Delhi District Court
Sh. Om Prakash Mongia vs Sh. Satgopal Kapoor on 6 January, 2018
In the court of Sh. A.S. Jayachandra, Ld. District & Sessions
Judge/Rent Control Tribunal, Shahdara, Karkardooma Courts,
Delhi
RCA No.61/2016
Sh. Om Prakash Mongia
S/o Late Sh. R.D. Mongia
R/o H. No. 44, Gali No.1, Shashtri Park,
Near Krishna Nagar, Delhi.
(Since deceased) Through LRs
(a) Smt. Krishna Mongia
W/o Sh. Om Prakash Mongia (Since deceased)
Died on 26.10.2012 and deleted vide order dated
17.11.2012.
(b) Ms. Renu Mongia
(c) Ms. Aditi Mongia
(d) Ms. Sangita Mongia
(e) Ms. Anju Mongia
All daughters of Late Sh. Om Prakash Mongia
(f) Sh. Ashu Mongia
(g) Sh. Vinay Mongia
Both sons of Late Sh. Om Prakash Mongia
All resident of : H. No. 44, Gali No.1, Shashtri Park,
Near Krishna Nagar, Delhi -110051. ....Appellants
Vs.
1. Sh. Satgopal Kapoor
S/o Sh. J.C. Kapoor
R/o 1J/17, NIT Faridabad.
Om Prakash Mongia & Ors. vs. Satgopal Kapoor & Ors. RCA No.61/16 Page No. 1/32
2. Sh. Krishan Gopal Kapoor (Since deceased)
Through LRs
(a) Mrs. Asha Kapoor
W/o Sh. Krishan Gopal Kapoor
(b) Ms. Leena Kapoor
W/o Sh. Sanjeev Kapoor
S/o Sh. K.G. Kapoor
(c) Master Chanchal Kapoor
S/o Sh. Sanjeev Kapoor
(d) Kumari Juhi Kapoor
D/o Sh. Sanjeev Kapoor
Both through their guardian Smt. Leena Kapoor
All R/o 3-C, 112, Budhhi Vihar, Delhi Road,
Moradabad, Uttar Pradesh.
(e) Mrs. Sangeeta Arora
D/o Sh. KG. Kapoor,
R/o E-11, Krishna Nagar,
Delhi-110051.
(f) Mrs. Rekha Arora
D/o Sh. K.G. Kapoor
C/o Arora Opticals, Sipri Bazar
Jhansi, Uttar Pradesh.
(g) Mrs. Rakhi Arora
D/o Late Sh. K.G. Kapoor
R/o 394, Shukla Tent House,
Adarsh Nagar, Sipri Bazar, Jhansi (UP)
(h) Sh. Amit Kapoor
S/o Late Sh. K.G. Kapoor
C/o Arora Opticals
Sipri Bazar, Jhansi (UP).
Om Prakash Mongia & Ors. vs. Satgopal Kapoor & Ors. RCA No.61/16 Page No. 2/32
3. Sh. Sudhir Kapoor
S/o Late Sh. J.C. Kapoor
R/o B-221, Ramprastha,
Ghaziabad, U.P. ....Respondents
Date of institution : 26.10.2013
Date of arguments : 06.12.2017
Date of Order : 06.01.2018
ORDER:
1. This is a tenant's appeal filed by the legal heirs of the tenant (already LRs before the trial court) against the order of the Ld. Rent Controller, Shahdara, Delhi in E. No. 118/2006 disposed on 21.8.2013. By the said order the court below allowed the petition of the landlord and directed the tenants to be evicted from the premises in their occupation bearing property no. 44, Gali No.1, Shashtri Park, Near Krishna Nagar, Delhi-110032 for the second and subsequent defaults in not paying the rents.
Grounds of appeal :
2. The appellant pleads that the impugned order is perverse, contradictory to the facts, based on surmises and conjectures. The documents filed by the tenant were not considered.
The basic premise for eviction on the second default is whether the premises in question is the same as was in the earlier petition. In the first petition the accommodation described is "two rooms, store, kitchen, common bathroom and latrine". In the second eviction petition the accommodation is described as "two rooms, one store, one kitchen with common user of veranda, passage, latrine and Om Prakash Mongia & Ors. vs. Satgopal Kapoor & Ors. RCA No.61/16 Page No. 3/32 bathroom more specifically shown red in the annexed plan situated on the ground floor."
3. The further grounds urged are that in the earlier petition where protection was given for the first default concerned the distinct tenement. The premises in question in the petition disposed by the impugned order is not the same and is different. These submissions were not considered. Certain rulings referred were not followed. The demand notice dated 11.10.1999 was not served on the tenant since he was out of station. The site plan was misplaced and not properly constructed before the trial court.
4. Upon notice, the respondents appeared through their counsel. The trial court records are summoned and matter was heard.
Contentions of the appellant :
5. The Ld. Counsel for the appellant submits that the impugned order is bad in law since the eviction order passed based on the subsequent default alleged by the landlord is not the same premises for which the protection was given earlier. It is argued by him that the site plan on the records of the ld. Court below was misplaced and the same is not properly constructed. He also submits that the statutory notice u/s 14 (1) (a) of the Act is not served on the tenant and therefore the entire order is bad in law. He submits that the rents were paid and there is no default. He also points out that the eviction sought on the ground of bonafide use and occupation u/s 14 (1) (e) of the Act was dismissed. There are no arrears and the impugned order is bad in law since the presumption of service of notice cannot be held as complete, as noted by the Ld. Court below Om Prakash Mongia & Ors. vs. Satgopal Kapoor & Ors. RCA No.61/16 Page No. 4/32 in page no.15 of the impugned order.
6. In the written synopsis filed by the appellant, it is urged that there should be an earlier order of eviction subject to the conditions being the same both in the earlier default proceedings protected and the subsequent petition. The appellant submits that the present appeal is mainly agitated on the grounds that there is an incorrect site plan, premises being different, there being no statutory notice and the arrears having been stood paid, the site plan of the landlord's being incorrect. The earlier order of the Ld. Rent Controller dated 22.8.1984 is in respect of other premises and not with respect to the present premises. The same is described in the written arguments at length.
7. In the written arguments, the appellant relied on the following rulings :
(a) Jai Narain Aggarwal vs. S. Banerjee 1986 (1) RCR Cal. DB
(b) Appabhari Motibhai vs. Laxmi Chand Zaver Chand & Co. AIR 1954 Bom. 159
(c) Meghji Khanji Patel vs. Kundan Lal Chaman Lal AIR 1968 Bom. 387
(d) Amarnath vs. Champa Devi 1978 (1) RCR 378
(e) Abdul Karim vs. Hasheem 2010 (2) RCR Ker. DB (Note : Though the rulings are cited, the law laid down thereunder is not described or referred. Rulings are also not furnished for the benefit of reading.)
8. However, it is urged in the written arguments that these rulings are relevant and that the statutory notice if not served which is mandatory; hence the impugned order is not maintainable in law.
Om Prakash Mongia & Ors. vs. Satgopal Kapoor & Ors. RCA No.61/16 Page No. 5/32Appellant also contends that rents are paid by way of cheques to the landlord and the obligation of the tenant is complete. The amounts were paid in the presence of one witness but such witness was not examined since the appellate court restricted the evidence in the earlier appeal. It is also contended that the Ld. Rent Controller has no jurisdiction to pass the decree in view of the ruling in Harbhajan Dass vs. Tilak Mehta 19 (1981) DLT 77. (Here also the ruling is cited but the ratio decided is not mentioned and ruling is not furnished.) Therefore, the appellant prays for allowing the appeal. Contentions of the respondents :
9. In the written synopsis filed by the respondents, it is urged that the tenant had become habitual defaulter and did not pay the rents on 01.09.1996 at the rate of Rs. 176/- p.m. Demand notice dated 11.10.1999 was duly served. The statutory increase of rents were claimed at the rate of Rs. 193.60 pm on 01.12.1999. There have been defaults despite earlier protection u/s 14 (2) of the Act which was decided by the then Ld. ARC Shri B.B. Chaudhary. Appellants committed second default. The relationship is not denied. The landlords are entitled for arrears of rent. As regards the notice, the same came back refused which is proved by the documents at Ex. PW1/2 to Ex. PW1/5.
10. It is also urged by the respondents that the only question is whether there was due service of notice of demand by the landlord on the tenant or not. The suggestion made by the tenant in the cross examination of PW-1 clearly reveals that the notice was sent to the tenant by certificate and the landlord never resided in the tenanted portion. There was no suggestion that Ex.
Om Prakash Mongia & Ors. vs. Satgopal Kapoor & Ors. RCA No.61/16 Page No. 6/32PW1/5 returned envelope was not refused by the tenant Om Prakash Mongia. The testimony of PW-1 in the trial court is enough to hold that the tenant refused the registered postal envelope. Therefore, there is a complete second default. Earlier the case was remanded in appeal to the Ld. ARC where the tenant was confined to examine herself only as a witness. In her cross examination, it is admitted by her that the returned postal envelope contained the correct address and that the RW-1 in her testimony does not deny having availed the benefit u/s 14 (2) of the Act earlier. She also admitted that she has not deposited the rents as per the orders passed by the court.
11. It is argued that the tenants have not filed the site plan of their own to rebut the site plan of the landlord and thus the same amounts to deemed admission as correct. There is an admission upon refusal of money orders by the landlord, the tenant had not deposited the rents as required u/s 27 of the DRC Act which is mandatory and hence the second default is proved. It is further urged that if one party makes certain assertions in the legal notice addressed to the other side who remains silent for such allegations, adverse inference can be drawn u/s 114 (f) of the Evidence Act. The tenants have not filed any counter-foils to establish having paid the rents from September, 1996 to December, 1996 by way of cheque and no statements of accounts is filed by the tenant.
12. As regards the premises being different from the premises claimed in the instant petition, the respondents submit that no suggestion was made to PW-1 that veranda is in the exclusive possession of the tenant. The common portion cannot be called or Om Prakash Mongia & Ors. vs. Satgopal Kapoor & Ors. RCA No.61/16 Page No. 7/32 held to be in exclusive possession. Therefore, the distinction pointed out from para 8 of the earlier eviction petition does not make out a ground for appeal. The three consecutive defaults are to be looked into as on the date of petition and that not from the date of notice of demand as held in RCR 1971 page 852. No protection can be given to the tenant who is negligent and careless as held in 1996 RLR 163 SC. The ld. Counsel for the respondents have relied on the following rulings:
a) Mrs. Achamma Thomas Vs. E. R. Fairman AIR 1970, Mys 77-
to urge that service of notice by registered post properly addressed containing the document gives rise to presumption of service.
b) O. P. Behal Vs. A. K. Shroff, 1973 RLR notes 17, to urge that if the addressee is out of station, the members of the family residing in the premises should have received the letter- as held by our Hon'ble High Court.
c) Prime Industry Vs. Rafeeq Ahmad, 1997 III AD ( Delhi) 989, to press the point that notice sent by certificate of posting (UPC) at the correct address along with the registered post returned can be presumed as proper service since the party avoided the notice under registered post and certificate of posting could be held as served.
d) P. T. Thomas Vs. Thomas Jacob, 2005 (2) Apex Court Judgments, 452- wherein it is held that when a notice sent through post for intimation was given by postman and notice returned unserved, presumption under law is that the notice is served on the respondent. There is no obligation to examine the postman.
e) M/s Madan & Company Vs. Wazir Jaiveer Chand, AIR 1989, SC 630- to point out that in case of notices sent through registered Om Prakash Mongia & Ors. vs. Satgopal Kapoor & Ors. RCA No.61/16 Page No. 8/32 post on the correct address which were returned for the non- availability of the party, there is no responsibility on the part of the sender or the postman to arrange for the service.
f) Ashok Kumar Vs. Vijay Laxmi 1991 RLR 463- to submit that exhibiting a document while writing a judgment which was earlier marked is permissible and that court must not give any weight to absurd statements.
g) Sarla Goel Vs. Kishan Chand, 2009 RLR 369 SC- wherein it was held that whenever the landlord refuses to receive the rent, the tenant is mandated u/s 27 of the DRC Act to deposit the rents if he wants to avail the benefits provided under the said act. It is held that the tenant must comply the provisions to have the benefit of the protection.
(h) Kalu Ram vs. Sita Ram 1980 RLR Notes 44 of our Hon'ble High Court wherein it was held that if the plaintiff in the notice made serious assertions, the defendant must not remain silent by ignoring the reply. If he does so, then adverse inference may be raised against the defendant.
Brief facts of the case :
13. The landlords have filed a petition u/s 14 (1) (a) of the DRC Act (as second default) against one Om Prakash Mongia on 28.3.2000. The premises described is H.No. 44, Gali No. 1, Shashtri Park, Near Krishna Nagar, Delhi. The rent is Rs.176/- per month and Rs.193.60 w.e.f. 01.12.1999. The premises was let out in August 1972. It was alleged that the tenant was irregular in payment of rent. Legal notice was addressed on 11.10.1999 for second default. There have been three consecutive defaults. The Om Prakash Mongia & Ors. vs. Satgopal Kapoor & Ors. RCA No.61/16 Page No. 9/32 respondents have already availed the benefit u/s 14 (2) of the Act disposed by Ld. ARC earlier. Hence, eviction is sought.
14. In the objections by the tenant filed through the LRs, it is contended that there is no proper notice u/s 106 of T.P. Act, there is no service of the notice dated 11.10.1999. Apart from the accommodation described at paragraph 8 of the petition, a portion of covered veranda, covered passage, latrine and bathroom with terrace exclusively and common use of open veranda/passage on the ground floor also forms the part of tenancy. The site plan is incorrect. It is contended that rents were paid by four cheques upto December 1996. Thereafter from January 1997 to April 1997 the same was sent by money-order, refused by the landlord.
15. Tenant filed a suit for specific performance based on an agreement and there is no default by the tenant. It is also denied that the original late tenant refused the notice. The earlier protection given to the tenant is admitted.
Evidence before the court below :
16. On behalf of the landlord one Satgopal - petitioner no.1 is examined as PW-1. On behalf of the respondent only one witness is examined. This witness is the wife of the deceased original tenant.
History of this case:
17. By a detailed judgment dated 07.07.2006, ld. ARC had opined that the tenant had already obtained benefit u/s 14 (2) of DRC Act and ordered that the eviction order against the tenants. This judgment is challenged in the appeal in M. No. 33/08 before Ld. ARCT presided by Shri Gurdeep Kumar and by an order dated Om Prakash Mongia & Ors. vs. Satgopal Kapoor & Ors. RCA No.61/16 Page No. 10/32 03.05.2008 the matter was remanded to record the further evidence with certain conditions.
18. Upon remanding by the Appellate Court, the cross examination was later recorded on 01.04.2009, 17.04.2009, 08.07.2009 and the evidence was closed. Thereafter, the matter was disposed of by the impugned judgment after hearing both the sides. Issues in this appeal:
19. Trial court records are summoned and perused.
There is a site plan at Ex.PW1/1. After having heard the ld. Counsel on both the sides and after perusal of the trial court records, the following issues arise for consideration in this appeal:
"Whether the impugned judgment of the ld. Court below is perverse, opposed to law, facts on record and liable to be set aside?"
Answers to the issue:
20. The ld. Counsel for the appellant would urge that the appeal is liable to be set aside on the following three main reasons :
a) That the premises to which the protection given earlier is different and distinct from the premises against which the eviction is now ordered.
b) That there was no valid notice demanding arrears having served on the tenant on the subsequent defaults.
c) The rents were paid and there are no arrears.
21. It is to be kept in mind that unless and until the question of law is urged the appeal u/s 38 of the Rent Control Act, no appeal would lie.
22. However, considering the grounds urged that there was Om Prakash Mongia & Ors. vs. Satgopal Kapoor & Ors. RCA No.61/16 Page No. 11/32 no valid and proper notice the same is taken as a question of law to be examined in this appeal apart from the other grounds.
23. Per contra it was argued on behalf of the respondents in their written submissions that the relationship having not been denied and further there being a notice which was refused under registered post coupled with a notice sent under the certificate of posting the same amounts to proper notice in so far as the address found on the envelopes are not disputed. It is further argued that there is no ground open to the tenant to deny the accommodation and there being no rebuttal site plan, the tenant cannot argue that the premises to which the eviction order is passed is distinct and different. It is their contention that even the veranda portion is in the exclusive possession of the tenants. It is also vehemently argued that there is no evidence for having cleared the arrears of rent and the consequent defaults are glaring from the evidence available on record. Keeping in mind the contentions of the parties, this court is venturing into the re-appreciation of evidence in the light of the law on the subject.
(a) Identity of the premises : whether distinct and different?
24. The appellant vehemently contends that a distinct and different premises is ordered to be evicted in the instant petition on the ground of subsequent defaults after the first protection order. The ld. Counsel Shri J. K. Bhola appearing for the respondent vehemently submits that in the earlier petition the premises to which the eviction was sought on non payment of rents is described as "two rooms, store, kitchen, common bathroom and latrine". In the second eviction petition the accommodation is described as "two Om Prakash Mongia & Ors. vs. Satgopal Kapoor & Ors. RCA No.61/16 Page No. 12/32 rooms, one store, one kitchen with common user of veranda, passage, latrine and bathroom more specifically shown red in the annexed plan situated on the ground floor."
25. To appreciate this contention, the pleadings are very much necessary to be verified apart from the very "animus possidendi". Normally animus is proved by the acts of control and surrounding circumstances. However, the pleadings in this case are as under:
Para No. 1. Municipal number and number of the premises and name if any: House No. 44, Gali No.1.
Para No.2 : Street and Municipal Ward and Division in which the premises are situated: Shashtri Park, Near Krishna Nagar, Delhi-51.
26. In the written statement / objections of the reply on merits, the tenant had replied that paras no. 1 to 3 of the petition need no reply.
27. After considering the petition and the objections by the tenant which forms the pleadings, it can be safely held that the premises to which the eviction is sought is not denied nor disputed.
28. What is disputed is with regard to the description of accommodation at para 8 of the petition in which it is stated as "two rooms, one store, one kitchen with common user of veranda, passage, latrine and bathroom more specifically shown red in the annexed plan situated on the ground floor." While traversing the above pleadings of the landlord, the contention of the tenant is that "It is denied that the tenancy premises consists of two rooms, one store, one kitchen with common user of verandah, passage, latrine Om Prakash Mongia & Ors. vs. Satgopal Kapoor & Ors. RCA No.61/16 Page No. 13/32 and bathroom on the ground floor only, as wrongly shown red in the site plan annexed with the petition. It is submitted that the tenancy premises include two rooms, one store, one kitchen, covered verandah, covered passage, latrine and bathroom with terrace exclusively with the respondents and having common use of open verandah/passage in the ground floor. The site plan filed by the petitioners, showing the tenancy premises as red is wrong. The correct site plan showing the tenancy premises as red is annexed herewith."
29. As far as the description of the property in the earlier petition for which the protection was given is concerned, the petitioner has filed the photocopies of the petition and the copy of the written statement in the trial court records. In the said petition bearing no. 191/1974, the para 1 of the petition describes the property as H. No. 44, Gali No.1, Shashtri Park, Krishna Nagar, Delhi-51. The accommodation is described as two rooms, store, kitchen and common bathroom and latrine. This can be found at Mark A in the trial court records.
30. After comparing the property number and its situation in E No. 191/1974 (earlier petition) and the present petition against which the impugned order is passed, this court finds that the property is no different from the earlier petition since the description of the property at Para 1 and 2 in both E. No. 191/1974 and E. No. 49/2000 as in the trial court records at paras 1 & 2 is described as H. No. 44, Gali No.1, Shashtri Park, Krishna Nagar, Delhi-51.
31. That apart, the evidence is perused. It is the respondent who contends that the property is different and distinct.
Om Prakash Mongia & Ors. vs. Satgopal Kapoor & Ors. RCA No.61/16 Page No. 14/32Her evidence at Ex.R1 the affidavit shows that her husband late Om Prakash Mongia took the premises on rent bearing no. 44, Gali No.1, Shashtri Park, Krishna Nagar, Delhi-51 consisting accommodation of two rooms, one store, one kitchen, covered veranda, covered passage, latrine and bathroom with terrace having common use of open veranda and common passage. RW-1 had only deposed that the tenancy premises have not been correctly shown in the site plan at Ex.PW1/1. It is not her case that the demised premises is totally different and distinct than the one in which her late husband was inducted as a tenant.
32. The mere improper description of the accommodation by the landlord in the second petition itself cannot be held to nullify the proper description of the property by its municipal number, the situation of the same in the particular area as described in both the petitions being common. It is not the case of the tenant that the demised premises bear a distinct and different municipal number, a different location as described in the earlier petition compared with the second petition.
33. The contention of the Ld. Counsel for the appellant that the property to which the protection was given is different is other than the one to which the impugned order is passed, cannot be held as a totally different and distinct property just because of mere non- description/mis-description of accommodation. The core accommodation given on rent being part of the premises containing two room, one kitchen, store room.
34. Ld. Court below while dealing with the controversy had noted "the copy of the earlier petition and its judgment at Ex.PW1/6 Om Prakash Mongia & Ors. vs. Satgopal Kapoor & Ors. RCA No.61/16 Page No. 15/32 are available on judicial file as filed by the petitioner and the comparison of the premises as mentioned is the same with that of the present one shows that the petitioner in the present petition has mentioned the common use of veranda and the passage. The portion of the tenanted premises is the same. The respondent has not taken the plea of difference in the tenanted premises in the written statement (para 16)".
35. This finding of the Ld. Court after scrutiny of the trial court records cannot be held as perverse and opposed to the facts pleaded in the pleadings. In order to establish that the present premises to which the impugned order is passed is different, the tenant ought to have pleaded that there were two premises taken on rent. It is not the case of the tenant that there were two distinct premises taken on rent under different and distinct tenancies created either orally or in writing.
36. PW-1 was not even given a suggestion in the cross- examination by the tenant that the premises is distinct and different. There is only an improper description of the accommodation in the demised premises. It is not for the accommodation that the eviction is sought on the grounds urged. It is for the entire premises which is let out.
37. The Ld. Court below had come to the conclusion that "the respondent has not taken the plea of difference in the tenanted premises in the written statement. In these facts, the same appears to be an after-thought. Moreover, the respondent has not pleaded as to when the tenancy of veranda and passage was granted to the respondent if it was not included in the tenancy premises at the time Om Prakash Mongia & Ors. vs. Satgopal Kapoor & Ors. RCA No.61/16 Page No. 16/32 of initiation of tenancy." The premises to which the eviction order is passed in both the cases being the same, this court finds no sound reasons to hold that the tenancy is distinct and different.
(b) Demand notice for subsequent arrears :
38. It is the contention of the appellant that there was no proper notice served on the tenant. PW-1 testified that the legal notice dated 11.10.1999 was sent by registered post and UPC. He stated that the notice is correctly addressed. Notice sent under UPC was delivered to the respondent. Notice sent through RPAD received back with the remarks of "refusal". The carbon copy of the notice is at Ex.PW1/2, UPC at Ex.PW1/3, postal receipt at Ex.PW1/4, returned envelope at Ex.PW1/5. In the cross- examination, the tenant suggested that no notice was issued and the same was answered as wrong by PW-1. He also denies a suggestion that the postman did not deliver the UPC.
39. The tenant who contended that the notice was not delivered to the original tenant, was confronted with Ex.PW1/2, 3 and 5 and she admitted in the cross-examination that the same bears her correct address. In this backdrop, whether the notice duly sent by registered post with postal receipt and by certificate of posting could be treated as proper service or not is no more res integra.
40. It is held by his Lordship Justice J.R. Middha in Sky Land International Pvt. Ltd. vs. Kavita P. Lalwani 2012 (191) DLT 594 as follows :
"27.2 The appellant has denied the receipt of the notice of termination dated 20th June, 2009 which was dispatched by Om Prakash Mongia & Ors. vs. Satgopal Kapoor & Ors. RCA No.61/16 Page No. 17/32 registered post to the correct addresses of the appellant at Connaught Place as well as Okhla Industrial Area by registered post. The notice sent to the registered office was received back with the remarks "left" whereas the notice sent at the Okhla was duly served. The original postal receipts and acknowledgment card as well as the returned envelope placed on record bears the correct addresses of the appellant. The Department of Posts has also certified the delivery of notice on the appellant on 22nd June, 2009. The aforesaid original documents placed on record by the respondent raise a presumption of service under Section 27 of the General Clauses Act, 1897 and Section 114(f) of the Indian Evidence Act, 1872 read with Section 51 of the Companies Act, 1956 and Section 3 of the Commercial Documents Evidence Act, 1939."
41. Since RW-1 in the cross-examination had unequivocally admitted that the address found on the returned envelope, postal receipts are correct, the presumption of service of notice arises in favour of the landlord and that the impugned judgment of the trial court holding the presumption based on the various case laws cited therein by the Ld. Court below cannot be found fault with. The rulings urged by the respondent noted supra and particularly the ruling of Hon'ble Supreme Court in P.T. Thomas (Supra) held that in the case where the party did not receive the notice which was returned unserved, there is no obligation cast on the sender to examine the post-man as assumed by the Hon'ble High Court is incorrect. The presumption u/s 114 of the Evidence Act operates apart from that under the Post Office Act. This observation of the Om Prakash Mongia & Ors. vs. Satgopal Kapoor & Ors. RCA No.61/16 Page No. 18/32 Hon'ble Supreme Court validates the issuance of notice which position of law is reiterated earlier in the ruling of the Hon'ble Supreme Court in Madan & CO. (Supra) AIR 1989 SC 630. Therefore, there is no illegality in the order of the Ld. Court below which held that there is a valid notice following the rulings in Basant Singh and Anr., vs. Roman Catholic Mission AIR 2002 SC 3557 and K. Bhaskaran Vs. Shankaran AIR 1999 3762. The trial court held that a mere bald statement of the denial of service by the respondent witness will not rebut the presumption of service of notice. This finding does not suffer from any illegality.
(c) Arrears of rent - whether paid :
42. The Ld. Counsel for the appellant vehemently argues that there are no arrears to attract the subsequent defaults after granting the benefit by the court below. It is obligated upon the tenant to prove that there are no subsequent defaults. The respondent took up a contention that the rents were paid upto December 1996 by way of four cheques. It is also her case that rents for the period from January to April 1997 was sent by M.O.
43. The first contention that the rents were paid from September 1996 to December 1996 by cheques is only a self- serving testimony since neither the counter-foils of the said cheques nor the statement of the bank, to prove that the cheques were encashed, is produced by the RW-1 in her evidence.
44. In the cross-examination of RW-1, it is elicited that she has personal knowledge of the cheques given to the landlord and the same were given by herself and her brother Anil in the presence of Om Prakash Mongia & Ors. vs. Satgopal Kapoor & Ors. RCA No.61/16 Page No. 19/32 Satish Sabarwal. She admits that the counter-foils are used to be maintained by her. She further admits that she does not have such counter-foils which remained with her husband. The said cheques were given by her husband but sometimes by herself along with others and sometimes her husband used to go to deliver the cheques to the petitioner.
45. It is also found in the cross-examination of RW-1 that they did not send any money-orders to the petitioner in the trial court after 11.10.1999. It is also found that they had rent dues in the court up till the period of July 2006 in connection with the present proceedings. Thereafter, they did not deposit any sum towards the rent dues as it was told that the matter had been decided against them. In the very cross-examination she had unequivocally stated that after the death of her husband, she had not paid any rent by cheque or cash.
46. Ld. Court below has noted that "the respondent is not able to bring on file the fact of encashment of the said cheques by the petitioners and further that on refusal of acceptance of rent sent through money-orders he deposited the rent with the court as per requirement of the DRC Act".
47. It is the case of the respondent that the money-orders as per the documents exhibited at Ex.RW1/1 to 4 were refused by the landlord. In such an eventuality, the statutory requirement is that the tenant ought to have deposited the rents in the court as required under Sec. 27 of the DRC Act. No such deposits were made in the court.
Om Prakash Mongia & Ors. vs. Satgopal Kapoor & Ors. RCA No.61/16 Page No. 20/3248. The ld. Court below had noted that the respondent has not brought on the file any grounds as to why the rents were stopped. The evidence of RW-1 is only to the extent that she had sent the rents by money-order for the month of January 1997 to April 1997. It is nowhere found that she had deposited the rents upon the refusal of the money-orders. Her testimony at Ex.R1 - affidavit in the trial court records is silent with regard to the statutory compliance of deposit of rents.
49. In the ruling of Sarla Goel (Supra) the Hon'ble Supreme Court noted the following :
"11. We are unable to accept this submission of the learned counsel for the tenant/respondent for the following reasons :-
It is true that in Section 27 of the Act, it has been provided that the tenant may deposit rent when such rent was not accepted or refused or no receipt was granted by the landlord or there was bonafide doubt as to the person or the persons to whom the rent was payable, the tenant may deposit such rent with the Rent Controller in the prescribed manner.
12. Chapter III deals with Control of Eviction of Tenants.
Section 14 gives a specific right to the tenants to resist evictions. Sub- section (2) of Section 14 of the Act provides that no order for recovery of possession of any premises shall be made on the grounds specified in Class A of the proviso to sub-section (1) if the tenant makes payment or deposit the rent as required by Section 15.
13. An overall reading of Chapter III of the Act would clearly show that an additional protection has been given by the Legislature to the tenant who has committed default in payment of rent for which he is liable to be evicted under Om Prakash Mongia & Ors. vs. Satgopal Kapoor & Ors. RCA No.61/16 Page No. 21/32 Section 14(1)(a) of the Act. Section 14(1)(a) of the Act clearly provides that when the tenant has neither paid nor tendered whole of the arrears of the rent legally recoverable from him within two months from the date of which a notice of payment of the arrears of rent has been served on him by the landlord in the manner provided in Section 106 of the Transfer of Property Act, 1882. A plain reading of sub- section (2) of Section 14 makes it clear that a tenant is protected from eviction if he makes payment or deposits the rent as required by Section 15. Section 15 deals with cases when a tenant can get the benefit of protection against eviction.
14. Accordingly, Section 14(1)(a) is a ground for eviction of a tenant for default in payment of rent. In spite of that, protection has been given under Section 15 of the Act to the tenant to avail of the protection given by the Legislature by depositing rent in the manner indicated in Section 15 of the Act. However, proviso to Section 14(2) of the Act takes away the right of a tenant of the benefit of Sub-Section (2) of Section 14 if the tenant having obtained such benefit once in respect of any premises and makes a further default in payment of rent of those premises for three consecutive months. Therefore, it has been made clear that when the tenant makes a second default, no protection can be given to the tenant from eviction.
15. Chapter IV, however, deals with Deposit of Rent. Section 26 of the Act provides that if the rent is paid it is the obligation of the landlord to grant receipt for the rent paid to him. In default of payment of rent within the time specified therein, the tenant is also liable to pay simple interest at the rate of 15% per annum from the date on which such payment of rent is due to the date on which it is paid. The proviso to Section 26(2) of the Act makes it clear that it shall be open to the tenant to remit the rent to his landlord by postal money order. Sub-section (3) of Section 26 also Om Prakash Mongia & Ors. vs. Satgopal Kapoor & Ors. RCA No.61/16 Page No. 22/32 makes the provision that if the landlord or his authorized agent refuses or neglects to deliver to the tenant a receipt referred to in sub-section (2), the Controller may, on an application made to him in this behalf by the tenant within two months from the date of payment and after hearing the landlord or his authorized agent, by order direct the landlord or his authorized agent to pay to the tenant, by way of damages, such sum not exceeding double the amount of rent paid by the tenant and the costs of the application and shall also grant a certificate to the tenant in respect of the rent paid. From a reading of sub-section (3) of Section 26 of the Act, it is clear that the tenant has been given further protection to get the rent receipt from the landlord and in the event the landlord refuses to grant such receipt, the procedure has been clearly made by the Legislature for the purpose of getting the receipt under the Act and at the same time the landlord can be imposed to pay damages not exceeding double the amount paid by the tenant and the costs of the application and to obtain a certificate from the landlord in respect of the rent paid. Now we come to the most important provision regarding the procedure under the Act to pay or deposit or tender rent to the landlord, if he refuses to grant any receipt in respect of the payment already made to him. As quoted herein earlier, Section 27 deals with deposit of rent by the tenant. It clearly says that where the landlord does not accept any rent tendered by the tenant within the time referred to in Section 26 or refuses or neglects to deliver a receipt referred to therein or where there is a bona fide doubt as the person or persons to whom the rent is payable, the tenant may deposit such rent with the Controller in the prescribed manner. When the words " bona fide doubt" has been added to Section 27, the tenant may remit such rent to the Controller by postal money order. From a conjoint reading of this provision referred to herein above and particularly Section 27 of the Act, in our view, it cannot be doubted that the procedure Om Prakash Mongia & Ors. vs. Satgopal Kapoor & Ors. RCA No.61/16 Page No. 23/32 having been made by the Legislature how the rent can be deposited if it was refused to have been received or to grant receipt for the same. If that be the position, if such protection has been given to the tenant, the said procedure has to be strictly followed in the matter of taking steps in the event of refusal of the landlord to receive the rent or to grant receipt to the tenant. It is well settled that whether the word "may" shall be used as "shall", would depend upon the intention of the Legislature. It is not to be taken that once the word "may" is used by the Legislature in Section 27 of the Act, would not mean that the intention of the Legislature was only to show that the provisions under Section 27 of the Act was directory but not mandatory.
16. In other words, taking into consideration the object of the Act and the intention of the Legislature and in view of the discussions made herein earlier, we are of the view that the word "may" occurring in Section 27 of the Act must be construed as a mandatory provision and not a directory provision as the word "may" , in our view, was used by the Legislature to mean that the procedure given in those provisions must be strictly followed as the special protection has been given to the tenant from eviction. Such a cannon of construction is certainly warranted because otherwise intention of the Legislature would be defeated and the class of landlords, for whom also, the beneficial provisions have been made for recovery of possession from the tenants on certain grounds, will stand deprived of them.
17. In Mohan Singh and Ors. Vs. International Airport Authority of India and Ors. 1997 (9) SCC 132, this Court while dealing with the intention of the Legislature to use the word "may" or "shall" observed in paragraph 17 as follows :-
"The distinction of mandatory compliance or directory effect of the language depends upon the language couched in the statute under consideration and its object, purpose and effect. The distinction reflected in the use of the word "shall"Om Prakash Mongia & Ors. vs. Satgopal Kapoor & Ors. RCA No.61/16 Page No. 24/32
or "may" depends on conferment of power. In the present context, "may" does not always mean may. May is a must for enabling compliance of provision but there are cases in which, for various reasons, as soon as a person who is within the statute is entrusted with the power, it becomes duty to exercise. Where the language of statute creates a duty, the special remedy is prescribed for non- performance of the duty. In "Raise on Statute Law" (7th Edn.) it is stated that the Court will, as a general rule presume that the appropriate remedy by common law or mandamus for action was intended to apply. General rule of law is that where a general obligation is created by statute and statutory remedy is provided for violation, statutory remedy is mandatory. The scope and language of the statute and consideration of policy at times may, however, create exception showing that Legislature did not intend a remedy (generality) to be exclusive. Words are the skin of the language. The language is the medium of expressing the intention and the object that particular provision or the Act seeks the achieve. Therefore, it is necessary to ascertain the intention. The word "shall" is not always decisive. Regard must be had to the context, subject matter and object of the statutory provision in question in determining whether the same is mandatory or directory. No universal principle of law could be laid in that behalf as to whether a particular provision or enactment shall be considered mandatory or directory. It is the duty of Court to try to get at the real intention of the Legislature by carefully analysing the whole scope of the statute or section or a phrase under Consideration. As stated earlier, the question as to whether the statute is mandatory or directory depends upon the intent of the Legislature and not always upon the language in which the intent is couched. The meaning and intention of the Legislature would govern design and purpose the Act seeks to achieve. In "Sutherland Statutory Construction"
(3rd Edn) Volume I at page 81 in paragraph 316, it is stated Om Prakash Mongia & Ors. vs. Satgopal Kapoor & Ors. RCA No.61/16 Page No. 25/32 that although the problem of mandatory and directory legislation is a hazard to all governmental activity, it is peculiarly hazardous to administrative agencies because the validity of their action depends upon exercise of authority in accordance with their charter of existence the statute. If the directions of the statute are mandatory, then strict compliance with the statutory terms is essential to the validity of administrative action. But if the language of the statute is directory only, the variation from its direction does not invalidate the administrative action. Conversely, if the statutory direction is discretionary only, it may not provide an adequate standard for legislative action and the delegation. In "Crawford on the Construction of Statutes" at page 516, it is stated that: The question as to whether a statute is mandatory or directory depends upon the intent of the Legislature and not upon the language in which the intent is clothed. The meaning and intention of the Legislature must govern, and these are to be ascertained, not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it the one way or the other...."
18. It is not in dispute that in this case, according to the landlord, this was a case of second default whereas the case of the tenant was that since he has already tendered the rent to the landlord, who refused to receive the same, he had complied with the provisions of the Act. The tenant/respondent had already taken protection under the beneficial legislations of the Rent Control Act once and, therefore, he ought to have strictly followed the procedure given in Section 27 of the Act.
19. In Atmaram's case (supra), this Court observed at paragraph 19 as under :-
"It will thus appear that this Court has consistently taken the views that in Rent Control Legislations if the tenant wishes Om Prakash Mongia & Ors. vs. Satgopal Kapoor & Ors. RCA No.61/16 Page No. 26/32 to take advantage of the beneficial provisions of the Act, he must strictly comply with the requirements of the Act. If any condition precedent is to be fulfilled before the benefit can be claimed, he must strictly comply with that condition. If he fails to do so he cannot take advantage of the benefit conferred by such a provision" (Emphasis supplied).
20. Again in paragraph 20 of the same decision, this Court observed as follows :-
"Section 26 of the Delhi Rent Control Act, 1958 provides that every tenant shall pay rent within the time fixed by contract, and in the absence of such contract, by the fifteenth day of the month next following the month for which it is payable. Every tenant who makes a payment of rent to his landlord shall be entitled to obtain forthwith from the landlord or his authorized agent a written receipt for the amount paid to him, signed by the landlord or his authorized agent. It is also open to the tenant to remit the rent to his landlord by postal money order. The relevant part of Section 27 of the Act reads as under:-
"27. Deposit of rent by the tenant - (1) Where the landlord does not accept any rent tendered by the tenant within the time referred to in Section 26 or refuses or neglects to deliver a receipt referred to therein or where there is a bona fide doubt as to the person or persons to whom the rent is payable, the tenant may deposit such rent with the Controller in the prescribed manner : Provided that in cases where there is a bona fide doubt as to the person or persons to whom the rent is payable, the tenant may remit such rent to the Controller by postal money order."
21. This Court in the aforesaid decision, after examining Section 27 of the Act observed at paragraph 21 as follows :-
"The Act, therefore, prescribes what must be done by a tenant if the landlord does not accept rent tendered by him within the specified period. He is required to deposit the rent Om Prakash Mongia & Ors. vs. Satgopal Kapoor & Ors. RCA No.61/16 Page No. 27/32 in the Court of the Rent Controller giving the necessary particulars as required by Sub-section (2) of Section 27, There is, therefore, a specific provision which provides the procedure to be followed in such a contingency. In view of the specific provisions of the Act it would not be open to a tenant to resort to any other procedure. If the rent is not deposited in the Court of the Rent Controller as required by Section 27 of the Act. and is deposited somewhere else, it shall not be treated as a valid payment/tender of the arrears of rent within the meaning of the Act and consequently the tenant must be held to be in default."
22. In E. Palanisamy vs. Palanisamy (2003) 1 SCC, 123, this Court while considering the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, which is similar to the Delhi Rent Control Act, observed at paragraph 4, 5 & 8 as follows :- "4. It would be seen from the above provisions that while the landlord is required to issue a notice of default, on refusal by landlord to accept rent, the tenant is required to call upon the landlord by way of a notice to specify the name of a Bank in which rent could be deposited by the tenant to the credit of the landlord. If the landlord specify the name of the Bank to deposit the rent, there is an obligation on the part of the tenant to make the deposit of arrears of rent in the account of landlord. However, if the landlord does not specify the name of a Bank inspite of being called upon by the tenant through a notice, the tenant is required to send the amount of arrears through a money order to the landlord after deducting the commission payable on the money order. If the landlord still refuses to accept the rent, the tenant is entitled to file an application before the Rent Controller seeking permission to deposit the arrears of rent under Sub-section (5) of Section 8 of the Act.
5. Mr. Sampath, the learned counsel for the appellants argued that since the appellants-tenant had deposited the Om Prakash Mongia & Ors. vs. Satgopal Kapoor & Ors. RCA No.61/16 Page No. 28/32 arrears of rent in Court, it should be taken as compliance with Section 8 of the Act. This would mean there is no default on the part of tenant in payment of rent and therefore, no eviction order could have been passed against the appellants on that ground. According to the learned counsel, the Court should not take a technical view of the matter and should appreciate that it was on account of refusal of the landlords to accept the rent sent by way of money orders that the tenant was driven to move the Court for permission to deposit the arrears of rent. Since there is a substantial compliance of Section 8 in as much as the arrears of rent stand deposited in Court, a strict or technical view ought not to have been taken by the High Court. We are unable to accept this contention advanced on behalf of the appellants by the learned counsel. The rent legislation is normally intended for the benefit of the tenants. At the same time, it is well-settled that the benefits conferred on the tenants through the relevant statues can be enjoyed only on the basis of strict compliance with the statutory provisions. Equitable consideration have no place in such matters. The statute contains express provisions. It prescribes various steps which a tenant is required to take. In Section 8 of the Act, the procedure to be followed by the tenant is given step by step. An earlier step is a pre-condition for the next step. The tenant has to observe the procedure as prescribed in the statute. A strict compliance with the procedure is necessary. The tenant cannot straight away jump to the last step i.e. to deposit rent in court. The last step can come only after the earlier steps have been taken by the tenant. We are fortified in this view by the decisions of this Court in Kuldeep Singh v. Ganpat Lal and Anr. 1996 (1) SCC 243 and M. Bhaskar v. J. Venkatarama Naidu 1996 (6) SCC
228..
8. Admittedly the tenant did not follow the procedure prescribed under Section 8. The only submission that was advanced on behalf of the appellants was that since the Om Prakash Mongia & Ors. vs. Satgopal Kapoor & Ors. RCA No.61/16 Page No. 29/32 deposit of rent had been made, a lenient view ought to be taken. We are unable to agree with this. The appellants failed to satisfy the conditions contained in Section8. Mere refusal of the landlord to receive rent cannot justify the action of the tenant in straightaway invoking Section 8(5) of the Act without following the procedure contained in the earlier sub-sections i.e. Sub-sections (2), (3) and (4) of Section8. Therefore, we are of the considered view that the eviction order passed against appellants with respect of the suit premises on the ground of default in payment of arrears of rent need no interference."
23. Applying the principles laid down in Atmaram's case (Supra), as noted herein earlier, and the decision in E. Palanisamy (Supra) and in view of our discussions made herein earlier and considering the object of the Act and the intention of the Legislature, we are in respectful agreement with the observations made by this Court in the aforesaid two decisions. In our view, similar facts had arisen in the present case.
24. It is not in dispute that the tenant/respondent had availed the benefit of Section 14(2) of the Act by its order dated 3rd of December, 2001 passed by the Additional Rent Controller, Delhi. Since we have already come to the conclusion that since the tenant/respondent has failed to deposit rent in compliance with Section 27 of the Act because in the present case, admittedly, landlord/appellants had not accepted any rent tendered by the tenant/respondent within the time referred to in Section 26, it was the duty of the tenant to deposit such rent before the Rent Controller as prescribed in Section 27 of the Act. Admittedly, this step was not taken by the respondent which is mandatory in nature and, therefore, we must hold that the tenant/respondent had committed a second default in payment of rent and is, therefore, liable to be evicted from the suit premises.
Om Prakash Mongia & Ors. vs. Satgopal Kapoor & Ors. RCA No.61/16 Page No. 30/3225. In view of our discussions made hereinabove and considering the scope and object of the Act and the provisions of the same, we are of the view that the word "may" in the context of the Act, shall be construed as "shall" and therefore, the tenant shall deposit the rent after refusal by the landlord and, accordingly, having not done so, he is liable to be evicted.
26. That being the position, we are unable to sustain the order of the High Court and are of the view that the High Court was not correct in holding that the tenant/respondent had not failed to pay or tender arrears of rent for the period mentioned herein earlier.
27. For the reasons aforesaid, the impugned order of the High Court is set aside and since the tenant/respondent having committed second default for which he is not entitled to be protected under the Act, the order of eviction passed by the Rent Controller must be restored."
50. Keeping in mind the law laid down in the above ruling, the finding of the trial court that "it is clear that the respondent had not paid the rent after August 1996" cannot be altered in view of there being no evidence on record to believe the say of the RW-1 that the rents were paid thereafter. On the other hand, a clear admission is found in the cross-examination of the widow of the tenant that she has not paid the rents after the death of her husband Om Prakash. Hence, this court is unable to persuade itself to sail with the arguments of the Ld. Counsel for the appellant that there are no arrears of rent and that for the post period of the notice the same cannot be demanded or raised since section 26 & 27 of DRC Act as discussed in the Sarla Goel (Supra) ruling is binding on the tenant.
Om Prakash Mongia & Ors. vs. Satgopal Kapoor & Ors. RCA No.61/16 Page No. 31/3251. For the aforesaid reasons, the issue raised in the appeal is answered in the negative and there are no reasons to set aside the impugned judgment of the ld. Rent Controller, Shahdara District, Delhi. Consequently, the following :
ORDER The appeal stands dismissed. The impugned judgment dated 21.8.2013 in E. NO. 118/2006 on the files of the Ld. Rent Controller, Shahdara District, is hereby affirmed. However, the appellant-tenant is directed to quit and deliver the vacant possession of the demised premises within thirty days from today in favour of the landlords. There shall be no order as to costs. The trial court records be sent back along with a copy of this order. File be consigned to record room.
Typed to the dictation directly, (A.S. Jayachandra) corrected and pronounced in District & Sessions Judge, open court on 06.01.2018 Rent Control Tribunal, Shahdara/KKD Courts, Delhi.Om Prakash Mongia & Ors. vs. Satgopal Kapoor & Ors. RCA No.61/16 Page No. 32/32