Shri Gurdev Singh Bindra vs Ranbir Singh
2010 Latest Caselaw 1590 Del

             * IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                 Date of Reserve: 15.02.2010
                                               Date of Order: 22nd March, 2010

CM(M) No.889 of 2008
%                                                              22.03.2010

SHRI GURDEV SINGH BINDRA                  ... Petitioner
                   Through: Mr. Manish Kohli &
                   Mr. Manjit Pathak,Advocate

                Versus


RANBIR SINGH                                          ..... Respondent
                                  Through: Mr. Ram Kishan Saini, Advocate.

JUSTICE SHIV NARAYAN DHINGRA

1. Whether reporters of local papers may be allowed to see the
judgment?                                                     Yes.

2. To be referred to the reporter or not?                             Yes.

3. Whether judgment should be reported in Digest?                     Yes.

JUDGMENT

By this petition the petitioner has assailed an order dated 8th May,

2008 of learned Rent Controller Tribunal (RCT). By an order dated 5th

March, 2008 learned ARC had allowed an application of the respondent

under Order IX Rule 13 of Code of Civil Procedure, 1908 („CPC‟ for

short) and orders of eviction dated 7th February, 2005 and 11th May,

2005 were set aside. Learned RCT dismissed the appeal of petitioner

against order dated 5th March, 2008.

Brief facts relevant for the purpose of disposing of this petition are

that the petitioner was landlord in respect of shop No. 32, Shiv Market,

Masjid Road, Bhogal, Jungpura, New Delhi. This shop was let out to

respondent at a monthly rent of Rs. 135/-. The petitioner sent a notice

to the respondent making assertions inter-alia that the shop was initially

sub-let by respondent and thereafter it was lying locked. These

assertions are in paragraph No. 8 of the notice and read as under:

"That for the last few years you are not in the possession and also not using the said premises and have subletted the same to one Mr. Satinder Singh C/o S.P. Electric Co., 14, N.D.S.E. Kotla Gurudwara Road, New Delhi-49. The said premises is also lying locked and closed for last few years and also the electricity connection installed in the said premises is also not being used from 10.11.1995. You have shifted your works and have been operating from Ranbeer Electric Mart, 1758, Bhagirath Place, New Delhi, and as such are not using the said premises."

2. The above notice was addressed to the petitioner at his

residential address T-82, Church Lane, Bhogal, New Delhi. However,

apart from sending it at residential address of the petitioner, the notice

was also sent at the address of Shop No. 32, Shiv Market, Masjid Road,

Bhogal, Jangpura, New Delhi and at Ranbeer Electric Mart, 1758,

Bhagirath Place, New Delhi. All the three addresses were given at the

top of the notice alternatively.

3. A reply to the notice was received by the petitioner through

Advocate of the respondent. In the reply, para 8 of the notice was

replied as under:

"That para 8 of your legal notice is wrong and denied. It is wrong and denied that for the last few years my client is not in possession of the

tenanted premises or not using the same or have sub-letted the same. It is submitted that my client is having his partnership business with his brother Mr. Satinder Singh and his late father Shri Jodh Singh being run in the name and style of M/s. Ranbir Electric Co., a partnership firm. After the death of the father of my client, my client and his younger brother Sh. Satinder Singh are running the said firm and using the tenanted premises as godown. It is wrong and denied that the said premises is lying locked or closed for last few years or the electricity connection installed in the said premises is also not used from 10.11.1995. It is submitted that my client is using the tenanted premises regularly and paying the electricity bill also regularly. It is further wrong and specifically denied that due to shifting of some work at Bhagirath Place, my client is not using the tenanted premises."

4. After this reply, the petitioner filed an eviction petition against the

respondent under Section 14(1) (a) (b) and (j) of the DRC Act. In the

eviction petition, the petitioner gave residential address of the

respondent as given in the notice and the tenanted shop address.

Notice of this petition was sent to the respondent at both the addresses.

The registered covers sent at both the addresses came back with a

report that the premises were lying locked since long. Ordinary process

was also received back with the noting of the Process Server that the

premises were locked. Thereafter, the Trial Court on an application

under Order V Rule 20 of CPC made by the petitioner, allowed

substituted service of respondent by way of publication of notice.

Notice of eviction petition was thus served through publication on the

respondent. None appeared for the respondent and the respondent

was proceeded ex-parte. On the basis of ex-parte evidence of the

petitioner and after considering the documents filed by the petitioner,

the testimony of the witnesses, reply to notice sent by respondent, the

Trial Court dismissed the eviction petition under Section 14 (1) (a) but

allowed the eviction petition under Section 14 (1) (b) and (j) and passed

an eviction order on 7th February, 2005. In view of the provisions of

Section 14 (1) (j), one month time was given to the respondent to

restore the suit shop in original shape and condition. The learned ARC

also observed that there was an admission on the part of respondent (in

the reply to notice) that the shop was being used for godown, which was

contrary to the terms of the Rent Deed dated 14th August, 1967 where-

under shop was let out for commercial purpose and not for godown

purpose.

5. In execution of this decree, the shop was got vacated by the

petitioner. The respondent, thereafter, moved an application under

Order IX Rule 13 of the code of Civil Procedure stating therein that the

petitioner deliberately did not disclose to the Court that respondent was

having its business at 1758, Bhagirath Palace, New Delhi and in the

reply to notice, the respondent had given his address as 1758,

Bhagirath Place, New Delhi-6. This reply was duly received by the

petitioner. Despite this, the petitioner did not provide correct address of

the respondent to the Court so that the respondent could be served. It

was also submitted that T-82, Church Lane, Bhogal, New Delhi was not

the correct residential address of the respondent since the respondent

had left the premises long back and this fact was within the knowledge

of the petitioner. He intentionally and deliberately did not give Bhagirath

Place address of the respondent lest the respondent may be served. It

is also submitted that the summons sent to the respondent came back

with the report "shop locked, not met" and the publication was done in

newspaper "National Herald" at the instance of petitioner and the

petitioner fraudulently obtained an order of eviction.

6. Learned Trial Court considered that since the petitioner had not

given Bhagirath Place address of the respondent and the respondent

was not living at his old residential address, the application under Order

IX Rule 13 CPC was liable to be allowed.

7. In appeal, the learned ARCT did not go into the merits of the

order of ARC at all and merely observed that it was the duty of the

petitioner/appellant, while filing application under Order V Rule 20 CPC

to specifically state that he was not having any other address of the

respondent but the appellant did not mention about the address of

Bhagirath Place in the application. The appellant ought to have served

the respondent at the address of Bhagirath Place even before moving

an application under Order VI Rule 20 CPC.

8. Order of learned RCT have been challenged by the petitioner on

the ground that it was a "non-speaking order" . The Tribunal did not

deal with any of the contentions of the petitioner. It is submitted that the

petitioner had mentioned both - residential and the shop address of the

respondent as known to him. The residential address was as given in

the Rent Deed and the tenanted shop address was the one where the

respondent had alleged that he was doing business. There was no

concealment on the part of the petitioner. He submitted that it was not

obligatory on him to serve the respondent at Bhagirath Place address

before moving an application under Order V Rule 20 of CPC. The

respondent was keeping away from the service of summons due to

which the Controller had ordered the service of respondent by

substituted service through publication. There was no error in the

orders of the Controller. Ld. ARC & ARCT both went wrong in allowing

the application under Order IX Rule 13 CPC and dismissing the appeal.

9. Where landlord lets out a premises to a tenant and the tenant

denies that he has sublet the premises or was keeping it locked, the

tenanted premises is the premises where tenant is supposed to be

present, whether it is residential premises or commercial premises. In

the present case, the landlord served a notice to the respondent/tenant

at all the three addresses known to him alleging that the tenanted

premises had earlier been sublet & currently was not being used and

was lying locked. The tenant in his reply specifically denied that the

tenanted premises was not being used by him or had been sub-let by

him. It was denied that the premises was lying locked or closed for the

last few years. It was also denied that the premises was not being used

from 10th November, 1995, rather it was asserted that the premises was

being regularly used and it was specifically denied that due to shifting of

work at Bhagirath Place, the respondent was not using the tenanted

premises.

10. The question arises whether in view of this reply, given by the

tenant, was it necessary for the landlord to furnish in the Court for his

service all other business addresses of the respondent, while filing the

eviction petition apart from giving his known residential address and the

address of the tenanted premises. Where a tenant in reply to the notice

specifically denies the allegation that the premises was lying locked and

asserts that it was very much in use, he will be estopped from taking a

plea in the court later on, that the premises was lying locked and the

summons sent at this premises should not be considered duly served.

The principle of estoppels implies that where one party, by his words or

conduct tends the other party to believe existence of a fact and that fact

is acted upon accordingly, the other party who represented the

existence of the fact, cannot be later on heard to say that the fact did

not exist. In the presence case, the respondent by his reply to notice

denied that the shop was lying closed as alleged by the petitioner and

wanted the petitioner to believe that the shop was very much in use and

it was not lying locked. The petitioner was within his right to give the

address of tenanted shop as the address where respondent could be

served. It is also to be noted that the shop was given on rent for

commercial purpose and once respondent took the plea that only a part

of business was shifted by him to Bhagirath Place and the shop was still

being used, fault cannot be found with the petitioner as to why he, in the

eviction petition, gave address of the tenanted premises for service of

respondent and not the address of other business place of respondent

known to him. When a landlord intends to file an eviction petition

against tenant in respect of tenanted premises let out for commercial

purpose, the landlord is supposed to serve the tenant at that

commercial premises and giving address of that commercial premises

by the landlord as the address of service cannot be considered as

playing fraud upon the Court, more so, when the tenant in reply to the

notice, has asserted that he was very much in use and occupation of

the premises and the tenanted premises was not lying locked.

11. Section 115 of Indian Evidence Act 1872, provides that "where

one person has, by his declaration, act or omission, intentionally caused

or permitted another person to believe a thing to be true and to act upon

such belief, neither he nor his representatives shall be allowed, in any

suit or proceedings between himself and such person or his

representatives, to deny the truth of that thing". In view of this provision

I consider that the respondent should not have been heard to say that

service of summons at the shop, which he asserted was very much in

his use for business, should not have been done and service should

have been done only at his other shop where he was actually doing

business. The assertion made by the respondent rather goes to prove

the case of the petitioner that the premises was not being used by the

respondent and was lying locked and the respondent had shifted his

business to Bhagirath Place.

12. I consider that the Trial Court went wrong in presuming that it was

responsibility of the petitioner, in a case against tenant for eviction of

the premises under his tenancy, to furnish an address of the tenant

other than the tenanted address despite the stand of the tenant that he

was very much available at the tenanted address. I, therefore, set aside

the order of learned ARCT dated 8th May, 2008 and of Ld. ARC dated

5th March, 2008. The petition is allowed. The application under Order IX

Rule 13 CPC made by the respondent stands dismissed.

March 22        2010                      SHIV NARAYAN DHINGRA, J.
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