Prem Chander Jain vs Jagat Parkash Gupta
1988 Latest Caselaw 108 Del

JUDGMENT

Sananda Bhandare, J.

(1) The respondent Jagat Prakash Gupta is a tenant under the appellant in respect of a portion of second floor flat forming part of house no. XI/4239-A/3 (Plot No. 3-A), Shri Raj Krishan Jain Street, I, Ansari Road, Daryaganj, Delhi at a monthly rent of Rs. 250.00 besides electricity charges. The appellant herein sought eviction of the respondent on the ground of non-payment of rent under Section 14(l)(a) of the Delhi Rent Control Act. The case of the appellant is that the respondent failed to pay the arrears of rent w.e.f 1st August 1973 despite service of notice of demand dated 4th February 1974. The contractual tenancy of the respondent was determined earlier vide notice to quit. The eviction petition was contested by the respondent who asserted that he had been tendering the rent to the appellant regularly but the appellant refused to accept the same. The respondent also denied having received the notice of demand from the appellant.

(2) The Additional Rent Controller, Delhi vide order dated 14th February 1975 held that there was valid notice of demand sent by the appellant vide notice Ext. A7 which was sent by the appellant Under Certificate of Posting. The notice was correctly addressed which must be presumed to have been delivered to the respondent because no extraordinary happening has been shown or proved that ordinary course of events would not be followed. He also held that there is no evidence to show that the rent was ever tendered before filing of the eviction petition and, therefore, the appellant was entitled to claim eviction under Section 14(l)(a) of the Delhi Rent Control Act However, since the respondent/tenant had deposited the arrears of rent from 1st August 1973 till the date of the passing of the order pursuant to the order dated 7th October 1974 made by the Additional Rent Controller under Section 15(1) of the Delhi Rent Control Act, this being the first default, the respondent was given benefit of Section 14(2) of the Delhi Rent Control Act. The respondent being aggrieved by this order of the Additional Rent Controller filed an appeal before the Rent Control Tribunal. The Rent Control Tribunal however held that the appellant had not specifically proved that the notice of demand was served upon the respondent because the copy of the notice of demand Ext. A7 shows that it was sent to the respondent/tenant at the address of 'first floor flat of House No. XI/4239-A', whereas it is the admitted case of the parties that the respondent is a tenant in respect of a second floor flat and not the first floor flat of the said house. The Control Tribunal further held that the certificate of posting Ext. A8 would show that the address of the respondent was originally typed just as the notice Ext. A7 however, the word 'First' preceding the word 'floor' had been corrected and the word 'IInd' had been written above it in ink and it was not known whether this correction was made before or after the posting of the notice. The Rent Control Tribunal held that the Additional Rent Controller was wrong in drawing a presumption under Section 114 illustration(f) of the Evidence Act in holding that the notice is presumed to have been served on the respondent. The Rent Control Tribunal, therefore, allowed the appeal and dismissed the eviction petition. This order of the Rent Control Tribunal has been challenged by the appellant in this second appeal.

(3) It was contended by the learned counsel for the appellant that the general attorney of the appellant Shri Bharat Bhushan Jain appeared as Awi and stated that the original of notice Ext. A7 was sent Under Certificate of Posting Ext. A8. It was submitted that this witness was not cross-examined by the respondent on the point of address of the respondent and, therefore, the statement of Shri Bharat Bhushan Jain remained unrebutted. The respondent himself did not enter the witness box, nor did he lead any evidence and no question was asked to this witness about the change of the .floor on the certificate of posting. Learned counsel submitted that it is now well-settled that notice Under Certificate of Posting is a valid notice provided the address is correctly shown on the postal receipt. Learned counsel submitted that the Additional Rent Controller was right in drawing a presumption under Section 114 of the Evidence Act because the original eviction petition which was filed in the court of the Additional Rent Controller also showed the address of the respondent as resident of first floor of house no. XI/4239A, Raj Kishan Jain Street, I, Ansari Road, Daryaganj, Delhi and the summons regarding filing of the eviction petition was also issued at the same address which was duly received by the respondent and he appeared pursuant to that summons. Learned counsel submitted that the respondent has been living in this house for a very long time and there were very few persons living in this building and even if the floor had been wrongly mentioned, the postman would have delivered the notice of demand to the respondent at his address. Learned counsel further submitted that it was not necessary to mention the floor of a house when there were only two or three occupants in the building. Learned counsel submitted that in any event if the respondent wanted to contest the service of notice of demand he should have cross-examined the witness of the appellant and if he had seriously contested the service of notice of demand, then the appellant would have produced other evidence like examination of postman etc. in support of his contention that the notice of demand was served on the respondent.

(4) On the other band, it was contended by the learned counsel for the respondent that the onus of proving that the notice of demand was served on the respondent was on the appellant. It was submitted that since there was a correction on the postal receipt it cannot be said that the envelope was correctly addressed to the respondent and the Additional Rent Controller erred in drawing a presumption under Section 114 of the Evidence Act. Learned counsel further submitted that the notice of demand had to be served as prescribed under Rule 22 of the Delhi Rent Control Rules which reads as under:

"22. Service of notice etc.-Unless otherwise provided by the Act, any notice or intimation required or authorised by the Act to be served on any person shall be served- (a) by delivering it to the person; or (b) by forwarding it to the person by registered post with acknowledgement due."

It was, therefore, submitted that the notice by certificate of posting was not valid.

(5) I do not find any force in the contention of the learned counsel for the respondent that since Rule 22 of the Rules provides that any notice or intimation required or authorised by the Act on any person shall be served by delivering it to the person or by forwarding it to the person by registered post with acknowledgement due and thus the notice by certificate of posting was not valid. Section 14(l)(a) of the Delhi Rent Control Act itself provides for service of the notice of demand for the arrears of rent on the tenant by the landlord in the manner provided in Section 106 of the Transfer of Property Act 1882. In fact, this Court in Shri Kishan Chand Chopra v. Shri Satay Paul Chaddha & Another, 1974 R.C.R. (Vol. 6) 578 relying on the judgment in 0m Parkash Bahal v. A.K. Shroff, 1973 All India Rent Control Journal 149 and H-L Pathak v. Smt. Shuhag Wanti, 1972 Rlr 153 has held that a service effected by a certificate of posting is a good service under Section 106 of the Transfer of Property Act. Since the procedure for service of notice of demand is prescribed by the section itself, in my view, notice of demand by certificate of posting is a valid service provided the address is correctly given.

(6) Now the next question is whether in the present case the notice of demand is deemed to have been served by drawing presumption under Section 114 of the Evidence Act in view of small discrepancy in mentioning the floor in the address of the respondent.

(7) I find substantial force in the contention of the learned counsel for the appellant that if the no lice of filing of the eviction petition on the same address was served on the respondent and in fact the respondent appeared in the eviction petition because of that service the notice of demand must have been served on the respondent on the same address. Morever, if the respondent had to contest and deny the service of notice he should have cross-examined the witness AW1 Shri Bharat Bhusban, general attorney of the appellant who had appeared to prove these two documents. The respondent failed to do lhat. It is true that the respondent has denied the service of notice in his written statement but before the Additional Rent Controller he did not point out the discrepancy in the address on the certificate of posting or the notice of demand. In my view, Section 114 illustration (f) of the Evidence Act clearly envisages a case like the present one and it is to be presumed that the notice of demand must have been served on the respondent at the address mentioned on the certificate of posting as well as the notice of demand.

(8) I, therefore, allow the appeal and set aside the order of the Rent Control Tribunal, Delhi dated 27th August 1976 Since the respondent has complied with the order passed by the Additional Rent Controller under Section 15(1) of the Act and has also continued to pay the rent thereafter regularly, he must, therefore, get the benefit of Section 14(2) of the Delhi Rent Control Act.

(9) No costs.