Sudhir Kumar Gupta vs Varshawati Sharma And Ors.
1995 Latest Caselaw 22 Del

JUDGMENT

Arun Kumar, J.

(1) The petitioner filed a petition under section 14(l)(e) read with section 25B of the Delhi Rent Control Act for eviction of the respondents. Mr. Jagan Nath Sharma was the original tenant with respect to the premises in dispute. According to the petitioner the tenancy of Jagan Nath Sharma was terminated vide notice dated 5.3.1984. Jagan Nath Sharma died on 16.8.1985. The present petition was filed in March 1988. At the outset it was pointed out by the counsel for the respondents that Dharam Dev @ Pappi, respondent No.3 in the petition died about three months back. It is not disputed that. the said Dharam Dev died unmarried and did not leave behind any heir of his own. In these circumstances the learned counsel for the petitioner made a statement at the Bar giving up the said respondent.

(2) The learned Additional Rent Controller dismissed the petition vide impugned judgment dated 30.10.92 holding that the tenancy of deceased Jagan Nath Sharma had not been terminated during his life time and, therefore, all the heirs of deceased Jagan Nath Sharma should have been imploded as respondents. It was further observed in the impugned judgment that "it is incumbent on the petitioner to file a fresh petition impleading all the legal heirs of the deceased as tenant in the premises". The petition was disposed of accordingly. Aggrieved by the said order the petitioner has filed the present petition.

(3) According to the learned counsel for the petitioner the notice dated 5.3.1984 terminating the tenancy of Jagan Nath Sharma had been duly served on him and, therefore, the decision of the trial court to the contrary is not correct. In this connection the learned counsel for the petitioner has first drawn my attention to the plea of the respondents in the written statement in this connection. In para 19 of the written statement it has been stated as under-    "IT is denied that tenancy of Shri Jagan Nath Sharma was terminated vide notice dated 5th March 84 or any date or at any stage as alleged".  

In additional pleas, para 12 it has again been stated in written statement as under:-    "THAT it is denied that the contractual tenancy of late Shri Jagan Nath Sharma was terminated during his life time by notice dated 5th March 84 or at any time at all, by any legal or valid notice".  

(4) On the basis of aforesaid pleadings it is urged that no specific plea has been taken that notice dated 5th March 84 was not received at all by deceased Jagan Nath Sharma. Apart from this I have been taken through the relevant portions of the impugned judgment to show that the reasoning adopted by the trial court in this behalf is not correct. Having carefully considered the reasoning adopted by the trial court in this connection I am of the view that the reasoning is totally erroneous and therefore it cannot be sustained. It is not disputed that the notice dated 5th March 1984 was sent by registered post on behalf of the petitioner. It is also not disputed even during the course of hearing before me that the address given in the notice of Jagan Nath Sharma is correct. The trial court appears to have been prejudiced by the fact that the notice is on a plain sheet of paper and not on the letter head of the advocate. Further a lot has been made out of the fact that the Ad Card regarding notice does not contain the signatures of the addressee or that of any of his family members. It has also been noted that the Ad Card does not contain postal stamps of Jawahar Nagar Post Office for its return journey. In this connection it has to be noted that section 106 of Transfer of Property Act which contains requirement of notice of termination of tenancy does not say that the notice must be sent by registered post. In any case there is no requirement of notice being sent by registered post with acknowledgment due. Therefore, the observations of the trial court relating to certain irregularities in the Ad Card are not very material. So long as notice has been sent by registered post and at the correct address of the tenant that is enough for the present purposes. Looking at this from another angle it has to be seen that the person who posted the notice through Regd.post with Ad Card attached loses control of rest of the manner in which the postal authorities deal with such postage. The matter went beyond the control of the petitioner after the notice was handed over to the Post Offices for being sent by registered post to the addressee. The petitioner could not ensure that the postal authorities put a stamp which they are otherwise normally required to do on the Ad Card. Similarly the postal authorities had to ensure the signatures of the addressee on the Ad Card. If the respondents had taken a specific plea of non-receipt of notice may be the petitioner would have taken steps to examine the Postman to find out who actually signed the Ad receipt on behalf of the addressee and why no postal stamp was put on the A.D. card. Merely because of the aforesaid irregularities in the Ad Card it cannot be said that the notice dated 5th March 1984 was not delivered to Jagan Nath Sharma, the tenant. Moreover the entire matter had to be viewed in the light of the pleading on the part of the respondents which do not contain any specific denial about receipt of notice. The petitioner has led evidence by way of his statement to prove the service of notice Ex.AW 1/2. The postal receipt regarding sending the notice by registered post has been proved as Ex.AW 1/3. A.D.Card is Ex.AW 1/4. Besides this the notice was also sent under postal certificate vide receipt Ex.AW 1/5. The address on the notice sent under postal certificate is also same and is admittedly correct. Thus the petitioner took all precautions regarding service of notice on the tenant. Merely because the notice was on plain sheet of paper and not on the letter pad of the advocate who issued the notice is also immaterial. There is no requirement in law that a notice must be on the letter pad of the advocate issuing it.

(5) During the course of hearing of this petition the counsel for the respondent also urged that notice dated 5th March 1984 was purportedly posted only on 9th March 1984 by registered post and on 12th March 1984 under postal certificate. From this what is intended to be argued is that the notice does not leave clear 15 days so as to satisfy the requirement of section 106 of Transfer of Property Act. I am unable to agree with this submission. The notice was addressed to the addressee within the same city and in normal course it would have been served by 15th March 1984 in both cases. The notice sought to terminate the tenancy by the end of the month of March 1984. It did allow clear fifteen days.

(6) In view of the above discussion the finding of the trial court regarding non-service of notice of termination of tenancy on Jagan Nath Sharma is not correct and is set aside. It is held that the notice dated 5th March 1984 Ex.AW 1/2 was duly served on Jagan Nath Sharma. Having held that the notice of termination of tenancy was duly served on Jagan Nath Sharma, the tenant, it follows that it was no longer necessary or incumbent on the petitioner to implead in the petition all the legal heirs of the deceased tenant. The petitioner will have to file a petition only against those representatives of the deceased who fall within the ambit of the statutory provision contained in sub-section (1) of section 2 of the Delhi Rent Control Act. The impugned order is accordingly set aside and the matter is remanded to the learned Addl.Rent Controller or the successor court for decision on merits in accordance with law. The matter is already old and is ripe for final hearing. The trial court is directed to dispose of the same expeditiously, if possible within three months. The parties to appear before the trial court/successor court on 16th January 1995. The trial court record be sent back immediately. The petition is disposed of. No costs.