Chand Krishan Bhalla vs Harpal Singh
2011 Latest Caselaw 693 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                Judgment reserved on : 03.02.2011
                                 Judgment delivered on : 07.02.2011

+      R.S.A.No.146/2004 & CMs No.7992/2004 & 15002/2006

CHAND KRISHAN BHALLA                               ...........Appellant
                  Through:             Mr. S. K. Bhalla, Advocate.

                       Versus

HARPAL SINGH                                      ..........Respondent
                            Through:   Mr. M.L. Bhargava, Advocate.


CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

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

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

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

INDERMEET KAUR, J.

1 This appeal has impugned the judgment and decree dated

04.05.2004 which had endorsed the findings of the trial Judge dated

24.02.2000 whereby the suit of the plaintiff Chand Krishan Bhalla

seeking recovery of possession and damages of the suit property i.e

property bearing No. 10213-17, Manak Pura, Karol Bagh, New Delhi

had been dismissed.

2 The case of the plaintiff that he was the owner of the suit

property in terms of a sale certificate dated 28.09.1967. The plaintiff

had earlier filed suit No. 682/1982 against Surinder Singh, father of

the defendants. In the course of those proceedings, Surinder Singh

expired; his wife was also expired in January, 1987. After the death of

Surinder Singh and his wife, the tenancy no longer devolved on any

other legal representative. In fact the plaintiff had no knowledge about

the death of Surinder Singh throughout the proceedings as it was not

disclosed by the defendants. Surinder Singh had claimed tenancy

rights in respect of the one room on the first floors and a khokha/tin

store on the second floor. The plaintiff requested the defendants to

surrender the vacant possession of the suit property w.e.f. January,

1987 as also to pay damages; they failed to adhere to this request,

suit was accordingly filed.

3 In the written statement, it was contended that the premises

had been let out to Surinder Singh for residential-cum-commercial

purposes. After the death of Surinder Singh, tenancy rights were

inherited by their legal heirs in terms of Delhi Rent Control Act

(hereinafter referred to as 'DRCA'); suit was barred u/s 5 of the said

Act. In the written statement, it was contended that notice for

termination of tenancy of Surinder Singh was never given to him;

notice dated 03.06.1983 is a false and fabricated document; it was

contended that even after the amendment of the earlier suit i.e. Suit

No. 682/1982 which was permitted on 23.07.1983, alleged factum of

the notice dated 03.06.1983 was never mentioned; had this notice

been given, it would have been pleaded in the amended plaint. In fact

in the earlier suit, Surinder Singh had appeared as a witness and

although he was cross-examined on 05.11.1986, he was never

confronted with this alleged notice dated 03.06.1983. All this clearly

shows that this notice is a fabricated document.

4 In the replication, this contention was denied; it was submitted

that the notice dated 03.06.1983 was duly served upon Surinder

Singh validly terminating his tenancy.

5 On the pleadings of the parties, the following nine issues were

framed; they read as under:-

1. Whether the contractual tenancy of late Sh. Surinder Singh was terminated during his life time? OPP

2. Whether there is any cause of action in favour of the plaintiff? OPP

3. Whether the suit is bad for non-joinder of married daughters of late Sh. Surinder Singh? OPD

4. Whether the suit is barred u/o 2 Rule 2 CPC as mentioned in preliminary objections No. 5? OPD.

5. Whether the suit premises was let out for residential cum commercial purposes? OPD

6. Whether the plaintiff is entitled to the damages as claimed in the plaintiff, if so at what rate and period? OPP

7. Whether the plaintiff is entitled for the interest @ 18% per annum as claimed? OPP.

8. Whether the suit has been properly valued for the purposes of court fees & jurisdiction? OPD

9. Relief.

6 The contentious issue is Issue No. 1. The notice dated

03.06.1983 is Ex. PW-1/7 and postal receipt is Ex. PW-1/8. The

contention of the appellant/ plaintiff is that this notice had been

served upon Surinder Singh vide registered A.D. prepaid and properly

addressed; presumption under Section 27 of the General Clauses Act,

1897 and section 14 (1) (e) of the Indian Evidence Act, 1873 has to be

drawn in favour of the plaintiff/ appellant. For this proposition,

reliance has been placed upon (1987) 2 SCC 555 Ram Sarup Gupta

Vs. Bishun Narian Inter College & Others. It is pointed out that a mere

denial by the defendants that the notice has not been received by

them is not sufficient to rebut this presumption which has arisen in

favour of the plaintiff; for this proposition reliance has been placed

upon 1980 (2) AIR SC 543 Shri Madan Lal Sethi Vs. Shri Amar Singh

Bhalla. It is pointed out that other circumstances must be shown by

the defendants to show that the notice had never reached the

addressee. Reliance has also been placed upon AIR 1989 SC 630 M/s

Madan & Co. Vs. Wazir Jaivir Chand as also upon AIR 1933 Calcutta

260 Secy. of State Vs. Madhu Sudan Mukherjee & others. It is

submitted that although it is correct that this notice dated 03.06.1983

was never pleaded in the present plaint yet it found mention in the

replication; it is a settled position of law that replication is a part of

pleadings. To support this submission, reliance has been placed upon

1994 RLR 126 Keshav Metal Works Vs Jitender K. Verma as also

(1987) 2 SCC 555 Ram Sarup Gupta Vs. Bishun Narian Inter College &

Others. It is submitted that the plaint does not have to expressly aver

each and every fact, this question of notice is even otherwise a matter

of evidence and did not have to be specifically pleaded in the plaint.

7 Arguments have been countered. It is pointed out that there are

concurrent findings of fact against the appellant; this Court can

interfere in the impugned judgment only if there is substantial

question of law which in this case has not been raised. Reliance has

been placed upon AIR 1981 SC 77 Karbalai Begum Vs. Mohd. Sayeed

& another as also another judgment of the Apex Court in AIR 1987 SC

409 Sachindra Nath Shah Vs. Santosh Kumar Bhattacharya to support

his submission that unless the findings are perverse, no interference

is called for by the High Court in second appeal on concurrent

findings of fact. Both the Court below had noted these arguments

which have been addressed before this Court and drawn a conclusion

against the appellant.

8 This is a second appeal. After its admission on 18.01.2010, the

following substantial question of law was formulated. It reads as

follows:-

"Whether both the courts below erred in holding that the tenancy of the respondent was not duly terminated in accordance with law?"

9 Perusal of the record shows that the present suit was a suit for

recovery of possession and damages. Admittedly in the entire plaint,

there is no averment that the tenancy of Surinder Singh, deceased

father of the defendants had been terminated by notice dated

03.06.1983 which is the crucial issue now addressed before this

Court. It was for the first time in the replication that this notice dated

03.06.1983 found mention by the plaintiff. On the other hand, the

defendants in their written statement had averred that the alleged

notice dated 03.06.1983 was never served upon their father i.e. upon

Surinder Singh. It is a false and fabricated document and the reasons

as aforenoted (Supra in the written statement) have emphasized. Two

witnesses had been examined on behalf of the plaintiff and one

witness had been examined on behalf of the defendants.

10 Suit No. 682/1982 was the first suit which the plaintiff had

filed against Surinder Singh. This was on 17.11.1982. The said plaint

was amended pursuant to the Court of the Court dated 23.07.1983.

The amended plaint Ex. PW-1/1 was taken on record. Admittedly in

this amended plaint, the notice dated 06.03.1983 did not find

mention. In fact the various other documents filed in that suit were all

after the date of 03.06.1983. Relevant would it be to state that

Ex.PW-1/DX1 is the application under Order 22 Rule 4 of the Code of

Civil Procedure filed by the plaintiff seeking permission of the Court to

bring on record the legal representatives of the deceased Surinder

Singh. The contention of the learned counsel for the respondent is

that even at this stage also, there was no averment that after the

death of Surinder Singh his legal representatives have no right to

continue in the suit property as the tenancy rights of Surinder Singh

already stood terminated vide notice dated 03.06.1983; no cause of

action now arises. This submission is not without any force. Similar is

the effect of the other documents i.e. application under Section XXXII

of the Code accompanied by the affidavit of the defendant

Ex. PW-1/DX3. The defendant in the earlier suit namely Surinder

Singh had been cross-examined on 05.11.1986. The said proceedings

had been proved as Ex. PW-1/DX8. This was a lengthy cross-

examination but perusal of the same shows that there is no reference

to the notice dated 06.03.1983 alleging that the tenancy of Surinder

Singh had already stood determined in terms thereof. There was no

reason whatsoever for not putting this document to Surinder Singh

who would have been the best person to answer this query. Perusal of

the amended plaint Ex. PW-1/1 in fact shows that there is a reference

to a notice dated 04.10.1982 purportedly sent by the plaintiff to the

defendant; here again there was no mention of the notice dated

06.03.1983. In the sale deed Ex. DW-1/1, the defendant Surinder

Singh had been described as a tenant at serial No. 11.

11 Even presuming that it was not necessary for the appellant/

plaintiff to have specifically pleaded in the plaint that the tenancy of

Surinder Singh had stood terminated vide Ex. PW-1/7, the second

question which arises for decision is as to whether in terms of Ex. PW-

1/8 (Postal receipt), a presumption of service can be drawn in favour

of the plaintiff and against the defendants. Ex.PW-1/8 has been

perused. This is a postal receipt bearing the name of Surinder Singh.

Below it ND-1, referring to New Delhi has been mentioned. There is no

further details of the address of the addressee. Perusal of Ex. PW-1/8

clearly shows that it has not been properly addressed to the

addressee; in fact no address finds mention therein. Question of

drawing a presumption under section 27 of the General Clauses Act

does not arise. This section specifically postulates that the registered

A.D. envelope must be prepaid and properly addressed to the

addressee; this is missing. No such presumption thus arises under

Section 27 of the said Act. All these factors had weighed in the minds

of the courts below to hold that in fact a notice dated 06.03.1983 was

a notice which had not legally terminated the tenancy of Surinder

Singh in his life time as it had never been served upon him. Both the

concurrent findings of the court below had thus rightly held that the

plaintiff had failed to show that this notice Ex. PW-1/7 had been

served upon Surinder Singh terminating his tenancy. In this factual

scenario, judgments relied upon by the learned counsel for the

appellant do not come to his aid. This finding calls for no

interference.

12 This Court is not a third fact finding Court. This Court has to

answer substantial question of law which has been formulated on

18.01.2010. This Court is of the view that both the Court below had

not committed any error in holding that the tenancy of the

respondents was not duly terminated in accordance with law.

13 The substantial question of law is answered accordingly. Appeal

as also pending applications are dismissed.

INDERMEET KAUR, J.

FEBRUARY 07, 2011 a