Whether service of notice can be presumed even if postal rem


Whether service of notice can be presumed even if postal remark is left?

 
   Jammu  and Kashmir Houses and Shops Rent  Control Act,
1966: Section 11--'Serves a notice in writing through post'-
-Inter-pretation  of--Posting a pre-paid  registered  letter
containing tenant's  correct address--Sufficiency of.



HEADNOTE:
    In November 1976, the respondent issued a notice to  the
appellant  under section 11 of the Jammu & Kashmir Houses  &
Shops  Rent  Control Act, 1966 calling upon it to  pay  the
arrears of rent. The notice also terminated the tenancy  and
called upon the appellant to vacate the  demised  premises.
The notice sent by registered post was received back by  the
respondent  with  the  endorsement  "left  without  address,
returned to sender". Thereupon the respondent caused a copy
of  the   notice  to be fixed to one of  the  doors  of  the
premises in question. No payment of rent was however made by
the appellant subsequently. The respondent, therefore, filed
a  suit in June 1977 seeking ejectment of  the appellant  on
the  ground  of default in the payment of  rent.  The  Trial
Court  ordered eviction. and the appellant's appeals  before
the District .Judge and the High Court against the order  of
eviction failed.
    Before  this Court the appellant  contends that (1)  the
safeguards in ss. 11 and 12 of the Act are intended for the
benefit  and protection of the tenant and therefore,   where
the  Act provides for the service of the  notice,  by  post.
this requirement has to be strictly complied with; (2) such
postal service can neither be presumed nor considered to  be
good service where The latter is returned to the sender  due
to non-availability of the addressee; (3) in the absence  of
any enabling provision, service by  some other mode, such as
affixture,  cannot be treated as sufficient compliance with
the statute; and (4) where a power is given to do a  certain
thing  in a certain way, the thing must be done in that  way
or  not  at  all  and  other  methods  of  performance  are
necessarily forbidden.
    Dismissing the appeal, it was,
    HELD: (1) The proviso to clause (i) of section 11(1) and
the proviso to section 12(3) are intended for the protection
        PG NO 983
        PG NO 984
of  the tenant. A Nevertheless, it will be easy to see that
too strict and literal a compliance of their language  would
be impractical and unworkable. [988H; 989Al
    (2)  The proviso insists that before any amount of rent
can  be  said to be in arrears, a notice has  to  be  served
through post. All that a landlord can do to comply with this
provision   is to  post  a  prepaid  registered   letter
(acknowledgment  due or otherwise) containing  the  tenant's
correct  address.  Once  he  does this and  the  letter  is
delivered to the post office, he has no control over it.  It
is  then  presumed to have been delivered to  the  addressee
under s. 27 of the General Clauses Act. [989A-B]
    (3)  To  interpret the provision as requiring  that  the
letter must  have been actually delivered to the  addressee,
would be virtually rendering it a dead letter. [989F]
    (4) If a registered letter addressed to a person at  his
residential address does not get served in the normal course
and  is  returned,  it can   only  be attributed  to  the
addressee's  own conduct. If he is compelled to be away  for
some  time,  all  that he has to do is to  leave  necessary
instructions with the postal authorities. [989H; 990A]
    (5)  The  more  reasonable,  effective,  equitable  and
practical interpretation would be to read the words "served"
as  "sent by post". correctly and properly addressed to  the
tenant,  and the word "receipt" as the tender of the  letter
by  the postal peon at the address mentioned in the  letter.
No  other  interpretation will fit the situation  as  it  is
simply not  possible  for  a  landlord  to  ensure  that  a
registered  letter  sent  by  him gets  served  on,  or  is
received by the tenant. [990B-C]
    (6)  The statute prescribes only one method  of  service
for  the notice and none other. To require service  by some
other  method  to  be effected over  and  above  the  postal
service would be to travel outside the statute. [99OF]
    (7) Where the statute does not specify any additional or
alternative  mode  of service, there can be no warrant  for
importing into the statute a method of service on the  lines
of  the provisions of C.P.C. This Court would therefore  not
like  to hold that a substituted'' service. such as the  one
effected by the landlord in the present case, is a necessary
or permissible requirement of the statute. [990G]
    (8)  The provision in regard to the notice contemplated
by  the  statute is unsatisfactory and it is hoped that  the
        PG NO 985
legislature would soon set it right. On the provision as  it
stands,  a landlord must be held to have complied  with  the
statutory   requirement  by  sending  a   notice   correctly 
addressed to the tenant by registered post.
 
Supreme Court of India
Madan & Co vs Wazir Jaivir Chand on 28 November, 1988
Equivalent citations: 1989 AIR 630, 1988 SCR Supl. (3) 983
BENCH:
RANGNATHAN, S.
MUKHARJI, SABYASACHI (J)
Citation: AIR 1989 SC 630
 
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RETIRED JUDICIAL OFFICER

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