Delhi District Court
Sh. Nand Kumar Aggarwal vs Sh.Suhas Chand Gupta on 26 August, 2021
IN THE COURT OF SH. DINESH KUMAR SHARMA
PRINCIPAL DISTRICT & SESSIONS JUDGE /
RENT CONTROL TRIBUNAL
NEW DELHI
In the matter of:
RCT No. 18/2018
1.Sh. Nand Kumar Aggarwal
(Since Deceased) through his legal heirs
i) Sh. Ashish Aggarwal
S/o Late Sh. Nand Kumar Aggarwal
R/o A107, Preet Vihar
Delhi110092.
ii)Mrs. Seema Goel
D/o Late Sh. Nand Kumar Aggarwal
W/o Sh. Gulshan Goel
R/o B1/49, Ashok Vihar
PhaseII, Delhi.
iii)Mrs. Monika Gupta
D/o Late Sh. Nand Kumar Aggarwal
W/o Sh. Ashok Gupta
R/o A19, PDA, Omaxe City
Sirhind Road, Patiala, Punjab147001.
2.M/s Rama & Sons
Through its prop. Sh. Nand Kumar Aggarwal
(since expired)
Shop No.8, Block No.4
Bengali Mal Market
New Delhi. .....Appellants
RCT No.18/2018 Page No. 1 of 24
Sh. Nand Kumar Aggarwal through LRs & Anr. Vs Sh.Suhas Chand Gupta
Versus
Sh. Suhas Chand Gupta
S/o Late Sh. T. C. Gupta
R/o D71, Preet Vihar
Delhi110092.
Also at:
D94, Preet Vihar
Delhi110092. .....Respondent
Date of filing : 06.06.2018
Date of arguments : 18.08.2021
Date of judgment : 26.08.2021
JUDGMENT
1. Vide this judgment, I shall dispose off the appeal u/S 38 of The Delhi Rent Control Act, 1958 (in short "the DRC Act"), challenging the impugned order dated 01.05.2018 passed in RC No.5456/16 vide which the application filed by the petitioner/landlord u/O XII Rule 6 r/w Section 151 CPC was allowed by the Ld. Trial Court and eviction order was passed against the appellants /tenant in respect of premises bearing Shop No.8, Plot No.4, Bengali Mal Market, New Delhi.
2. Briefly stated the facts are that an eviction petition u/S 14(1) (a) DRC Act was filed by Sh. Suhas Chand Gupta against Sh. Nand Kumar Aggarwal and M/s Rama & Sons.
RCT No.18/2018 Page No. 2 of 24Sh. Nand Kumar Aggarwal through LRs & Anr. Vs Sh.Suhas Chand Gupta During the course of trial, Sh. Nand Kumar Aggarwal expired and is now being represented through his LR. Earlier eviction petition no. E430/06 u/S 14(1) (a) DRC Act filed in respect of premises in question was allowed by Sh. Deepak Garg, Ld. Rent Controller vide order dated 12.02.2008. However, being the first default the benefit u/S 14(2) DRC Act was granted. The appeal filed against this order is RCA No.48/08 was dismissed by the then Ld. Rent Control Tribunal, Delhi vide order dated 23.04.2009. The petitioner/ landlord alleged that after having availed the benefit u/S 14(2) DRC Act, the respondents/tenant again committed default and failed to make the payment of arrears of enhanced rent alongwith service tax and other dues despite service of notices dated 14.09.2015 & 06.01.2016. The case of petitioner/landlord was that the notice dated 14.09.2015 was sent on the tenanted premises as well as on the residence of the respondent/tenant which was returned with the remark that "Suchna Dedi Hai" at the residence of the respondent and other returned with remark that "Shop Closed". The petitioner again sent a notice dated 06.01.2016 alongwith copy of invoice and the earlier notice dated 14.09.2015 through both registered AD and courier. The courier was duly delivered to the respondent on 11.01.2016 at the respondents residence i.e. A107, Preet Vihar, RCT No.18/2018 Page No. 3 of 24 Sh. Nand Kumar Aggarwal through LRs & Anr. Vs Sh.Suhas Chand Gupta Delhi110092 and the registered AD was again returned back with noting "Suchna Dedi Hai". It was stated that the respondent/tenant failed to make the payment of rent and other dues despite service of notice. The petitioner/landlord in view of the past conduct of the tenant himself went to the tenanted premises on 21.01.2016 and pasted both the notices dated 14.09.2015 & 06.01.2016 alongwith copy of invoice on the shutter of the shop/tenanted premises to avoid all future dispute regarding the service of said notices to the respondent. The petitioner/landlord sought eviction of respondent/tenant from the premises in dispute being the case of second default.
3. The respondents/ tenant filed detailed written statement specifically denying the service of demand notice. Respondents/ tenant also stated that infact the petitioner/ landlord has been refusing to receive the rent intentionally with malafide intention and the rent is being deposited regularly before the court. In the preliminary objection, the respondents/ tenant specifically took a plea which is reproduced as under : "4. That the respondent has not been served with the alleged notice of demand dated 14.09.2015 or 06.01.2016. It is submitted that it is evident from the returned postal envelops that the respondents have not been served with the same. It is pertinent to note that the postal RCT No.18/2018 Page No. 4 of 24 Sh. Nand Kumar Aggarwal through LRs & Anr. Vs Sh.Suhas Chand Gupta article alleged to have been sent to the house of respondent no.1 is shown to have been returned unclaimed on 26.09.2015, however, the tracking report in respect of the same does not reflect the said noting of the post man concerned as the same only shows that twice intimation has been given. It is strange that the post man has returned the postal envelop to the petitioner instead of delivering the same to the respondent no.1 though intimation to the respondent is alleged to have been given. As for the notice sent to the shop, a perusal of the returned envelop would reveal that for two dates (18.09.2015 and 19.09.2015) the shop is shown to have remained closed whereas on 21.09.2015 the report is that of left RTS (return to sender). The postal tracking report of the article nowhere shows delivery of the article was even attempted. It is stated that as per the tracing report the Bag containing the postal article was opened on 18.09.2015 and the article was again bagged to CRC Delhi on 21.09.2015 what transpired in between is nowhere reflected in the tracking report. In respect of alleged notice dated 06.01.2016 no postal tracking report has been placed on record and even the said postal article is returned back unserved. The possibility if the report being manipulated and procured is highly probable in the facts and circumstances of the case."
The respondents/ tenant further stated in the written statement that if the postman was able to find the person and deliver the information, the articles also could have been delivered by him. It has been stated that the reports on the notices dated 14.09.2015 & 06.01.2016 are forged and fabricated and notices were never RCT No.18/2018 Page No. 5 of 24 Sh. Nand Kumar Aggarwal through LRs & Anr. Vs Sh.Suhas Chand Gupta received by the respondents.
4. The petitioner/ landlord filed rejoinder denying all the contention made in the written statement and reiterated the averments made in the petition. On 25.11.2016, the petitioner/landlord filed an application u/O XII Rule 6 r/w Section 151 CPC. In the application, it was stated that the respondents/ tenant have failed to pay the enhanced rent despite service of notice dated 06.01.2016. It was stated that the notice was duly served through courier on 11.01.2016. It was further pleaded that the respondent/ tenant was also served as the notice was duly pasted/ affixed on the tenanted premises on 21.01.2016. However, the respondent/ tenant failed to make the payment of arrears of rent within two months of the service of demand notice. The petitioner/ landlord stated that since the respondent/ tenant has admittedly not paid the enhanced rent till date meaning thereby default is admitted on the part of respondent/ tenant. It was stated that even the arrears of rent were not paid within two months of the service of the present petition. The petitioner/ landlord stated that the present petition was filed on 04.05.2016 and it was duly served upon the respondent/ tenant in the month of May 2016 and therefore, it was mandatory on the part of respondent to pay/deposit the entire enhanced rent alongwith interest as RCT No.18/2018 Page No. 6 of 24 Sh. Nand Kumar Aggarwal through LRs & Anr. Vs Sh.Suhas Chand Gupta demanded within a period of two months from the date of receipt of notice/petition. It was stated that the written statement was filed on 16.07.2016 and even till the date of filing of the application u/O XII Rule 6 r/w Section 151 CPC i.e. 07.11.2016, the respondent/ tenant has not enhanced the rent and therefore, there is clear cut admission/default on the part of respondent/ tenant and he has not complied the averments made in the notice in regard to the rent/service tax or otherwise. The petitioner/ landlord states that since the relationship of landlord and tenant & rate of rent is not disputed and the service of notice is also not disputed, therefore, the application u/O XII Rule 6 r/w Section 151 CPC be allowed and an eviction order may be passed.
5. In reply to the application u/O XII Rule 6 r/w Section 151 CPC, the respondent/ tenant stated that service of notice of demand is prerequisite for instituting a petition u/S 14 (1) (a) DRC Act. However, in the present case no such notice has ever been served upon the respondent seeking enhanced rent and upto date rent stands deposited in court. It was stated that provisions of Order XII Rule 6 are only applicable when there is unqualified and unequivocal admission on the part of the opposite party. However, in the present case the alleged service of notice dated 14.09.2015 & 06.01.2016 has been denied. It was stated that in RCT No.18/2018 Page No. 7 of 24 Sh. Nand Kumar Aggarwal through LRs & Anr. Vs Sh.Suhas Chand Gupta the absence of notices being served, there is no question of non compliance of the notices. The respondent/ tenant stated that since no notice was ever served, therefore, the petition is not maintainable and deserves out right dismissal. The respondent/ tenant also denied that the notice was pasted on the tenanted premises. It was stated that the courier report is manipulated and procured as is evident from the receivers name mentioned on the report. The respondent/ tenant denied that there is no default on their part. It was further stated that upto date rent as enhanced by notice dated 20.03.2008 stands deposited before court by filing a petition under DRC Act as petitioner/ landlord has been malafidely refusing to accept the rent tendered by the respondent/ tenant.
6. Ld. Trial Court by the impugned order allowed the application u/o XII Rule 6 r/w Section 151 CPC and interalia held as under: "7. The only dispute raised by the respondent is that the respondent has not received the demand notice dt. 06.01.2016 and therefore, there was no question of respondent complying with the said notice by virtue of which enhanced rent @ 10 % was demanded by the petitioner from the respondent. Perusal of record shows that the petitioner had earlier sent notice dt. 14.09.2015 upon the RCT No.18/2018 Page No. 8 of 24 Sh. Nand Kumar Aggarwal through LRs & Anr. Vs Sh.Suhas Chand Gupta respondent. However, again a notice dt. 06.01.2016 for enhancement of rent was served by petitioner upon the respondent which is evident from the courier tracking report dt. 11.01.2016. Even the speed post receipt qua the said notice was received back with remarks" intimation served". However, as a measure of abundant caution, petitioner even got affixed the copy of the said notice dt. 06.01.2016 on the shutter of the shop in question on 21.01.2016. The photographs showing the service of notice through affixation at the shop in question upon the respondent have been filed on court record. The respondent has nowhere disputed the address mentioned at the postal receipts by virtue of which the notice dt. 06.01.2016 was served upon the respondent. It cannot be denied that petitioner has tried his level best to serve the notice upon the respondent by all possible modes and ways. In Kanwal Raj Sadana Vs. D D Saigal, 1996 (1) RCR 84, it has been held by the Hon'ble Delhi High Court that if the landlord does his level best in the circumstances qua the service of notice, the service of notice could not be doubted.
8. In the present case as well, the petitioner had tried his level best to get the respondent served through speed post, courier as well as affixation at the tenanted premises and thus the service of notice upon the respondent could not be doubted. Even otherwise, the respondent has not disputed the address mentioned in the postal receipts or envelope by virtue of which the notice was served upon the respondent through speed post as well as courier and therefore, there is presumption under Section 27 of General Clauses Act as well as under Section 114 of Indian Evidence Act that if the notice RCT No.18/2018 Page No. 9 of 24 Sh. Nand Kumar Aggarwal through LRs & Anr. Vs Sh.Suhas Chand Gupta was sent at the correct address of addressee it give rise to the presumption with regard to service of notice upon the addressee. Reliance is placed upon the judgment titled as Chander Kanta Singhal etc Vs. M/s. Kapadia Exports & Anr. 65(1997) DLT 926 (DB).
9. The enhancement of rent by the petitioner by 10 % every three years is legally permissible under the DRC Act and therefore, it cannot be said that by way of notice dt. 06.01.2016 the petitioner had made any unlawful demand from the respondent. Further, if the respondent had any dispute regarding the payment of service tax or house tax, the said dispute should have been raised by therespondent immediately on receipt of the notice and not at this stage, when the present petition has already filed. Further, the respondent was legally bound to pay the enhanced rate of rent alongwith the interest of 15 % per annum for delay in payment of rent which the respondent failed to do even after the service of the notice of this petition upon the respondent. It is not disputed that the notice of present petition was sent to the respondent at the same address at which the notice dt. 06.01.2016 was sent. The respondent had duly received the notice of the present petition and therefore, had filed the written statement. However, despite service of notice of the present petition, the respondent has failed to pay the enhanced rate of rent alongwith the interest within two months of the filing of the present petition.
10. In M/s. Jeevan Diesels & Electricals Ltd. vs. M/s. Jasbir Singh Chadha (HUF) & Anr. 2011(182) DLT 402, Sh. Ashwani Bhatia Vs. Sh. Suresh Rastogi, DDO 10.04.2012 in RFA No. 167/2012 RCT No.18/2018 Page No. 10 of 24 Sh. Nand Kumar Aggarwal through LRs & Anr. Vs Sh.Suhas Chand Gupta and CM No. 6164/2012 and Sh. Sharwan Aggarwal Vs. Kailash Rani, DOD 09.01.2012, it has be said that "even if it is not proved that a legal notice was served prior to filing of the suit, service of summons of the suit can be taken as a notice under section 106 of the Transfer of Property Act. Thus, the plaintiffs have established that notice was duly served upon the defendants as per the requirement of section 106 of Transfer of Property Act.
11. Thus, it cannot be said that the respondent was not served with the notice dt. 06.01.2016. All other facts remain undisputed by the respondent. Thus the respondent is liable to be evicted from the tenanted premises ie. shop No. 8, Plot no. 4, Bengali Mal Market, New Delhi under section 14(1)(a) of DRC Act on the ground of admissions made and discussed above. Present petition is thereby allowed. No benefit under section 14(2) of DRC act can be given to the respondent since, this is the second default made by the respondent. Earlier also an eviction petition was filed by the petitioner against the respondent under section 14(1)(a) of DRC Act which was allowed. However, benefit under section 14(2) of DRC Act has already been enjoyed by the respondent and therefore, respondent is no longer entitled to any such benefit. Respondent is therefore, liable to be evicted from the tenanted premises bearing shop No. 8, Plot no. 4, Bengali Mal Market, New Delhi.
File be consigned to record room."
7. Ld. Trial Court interalia took a view that the RCT No.18/2018 Page No. 11 of 24 Sh. Nand Kumar Aggarwal through LRs & Anr. Vs Sh.Suhas Chand Gupta respondent has not disputed the address mentioned in the postal receipts by virtue of which the notice dated 06.01.2016 has been served. Ld. Trial Court was also of the view that the petitioner did his best to serve the notice and therefore, the service of notice upon the respondent could not be doubted. Ld. Trial Court invoked presumption u/S 27 of The General Clauses Act, 1897 and u/S 114 of The Indian Evidence Act, 1872. It was also inter alia held that the dispute as to the payment of service tax and house tax should have immediately been raised by the respondent on the service of notice and similarly, the tenant was also liable to pay the interest on the arrears of rent. Ld. Trial Court after placing reliance upon M/s Jeevan Diesels & Electricals Ltd. Vs M/s Jasbir Singh Chadha (HUF) & Anr., 2011 (182) DLT 402, Sh. Ashwani Bhatia Vs Sh. Suresh Rastogi, DDO 10.04.2012 in RFA No.167/2012 and CM No.6164/2012 and Sh. Sharwan Aggarwal Vs Kailash Rani, DOD 09.01.2012 interalia held that service of summons of suit can be taken as notice u/S 106 of The Transfer of Property Act, 1882.
8. Sh. Pratap Singh, Ld. Counsel for appellants stated that the impugned order is liable to be set aside as the demand notice has not been served before filing of the petition. The service of demand notice is prerequisite of filing a petition u/S RCT No.18/2018 Page No. 12 of 24 Sh. Nand Kumar Aggarwal through LRs & Anr. Vs Sh.Suhas Chand Gupta 14 (1) (a) DRC Act. It has been stated that the appellants have been regularly depositing the rent u/s 27 DRC Act. It has been stated that the tracking report of the courier as filed on record is electronic generated record and no affidavit u/S 65B of The Indian Evidence Act has been filed. It has been stated that address on the courier receipt are also not clear. It was further argued that there is nothing on record to suggest that the tenant has received the demand notice. In respect of demand notice sent through registered AD, Ld. Counsel submitted that as per tracking report both the registered ADs were not delivered. It has been stated that as per report on the envelope the endorsement has been made that intimation has been given however it does not reflect as to whom the intimation has been given. In respect of the photographs placed on record regarding affixation of the notice, Ld. Counsel submitted that the photographs have been doctored. In the photographs there is no date and time. The petitioner has neither filed the CD nor the certificate u/S 65 B of The Indian Evidence Act. Ld. Counsel submitted that finding of the Ld. Trial Court that there is deemed service of demand notice is not correct. It has been submitted that the present notice was not u/S 106 of The Transfer of Property Act and the Ld. Trial Court has fell into an error by equating the present proceedings with the proceedings RCT No.18/2018 Page No. 13 of 24 Sh. Nand Kumar Aggarwal through LRs & Anr. Vs Sh.Suhas Chand Gupta emanating from notice u/s 106 of The Transfer of Property Act. Ld. Counsel submitted that in the written statement there is no specific admission regarding service of demand notice.
9. Sh. P. K. Rawal, Ld. Counsel for the respondent submitted that an appeal u/S 38 DRC Act can only be filed on the question of law. It has been submitted that the service of demand notice is a question of fact and same cannot be agitated before this court. Ld. Counsel submitted that the Ld. Trial Court has given a specific finding and the impugned order is totally based on reasons and there is no ground to set aside the same. Ld. Counsel strenuously argued that the respondent/ tenant has admittedly not deposited the enhanced rent. He has relied upon Sarla Goel Vs Kishan Chand, 2009(10) SCR 481 and Sh. Mohd. Abid Vs Smt. Kausar Parveen, 2014(2) RLR 745 wherein it was interalia held that if the landlord refuses to accept the rent, the tenant is liable to deposit the same u/S 27 DRC Act. Ld. Counsel submitted that in the present case, the respondent/ tenant has admittedly not deposited the rent u/S 27 DRC Act. Ld. Counsel has relied upon Kanwal Raj Sadana Vs D.D. Saigal, S.A.O.1 of 1993, D/d 21.04.1995 wherein it was held that whether the notice was served on the tenant or not is a question of fact. Ld. Counsel submitted that therefore this fact cannot be agitated before this RCT No.18/2018 Page No. 14 of 24 Sh. Nand Kumar Aggarwal through LRs & Anr. Vs Sh.Suhas Chand Gupta court in view of Section 38 DRC Act. He has further relied upon Prof. Ram Prakash Vs D. N. Srivastava, 2006 RLR 58 wherein it was interalia held that the rent includes interest on delayed payment. Ld. Counsel submitted that the since the respondent has failed to pay the increased rent within the stipulated period, the petition is liable to be allowed. Ld. Counsel has also placed reliance upon Raghbir Singh Vs Sheela Wanti, 2010(170) DLT 7 wherein it was interalia held that the tenant is under duty to tender rent month by month. Ld. Counsel submitted that u/S 6A DRC Act , the landlord is entitled to claim enhanced rent by 10% every three years and reliance has been placed upon Deepak Thirwani Vs Lachman Das Mansharmani,2013(2) RLR 687.
10. Sh. P. K. Rawal, Ld. Counsel submitted that the respondent/ tenant failed to pay the enhanced rent alongwith arrears and interest on delayed payment despite service of notice of the present petition. Reliance was placed upon Nopany Investments (P) Ltd. Vs Santok Singh (HUF), 2008 AIR(SC)673. Ld. Counsel submitted that in the said case Hon'ble Supreme Court interalia held that it is well settled that filing of eviction suit itself is a notice to quit on tenant. Reliance was also placed on M/s Jeevan Diesels & Electricals Ltd.'s case (Supra). Sh. P. K. Rawal, Ld.Counsel submitted that in the present case there was an RCT No.18/2018 Page No. 15 of 24 Sh. Nand Kumar Aggarwal through LRs & Anr. Vs Sh.Suhas Chand Gupta admission on the part of the appellant and therefore, the Ld. Trial Court has rightly allowed the application u/O XII Rule 6 CPC. Reliance has been placed upon Gillanders Arbuthnot And Co. Ltd. Vs Maya Kapoor, 1995(60)DLT 419, Ashwani Bhatia Vs Suresh Rastogi, 2012(4)AD Delhi 315, Sharvan Aggarwal Vs Kailash Rani, 2012 (4)ILR (Del) 459.
11. I have heard Ld. Counsel for the parties and have perused the record carefully.
12. Order XII Rule 6 CPC reads as under:
"ORDER XII - ADMISSIONS
6. Judgment on admissions(1) Where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the Court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions.
(2) Whenever a judgment is pronounced under subrule (1) a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced."
The law regarding Order XII Rule 6 CPC has been discussed in the judgment cited by Ld. Counsel for respondent in Gillanders RCT No.18/2018 Page No. 16 of 24 Sh. Nand Kumar Aggarwal through LRs & Anr. Vs Sh.Suhas Chand Gupta Arbuthnot And Co. Ltd.'s case (Supra) in which it was interalia held as under:
"(9) Since the fate of the present revision petitioner hinges on an interpretation of Order Xii Rule 6 of the Code of Civil Procedure(CPC for short) the provisions of the said Order can be adverted' to with profit. It is in the following words :
"judgment on admissions.
6. (1) Where admissions of fact have been made either in the pleading or otherwise, whether earlly or in writing, the Court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions.
(2).................."
It is crystal clear from above that the Court is competent to pass such orders or judgments under the provisions of the law, alluded to above, which it thinks fit in the circumstances of a given case. However, the condition precedent for passing such an order or' judgment is that there must be admissions which should be unequivocal unambiguous and clear coupon the art of the party against whom the judgment or order is made. Such admissions can be either orally or in writing, whether in the pleadings or otherwise in other documents other than the pleadings which have been RCT No.18/2018 Page No. 17 of 24 Sh. Nand Kumar Aggarwal through LRs & Anr. Vs Sh.Suhas Chand Gupta placed on record. It is also abundantly clear from above that this power to pass a decree under Order XII Rule 6 of the Civil Procedure Code is discretionary.
(10) This Court is supported in the above view by the observations of a 'Division Bench as reported in Union of India v. M/s. Feroze and Co., (AIR 1962 J&K 60) (l) .... ''A judgment on admission.under O. 12 R. 6 is a matter of discretion and not a matter of right the Court would not entertain an application for such judgment when the case involves questions which cannot be conveniently dealt with in a motion under the rule. In order tha; a judgment may bobtailed under O.12 R 6 the admission must be unconditional, clear and unequivocal'".
(11) To the same effect is the view given vent to by a Single Judge of this Court as respected in State Bank of India v. M/s. Midland Industries and others,AIR 1988 Delhi 153 . The above view is also fortified from the observations of a Single Judge of the Himachal Pradesh High Court, as reported in M/s. Simla Wholesale Mart v.M/s. Baishnodas Kishori Lal Bhalla and other, AIR 1977 HP 29."
13. In the present case the matter to be examined is that whether there is an unequivocal and unambiguous admission on the part of the respondent/tenant. It is also a settled resolution that Order XII Rule 6 CPC is a matter of discretion. The first and foremost condition for passing an Order under XII Rule 6 CPC is that the admission must be clear and unequivocal. In the present RCT No.18/2018 Page No. 18 of 24 Sh. Nand Kumar Aggarwal through LRs & Anr. Vs Sh.Suhas Chand Gupta case as far as the relationship of landlord and tenant is concerned that has not been disputed. Rate of rent has not been disputed except the alleged enhancement of rent vide notice dated 14.09.2015 & 06.01.2016. The petitioner/ landlord filed the present petition on the premises that the respondent/ tenant failed to make the entire payment of rent including the interest despite the service of demand notice. The respondent / tenant in their written statement has denied the service of demand notice. Ld. Trial Court allowed the application u/O XII Rule 6 CPC on the premises that notices were sent on the correct address. The presumption was invoked on the ground that since the notices were sent at the correct address, it is deemed to have been served. Ld. Trial Court also accepted the argument of Ld. Counsel for the landlord that since the appellant/tenant failed to make the payment of arrears of rent despite service of petition, therefore, there is a second default on the part of the tenant. The proposition has clearly been held by Apex Court that the filing of eviction petition under the general law itself is a notice to quit on the tenant. However, it is necessary to be reminded that in Nopany Investments (P) Ltd.'s case (Supra), civil suit was filed for the recovery of possession. Similarly, in M/s Jeevan Diesels & Electricals Ltd.'s case (Supra), civil suit was filed for the recovery RCT No.18/2018 Page No. 19 of 24 Sh. Nand Kumar Aggarwal through LRs & Anr. Vs Sh.Suhas Chand Gupta of possession and mesne profits.
14. Section 106 of The Transfer of Property Act provides as under:
"[106. Duration of certain leases in absence of written contract or local usage.(1) In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months' notice; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days' notice.
(2) Notwithstanding anything contained in any other law for the time being in force, the period mentioned in subsection (1) shall commence from the date of receipt of notice.
(3) A notice under subsection (1) shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under that subsection, where a suit or proceeding is filed after the expiry of the period mentioned in that subsection.
(4) Every notice under subsection (1) must be in writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed RCT No.18/2018 Page No. 20 of 24 Sh. Nand Kumar Aggarwal through LRs & Anr. Vs Sh.Suhas Chand Gupta to a conspicuous part of the property.]"
DRC Act is a welfare legislation and has been enacted with a view to protect the tenant. The bare perusal of Section 14 DRC Act makes it clear that no order or decree for the recovery of possession of any premises could be made by any Court/Controller in favour of the landlord except on the grounds mentioned in the proviso to Section 14 DRC Act.
15. Section 14 (1) (a) DRC Act reads as under:
"14. Protection of tenant against eviction. (1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by and court or Controller in favor of the landlord against a tenant :
Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely:
(a) that the tenant has neither paid nor tendered the whole of the arrears of the rent legally recoverable from him within two months of the date on which a notice of demand for the arrears of rent has been served of him by the landlord in the manner provided in section 106 of the Transfer of Property Act, 1882 (4 of 1882);"
The bare perusal of Section 14 (1) (a) DRC Act would indicate that the perrequisite for filing a petition u/S 14 (1) (a) DRC Act RCT No.18/2018 Page No. 21 of 24 Sh. Nand Kumar Aggarwal through LRs & Anr. Vs Sh.Suhas Chand Gupta is service of notice of demand for the arrears of rent. Further reading of this section makes it clear that the demand notice has to be served in the manner provided in Section 106 of The Transfer of Property Act. Now, if we read Section 14(1) (a) DRC Act alongwith Section 106 of The Transfer of Property Act. Section 106(4) of The Transfer of Property Act provides the manner of service of demand notice. It is also necessary to refer Section 106(1) of The Transfer of Property Act which deals with duration of certain leases in absence of written contract or local usage. Further reading of this makes it clear that a lease from year to year can be terminable by a six months notice and any other lease is deemed to be a lease from month to month and is terminable on either part by fifteen days notice. Thus, Section 106 of The Transfer of Property Act is general proviso which deals with leases. However, I consider that Section 14 DRC Act has to be read separately as it is a separate provision meant for the protection of tenant. In Section 14(1) (a) DRC Act, it has been provided that the notice shall be served in the manner provided u/S 106 of The Transfer of Property Act. Ld. Counsel for respondent/ landlord has not placed any judgment on record to show that service of notice of the petition u/S 14 (1) (a) DRC Act can be considered service of demand notice as required u/S 14(1) RCT No.18/2018 Page No. 22 of 24 Sh. Nand Kumar Aggarwal through LRs & Anr. Vs Sh.Suhas Chand Gupta
(a) DRC Act. I consider that the Ld. Trial Court fell into grave error by allowing the application u/O XII Rule 6 r/w Section 151 CPC. There is no clear, unambiguous and unequivocal admission on the part of the respondent/ tenant in respect of the service of demand notice. The appellant/ tenant has denied the service of demand notice.
16. Ld. Trial Court has referred to Section 27 of The General Clauses Act. Section 27 of The General Clauses Act reads as under:
"27. Meaning of service by post. Where any [Central Act] or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression "serve" or either of the expressions "give" or "send" or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post."
Bare perusal of the above Section also makes it clear that there is a presumption which is rebuttable in nature. Similarly, presumption u/S 114 of The Indian Evidence Act are also rebuttable in nature. The respondent/ tenant has been denying the RCT No.18/2018 Page No. 23 of 24 Sh. Nand Kumar Aggarwal through LRs & Anr. Vs Sh.Suhas Chand Gupta service of demand notice. The plea of the appellant is that the notice were not served through registered AD and courier. The electronic generated report of courier is on record which shows that the article have been delivered to "rama". I consider that it is a matter of trial that whether it is the tenant upon whom the courier has been served. Similarly, the registered AD have been received back with the report " intimation has been given". It is again matter of trial as to whom intimation has been given. The factum as to the affixation of notice is also required to be proved by evidence. I consider that in the facts and circumstances, the impugned order in the present form cannot sustain. The impugned order is set aside. The matter is remanded back to the Ld. Trial Court to proceed in accordance with law. Both the parties are directed to appear before the Ld. Trial Court on 31.08.2021.
17. TCR be sent back along with copy of the judgment.
18. File be consigned to Record Room. Digitally signed by DINESH DINESH KUMAR KUMAR SHARMA SHARMA Date: 2021.08.26 16:31:59 +0530 Announced in open (DINESH KUMAR SHARMA) Court through emode Principal District & Sessions Judge / on 26.08.2021. Rent Control Tribunal New Delhi RCT No.18/2018 Page No. 24 of 24 Sh. Nand Kumar Aggarwal through LRs & Anr. Vs Sh.Suhas Chand Gupta