Raj Kumari vs Sheela Devi (Since Deceased) ...
2012 Latest Caselaw 5265 Del

*      THE HIGH COURT OF DELHI AT NEW DELHI

+                  CM (M) 877/2012

                                       Date of Decision: 04.09.2012

RAJ KUMARI                                     ......PETITIONER
                         Through:      Mr.Sudhir Nandrajog,
                                       Sr.Adv. with Mr. Niraj Singh,
                                       Ms.Meenakshi Midha, Advs.


                              Versus



SHEELA DEVI (SINCE DECEASED) THROUGH LRs
                                   ......RESPONDENT
                  Through: Mr.J.K.Seth, Sr.Adv. with
                           Ms.Shalini Kapoor,
                           Ms.Promil Sethi, Ms. Kriti
                           Arora, Advs.

CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA

M.L. MEHTA, J.

1. The present petition has been filed under Article 227 of the Constitution of India against the order dated 01.03.2012 whereby the learned Addl. Rent Control Tribunal (ARCT) allowed the appeal preferred by the respondents/landlords, and set aside order dated 21.05.2007 passed by learned Addl. Rent Controller in E-1676/06, and consequently, passed an eviction order under Section 14(1)(a) of

the Delhi Rent Control Act (hereinafter referred to as 'Act') in respect of basement of property No. 5A/17, Ansari Road, Darya Ganj, New Delhi (suit premises), against the petitioner/tenant.

2. In the earlier eviction petition being E-27/88 under Section 14 (1)(a) of the Act, the petitioner was given benefit under Section 14 (2) of the Act vide order dated 15.2.1996. Thereafter, another eviction petition was filed by the respondents herein being E-1676/2006 under Section 14(1)(a) read with Section 14(2) of the Act against the petitioner/tenant alleging default in payment of rent w.e.f. 5.12.1997. A legal notice dated 28.5.1998 was alleged to have been served upon the petitioner/tenant by registered A.D. as also by affixation, demanding arrears of rent w.e.f. 5.12.1997 to 4.7.1998 at the rate of Rs. 350/- per month and w.e.f. from 5.7.1998, at the rate of Rs. 385/- per month. It was averred that the notice tendered personally was refused by the petitioner and that the same was served by the affixation on the outer door of the suit premises on 5.6.1998 by respondent No. 1 Narender Kumar Jain along with Vinod Kumar.

3. In the reply, the petitioner/tenant raised a preliminary objection that no notice as contemplated under Section 106 of Transfer of Property Act was served upon her and also no notice dated 28.5.1998 was ever sent or received by her.

4. Before the ARC, the respondent/landlord Narender Kumar Jain (son of the deceased Sheela Devi) examined himself as AW2, his wife Salochana Jain as AW1, Vinod Kumar as AW3 and R.C.Jain, Public Relation Inspector of post office as AW4. The petitioner/tenant examined her husband Prem Pal as RW1. The learned ARC, vide his order dated 21.5.2007, dismissed the petition observing that the registered envelope and A.D. Card do not bear the requisite stamp of post office from where it was posted as well as from the post office where it was to be delivered to the addressee. He was of the opinion that in view of the provisions of Section 114 of the Indian Evidence Act, the common course of business appeared to have not been followed and thus, in the absence of same, the presumption could not be raised of service of notice. He also substantiated his findings observing that no witness from the concerned post office was examined nor there was any evidence as regard to the attempts made by the concerned post man to deliver the notice to the addressee. He also did not believe the plea of tender of notice personally as also its refusal by the petitioner and the subsequent affixation by the respondent. He reasoned that there was no independent witness to the tender or affixation, despite that it was a thickly populated area, and there were commercial and residential houses around. He consequently held the notice having not been served properly and thus, dismissed the petition. The respondents carried the matter in appeal to the court of Addl. Rent Control Tribunal (ARCT). The ARCT vide impugned order, reversed the

findings of ARC and held the notice having been served by both ways and consequently, set aside the order of ARC and passed the eviction order against the petitioner.

5. The petitioner/tenant has challenged the order of ARCT in this petition under Article 227 of the Constitution. The short controversy that arises for consideration is with regard to the service of notice dated 28.5.1998, demanding rent from the petitioner. As is noted above, the petitioner/tenant had denied tender or receipt of notice by either mode as also refusal by her of any such notice. Both the parties led their evidence before the ARC. During the course of arguments, learned senior counsels appearing for both the parties vehemently argued, one denying tender or service of the notice, and the other, asserting to the contrary.

6. The notice dated 28.5.1998 was stated to have been sent by the registered post. The learned senior counsel appearing for the petitioner has submitted that no presumption could be raised of service of such a notice inasmuch as there was no postal stamp of any post office as also there is a doubt since the postal receipt (Ex.AW2/12) affixed on the envelope (Ex.AW2/13) would show that this was of the Indraprastha Post Office, which is neither the

area of the office of the counsel of the respondents nor that of the suit premises.

7. On the other hand, the submission of the learned senior counsel appearing for the respondent in this regard was that there was no requirement of postal stamp of the post office and that, there was no bar in sending the notice from any post office. He also submitted that the notice was delivered in the post office and was returned ATTD i.e. avoided to take delivery, and this would amount to refusal. He has also referred to the statement of AW4 R.C.Jain, the official of the post office, who deposed to the effect that he had seen the computerized postal receipt (Ex.AW2/12) affixed on the envelope (Ex.AW2/13), which bears the monogram and name of the post office. In answer to a question, he had denied that the envelope must have postal stamp on the computerized receipt or that the A.D.Card also must bear stamp of issuing post office and also of the addressee post office.

8. There is no dispute that there is a presumption of service of a letter sent by the registered post at the correct address of the addressee and that, in the instant case, the envelope was sent by registered post from Indraprastha Post Office and it bears the correct address of the suit premises. However, since whole of the case is

dependent upon the service of this notice and the consequences of its being serious, resulting in straight eviction of the petitioner/tenant, I thought and rethought on this controversy and the matter. Having given my considered thought, I am of the view that from the envelope as also the postal receipt alone, the tender of notice to the petitioner cannot be conclusively proved. There being no postal stamp of the area where the envelope was to be delivered, the receipt of the same by the post office as also the tender thereof by the postman to the petitioner becomes doubtful. Though AW4 R.C.Jain had denied that the envelope must have postal stamp on the computerized receipt or the A.D.Card, but, in the absence of there being any record produced by him, the same having been destroyed, and the respondent not having obtained certificate from the post office or examined the postman, the doubt arises in the mind of the court as regard to the delivery of the envelope at the receiving post office as also its tender to the petitioner/tenant. Though, examination of the concerned Postman is not necessary in every case, but, here is a case in which much credence cannot be given to the statement of AW-4 R.C.Jain who was only a Public Relation Inspector of the Post Office and also could not produce any record, stating the same having been destroyed. Another reason to create doubt is that this notice was returned as ATTD (avoided to take delivery) on 3.6.1998 and in the normal course, it would take about 2-3 days to reach the sender. There is also no postal stamp on the said envelope of the post office which returned the envelope to the

sender i.e. the advocate of the respondent. Thereafter, on 5.6.1998 i.e. only in the span of one day, the notice was alleged to have been served by affixation. It looks like as if the respondent/landlord was on hell bent job to do the service of notice. Firstly, it cannot be believed that the envelope reportedly avoided by the petitioner on 3rd June, 1998 would have reached back the sender advocate at his Hauz Khas office by 5th June, 1998 and he would have promptly given it to respondent for fixation on the same day. Secondly, the respondent/landlord rushed for service on petitioner accompanied with none else but his cousin Vinod Kumar. He did not try to associate any independent person from the vicinity, which is undisputedly a thickly populated area and habitation of a large number of commercial and residential premises. From the testimony of Vinod Kumar, it would be seen that he knew the entire facts of the case including that the ground floor of the premises was got evicted from the petitioner and that the application for deposit of rent was also filed by the petitioner for the period w.e.f. 5.12.1997 to 4.7.1998 and that, a notice was received by them in the month of January, 1999 and further, that the rent was withdrawn by them. This would show the amount of interest he was having in getting the notice served by all means. He was definitely an interested witness, and so much reliance could not be placed upon him in the absence of there being any independent witness.

9. In view of my above discussion, I am of the considered view that the learned ARCT has grossly erred in reversing the findings of facts recorded by ARC, and has proceeded to believe what was urged by the respondent/landlord. I, therefore, deem it a fit case for exercising the power under Article 227 of the Constitution as it has resulted in miscarriage of justice to the petitioner/tenant. Consequently, petition is allowed. The impugned order of ARCT is set aside and the order of ARC is restored.

10. Petition stands disposed of.

M.L. MEHTA, J.

SEPTEMBER 04, 2012 akb