Indian Kanoon - Search engine for Indian Law

(1) APPELLANTS' main grievance against the impugned order is that the learned Courts below ignored the fact that there never existed any relationship of landlord and tenant between the appellant No.1 and the respondent. In fact appellants No.2 and 3 partners of appellant No.1 were the tenant of the premises bearing No.249, Village Khureji Khas, New Delhi. Moreover, the respondent never served any valid notice of demand. In the absence of any valid notice of demand having been served on the tenant the petition was not maintainable. Even otherwise in the earlier petition which disposed of the application under Section 15(1) of Delhi Rent Control Act (in short the Act) no benefit under Section 14(2) of the Act was given. The learned Additional Rent Controller (in short the ARC) as well as the Rent Control Tribunal (in short the Tribunal) fell in error in drawing presumption that the respondent served the appellants with a notice of demand. Such a presumption in the facts of this case was bad in law. The registered Ad notices remained unserved. Notices sent under Certificate of posting were defective because name of appellant's father was not correctly mentioned. This vital defect in the notices sent under Upc has been ignored by the Courts below. Moreover, learned Arc as well as Tribunal erroneously drew presumption of service of notice of demand on the basis of notices posted under Certificate of Posting.

(5) Turning to the question whether notice of demand was served on the tenant or not, it is established on record that notice sent by registered Ad post dated 16th April,1980 Exhibit AW.I/2 was avoided by lhe appellant. Copies of that notice were also sent to appellants No.2 arid 3. They too avoided receipt of the same. As per Postal Authority's remark on the envelope despite repeated visits and informations being given to the addressee they did not make themselves available to receive the notice. Hence the notices were returned as undelivered. The notice of demand was simultaneously sent under Certificate of posting because respondent found that the appellants were intentionally avoiding service. This was done in order to ensure that appellants are served with the notice of demand. The notice sent under Upc was proved on record as Exhibit AW.I/9. However, the name of appellants No.2 and 3's father was wrongly mentioned in the Upc as Mushtaq Ahmed. The real name of their father is Shaukat Ali Khan.

(6) That the question which arises for consideration is whether in view of the registered notices having not been served and on the Upc name of the father of appellants No.2 and 3 was wrongly mentioned would it amount to sufficient service? Whether in such circumstances presumption could be drawn under Section 114 of the Indian Evidence Act? Legally presumption cannot be drawn on the basis of notice sent under UPC. But the correct answer of both these questions depend on the facts of this case. Answer to these questions lie more on facts than law. Notice in this case was sent by registered Ad post as well as by UPC. Since the appellants avoided service of notice by registered post hence the notice was sent under UPC. It is in this background we can say that notice sent by Upc must have been served on the appellant No.1. Notice sent under Upc to appellant No.1 was at correct address of the firm, therefore, the Courts below drew the conclusion that notice sent under Upc had been served on the tenant. So far as sending of copies of notice to the appellants No.2 and 3 under certificate of posting that was only as an abundant precaution. Appellant being legal entity, service on it was a proper service on the tenant. However, appellants No.2 and 3 being partners notice was endorsed to them. Service or no service on them in the facts of this case was not material. Hence wrong mentioning of their father's name had no material bearing on the merits of this case. Notice sent to the firm i.e. the tenant of the premises in question had in fact been correctly sent. It was not received back, therefore, can be said to have been served on the appellant/tenant. The address given on the Certificate of Posting Exhibit AW.1/9 of the firm i.e. appellant No.1 was the correct address. The posting of this notice at the address had been duly proved. The service of notice under the Upc in these circumstances when registered notice sent was avoided by the tenant had rightly been held to be properly served on the tenant. Though strictly speaking presumption under Section 114 of the Indian Evidence Act as such cannot be drawn on the basis of notice sent under Upc but in the facts of this case as the appellant/tenant avoided service of notice by registered post inspite of information having been given by the postman hence notice sent under certificate of posting at correct address to the tenant and the same having not been received back, therefore, in the peculiar facts it can be said that appellant/ tenant was served with notice of demand who inspite of service neither paid nor tendered the arrears of rent. It would not be correct on the part of Bawa Shiv Charan Singh to contend that notice of demand had not been served on the tenant or that the Tribunal wrongly concluded that the notice of demand was served. Since the notice was sent by registered post as well as under Upc to the tenant, therefore, to my mind, the Courts below were not wrong in arriving at a conclusion that notice of demand was served. Hence there was sufficient compliance of the provisions of law. Reliance by Bawa Shiv Charan Singh on the decision of Supreme Court in the case of Gadakh Yashwantrao Kankarrao Vs. E.V. alias Balasaheb Vikhe Patil & ors. is of no help to him. In that case notice was only sent under Certificate of Posting and not under registered cover. It was in this backdrop the Apex Court observed that no presumption under Section 114 of the Indian Evidence Act can be drawn. The facts of that case are distinguishable. In the case in hand notice to the tenant was sent by registered Ad cover as well as under Upc, hence in the facts of this case the conclusion arrived at by the Courts below docs not require reconsideration.