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Madan and Co. Vs. Wazir Jai Veer Chand - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtJammu and Kashmir High Court
Decided On
Case NumberCivil Second Appeal No. 5 of 1981
Judge
Reported inAIR1986J& K57
ActsJammu and Kashmir Code of Civil Procedure (CPC) , 1977 Svt. - Sections 100 and 101; ;Jammu and Kashmir Houses and Shops Rent Control Act, 1966 - Sections 11 and 14
AppellantMadan and Co.
RespondentWazir Jai Veer Chand
Appellant Advocate R.P. Bakshi, Adv.
Respondent Advocate T.S. Thakur, Adv.
DispositionAppeal dismissed
Cases ReferredGuman Mal v. Kanwar Lal
Excerpt:
- .....on 17-6-1977 on the ground that from 1-4-1976 onwards tenant has stopped making the payment of rent. notice is said to have been served on the appellant on 25-11-1976. despite service of notice, it is contended that the tenant has committed three defaults of two months each within a period of eighteen months. the respondent-plaintiff appears to have issued a notice through registered post on 7-12-1976 on the appellant. the said notice was returned to the respondent with the endorsement that the tenant had left without address and the registered notice was delivered back to the sendor-respondent. on 9-12-1976 copy of the notice is said to have been pasted on one of the doors of the demised premises in presence of two witnesses of the locality. the defendant has controverted the facts.....
Judgment:

M.L. Bhat, J.

1. The short point canvassed before me in this second appeal by Mr. R. P. Bakshi is regarding service of notice. His contention is that notice was required to be served through registered post, that being the only mode of service recognised by law, service by affixing notice on the outer door of the tenant's premises is not valid service of notice. That being so, the suit of the plaintiff was liable to be dismissed and the Courts below having passed a decree holding that the service by affixing notice is valid, is, therefore liable to be set aside.

2. Mr. Bakshi has drawn my attention to the provisions of Rent Control Act which provides that no amount shall be deemed to be in arrears unless the landlord on the rent becoming due services a notice in writing through post office under a registered cover on the tenant to pay or deposit the arrears within a period of fifteen days from the date of receipt of such notice and the tenant fails to pay or deposit the said arrears within the specified period. The contention, on the basis of this provision embodied in the Houses and Shops Rent Control Act, is that the only mode prescribed for serving notice of the tenant for payment of arrears of rent is notice in writing through post office under a registered cover. No provision is made for service of notice in any other manner, therefore service by affixation is not valid. On this principle he submits that no notice under law was given to the tenant-appellant. No arrears could be deemed to be outstanding against the tenantand he was not liable to be evicted for having committed default in making the payment of rent to the landlord.

3. It appears that a suit for eviction was filed against the appellant on 17-6-1977 on the ground that from 1-4-1976 onwards tenant has stopped making the payment of rent. Notice is said to have been served on the appellant on 25-11-1976. Despite service of notice, it is contended that the tenant has committed three defaults of two months each within a period of eighteen months. The respondent-plaintiff appears to have issued a notice through registered post on 7-12-1976 on the appellant. The said notice was returned to the respondent with the endorsement that the tenant had left without address and the registered notice was delivered back to the sendor-respondent. On 9-12-1976 copy of the notice is said to have been pasted on one of the doors of the demised premises in presence of two witnesses of the locality. The defendant has controverted the facts stated in the plaint and has stated that he had left temporarily for treatment outside Jammu City and plaintiff had sent notice on wrong address. Service by affixing notice on the demised premises is assailed on the basis of provisions of the Rent Control Act. The tenant has also denied having committed defaults as alleged by the plaintiff.

4. On the basis of the pleadings of the parties issues were framed about the service of notice and about the defaults. Courts below have come to the conclusion that the notice was duly served on the appellant-defendant and have held him as a defaulter in payment of rent and have granted the relief of ejectment to, the respondent.

5. On facts relating to the default committed by the appellant in making payment of rent to the plaintiff-respondent, this Court cannot take a contrary view because there is a concurrent finding of fact in this regard by the Courts below. However the question regarding service of notice and mode of service of notice being questions of law, this Court has heard detailed arguments of the learned counsel for the parties. Learned counsel for the appellant has invited my attention to an authority Sikender Pal Jain v. Sardar Gurcharan Singh, reported in 1979 Kash LJ 15 for the proposition that notice is to be served only through registered post formaking demand for payment of arrears of rent. Another authority reported in Sukh Ram v. Sat Paul reported in 1979 Kash LJ 268 also is cited by Sh. Bakshi for the proposition canvassed by him. He has also referred to an authority of Rajasthan High Court; Guman Mal v. Kanwar Lal reported in 1971 Ren CR 451 : (AIR 1971 Raj 273) also to 1970 R. C. R. page 68 (sic).

6. I have considered the case law cited by Mr. Bakshi as also the provisions contained in the Rent Control Act in this regard.

1979 Kash LJ 15 is an authority regarding the deposit of rent by the tenant under Section 14 and it lays down the conditions for deposit of rent before the Rent Controller by the tenant. It is not an authority for the proposition that when notice through registered post is not delivered whether notice by affixing on the demised premises is valid or not. 1979 Kash LJ 268 (supra) lays down the conditions for eviction of a tenant under Section 12(3) of the Rent Control Act and makes a mention that notice is to be served for payment or deposit of the rent to the tenant. None of these two authorities have taken into consideration the situation which would arise if the service of notice through registered post on the tenant is impracticable.

1971 Rent CR 451 : (AIR 1971 Raj 273) (supra) is an authority for the proposition that affixation of notice without evidence of tenders on family members or servants is insufficient. It does not state that affixation of notice by itself is bad. It only lays down that there must be proof that affixation of notice was made and there must be evidence in this regard.

7. Section 106 of the Transfer of Property Act about service of notice is not applicable to the facts of the present case. In that section mode of service is provided. Therefore the principle of that section as regards of service of notice cannot be imported in the present case which is governed by the provisions of Houses and Shops Rent Control Act.

8. Courts below have found on evidence that registered notice was sent on the defendant-appellant. It came back undelivered as the appellant had left the premises. It is not in evidence that the appellant had informed the landlord about his whereabouts or had informed him about his address. After the registered notice has been received back undelivered,the plaintiff-respondent had no other choice except to serve the notice in any other manner recognised by law. Affixation of notice is definitely the mode of service of notice. The only condition being that there must be evidence that notice was affixed. None of the authorities cited by the learned counsel for the appellant lay down that notice by affixation is impermissible. In fact 1971 Rent CR 451 : (AIR 1971 Raj 273) (supra) is an authority for the proposition that service of notice by affixation is valid provided there is evidence of such service. In the present case the Courts below have believed two witnesses namely Ram Parkash and Krishan Dev about the affixation of notice on the demised premises on 9-12-1976. It is also in evidence which is believed by Courts below that postman Kasturi Lal P. W. 3 had gone with the registered notice to the defendant but did not find the defendant there and therefore he returned notice back to the plaintiff. These are the questions of fact which had been believed by the Courts below. There is evidence that affixation of notice was made in presence of two witnesses. That evidence has been held to be sufficient by the Courts below. Therefore affixation of notice on the demised premises does not suffer from any infirmity. The only question now remains whether affixation is valid or not. It is true that the J. & K. Houses and Shops Rent Control Act provides that notice should be served through registered post. But when service through regitered post is impracticable, the plaintiff cannot be denied the right to effect the service by affixing the notice on the demised premises. In this case the plaintiff had served the registered notice which came undelivered for no fault of the plaintiff. Defendant has not led any evidence that he had informed the plaintiff about his address or whereabouts. Consequently the plaintiff was left with no choice except to affix the notice on the outer door of the defendant. In the facts and circumstances of the case service of notice by affixation is valid after registered notice had come back undelivered. Therefore service of notice cannot be held to be invalid as canvassed by Mr. R. P. Bakshi. The contention of Mr. Bakshi is to be overruled.

9. For the reasons stated above, this civil second appeal is dismissed and the decreepassed by the Courts below in favour of the respondent is confirmed. No order as to costs.


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