Vinod Bahri vs H.C. Batra
2006 Latest Caselaw 1771 Del

JUDGMENT

T.S. Thakur, J.

1. This is a defendant's appeal arising out of a suit for possession and recovery of rent and mesne profits/damages for unauthorized occupation of the demised premises. The court below has decreed the suit for possession by eviction of the appellant-tenant and for recovery of a sum of Rs. 3,80,500/- representing the arrears of rent up to 31st October, 2002 and mesne profits @ Rs. 15,000/- per month w.e.f. 1st November, 2002 till the defendant appellant delivers the possession of the premises to the plaintiff. Interest pendente lite and till realisation on the decretal amount has also been awarded.

2. A premises comprising the ground floor portion of property bearing No. B-1/7-A, Paschim Vihar, New Delhi-110063 was leased out to the defendant-appellant by the plaintiff-respondent at a monthly rent of Rs. 9,500/- w.e.f. 1st February, 1999. The plaintiff's case as set out in the plaint was that the defendant deposited security equivalent to one month's rent and paid rent for one month to the plaintiff amounting in all to Rs. 19,000/- but did not pay any amount thereafter. Consequently, rent for the period 1st March, 1999 onwards fell in arrears against the defendant-appellant who instead of liquidating the liability, dragged the plaintiff into unnecessary litigation by filing a suit for injunction against him in March, 2002. An order was in that suit passed by this Court on the original side on 5th May, 2003 directing the tenant to pay to the plaintiff the admitted rent. Despite the said direction also, the defendant-tenant did not pay the arrears of rent due from him. The plaintiff had, in the meantime, terminated the tenancy of the defendant in terms of a notice served upon the defendant not only by registered AD and UPC but also through a courier. The service of the notice notwithstanding, the defendant continued in unauthorized occupation of the demised premises forcing the plaintiff to file a suit for his eviction and for recovery of the arrears of rent from June, 2000 till 31st October, 2002 when the tenancy was terminated. Rent for the period prior to June, 2002 was given up by the plaintiff and mesne profits claimed @ Rs. 15,000/- per month from November, 2002 till May, 2003 amounting to Rs. 1,05,000/-. A decree for Rs. 3,80,500/- was thus prayed for by the plaintiff with interest @12% per annum and costs besides possession of the demised premises.

3. The suit was contested by the defendant on several grounds giving rise to the following six issues:

(i)Whether the present suit of the plaintiff is barred by the limitation? OPD

(ii)Whether the plaintiff is entitled for the decree of the possession? OPP

(iii)Whether the plaintiff is entitled for the decree of Rs. 3,80,500/- as rent/mesne profits/damages for unauthorised use and occupation of the suit property w.e.f. 1.3.99? OPP

(iv)Whether the plaintiff is entitled for the future damages if so what rate and from which period? OPP

(v)Whether the plaintiff is entitled for the interest if so what rate and from which period? OPP

(vi)Relief.

4. In support of its case, the plaintiff examined himself as PW-1 apart from Raj Kumar Dhingra PW-2, Maha Singh PW-3, Manoj Kumar Sharma PW-4 and Ramesh Kumar Kcharra PW-5. In rebuttal, the defendant examined himself as DW-1.

5. By the judgment and order impugned in this appeal, the trial court found issue No. 1 against the defendant. The court held that while the claim for arrears of rent w.e.f. 1st March, 1999 to 30th May, 2000 had become time barred, the claim for the subsequent period from June, 2000 onwards was within the period of three years prescribed for that purpose.

6. Similarly, issue No. 2 was also found in favor of the plaintiff. The court held that the testimony of the plaintiff and those of his witnesses, when seen in the light of the documentary evidence comprising the postal receipt showing dispatch of the notice and the AD cards, clearly established that notice marked Ex.PW1/1 was duly served upon the defendant and validly terminated his tenancy. The defendant, therefore, did not have any subsisting right to continue in possession of the premises in question and was legally obliged to deliver the same up to the plaintiff.

7. Issues No. 3 and 4 were also held in favor of the plaintiff by the trial court. The court noted that the market rental of similar other premises had been proved by PW-5 Ramesh Kumar Kcharra, UDC from the Sub-Registrar's office who had proved copies of the lease deeds in respect of other properties marked Ex.PW5/1 to Ex.PW5/4. The court noted that while the plaintiff had claimed the market rental value of the demised premises during the relevant period to be around Rs. 30,000/- per month, the defendant had not even indicated the probable rental of the premises in the affidavit filed by him. The court came to the conclusion that compensation for unauthorized use and occupation @ Rs. 15,000/- per month would meet the ends of justice and accordingly decreed the suit for damages/compensation for use and occupation @ Rs. 15,000/- per month w.e.f. 1st November, 2002 onwards till the filing of this suit. A total amount of Rs. 3,80,500/- was thus found due to the plaintiff-respondent on account of arrears of rent and compensation for unauthorized use and occupation out of which a sum of Rs. 68,000/- had been paid by the defendant to the plaintiff pursuant to the directions issued by this Court. The said amount was adjusted by the court and a decree for a sum of Rs. 3,12,500/- representing arrears of rent and compensation up to May, 2003 passed in favor of the plaintiff.

8. The plaintiff was further held entitled to recover future damages/mesne profits till delivery of possession of the demised premises to the plaintiff, subject to the plaintiff paying the court fee on the amount held payable in future in the light of the decision of the Supreme Court in Assistant Custodian General of Evacuee Property v. Leela Devi and Ors. AIR 1998 SC 2080.

9. In so far as issue No. 5 is concerned, the court granted interest to the plaintiff @6% per annum instead of 12% claimed by the plaintiff, and decreed the suit. The present appeal, as noticed earlier, calls in question the correctness of the said judgment and decree.

10. Appearing for the appellant, Mr. Rajesh Kalra made a two-fold submission in support of the appeal. Firstly he contended that the finding of the trial court in regard to issue No. 2 was against the weight of evidence on record. He urged that the evidence led by the plaintiff including the postal receipts relied upon by him and the deposition of the officials of the Postal Department did not satisfactorily prove that notice marked Ex.PW1/1 had in fact been served upon the defendant. He submitted that in so far as the notice allegedly sent on the commercial address of the defendant is concerned, the AD card was signed by one Sh. Sunil Kumar while that sent at his residential address bore some initials which could not be deciphered. He submitted that since the landlord was himself occupying the first floor of the demised premises, it was possible that the notice was in collusion with the postman concerned received by him and false evidence regarding its service upon the defendant through one of his employees created.

11. Secondly he contended that the defendant-appellant had, in connection with the tenancy in question, deposited a sum of Rs. 21 lacs towards security which was refundable to him at the time of vacation of the suit premises. The court below had not, argued the learned Counsel, addressed itself to the said aspect of the matter resulting in grave miscarriage of justice.

12. On behalf of the respondent-plaintiff, it was on the other hand submitted that the findings recorded by the trial court in regard to all the issues were perfectly justified. There was, according to Mr. Shali, counsel for the plaintiff-respondent, overwhelming evidence to prove that the notice of termination of the defendant's tenancy had been not only posted at correct addresses of the defendant but that the same were duly served. The deposition of the witnesses and the postal receipts as also the acknowledgements secured by the courier clearly established that the plea raised by the defendant appellant was completely false.

13. As regards the deposit of the security amount, learned Counsel for the respondent submitted that there was neither any counter claim made by the defendant for the refund of the security amount allegedly deposited by the defendant with the plaintiff nor was any issue to that effect framed. The plea for refund of the security amount was, therefore, specious and meant only to harass and blackmail the plaintiff who had already suffered at the hands of a recalcitrant tenant not only on account of non-payment of rent but also on account of the vexatious litigation which he had instituted against the plaintiff.

14. We have given our careful consideration to the submissions made at the bar. It is common ground that the tenancy in favor of the defendant-appellant was not protected under the Delhi Rent Control Act as the monthly rental payable for the same was more than Rs. 3,500/- per month. In the absence of any such protection, all that the plaintiff was required to prove for a decree against the defendant was that he had validly terminated the month to month tenancy of the defendant by service of a proper notice of termination upon him. This the plaintiff proved by his own statement as also by the statements of his witnesses, namely, Mr. Maha Singh PW3 and Mr. Manoj Kumar Sharma PW4. In his deposition, the plaintiff has, apart from giving other details, stated that he had through his counsel Sh. Manish Makhija, sent a notice dated 7th October, 2002 terminating the defendant's tenancy w.e.f. 31st October, 2002. The said notice, according to the plaintiff, was sent on two available addresses of the defendant including one at the suit property. The notice was sent through registered AD, UPC and courier. The witness further deposed that Ex.PW1/1 is a copy of the very same notice as was sent to the defendant while Ex.PW1/2 is the original postal receipts collectively marked Ex.PW1/2. Similarly Ex.PW1/3 is the original UPC receipt while Ex.PW1/4 and Ex.PW1/5 are the original courier receipts. The original AD cards received back through the postal authorities are marked Ex.PW1/6 and Ex.PW1/7. There is nothing in the cross-examination of the witness to discredit the version given by him that the notice of termination was drafted by his counsel and dispatched in terms of the postal receipts mentioned above. There is also no room for holding that the AD cards marked Ex.PW1/6 and Ex.PW1/7 were fabricated.

15. Similarly PW-3 Maha Singh who is a clerk from the post office, Nangloi proved the delivery of notice booked vide receipt No. 5032 marked Ex.PW1/2. He deposed that notice sent to the defendant was delivered at the correct address given on the same on 9th October, 2002. He further tendered before the court a copy of receipt marked Ex.PW3/A and a copy of proof of delivery of the notice marked Ex.PW3/B. In cross-examination, the witness stood his ground and asserted that according to the record, the notice in question had been duly served upon the defendant.

16. PW-4, Manoj Kumar Sharma is a clerk from Post Office, Nariana, New Delhi. This witness also confirmed the delivery of notice booked vide receipt No. 5033 marked Ex.PW1/3. He deposed that notice sent to the defendant was delivered at the correct address on 10th October, 2002. He tendered to the court a copy of receipt Ex.PW4/A and a copy of proof of delivery of the notice marked Ex.PW4/B. There is nothing in the cross-examination of this witness to render him unworthy of credence or to suspect the genuineness of the official record on the basis whereof he has made his statement.

17. A perusal of the postal receipts and the acknowledgements mentioned above would show that the address given on the same is correct both in regard to the notice sent under registered AD and that send under UPC. Mr. Kalra also fairly conceded that the addresses given in the postal receipts collectively marked Ex.PW1/2 and the UPC receipt marked Ex.PW1/3 were correct. That is true even in regard to the address mentioned on the AD cards accompanying the notice. One of these AD card bears the defendant's address at Paschim Vihar while the other bears his residential address at Behra Enclave, outer ring road, Paschim Vihar. These two addresses are also correct.

18. Super added to the postal receipts and the acknowledgement cards is the record which the two witnesses have produced from proper custody to show that the notice was delivered to the defendant. Copies of this record have been marked Ex.PW3/A, Ex.PW3/B, Ex.PW4/A and Ex.PW4/B. The evidence assembled by the plaintiff is, in our view, sufficient to hold that notice marked Ex.PW1/1 was indeed sent to the defendant and was delivered to him not only by post but also through courier which fact is evident from the courier receipts marked Ex.PW1/4 and Ex.PW1/5. In any case, the evidence is sufficient to raise a strong presumption under Section 27 of the General Clauses Act that the notice had been duly served by the appellant. That provision may at this stage be extracted:

Section 27 : Where any Central Act or Regulation made after the commencement of this Act authorises or requires any document to be served by post, whether 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.

19. It is evident from a reading of the above that service shall be deemed to have been effected by properly addressing, pre-paying and posting by registered post, a letter containing the notice. This presumption is, no doubt, rebuttable but unless it is disproved, dispelled or rebutted, the Court can treat the presumption as tantamounting to proof. [See:

M. Narsinga Rao v. State of Andhra Pradesh AIR 2001 SC 318]

20. Reference may also be made to Green View Radio Service v. Laxmibai Ramji , where the Supreme Court observed:

Where a notice of eviction is sent by registered acknowledgment due to the correct address and the acknowledgment is received back with recipients signature, there is presumption that the addressee has received the letter in due course of business.

...

...

The service is complete when the notice is sent by post. The presumption of service of a letter sent by registered post can witness and stating that he never received such letter. If the acknowledgment due receipt contains the signatures of the addressee himself and the addressee as a witness states that he never received such letter and the acknowledgment due does not bear his signature and such statement of the addressee is believed then it would be a sufficient rebuttal of the presumption drawn against him. The burden would then shift on the plaintiff who wants to rely on such presumption to satisfy the court by leading oral or documentary evidence to prove the service of such letter on the addressee. This rebuttal by the defendant of the presumption drawn against him would of course depend on the veracity of his statement. The court in the facts and circumstances of a case may not consider such denial by the defendant as truthful and in that case such denial alone would not be sufficient. But if there is nothing to disbelieve the statement of the defendant then it would be sufficient rebuttal of the presumption of service of such letter or notice sent to him by registered post.

21. The rebuttal, in the instant case, does not go beyond a bald and interested denial of service of notice by the appellant, which does not displace the onus to rebut the presumption of service. One of the acknowledgment Ex.PW1/7 is signed by one Sh. Sunil Kumar. The defendant-appellant has not led any evidence or even made an assertion to the effect that no such person or employee was in his service or that he was not authorised to accept service of notice. The appellant could have proved this aspect conclusively by adducing the requisite evidence. The commercial establishment run by him must be maintaining record of the employees working in the same. If Sh. Sunil Kumar who received the envelope containing the notice was not one of the employees it could be so proved by producing the Manager or some other witness of the establishment and by producing the relevant record showing the names and the particulars of the employees working in the same. No effort, however, was made by the defendant in that regard, who relied simply on his own denial of service of notice, which was, in our opinion, insufficient to rebut the presumption arising from dispatch of the notice under registered AD and UPC for delivery to the appellant. We are supported, in that view, by the decisions of the High Court of Allahabad in Sushila Devi v. Manohar Lal AIR 1985 Allahabad 178 and that of the High Court of Amrutlal v.

Vishwasrao . These decisions proceeded on a similar fact situation. The court held in these cases that a mere denial of the tenant was insufficient to rebut the presumption arising under Section 27 of the General Clauses Act read with Section 114 of the Evidence Act.

22. In Harihar Banerji v. Ramshashi Roy AIR 1918 Privy Council 102, a letter sent under registered post was held to be giving rise to a stronger presumption especially when a receipt for the letter is produced, even when signed on behalf of addressee by some person other than the addressee himself. Speaking for the Court, Lord Atkinson observed:

If a letter properly directed, containing a notice to quit, is proved to have been put into the post office, it is presumed that the letter reached its destination at the proper time according to the regular course of business of the post office, and was received by the person to whom it was addressed and that presumption would apply with still greater force to letters which the sender has taken the precaution to register, and is not rebutted but strengthened by the fact that a receipt for the letter is produced signed on behalf of the addressee by some person other than the addressee himself.

23. Mr. Kalra, however, argued that the AD receipts produced by the plaintiff as evidence of the delivery of the envelope containing the notice may have been manipulated with the help of the postal employees. That argument may be noticed only to be rejected. No suggestion was made by the defendant regarding any such manipulation at any stage either in the written statement or in his own deposition. No such suggestion was even made to the witness who proved dispatch of the notice and its delivery to the defendant. The contention proceeds on a remote possibility without any factual basis to support the same.

24. Besides, there is a statutory presumption that judicial and official acts have been regularly performed. The Supreme Court has in Devender Pal Singh v. State of N.C.T. of Delhi held that the presumption that a person acts honestly applies as much in favor of a police officer as to other persons, and it is not judicial approach to distrust and suspect him without good grounds therefore. The Court observed:

There is a statutory presumption under Section 114 of the Evidence Act that judicial and official acts have been regularly performed. The accepted meaning of Section 114(e) is that when an official act is proved to have been done, it will be presumed to have been regularly done. The presumption that a person acts honestly applies as much in favor of a police officer as of other persons, and it is not judicial approach to distrust and suspect him without good grounds therefore. Such an attitude can do neither credit to the magistracy nor good to the public. It can only run down the prestige of police administration.

25. The above must, on principle, hold good even as regards the officials of the postal Department. So long as there is no real basis for holding otherwise, the discharge of an official act by the officials of the postal Department must be presumed to be honest and unaffected by any extraneous considerations.

26. That brings us to the alternate submission made by Mr. Kalra that the court below has not examined the question of return of the security amount allegedly deposited by the defendant with the plaintiff. As rightly argued by Mr. Shali, no issue in regard to the alleged deposit of a sum of Rs. 21 lacs with the plaintiff was framed or pressed before the court below. No evidence was, in any case, adduced to support any such plea. Even otherwise, the theory of deposit of a huge amount of Rs. 21 lacs in cash by way of security without so much as a receipt on a plain paper from the plaintiff appears to be wholly improbable and far-fetched. When asked whether the defendant-appellant maintains proper books of accounts, Mr. Kalra submitted that the books of accounts are maintained but the payment may not have been reflected in the same as such payments are not usually disclosed. We have no hesitation in rejecting that submission also. A sum of Rs. 21 lacs is no small an amount for any tenant even if he is prosperous enough to be able to make such a deposit. If the security was refundable to the defendant as was argued by Mr. Kalra before us, there was no reason why the defendant would not have insisted on a proper receipt acknowledging the making of such a deposit. The absence of any documentary or other evidence suggesting the making of a deposit like the one alleged by the defendant leaves the plea wholly unsubstantiated. In any event, the defendant should have made a counter claim for refund of the amount of security which he has failed to do. That is precisely why no issue appears to have been framed by the court below nor any relief on that account granted to the defendant.

27. In the result, we see no reason to interfere with the judgment and decree impugned in this appeal, which fails and is hereby dismissed but in the circumstances without any order as to costs.