Kanwar Pal & Ors vs Pankaj Gupta
2011 Latest Caselaw 5990 Del

$~A-23
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Date of Judgment: 08.12.2011

+     CM(M) 1420/2011 & CM Nos.22113-14/2011 &
      CAVEAT No.1108/2011

      KANWAR PAL & ORS                       ..... Petitioners
                   Through:          Mr.J.C.Mahendro, Advocate.

                     versus


      PANKAJ GUPTA                         ..... Respondent

                          Through:   Mr.Ajay       Kumar           Gupta,
                                     Advocate.

      CORAM:
      HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR J. (oral)

1. Order impugned is the order dated 01.11.2011 passed by

the Additional Rent Control Tribunal (ARCT) endorsing the finding

of the Additional rent Controller (ARC) dated 23.4.2011 which had

decreed the petition of the landlord Pankaj Gupta under Section

14(1))(a) of the Delhi Rent Control Act (hereinafter referred to as

the DRCA)

2. Record shows that the present eviction petition had been

filed by the landlord seeking eviction of the tenants from the

disputed premises i.e. shop no.4 in property bearing no.WZ-A/155,

Arya Samaj Road, Uttam Nagar, New Delhi as depicted in red

colour in the site plan attached along with the eviction petition.

Present rate of rent was Rs.275/- per month excluding water and

electricity charges. The original tenants were Kanwar Pal and

Kanti Prasad but thereafter after the death of Kanti Prasad his two

sons and his widow being his legal representatives had stepped

into his shoes. Contention was that in spite of legal notice dated

06.4.2005 asking the tenants to pay the arrears of rent, they being

in default w.e.f. 01.8.2001 @ 250/- per months besides interest @

15% per annum, no compliance had been effected. Present

eviction petition had accordingly been filed.

3. In the written statement these contentions have been

denied. The primary objection was that the all the legal

representative of the deceased Kanti Prasad had not been

impleaded; his widow not having been arrayed as a party; this

petition was liable to be dismissed on this ground alone. The

notice dated 06.4.2005 had also been disputed; it was denied that

the same had been received; further contention was that the rent

had been deposited under Section 31 of the Punjab Relief of

Indebtedness Act and as such no default had been committed by

the tenant.

4. Evidence had been led before the trial court. PW--1 was the

landlord who had proved Ex. PW--1/2 whereby the tenant had

already been given benefit of Section 14(2) of the DRCA which is

not a disputed position. He had also proved the legal notice dated

6.4.2005; the postal receipts showing dispatch of the legal notice

by way of registered A.D. had been proved as Ex.PW-1/4 to Ex.

PW--1/6; UPC receipt had been proved as Ex. PW--1/7. Both the

fact findings court below i.e. the ARC and the ARCT after

examining the evidence on record both oral and documentary had

drawn a conclusion that the notice had been duly served upon the

tenant.; the presumption under section 27 of the General Clauses

Act as also the presumption contained in Section 114 of the Indian

Evidence Act had been drawn.

5. Admittedly the notice had been sent by registered A.D post

although the A.D. had not been received back; the postman had

also not been examined but the purport of Section 27 of the

General Clauses Act and the presumption contained in Section

114 of the Indian Evidence Act had been adverted to and rightly

so. Section 27 of the General Clauses Act, in fact, deals with

service by post and it clearly records that unless a different

intention appears, the service shall be deemed to be effected by

properly addressing, pre-paying and posting it 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 the post. This

section raises a presumption of due service or proper service if

the document sought to be served is sent by properly addressing,

pre-paying and posting by registered post to the addressee and

then presumption is raised irrespective of whether any

acknowledgment due is received back from the addressee or not.

This position has in fact been affirmed by the Apex Court in the

case of Har Charan Singh Vs. Shiv Rani reported in AIR 1981 SC

1284. This is a rebuttable presumption but has not been rebutted.

This finding calls for no interference.

6. Contention of the tenant/petition that he had deposited the

rent under the Punjab Relief of Indebtedness Act and this would

be a valid deposit also carries no weight. The Apex Court in the

case of Atma Ram Vs. Shakuntla Rani reported in 2005 (7) Scale

35 had held that there is a special procedure for deposit of rent

which is contained in Section 27 of the DRCA and which has to be

adhered to and if any payment made by the tenant under Section

31 of the Punjab Relief of Indebtedness Act it is not a valid

deposit. The submission of the petitioner was that the landlord

had shifted his address and his correct address was not known to

the petitioner and that is why he had deposited the amounts under

Section 31 of the Pubjab Relief of Indebtedness Act. This

argument is without any merit. Section 27 of the DRCA in fact

deals with such a scenario where the tenant is not aware as to

whom the rent is to be paid. Section 27 of the DRCA permits such

a tenant to make an application before the concerned court to

make the deposit of rent in the court. This had admittedly not

been done. Record shows that 28 deposits had been made by the

petitioner of which 23 deposits were under Section 31 of the

Punjab Relief of Indebtedness Act which have to be ignored in

view of the judgment of Atma Ram (supra). The only deposit

which has been made after the receipt of the legal notice within

the two months of the said notice was a deposit dated 12.4.2005

which had again been a deposit under section 31 of Punjab Relief

of Indebtedness Act which was also only for the months of March

and April 2005. In terms of the legal notice dated 6.4.2005 the

tenant was in arrears of rent from 01.8.2001. Tender of the part

of the rent would even otherwise not help the tenant.

7. The last argument of the learned counsel for the petitioner

is that the widow of Kanti Prasad had not been impleaded which

is a non-joinder of necessary parties and on this ground alone the

petition is required to be dismissed; this argument is also without

any merit. The law is well settled; the legal representatives of

the deceased tenant succeed as joint tenants and a petition

against one legal representative alone is by itself maintainable.

This has been upheld by a Bench of this Court reported in 2008

(8) AD 328 Inder Pal Khanna vs. Commander Bhupinder Singh

Rekhi. On all counts the petitioner deserves no relief.

8. This court is sitting in its power of superintendence under

Article 227 of the Constitution of India which is not an appellate

forum; it has powers of superintendence only; unless and until

there is a manifest illegality or a grave injustice which has been

caused to the applicant party interference is not called for. Both

the fact finding courts below had held in favour of the landlord

entitling him for decree of eviction on the ground of non-payment

of rent and which orders also not suffers from any infirmity.

Petition is without any merit; dismissed.

INDERMEET KAUR,J

DECEMBER 08, 2011/nandan