Richard Garth, C.J.
1. In this case I entirely agree with the learned pleader, who has argued the case for the appellant, that if the question before us had been merely one of fact this Court would not have been justisfied in interfering with the finding of the lower Court. We have always in this Bench adhered most strictly to that rule. Unless we could see that the lower Court had either committed some error of law, or had been under some misapprehension of law, we have always refused to interfere.
2. But it seems to me that, in this ease, the judgment of the Subordinate Judge has proceeded upon a misapprehension of the law.
3. The question was, as to whether the notice of enhancement was properly served under Section 14 of the Kent Law (Bengal Act VIII of 1869); and it seems that two witnesses were called to prove the proper service. One was the peon who was employed to serve it, and the other was the person who had to identify the defendant and the house in which he lived.
4. The first of these witnesses stated in evidence that after search he was unable to find the defendant; and, therefore, he effected the service by posting up the notice on his house. This witness, it appears, was not cross-examined as to this fact; his evidence was supported by the other witness whom I have mentioned; and when the defendant himself was called, he does not say that he was at home when the service was effected, nor, in fact, does he profess to know where he was at that time. This is not a case, therefore, where the defendant has tried to prove that the service was irregular; and the only objection taken to the evidence was, that the peon did not sufficiently explain the nature of the search which he made to find the defendant. If there had been any real reason for supposing that the search was not properly made, and that no sufficient pains were taken to discover the defendant; and serve him personally, that ought surely to have been made the subject of cross-examination.
5. The Munsiff found upon this evidence that the service was sufficient; but the view of the Subordinate Judge was this. In the first place he seems to have thought that it was necessary, in cases of this kind, that the witness who came to prove the notice should not only show that he had made search for the defendant, and could not find him, but that he should also go on to explain the various means, which he had taken to find him.
6. In this, he would seem to have dealt with the proof more strictly than the law requires; but if that had been the sole ground upon which he based his finding, I should have doubted whether we ought to interfere: but what he afterwards goes on to say serves to satisfy us that the Subordinate Judge was under a misapprehension of the true meaning of Section 14 of the Bent Law, under which the service of the notice was made, and that his decision was more or less based upon that misapprehension.
7. He has referred, in support of his view, to the judgment of the Privy Council in a case of Ram Chnnder Dutt v. Jogesh Chunder Dutt 19 W.R. 353 : 12 B.L.R. 229.
8. In that case the suit was brought to enhance the rent of a tenant; and one defence to the suit was that no notice of enhancement had been served. The case was appealed to the Privy Council, and was decided in the defendant's favour upon other grounds. But at the close of their judgment these words occur:
Their Lordships desire to say that they have great doubt whether the evidence sufficiently shows that the notice to enhance was properly served. If it had been necessary to determine that point, the evidence must have been necessarily looked at to see if any presumption could have been raised that Ram Charan Dutta was keeping out of the way at the time when it was attached to the door. Their Lordships are of opinion that in case of substituted service, that is, service substituted for the personal service which the statute requires, wherever it is prescribed, the Courts should take care to be satisfied that the condition on which alone substituted service is good, exists, namely, that the person who ought to be served is keeping out of the way.
9. It does not appear from this report in the Weekly Reporter, to what provision, as regards the service of notice, their Lordships were alluding, but from the report of the same case in 12 B.L.R. 229, it appears that the enactment to which they referred was Regulation V of 1812, Section 10. From that report it appears that Mr. Leith, the counsel for the plaintiff, relied upon that enactment only.
10. Section 9 of the Regulation provides that no cultivator or tenant of land shall be liable to pay enhanced rent, unless under some written engagement with his landlord, or unless a formal written notice has been served upon him to pay enhanced rent; and then Section 10 provides that until such notification has been duly served, no greater rent shall be exigible by process of distress, nor recoverable by suit in Court, than the cultivator or tenant was bound to pay under his previous engagement; and then it goes on to say as regards the service of the notice that-
In all practicable cases the required notification shall be served personally on the tenant; but if he shall abscond, or conceal himself, so that it cannot be served personally upon him, it shall be affixed at his usual place of residence.
11. It is evidently to that enactment that their Lordships refer, when they say, in their judgment, that it must be shown that the tenant is keeping out of the way to avoid service.
12. Now it is important to note that the language of this condition is very different from that of Section 14 of the Bent Law. That section enacts that 'such notices (that is to say, notices to enhance) shall be served by order of the Collector, in whose jurisdiction the lands are situated, upon the application of the person to whom the rent is payable; and shall, if practicable, be served personally upon the under-tenant or ryot; and if for any reason the notice cannot be served personally upon the under-tenant or ryot, it shall be affixed at his usual place of residence.'
13. Under Section 10 of the Regulation of 1812 the substituted service can only be resorted to 'when the tenant absconds or conceals himself, etc.,' whereas under Section 14 of the Rent Law, the substituted service may be made, 'if for any reason the notice cannot be served personally.'
13. And there is doubtless good reason for this difference in the two enactments. Under the Regulation of 1812 the mere service of the notice to pay enhanced rent of itself rendered the tenant liable to pay the enhanced rent mentioned in the notice; whereas, practically speaking, the notice given under Section 14 of the Bent Law only enables the landlord to bring a suit against the tenant to establish his right to the enhanced rent, and in that suit the question whether any and what enhancement ought to be allowed is duly considered and tried.
14. In the first case, therefore, there is every reason why personal service should be a condition precedent to the enhancement, and should not be dispensed with, except in the case of the tenant absconding, or concealing himself, or, in the words of the Privy Council, keeping out of the way to avoid service; whereas in the last case, where the notice is merely a preliminary step to bringing a suit, it was probably thought reasonable that personal service of it should be unnecessary, if, for any reason, the tenant could not be personally served.
15. Whether this was the view of the Legislature or not, it is certain that the language of the two enactments is very different; and it is obvious that the lower Appellate Court has made a mistake in applying to this case, where the question arose under Section 14 of the Rent law, the more stringent rule which was laid down by Regulation V of 1812.
16. The mistake, however, was one for which the Subordinate Judge might well be excused, for in the report of the Privy Council case in the Weekly Reporter, it does not appear to what enactment their Lordships were referring; and we find, moreover, that in more than one instance in the High Court this decision of the Privy Council seems to have been misinterpreted in the same way.
17. In the present case it appears to us that the fact of the tenant not being found, although search was made for him, was a sufficient reason prima facie for affixing the notice at his place of residence. The witnesses were not cross-examined as to the sufficiency of the search, and the defendant, though called as a witness, does not pretend to say that he was at home at the time, or that notice might have been served upon him personally.
18. It is probable that but for the misapprehension of the law, into which the Subordinate Judge has fallen, he would have agreed with the Munsiff as to the sufficiency of the notice; but, speaking for myself, the only doubt I have had is, whether the learned Judge who decided this case ought not to have, remanded it to the Court below, pointing out to the Subordinate Judge the mistake which he had made, and directing that the case should be re-tried.
19. But my learned brother thinks--and I am disposed to agree with him--that this course would be almost superfluous; because, if we were to send the case back to the Subordinate Judge, with the observations which we have already made, we cannot doubt but that he will find the notice to have been sufficient.
20. We think, therefore, that the learned Judge was right in the view which he took, and that this appeal should be dismissed with costs.