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Delhi District Court

Sh. Javed S/O Sh. Khalid Ahmed vs Smt. Kasturi Devi W/O Sh. O.P. Dharma on 7 January, 2010

                                               ­1­

IN THE COURT OF Ms. SUNITA GUPTA : DISTRICT JUDGE­VII/NE­CUM­
 ADDITIONAL RENT CONTROL TRIBUNAL : KARKARDOOMA COURTS :
                           DELHI :

RCT No. 62/09

Sh. Javed S/o Sh. Khalid Ahmed, 
R/o A­131, Street No. 5, Ghonda, 
Delhi.                                                              ......Appellant. 
        Vs. 
Smt. Kasturi Devi W/o Sh. O.P. Dharma,
R/o A­131, S.No.5, N. Ghonda, 
Delhi.                                                              .......Respondent. 

O R D E R :

­ Feeling aggrieved by order dated 03.08.09, passed by Sh. Praveen Singh, ld. ARC, North­East, Karkardooma Courts, Delhi, in case No. E­ 63/2005, vide which an eviction order was passed, present appeal has been filed under section 38 of the Delhi Rent Control Act.

2. Briefly stated facts giving rise to filing of present appeal are that respondent­petitioner filed an eviction petition under section 14(1)(a) of the DRC Act, through her General Power of Attorney Sh. Dinesh Pal Dhama against the appellant­respondent, interalia on the allegations that petitioner is owner of premises bearing No. A­131, Gali No.5, Yamuna Vihar Road, North Ghonda, Shahdara, Delhi, which was let out to the respondent 16 and half years back and rent was fixed at Rs.400/­pm. The respondent has neither paid nor tendered whole arrears of rent since 01.03.04 @ Rs.400/­pm despite service of legal notice on 29.10.04. Hence, the eviction petition was filed.

3. Petition was contested by the appellant­respondent, wherein factum of relationship of landlord and tenant between the parties and rate of rent was not disputed. The only dispute was regarding arrears of rent and service of legal notice, inasmuch as, it was denied that respondent has ­2­ neither paid nor tendered whole arrears of rent since 01.03.04 and it was submitted that he has paid rent to the petitioner upto April, 2005, but the respondent has not issued any rent receipt after February, 2004 despite repetitive request and demands. The service of legal notice was also denied. Vide order dated 28.09.06, order under section 15(1) DRC Act was passed, directing the appellant­respondent to pay entire arrears of rent @ Rs.400/­pm w.e.f May, 2005 upto date, within one month. Thereafter also to continue to pay or deposit future rent at the same rate month by month by 15th of each English Calendar month. The appellant­ respondent did not comply with this order, as such application under section 15(7) DRC Act was moved by the respondent­petitioner and vider order dated 28.09.09, application was allowed and defence of respondent was struck off. The petitioner examined two witnesses in support of her case. After hearing ld. Counsels for the parties, vide impugned order dated 03.08.09, it was observed that petitioner is entitled order of eviction under section 14(1)(a) of the DRC Act. Moreover, since the defence of the respondent has already been struck off for non­ compliance of order under section 15(1) of the DRC Act, he is not entitled to benefit under section 14(2) of the DRC Act and accordingly eviction order was passed.

4. Feeling aggrieved by this order, present appeal has been filed. Notice of the appeal was given to the respondent. Trial Court record was summoned.

5. I have heard Sh. N.K. Goel, Advocate, for the appellant, Sh. R.K. Sharma, Advocate, for the respondent and have perused the record.

6. It was submitted by ld. Counsel for the appellant that in the instant ­3­ case, landlord himself did not appear in the witness box, rather examined her son as her General Power of Attorney. By relying upon 2005 RLR 308 (SC), Janki Vasheo Bhojwani & Anr. Vs. Indusind Bank Ltd. & Ors, it was submitted that power of attorney holder is not entitled to depose on oath on behalf of the principal as he cannot personally swear facts within the personal knowledge of the party. Further, it was submitted that legal notice of demand was not served upon the appellant. The postal receipt for sending notice by registered AD has not been filed and only UPC receipt is filed. The UPC was never served personally and the landlady is herself residing in the same premises. Moreover, sending of notice by UPC is not valid notice. For raising this submission, reliance was placed on DCLR/2004 (1) Delhi­10, M/s Sona Finance Pvt. Ltd vs. M/s Tirupati Paper Mills Pvt. Ltd. And another. Therefore, it was submitted that order suffers from infirmity and is liable to be set­aside.

7. On the other hand, it was submitted by ld. Counsel for the respondent that non­examination of landlady is not fatal, inasmuch as, no such plea was taken by the appellant before the Trial Court. Moreover, respondent himself defaulted in payment of rent. With the result, his defence was struck off. Therefore, the order in question was passed. As regards sending notice of UPC is concerned, it was submitted that UPC is valid service and therefore it was submitted that order does not suffer from any infirmity, which calls for interference and appeal is liable to be dismissed.

8. I have given my considerable thoughts to respective contentions of the parties and have carefully perused the record.

9. As regards the first submission of ld. Counsel for the appellant that ­4­ non­appearance of the landlady himself in the witness box and examination of General Power of Attorney holder is fatal, this submission is devoid of merit in the facts and circumstances of the present case, inasmuch as, a perusal of petition goes to show that eviction petition itself was filed through the General Attorney, Sh. Dinesh Pal Dhama. That being so, if the attorney, who had filed the eviction petition appeared in the witness box to prove the case, it cannot be said that non­examination of landlady Kasturi Devi becomes fatal. I have carefully gone through authority relied upon by the ld. Counsel for the appellant. With due respect, this authority does not help him, inasmuch as, in that case the Bank obtained decree against husband of appellant for taking loan for running Hotel Business and in execution their properties were attached. The objections were filed by wives against attachment of immovable property. Various directions were given by hon' ble High Court to Debt Recovery Tribunal to decide various facts and in order to prove those facts, the power of attorney holder had appeared in the witness box on behalf of the principal. Under those circumstances, it was held by hon' ble High Court that power of attorney holder is not entitled to depose on oath on behalf of principal as he cannot personally swear facts within personal knowledge of the party. It was incumbent upon the objector to prove that they had independent source of income and this was a fact, which was within their personal knowledge, but instead of doing this, they choose to examine their husband as attornies that was held to be fatal. Things are substantially different in the instant case, inasmuch as, as stated above, eviction petition itself has been filed through power of attorney. That being so, non­examination of landlady is not fatal to the case of ­5­ respondent petitioner and this objection does not hold water.

10. The other plea taken by the ld. Counsel for the appellant is regarding service of legal demand notice. Sh. Dinesh Pal Dhama had deposed that legal notice dated 29.10.04 was served upon the respondent/tenant through UPC dated 02.11.04. He proved the legal notice Ex.PW1/E and UPC receipt Ex.PW1/F1 and F2. ld. Counsel for the appellant has relied upon M/s Sona Finance Pvt. Ltd. (supra). That was a case under Arbitration Act, 1940. It was held that service was required to be effected in the manner prescribed in the Code of Civil Procedure and service by Certificate of Posting is unknown to law. With due respect, this authority also does not help the appellant, inasmuch as, as stated above, that was a case under Arbitration Act. However, there are direct authorities under Delhi Rent Control Act on the point that service by UPC is a valid authority. Section 14(1)(a) of the DRC Act itself provides for service of notice of demand for arrears of rent to the tenant by the landlord in the manner provided in section 106 of the Transfer of Property Act, 1982. Section 106 provides that every notice under this section 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 or to be tendered or delivered personally to such party or to one of his family members or servants of his residence or if such tender or delivery is not practicable, then affix at some conspicuous part of the premises. A notice of demand has to be served in the manner provided in section 106 of Transfer of Property Act. There is no such requirement under section 106 of the Act that notice has to be sent by registered post only. Hence even if the notice is sent under certificate of posting and addressee is served, that is ­6­ is good service. In AIR 1973 Delhi 39, Om Prakash Bahl Vs. A.K. Shroff and H.L. Pathak vs. Smt. Subhaeywati, 1972 KLR 153, it was held that service effected by certificate of posting is a good service under section 106 of Transfer of Property Act. Substantially similar plea was taken in 1974 RCR (Rent) 578, Sh. Kishan Chand Chopra Vs. Shri Satya Paul Chaddha that service to be effected by post must mean by a registered post and therefore service effected otherwise than by registered post is not a service at all and this contention was repelled by hon'bl e High Court by relying upon the aforesaid two authorities and it was held that simply because service was not effected by registered post, same cannot be said to be not a good service. It was further observed that under section 114 of the Evidence Act, presumption would be available that a letter sent under the certificate of posting was delivered to the addressee, as it would be presumed that common course of business was followed namely that the delivery of letter to the addressee. In order to rebut this presumption, it had to be shown that there was some peculiar or special reasons why the letter could not have been delivered to the appellant. A bare bald denial by itself cannot take away presumption that letter having been served because of provisions of section 114 (f) of the Evidence Act. Substantially similar view was taken subsequently in 1996 (1) RCR (Rent) 84 Kanwal Raj Sadana vs. D.D. Saigal. In view of these authoritative pronouncements, sending of notice by UPC was a valid mode of service.

11. According to the appellant, this notice was never served upon him. Sh. Dinesh Pal Dhama has deposed that legal demand of notice through UPC was sent at residential address as well as shop address. The ­7­ correctness of the addresses have not been denied by the respondent. Keeping in view the fact that notice of demand was sent by respondent­ petitioner under certificate of posting at correct addresses and the same has not been received back undelivered, presumption arises that notice must have been served in the due course, unless the presumption is rebutted. Under section 114, Illustration (f) of the Indian Evidence Act, Court may presume that common course of business has been followed in a particular case. The provisions of section 114 of the Evidence Act lays down that Court may presume the existence of any fact which it thinks likely to have happened regard being had to the common course of natural events. In other words, if question is whether letter was received, it may be shown to have been posted and in the common course of business, the letter will be deemed to have been delivered to the addressee. This raises the presumption of fact which is, however, rebutable. In order to rebut the presumption the addressee may show that document was never delivered to him and that he never received the same. In Madan Lal Sethi Vs. Amar Singh Bhatt , 1980 (2) RCJ 543, it was observed that mere denial by the tenant does not rebut the presumption raised under section 114 Illustration (f) of the Indian Evidence Act. The tenant must prove some evidence to show that usual course of post did not interrupt by disturbance or that notice never reached the addressee. The bald submission of the tenant that he was not served is not sufficient.

12. Turning to the case in hand, only suggestion given to Sh. Dinesh Pal Dhama was that respondent did not receive the legal notice. Since defence of the defendant was struck off, he himself could not lead any ­8­ evidence, with the result, there is even no denial on the part of the respondent on oath that he did not receive legal notice. Under these circumstances, the respondent has failed to rebut presumption which arises in favour of the respondent that once the legal notice of demand was sent on a correct address, and the same was not returned back undelivered, it was served upon the addressee. The result of the same is that ld. Trial court rightly came to conclusion that legal notice of demand Ex.PW1/E was duly served upon the respondent.

13. Another plea taken by the appellant was that he was not in arrears of rent, inasmuch as he had paid rent upto April, 2005. In this regard, there was testimony of Sh. Dinesh Pal Dhama that respondent has paid rent only upto February, 2004 and denied that he paid rent upto April, 2005. There was no denial of the fact on the part of the appellant­respondent that petitioner­respondent was in habit of issuing rent receipts, some of which were exhibited as Ex.PW1/D. Once the landlord was in the habit of issuing rent receipt, it does not appeal to reasons as to why she will stop issuing rent receipt suddenly. Moreover, if the landlady stopped issuing rent receipts, the respondent could have made demand for issuing rent receipts. Section 26 of the DRC Act provides for the eventuality, when landlord fails to issue rent receipts. Except for bald averments in written statement that rent receipts were not issued despite repeated demands and requests, there is nothing to show that any notice was ever served by the appellant­respondent upon the respondent­petitioner to issue rent receipts. The only inference which can be drawn is that rent w.e.f. March 2004 was not paid by the respondent. In any case, onus to prove that rent beyond the period for which the receipts were issued was upon the ­9­ appellant­respondent. Since the defence of the respondent was struck off, he could not lead any evidence to prove this fact. He has not been able to discredit testimony of PW1 in this regard. Under these circumstances, appellant­respondent failed to prove that he had paid rent upto April, 2005. On the other hand, respondent­petitioner was able to prove that respondent was in arrears of rent w.e.f. March, 2004.

14. Even after the service of legal notice of demand, the respondent has failed to comply with the same. Under these circumstances, ld. Trial court rightly came to conclusion that respondent­petitioner had successfully proved that at the time of service of legal notice of demand Ex.PW1/E, the respondent was in arrears of rent and despite service of notice, he failed to comply with demand as raised in the legal demand notice. Accordingly, the petitioner became entitled to order of eviction under section 14(1)(a) DRC Act. Since the defence of respondent was struck off due to non­compliance of order under section 15(1) DRC Act, he was not entitled to benefit of section 14(2) DRC Act. Accordingly, eviction order was passed. In view of observations made above, this order does not suffer from any infirmity, which calls for interference. Under these circumstances, appeal is dismissed. A copy of the order along with Trial Court Record be sent back. Appeal file be consigned to Record Room.

Announced in the Open Court (Sunita Gupta) On this 7th day of January, 2010. Distt. Judge­VII/NE­cum­ARCT, Karkardooma Courts, Delhi.