Ram Kumar Gupta vs Smt. Durga Devi (Deceased) ...
2006 Latest Caselaw 2192 Del

JUDGMENT

Sanjay Kishan Kaul, J.

1. The appellant filed an eviction petition against the predecessors-in-interest of the current respondents under Section 14(1)(a) of the Delhi Rent Control Act, 1958 (hereinafter to be referred to as, 'the said Act') in respect of the tenanted premises consisting of shop No. 4 in property bearing Municipal No. 2011, Gali No. 157, Ganeshpura 'A', Trinagar, Delhi - 110 035. The tenanted premises were let out by late Shri Kanshi Ram, father of the appellant, to late Shri Sanwal Dutt Vaid, husband of the deceased, to be used commercially for practicing Ayurvedic Medicine. The tenancy on the demise of the tenant devolved upon his widow and son, who have also since passed away. The respondents are the legal heirs.

2. The eviction proceedings filed on 10.07.1974 resulted in an adverse order dated 14.10.1974 against the tenants, but the tenants were given the benefit under Section 14(2) of the said Act.

3. The second round of litigation arose on account of a notice of demand sent by the appellant on 06.07.1987 for the rent alleged to be due for the months of April, May and June, 1987 @ Rs. 17/- per month. There was stated to be no reply to the notice and the second proceedings under Section 14(1)(a) of the said Act were initiated on 24.09.1987. The legal notice and the A.D. card were duly proved as PW-1/2 and PW-1/3. The defense of the respondents is that on 21.07.1987, a money order for Rs. 68/- was sent towards four months' rent, but was refused. Thereafter another money order was sent on 04.08.1987 for Rs. 85/- for five months' rent since by that time one additional month's rent had become due. Even this money order was refused.

4. The Additional Rent Controller (for short, 'ARC') did not find any merit in the second petition and dismissed the same in terms of the order dated 07.02.1997. The appeal filed by the appellant was dismissed by the Rent Control Tribunal vide judgment dated 15.05.2000. The appellant / landlord has thereafter filed the second appeal.

5. It may be noticed that the provision for second appeal being Section 39 of the said Act since stands deleted from the statute in 1988, but in respect of the eviction proceedings initiated prior to the amendment, the benefit of second appeal is available. Such a second appeal lies only on a question of law.

6. The first legal question raised by learned Counsel for the appellant is that both the courts below came to an erroneous legal conclusion that the notice sent was defective since rent becomes payable only on the expiry of the 15th day of the month subsequent to the month for which rent is due. The submission of the learned Counsel for the appellant is that the rent is due on the expiry of the last day of the month for which it has to be paid and the provisions under the said Act are only beneficial in nature. This plea arises from a reading of the provisions of Section 26 of the said Act, which is as under:

26. Receipt to be given for rent paid (1) Every tenant shall pay rent within the time fixed by contract or in the absence of such contract, by the fifteenth day of the month next following the month for which it is payable and where any default occurs in the payment of rent, the tenant shall be liable to pay simple interest at the rate of fifteen per cent per annum from the date on which such payment of rent is due to the date on which it is paid.

7. The aforesaid beneficial provision does permit the tenant to pay rent by the 15th day of the month next following the month for which rent is payable, but it was submitted that so far as the rent becoming due is concerned, the same is due at the end of the month for which it has to be paid. It may be noticed at this stage that the statutory provision of payment of interest under Section 26 of the said Act was only included by the amendment carried out w.e.f. 01.12.1988 of the said Act.

8. Learned Counsel for the appellant referred to the judgment of this Court in Pruthi Bros. and Ors. v. Smt. Mangal Wati 1971 RLR 1. The relevant discussion in this behalf is as under:

7. Mr. R.K. Makhija, the learned Counsel appearing for the appellants submitted that the eviction order against them was wholly unjustified as they had not committed the second default contemplated in the proviso to Section 14(2) of the Act. The relevant date, the default on which, for the aforesaid purpose, was to be taken into account, was the date on which the notice of demand under proviso (a) to Section 14(1) was issued by the landlord. The cause of action for the eviction petition on the ground of non-payment of rent, said the learned Counsel, arose only after the notice of demand was issued and the tenant failed to pay or tender arrears of rent within two months of the date of its service on him. The tenants' failure to pay arrears of rent must be for three consecutive months before the notice of demand, when the benefit available under Sub-Section (2) of Section 14 can be denied to him, if he has already enjoyed such benefit once. This contention of the learned Counsel, however, is without substance. Proviso (a) to Section 14(1) is clear and reads as follows:

(a) that the tenant has neither paid nor tendered the whole of the arrears of the rent legally recoverable from him within two months of the date on which a notice of demand for 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 (4 of 1882).

It nowhere says that the arrears should be for one month or for a longer period. The notice in order to be valid under this provision, should demand the payment of arrears of rent legally recoverable, whatever they may be. There is no justification for interpreting it to mean "for three consecutive months", as urged by Mr. Makhija. Sub-Section (2) of Section 14 likewise does not refer to any point of time, when "the three consecutive months" default referred to in the proviso is contemplated to be. Section 14(2) reads as follows:

(2) No order for the recovery of possession of any premises shall be made on the ground specified in Clause (a) of the proviso to Sub-section (1), if the tenant makes payment or deposit as required by Section 15:

Provided that no tenant shall be entitled to the benefit under this sub-section, if having obtained such benefit once in respect of any premises, he again makes a default in the payment of rent of those premises for three consecutive months.

The benefit under Sub-section (2), is thus not available to the tenant if having enjoyed it once he again makes a default in payment of rent for any three consecutive months may be before or after the notice of demand. There is no scope to unnecessarily strain the plain language to tie it down to any particular point of time, especially when the legislature has not done so.

14. Mr. Makhija contended that the arrears for the month of Jan., 1964 were not due from the appellants on February 12, 1964 as under Section 26 of the Act the tenant is required to pay rent, in the absence of any contract to the contrary, by the 15th day of the month next following the month for which it is payable. He therefore contended that rent for the month of January, 1964 could not be demanded before 15th of February, 1964. The contention of the learned Counsel, has no basis. The rent for the month of January became due and was in arrears on the first day of February, although in view of the provision of Section 26 the tenant could pay it by the 15th of February. Section 26 nowhere says that the rent does not become due by the end of the month, or that the tenant cannot pay the same before the 15th day of the next month. It merely gives a facility to the tenant to make the payment within 15 days of the next following month. Further it is observed that the notice Exhibit A.W. 1/6 was served on the appellant on or about 29th February, 1964. The said notice required the appellants to pay the arrears within two months of the date of the receipt of notice. Instead of 15 days, the appellants were actually given two months time from the date of service of notice for payment. The eviction petition on the basis of non-payment of arrears of rent was filed on May 5, 1964. There was, therefore, nothing wrong in the notice when rent for January, 1964 was demanded.

9. The observations of the Division Bench are, thus, clear in respect of the aforesaid insofar as the effect of Section 26 of the said Act is concerned. It has been categorically held that Section 26 nowhere says that the rent does not become due by the end of the month, but only gives a facility to the tenant to make payment within 15 days of the next following month.

10. Learned Counsel for the respondents in view of the aforesaid judgment of the Division Bench of this Court does not dispute the legal position and states that the findings of the courts below that there was lack of proper notice in respect of the arrears of rent cannot be sustained since the same is based only on the conclusion that the notice demanded rent on 06.07.1987 even for the month of June, 1987 which was not payable till 15.07.1987. Since the rent would be payable by 30.06.1987, the notice must be held to be in accordance with law.

11. The second legal plea arises out of the defense of the respondents that the tenant did all that could be done by sending the money orders, which were refused. The legal plea raised in this behalf by learned Counsel for the appellant is that sending of the money order would not suffice as the appellant has denied that he ever refused to accept the money order and the endorsement by the postman to that effect cannot be accepted. Learned Counsel submits that once the appellant had denied that he had refused to accept the money order, the onus was on the tenant and the postman ought to have been examined.

12. Learned Counsel referred to the judgment of learned Single Judge of this Court in Jagat Ram Khullar and Anr. v. Battu Mal 1976 RCJ 94. The matter dealt with the service of a notice of termination of tenancy, the notice was returned to the landlord with the endorsement of refusal by the tenant and the endorsement was made by the postman. It was held that the postal cover was correctly addressed to the tenant and was sent by registered post and, thus, a presumption with regard to the service would arise under the provisions of Section 114 of the Indian Evidence Act, 1872 and Section 27 of the General Clauses Act, 1897. It was, thus, held that the evidence of actual tender and refusal was not necessary to bring about the presumption. It was, however, simultaneously held that the presumption of fact under Section 114 of the Evidence Act and the presumption of law under Section 27 of the General Clauses Act are not irrebuttable. The statement on oath by the tenant denying the tender and refusal to accept the delivery was, thus, sufficient to rebut the presumption since the tenant has really produced the best possible evidence by stating so on oath. The onus was, thus, shifted on the landlord to establish actual tender and refusal to accept delivery inter alia by producing the postman concerned. Section 114 of the Indian Evidence Act, 1897 & Section 27 of the General Clauses Act, 1897 are as under:

114. Court may presume existence of certain facts. - The 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, human conduct and public and private business, in their relation to the facts of the particular case.

...

27. Meaning of service by post. - Where any Central Act or Regulation made after the commencement of this Act authorises or requires any document to be served by post, where the expression "serve" or either of the expressions "give" or "send" or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.

13. Learned Counsel also referred to the judgment of learned Single Judge of the Jammu & Kashmir High Court in Munshi Ram and Anr. v. Shakuntala Devi AIR 1978 J&K 31 where it was held that the presumption under the aforesaid provisions can be raised only if it is shown that the notice gave correct particulars of the address on the notices and on the forms of acknowledgment where the defendant had categorically denied the receipt of any notice and also to have signed the acknowledgments, the onus to prove the service of notice would be on the sender. The presumption that could be drawn was, thus, held to be rebuttable.

14. Learned Counsel referred to the judgment in Gopal Krishnaji Ketkar v. Mohamed Haji Latif and Ors. to advance the proposition that once the best evidence is not produced, an adverse inference is to be drawn. It was, thus, contended that the respondents having failed to produce or summon the postman, an adverse inference should be drawn against the respondents.

15. Learned Counsel also referred to the judgment in Sudhir Engineering Co. v. Nitco Roadways Ltd. 1995 (34) DRJ 86 to advance the proposition that mere exhibiting of the documents was not sufficient.

16. In the end, learned Counsel referred to the judgment of the Bombay High Court in Sir Mohammed Yusuf and Anr. v. D. and Anr. where it was held that the evidence of the contents of document is hearsay evidence unless the writer thereof is examined before the Court.

17. Learned Counsel for the respondents, on the other hand, referred to the judgment of learned Single Judge of the Allahabad High Court in Rameshwar Dayal Vaish v. Mani Lal Tripathi 1978 (1) RCR 132 where it has been held that on a reading of similar provisions under the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 and Section 114 of the Evidence Act in a case of a rent sent by money order, there is a presumption that the rent was received by the addressee. This presumption was, however, rebuttable, but the burden lies on the addressee to prove the rebuttal.

18. Learned Counsel also referred to the judgment in Smt. Prakash Mehra v. K.L. Malhotra 1989 (17) DRJ 28 where it was held that on a notice of demand of arrears of rent, the tenant paid the arrears, the notice stood satisfied and the non-payment of rent falling due subsequent to the notice would not tantamount to default.

19. On a conspectus of the aforesaid judgments, it is not in doubt that there is a presumption which arose when the money order was sent by the respondents. In fact, the money order was sent twice and on both occasions was sent back as refused. The plea of learned Counsel for the appellant is that the presumption was rebuttable and once the appellant entered the witness box and denied that there was any refusal, the postman ought to have been examined. In my considered view, the distinguishing feature in the present case is that we are not concerned with a notice of demand, but with the rent dispatched through the process of a money order. Such a money order would require the tenant to deposit the amount with the Postal Department and thereafter only the rent could be sent. The tenant having once deposited the rent, it can hardly be expected that there would be any devise to get the money order returned as the only adverse consequence would be for the tenant especially when the tenant has already suffered an order and has availed of the benefit under Section 14(2) of the said Act.

20. The aforesaid distinguishing feature is brought out by the judgment of learned Single Judge of the Allahabad High Court in Rameshwar Dayal Vaish's case (supra) with which I am in full agreement. There is a presumption that the rent was sent by money order and would have been received by the addressee. The presumption was rebuttable, but the burden lies on the addressee to prove the rebuttal. Thus, the burden was on the appellant in this particular case.

21. The past history of litigation between the parties shows that the tenant has been attempting to tender the rent, at times unsuccessfully. The tenants had not taken due care earlier which resulted in an adverse order, but the benefit was availed of under Section 14(2) of the said Act. Thereafter on demand, the rent was being sent by money order. The appellant cannot take advantage of his own refusal of the rent and seek eviction on that ground.

22. In view of the aforesaid, I am of the considered view that it cannot be said that the tenant failed to comply with the mandate of the rent being sent on demand.

23. The appeal is dismissed leaving the parties to bear their own costs.