there is such a demand by the landlord, and (2) that he should have the knowledge before he refuses to receive the envelops that the envelope contains a notice of demand for arrears of rent sent by or on behalf of the landlord. So far as the first reason is concerned, it is true that the tenant would not be able to deposit or pay the arrears of rent within two months from the date of service of the notice of demand unless he knows that there is such a demand by the landlord. But in the normal course, on accepting the service or delivery of the envelope, the tenant would know about the demand on opening the envelope and pursuing the notice contained in the envelope, and that is what clause (a) contemplates. The clause does not contemplate a refusal by the tenant. It has to be noted that normally a tenant ought to pay rent regularly without allowing it to fall into arrears. However, provision has been made in the clause to protect a tenant who, for some reason or the other, allowed the rent to fall into arrears, by allowing him to deposit or pay the arrears within a certain time from the date of the service of notice of demand by or on behalf of the landlord. That being so, the tenant, by refusing to accept the service or delivery of the envelope containing the notice of demand, renders himself unable to avail of the benefit offered by the clause by his own conduct. He cannot thereafter make a grievance of the situation created by his own act of refusal, and he cannot be heard to say that he has no knowledge that there is a demand by the landlord for payment of arrears. The first reason for the view of Kapur, J., is thus not available to a tenant who refuses to accept service or delivery of the envelope.

(13) As regards the second reason, it has to be noted that it assumes 17 that the tenant should have the knowledge, before he refuses to receive the envelope, that the envelope contains a notice of demand for arrears of rent sent by or on behalf of the landlord. There is no such requirement in clause (a). This is because the clause, does not contemplate a refusal by the tenant of what is sought to be served upon him. The clause requires only that a notice of demand for the arrears of rent should be served on the tenant by or on behalf of the landlord, and then prescribes the manner in which the notice is to be served, viz. as provided in section 106 of the Transfer of Property Act. So far as the aforesaid requirement of the clause is concerned, it is satisfied in the present cases as we are proceeding on the assumption that the envelope contains a valid notice of demand. As regards the manner of service prescribed in the clause, it has to be noted that there is nothing in the clause which requires that in the process of service the tenant must have knowledge that the envelope contains the notice of demand sent by or on behalf of the landlord. It merely states that the notice should be served in the manner provided in section 106 of the Transfer of Property Act. thereforee, the only question, so far as the manner of service is concerned, is as to whether the notice has been served as provided in section 106. If it is so served, the landlord will have complied with the requirement in clause (a) read with section 106 of the Transfer of Property Act so far as the service of notice of demand is concerned.

(14) Coming now to section 106 of the Transfer of Property Act, it only provides, that the notice, inter aha, be 'sent' by post to the party who is intended to be bound by it. If a document is sent by post and it is proved that it was so sent, the Court may presume that it was delivered to or received by the addressee. Such presumption is permissible under section 114 of the Indian Evidence Act and illustrations (e) and (f) thereto. This presumption is rebuttable and it is open to the addressee to prove that the document was not in fact delivered to or received by him. However, where a Central Act or Regulation authorises or requires a document to be served by post, service shall be deemed to be effected by properly addressing, prepaying and posting by registered post, a letter containing the document. This is provided by section 27 of the General Clauses Act which is in these terms :-

'WHEREany Central Act or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression 'serve' or either of the expressions 'give' or 'send' or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, aletter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.'

(15) thereforee, in a case covered by the above section, the presumption is given the status of proof by reason of the deeming provision.

(16) Now, section 106 of the Transfer of Property Act and clause (a) of the proviso to sub-section (1) of section 14 of the Delhi Rent Control Act, 1958, both Central Acts, authorize or require the sending of a notice by post. If, thereforee, the notice has been properly addressed, pre-paid and sent by registered post, service of the notice shall be deemed to be effected on the addressee and it ceases to be merely a presumption as in the case of posting by ordinary post or under postal certificate.

(17) Then, a notice under section 106 of the Transfer of Property Act can be signed by or on behalf of the person giving it. This would be so even in the case of a notice under clause (a) of the proviso to subsection (1) of section 14 of the Delhi Rent Control Act, 1958 because the manner of service of notice under this provision is as provided in section 106 of the Transfer of Property Act. There is no provision of law which requires that an envelope or cover containing a notice signed on behalf of the person giving it must indicate the name of the person giving it. There can be no practical necessity of such an indication because the tenant has only to take delivery of the envelope or cover and read the notice contained therein to know that it is a notice under clause (a) of the proviso to sub-section (1) of section 14 of the Delhi Rent Control Act, 1958. Kapur, J., was, thereforee, not right in expressing the view that such a notice required such an indication on the envelope or cover containing it.

(18) Then the question is whether a notice sent by registered post or under postal certificate can be deemed or presumed to have been served on the addressee if its delivery is refused. Refusal implies service because it is only after its tender or service that its delivery is refused. There is no legal obligation on the sender to see that the addressee retains the notice. thereforee, refusal to take delivery would amount to service of the notice. If so, it would follow that in a case where a notice is so sent by a landlord and it is refused by the tenant, the landlord will have done what is required of him by and thus complied with the provision in clause (a) of the proviso to sub-section (1) of section 14 of the Delhi Rent Control Act read with section 106 of the Transfer of Property Act.

(19) The tenants-appellants before us have placed great reliance upon the decision of the Bombay High Court in Vaman Vithal Kulkami and others v. Khanderao Ram Rao Sholapurkar A.I.R. 1935 Bom 247.

'INthis case Beaumont, C.J., expressed the view that even if the refusal of a registered notice has been proved he would not be prepared to hold that a registered letter tendered to the addressee and refused and brought back unopened, was well served. The learned Chief Justice was conscious of the authorities of that Court to the contrary but he still felt that it seemed to him,- 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 of 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 persume, on their experience that such documents usually contain something unpleasant.'

(20) The learned Chief Justice seems to have based his conclusion upon the prevalance of a practice of refusing to accept registered letters. With respect, we are unable to bring such a consideration to bear for deciding the question as to whether the person giving the notice has complied with the provisions of section 106 of the Transfer of Property Act. We are, thereforee, unable to agree with the view expressed by the learned Chief Justice. We are not alone in disagreeing with this view.

(21) In Shri Nath and another v. Smt. Saraswati Devi Jaiswal : AIR1964All52 , a learned Single Judge of that Court dissenting from the Bombay view observed,-

'WHEREa closed envelope is tendered to a person and he refuses to accept delivery of the same, he, of course, has no knowledge of the contens of that envelope; but when he does not care to accept delivery of the envelope, the law should impute knowledge of the contents thereof to him, and it is on that basis that refusal to accept delivery of a registered or unregistered notice is regarded as sufficient notice of the contents of the envelope to the addressee. If that is not done, it will always be possible for the addressee to say that he did not know what the letter contained and it would become impossible for the sender to serve proper notice on him in any case.'

(22) A Full Bench of the Allahabad High Court in Ganga Ram v. Smt. Phulwati : AIR1970All446 has dealt with the large number of cases of various High Courts on this question. After a consideration of all the cases and the relevant provisions of law, it was observed:-

'IT is not the duty of the plaintiff to prove that the defendant, after having received notice, had actually read it and undrstood its contents. Similarly, where the registered envelope contains a correct address of the tenant and the addressee either cannot be met or refuses to take notice, there appears to be no reason why the notice should not be deemed to have been properly served on the addressee.'

(23) There is preponderance of authority for this view as is evident from the cases reported in : AIR1965All287 . We are in respectful agreement with it.

(24) It, thereforee, follows that even in a case of refusal, the notice should be deemed or persumed to have been properly served on the addressee according as the notice has been sent by registered post or under certificate of posting. It is, thereforee, immaterial whether the name of the landlord is indicated on the envelope or cover containing the notice We say with respect that the decision of Dalip Kapur, J., in Kaku Mall's case (S.A.O. No. 417 of 1968, supra) is not correct while the decision of the learned Judge in B. Prasad v. Ram Dev (S.A.O. No. 256 of 1971, supra) is correct.

(25) Assuming, thereforee, that the tenant in each of these appeals had refused to accept the notice, he must be deemed or presumed, as the case may be, to have been duly served with the notice notwithstanding that the name of the landlord was not indicated on the envelope or cover containing it.

(26) The appeals will now be listed before a learned Single Judge for disposal. Costs of this reference will abide the event.

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