Sunday, 18 March 2018

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.

    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
Citation: AIR 1989 SC 630
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Whether small causes court Act has power to review its own order?

Section 42 provides for appeals. Section 43 provides -

"In all suits, appeals and proceedings under this Chapter, the Small Cause Court shall, as far as possible and except as herein otherwise provided, follow the procedure prescribed by the Code of Civil Procedure, 1908."

13. Section 43, however, will have to be read along with Section 9 of the Act which confers power on the High Court to frame rules or procedure to be observed by the Small Causes Court and as mentioned above the provisions in the Code relating to the review have been expressly omitted so far as the suits and proceedings in the Small Cause Courts are concerned. The net result is that neither under the Rent Act nor under the Rules framed thereunder nor under the Presidency Small Cause Courts Act or the Rules framed thereunder is there a provision conferring the power of review on the Small Cause Courts in the proceedings under the Rent Act. As held by the Supreme Court the power of review is not an inherent power. It must be conferred by law either specifically or by necessary implication. The provisions discussed above rule out any such power being conferred even by implication.


Civil Revision No. 461 of 1982

Decided On: 01.02.1985

National Hotel (Firm), Bombay and Ors. Vs. Rukaiyabai and Ors.

Hon'ble Judges/Coram:
P.S. Shah, J.

Citation: 1985 MHLJ 353
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Leading judgment on basic principles to be followed by court for striking off pleadings

Order VI Rule 16 CPC which empowers the Court to strike out the pleadings reads thus:

Striking out pleadings. - The Court may at any stage of the proceedings order to be struck out or amended any matter in any pleading-

(a) which may be unnecessary, scandalous, frivolous or vexatious, or

(b) which may tend to prejudice, embarrass or delay the fair trial of the suit, or

(c) which is otherwise an abuse of the process of the court.

16. A reading of the plain language of the above reproduced provisions makes it clear that the court's power to strike out any pleading at any stage of the proceedings can be exercised in either of the three eventualities i.e., where the pleadings are considered by the court unnecessary, scandalous, frivolous or vexatious; or where the court is satisfied that the pleadings tend to prejudice, embarrass or delay the fair trial of the suit or which is otherwise considered as an abuse of the court.

17. Normally, a court cannot direct or dictate the parties as to what should be their pleading and how they should prepare their pleadings. If the parties do not violate any statutory provision, they have the freedom to make appropriate averments and raise arguable issues. The court can strike off the pleadings only if it is satisfied that the same are unnecessary, scandalous, frivolous or vexatious or tend to prejudice, embarrass or delay the fair trial of the suit or the court is satisfied that suit is an abuse of the process of the court. Since the striking off pleadings has serious adverse impact on the rights of the concerned party, the power to do so has to be exercised with great care and circumspection. In Knowles v. Roberts (1888) 38 Ch D, 263, Boven, L.J. Observed:

It seems to me that the rule that the Court is not to dictate to parties how they should frame their case, is one that ought always to be preserved sacred. But that rule is, of course, subject to this modification and limitation, that the parties must not offend against the rules of pleading which have been laid down by the law; and if a party introduces a pleading which is unnecessary, and it tends to prejudice, embarrass and delay the trial of the action, it then becomes a pleading which is beyond his right. It is a recognized principle that a defendant may claim ex debito justitiae to have the plaintiff's claim presented in an intelligible form, so that he may not be embarrassed in meeting it; and the Court ought to be strict even to severity in taking care to prevent pleadings from degenerating into the old oppressive pleadings of the Court of Chancery.


Civil Appeal No. 55 of 2010 (Arising out of SLP (C) No. 2991 of 2008)

Decided On: 07.01.2010

Abdul Razak (D) through L.Rs. and Ors. Vs Mangesh Rajaram Wagle and Ors.

Hon'ble Judges/Coram:
G.S. Singhvi and A.K. Ganguly, JJ.

Citation:  (2010) 2 SCC 432
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When court should not strike off additional written statement of defendant?

Therefore, when a defendant had raised a new plea, which is not covered in the original written statement or an inconsistent plea, against the original written statement, the same cannot be described or labeled as prejudicial defence or vexatious or scandalous, as understood under Order VI Rule 16 C.P.C. If the plaintiff/revision petitioner was aggrieved by the court's order, in granting permission to file the additional written statement, the remedy would have been to challenge the same and not to file a petition under Order VI Rule 16 C.P.C., to strike out the entire defence.
Order 6 Rule 16 C.P.C. reads:

"The Court may at any stage of the proceedings order to be struck out or amended any matter in any pleading-

(a) which may be unnecessary, scandalous, frivolous or vexatious, or

(b) which may tend to prejudice, embarrass or delay the fair trial of the suit. Or

(c) which is otherwise an abuse of the process of the Court."

Therefore, considering the inconsistent stand taken by the defendant alone, the additional written statement cannot be described as unnecessary, scandalous, frivolous or vexatious. Even if a case is decided previously against the first defendant or her husband, whether that would operate as res judicata or something like, has to be decided, if raised and on the basis of the previous decision, summarily a defendant cannot be prevented from raising the said plea. If there is any allegation, deviating from the subject matter of the suit, extraneously aiming against the individual, not connected with the subject matter for decision, in my opinion, then only it could be said, the pleadings are unnecessary or scandalous , frivolous vexatious, attracting Rule 16(a). In this case, as seen from the additional written statement, the respondent herein had questioned the status of the plaintiff, locus standi to maintain the suit for eviction, etc. and these matters have to be decided only at the time of the trial and the same cannot be struck out.


C.R.P. No. 2318 of 2003

Decided On: 25.06.2004

Sri Srinivasmurthy Mandiram Vs. Mrs. Gnanasoundari

Hon'ble Judges/Coram:
M. Thanikachalam, J.
Citation: AIR 2004 Mad 518
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