Reserved On:- 09.08.2021
Delivered On:- 16.08.2021
Case :- MATTERS UNDER ARTICLE 227 No. - 3737 of 2021
Petitioner :- Smt.Pushpa Devi
Respondent :- Smt.Premwati (Deceased) And 3 Others
Counsel for Petitioner :- Vineet Kumar Sahu
Counsel for Respondent :- Saroj Kumar Tiwari
Hon'ble Siddharth, J.
1. Heard Sri Vineet Kumar Sahu, learned counsel for the petitioner and Sri Saroj Kumar Tiwari, learned counsel for the respondents.
2. This petition has been filed against the judgment and order dated 15.07.2021 passed by Additional District Judge, Court No. 4, Aligarh in Regular/ Miscellaneous/ 738/ 2017 (Smt. Pushpa Devi vs. Smt. Premwati Devi and Others) and impugned judgment and decree dated 27.09.2017 passed by Additional District Judge, Court No. 4, Aligarh in SCC Suit No. 23 of 2015.
3. The original plaintiff-respondent no. 1 (since deceased) instituted a SCC Suit No. 23 of 2015 before the Additional Additional District & Sessions Judge, Court No. 4, Aligarh praying for decree of ejectment, recovery of arrears of rent, damages, etc., after terminating the tenancy of the defendant-petitioner by the legal notice.
4. The trial Court issued summons to the defendant and thereafter, holding the notice sufficient on the tenant, the suit was decreed ex-parte by the judgment and decree dated 27.09.2017.
5. The defendant-petitioner filed an application under Order 9, Rule 13 read with Section 151 CPC praying for recall of the ex-parte judgment and decree dated 27.09.2017 on the ground that she is residing in the house no. 2/34, Begum Bagh, Shaher Kasba Kol, Aligarh. On 25.11.2017, the husband of original plaintiff, Ramesh, came to her house and started creating dispute and informed the defendant that on 27.09.2017, he has got decree from the Court and will get the house vacated from her. On 27.11.2017 the defendant made inquiry in Court and then she came to know about judgment and decree aforesaid. The summons were sent by plaintiff on wrong address and after publication of notice in local newspaper the notice was got held sufficient and the suit was decreed ex- parte.
6. The original plaintiff filed her reply to the recall application of the defendant stating that she was aware of the institution of suit and summons were sent to her repeatedly which were returned in collusion with the postman and hence substituted service of notice by way of publication in newspaper was done and then notice was held sufficient. The allegation that notices were sent on wrong address of defendant is incorrect.
7. The trial Court found that notices were sent to the defendant on 03.07.2015. On the summons there is thumb impression of defendant and on 28.08.2015 the service of notice was found on defendant, Smt. Pushpa Devi w/o Ram Singh. Nothing has been said about this notice in the application under Order 9, Rule 13 CPC. Thereafter, notice was sent to the defendant by registered post but the accommodation was found to be locked. Again notice was sent by the registered post and it was returned with the endorsement of refusal. The defendant claims that she got the information of the ex-parte judgment and decree dated 27.09.2017 from the husband of the plaintiff, Ramesh, but she filed the recall application after two months when there is 30 days limitation provided for getting an ex-parte decree set aside.
8. After hearing counsel for the parties, this Court finds that for recall of an ex-parte decree or review of a judgment passed by the Court or small causes, at the time of presenting application, the applicant is required to either deposit in Court the amount due from him under decree or give such security for the performance of decree as the Court may, on a previous application made by him in this behalf, have directed, as per Section 17 of Provincial Small Cause Courts Act, 1887, only proviso.
9. It is clear from the order of the trial Court that no compliance of the Section 17, only proviso of the Provincial Small Cause Court Act, 1887 was made by the defendants. The application under Order 9, Rule 13 CPC was not preceded by any compliance of Section 17 of the Provincial of Small Causes Court Act. Although the Court below has not considered this aspect of default on the part of the defendants-petitioners but being mandatory provision it cannot be ignored. The Apex Court in the case of Kedar Nath vs. Mohal Lal Kesarwani and Others 2002 (1) ARC 186, has held accordingly.
10. The findings of the trial Court with regard to attempt of the defendants to avoid notice sent repeatedly by registered post and then by way of publication in newspaper clearly proves that the defendants deliberately avoided appearance before the trial Court. Notices were sent on correct postal address of the defendant repeatedly by registered post, hence there is presumption of service on defendant.
11. This aspect as to whether the duty of the landlord is complete by sending of the notice has been considered by the Supreme Court with reference to the presumption under Section 27 of the General Clauses Act, 1897 in the judgment in the case of M/s Madan & Co. Vs. Wazir Jaivir Chand (1989) 1 SCC 264 and the Supreme Court has held that once there is a proper tender at the correct address of the demand notice, then there is service of the demand notice in view of the presumption as per Section 27 of the General Clauses Act and para 6 of which reads as under:-
“6. We are of opinion that the conclusion arrived at by the courts below is correct and should be upheld. It is true that the proviso to Clause (i) of Section 11(1) and the proviso to Section 12(3) are intended for the protection of the tenant. Nevertheless it will be easy to see that too strict and literal a compliance of their language would be impractical and unworkable. 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 (acknowledgement due or otherwise) containing the tenant's correct address. Once he does this and the letter is delivered to the post of fice, he has no control over it. It is then presumed to have been delivered to the addressee Under Section 27 of the General Clauses Act. Under the rules of the post of fice, the letter is to be delivered to the addressee or a person authorised by him. Such a person may either accept the letter or decline to accept it. In either case, there is no dif ficulty, for the acceptance or refusal can be treated as a service on, and receipt by, the addressee. The dif ficulty is where the postman calls at the address mentioned and is unable to contact the addressee or a person authorised to receive the letter. All that he can then do is to return it to the sender. The Indian Post Of fice Rules do not prescribe any detailed procedure regarding the delivery of such registered letters. When the postman is unable to deliver it on his first visit, the general practice is for the postman to attempt to deliver it on the next one or two days also before returning it to the sender. However, he has neither the power nor the time to make enquiries regarding the whereabouts of the addressee; he is not expected to detain the letter until the addressee chooses to return and accept it; and he is not authorised to af fix the letter on the premises because of the assessee's absence. His responsibilities cannot, therefore, be equated to those of a process server entrusted with the responsibilities of serving the summons of a Court under Order V of the CPC. The statutory provision has to be interpreted in the context of this dif ficulty and in the light of the very limited role that the post of fice can play in such a task. If we interpret the provision as requiring that the letter must have been actually delivered to the addressee, we would be virtually rendering it a dead letter. The letter cannot be served where, as in this case, the tenant is away from the premises for some considerable time. Also, an addressee can easily avoid receiving the letter addressed to him without speci fically refusing to receive it. He can so manipulate matters that it gets returned to the sender with vague endorsements such as "not found", "not in station", "addressee has left" and so on. It is suggested that a landlord, knowing that the tenant is away from station for some reasons, could go through the motions of posting a letter to him which he knows will not be served. Such a possibility cannot be excluded. But, as against this, 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 staying in the premises, there is no reason why it should not be served on him. 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 either to detain the letters addressed to him for some time until he returns or to forward them to the address where he has gone or to deliver them to some other person authorised by him. In this situation, we have to chose the more reasonable, effective, equitable and practical interpretation and that 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, we think, 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.
12. Counsel for the petitioner is therefore not right in contending that the demand notice was not served upon the petitioner once the postman repeatedly visited the address but the addressee/petitioner was not found.
13. The petition lacks merit and is accordingly, dismissed.
Order Date :- 16.08.2021 Rohit