Behari Lal Lal Chand vs Deepak Raj Narula
2017 Latest Caselaw 1017 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                           Date of Decision: 22.02.2017
+     CM(M) 566/2016 and CM No. 21374/2016
      BEHARI LAL LAL CHAND                  ..... Petitioner
                   Through Ms.Sonali   Malhotra,      Mr.Amit
                           Sanduja and Mr. Anshul Mehta,
                           Advocates.
                   versus
      DEEPAK RAJ NARULA                               ..... Respondent
                   Through            Mr.Hameed S. Shaikh and Mr.Amar
                                      Pal, Advocates.
      CORAM:
      HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J. (Oral)

1. By the present petition filed under Article 227 of the Constitution of India, the petitioner seeks to impugn the order dated 15.02.2016 passed by the Rent Control Tribunal (hereinafter referred to as the „RCT‟) quashing the order of the Additional Rent Controller (hereinafter referred to as the „ARC‟) dated 09.07.2015 and remanding the matter back for fresh consideration after affording reasonable opportunity to the parties to lead evidence by summoning handwriting expert to prove as to whether the signatures appearing on the notice/summons sent through process server and those appearing on the AD Card were that of the respondent.

2. The brief facts which led to filing of the petition are that the petitioner/landlord filed an eviction petition against the respondent/tenant under Section 14(1)(a) of the Delhi Rent Control Act (hereinafter referred to as the „DRC Act‟) in respect of the shop No. 10211, WEA, Padam Singh

Road, Karol Bagh, New Delhi-110005. Summons were ordered to be issued to the respondent returnable for 05.09.1991. Summons came back by ordinary process and registered AD as served. As none appeared for the respondent, he was proceeded ex parte vide order dated 05.09.1991. On 22.10.1992, the ARC passed an order under Section 15(1) of the DRC Act directing the respondent to pay arrears of rent within one month. It further ordered that in case of non-compliance of the order, eviction order would be passed. On 27.11.1992, as there was non-compliance of the aforesaid order, an eviction order was passed against the respondent. Thereafter, the petitioner filed the execution petition. On receipt of service of the execution petition, the respondent filed an application under Order 9 Rule 13 CPC for setting aside the ex parte order of eviction. The said application was dismissed by the ARC on 25.07.2003. In appeal, the RCT also dismissed the appeal by order dated 08.04.2005. In CM(M) No. 1235/2005 this court by order dated 03.09.2007 remanded the matter back to the ARC to decide afresh the application of the respondent/tenant under Order 9 Rule 13 CPC after permitting both sides to lead evidence on the question as to whether the tenant was served with the summons of the eviction petition or not. The ARC was also directed to conclude the matter within a period of six months. The parties thereafter led their evidence. By order dated 09.07.2015, the ARC dismissed the application of the respondent under Order 9 Rule 13 CPC.

3. The respondent filed an appeal. By the impugned order the RCT has allowed the appeal and passed directions as noted above. The RCT noted that the short question for consideration was as to whether the respondent was duly served with the notice. It concluded that this was the only relevant

issue and would require consideration as to whether the signatures appearing on the notice/summons or the AD Card were actually of the respondent or not. It further noted that instead of going into this vital aspect, the ARC had adverted to other facts and had in fact formed his own opinion on a comparison of the signatures on the summons and on the AD card with the signatures appearing on the legal notice dated 02.07.1990 and concluded that the signatures affixed on the AD Card and on the summons are of the respondents. Accordingly, the impugned order was passed quashing the order of the ARC and remanding the matter back to the ARC with a direction to afford to the parties reasonable opportunity to lead evidence by summoning handwriting expert.

4. I have heard learned counsel for the parties.

5. Learned counsel for the respondent has pointed out to the English translation of the report of the process server who had gone to serve the notice. Relevant portion of the report(translated) reads as follows:-

"Sir, today dated 13.08.1991 I went to the address at the summons and inquired about Deepak Raj for service of summons. A person met at the site whom I did not know. Summons and copy were served. Report is presented.

Sd/-

(initials)"

Based on the above report, he submits that on whom service has been affected by the process server is not known.

He secondly submits that even in the eviction petition, it is the case of the petitioner that the shop in question is lying locked. He submits that despite this, the summons have been sent to the shop which shows manifest illegality perpetuated by the petitioner.

6. Learned counsel appearing for the petitioner has contended that the RCT was exercising powers under Section 38 of the DRC Act where an appeal lies from an order of the ARC only on a question of law. She submits that despite this, the RCT by the impugned order has disturbed the detailed findings of fact recorded by the ARC/lower court erroneously and hence the order has to be quashed.

7. I may note that the matter in the first round of litigation that was carried out between the parties on the application under Order 9 Rule 13 CPC had reached this court. This court on 03.09.2007 in CM (M) No.1235/2005 while remanding the matter back to the lower court had directed the ARC to consider the application under Order 9 Rule 13 CPC filed by the respondent afresh after permitting both sides to lead evidence on the question whether the tenant was served with summons of the eviction petition. It was for the parties to lead appropriate evidence pursuant to the aforesaid direction of this court. In case the respondent despite this opportunity as given by this court, failed to lead appropriate evidence to show that he did not receive the summons he has to suffer the necessary consequences. It is not clear why the impugned order remanded the matter back to the ARC with liberty to summon a handwriting expert. No reasons have been given to allow this opportunity to the respondent.

8. I may note that as far as service of summons through Registered AD is concerned, the AD card has been received back with the signatures appended purportedly that of the respondent. The legal position in this regard is that a presumption arises of service on the respondent. In this context reference may be had to the judgment of the Supreme Court in the case of Parimal vs. Veena alias Bharti, (2011) 3 SCC 545, relevant portion

of which reads as follows:-

"17. This Court after considering large number of its earlier judgments in Greater Mohali Area Development Authority and Ors. v. Manju Jain and Ors., held that in view of the provisions of Section 114 Illustration (f) of the Evidence Act, 1872 and Section 27 of the General Clauses Act, 1897 there is a presumption that the addressee has received the letter sent by registered post. However, the presumption is rebuttable on a consideration of evidence of impeccable character. A similar view has been reiterated by this Court in Dr. Sunil Kumar Sambhudayal Gupta and Ors. v. State of Maharashtra.

18. In Gujarat Electricity Board and Anr. v. Atmaram Sungomal Poshani, this Court held as under:

8. There is presumption of service of a letter sent under registered cover, if the same is returned back with a postal endorsement that the addressee refused to accept the same. No doubt the presumption is rebuttable and it is open to the party concerned to place evidence before the Court to rebut the presumption by showing that the address mentioned on the cover was incorrect or that the postal authorities never tendered the registered letter to him or that there was no occasion for him to refuse the same. The burden to rebut the presumption lies on the party, challenging the factum of service."

(Emphasis added)

19. The provisions of Section 101 of the Evidence Act provide that the burden of proof of the facts rests on the party who substantially asserts it and not on the party who denies it. In fact, burden of proof means that a party has to prove an allegation before he is entitled to a judgment in his favour. Section 103 provides that burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any special law that the proof of that fact shall lie on any particular person. The provision of

Section103 amplifies the general rule of Section 101 that the burden of proof lies on the person who asserts the affirmative of the facts in issue."

9. Keeping in view the fact that the AD Card with an acknowledgement was received back by the court, a presumption arises that the said letter has been received by the respondent. The presumption is a rebutable presumption. It was for the respondent to lead appropriate cogent evidence to rebut this presumption. Based on the evidence led by the respondent, the ARC came to the conclusion that the respondent was duly served with the summons and hence has failed to rebut the presumption.

10. A perusal of the order of the ARC would show that it has noted the following aspects:-

(i) The respondent claims that the shop in question was shut in the period in question. The most import document to show that the shop remained shut was the electricity bills of the shop. The respondent has placed on record the bills for the period other than the relevant period when summons were served on the respondent.

(ii) The ARC further noted that the other best evidence available would be the testimony of nearby shop owners who could have testified that the shop of the respondent was shut but no such evidence was led.

(iii) It further noted that the contention of the respondent about the shop lying shut in 1991 is not supported by the sales tax assessment order for the assessment year 1991-92. The address given in the assessment order is different from the tenanted

shop. The original assessment orders have not been filed. Further assessment order for 1989-90 and 1990-91 show the suit property, but the other assessment orders do not show the adding of the said property.

(iv) It also compared the signatures of the respondent on the summons and on the AD Card with the signatures on the legal demand notice and concluded that summons have been received by the respondent.

Based on these facts, the ARC came to the conclusion that the respondent failed to prove that the shop was shut in the period as claimed by the respondent. These are findings of fact to show that the respondent has failed to prove that the shop was closed in the relevant period. These cannot be termed as irrelevant facts. Further the respondent despite order of this court has chosen not to lead evidence of a handwriting expert. Hence, the ARC had to choose the route of comparing the respondent‟s signatures on the AD card and summons with the signatures on record. I may note that under Section 38 of the DRC Act, an appeal lies to the RCT only on the question of law. No such question of law appears to have been urged before RCT which warranted passing of impugned order disturbing the findings of fact recorded by the ARC.

11. Regarding the report of the process server relied upon by the respondent I may note that the translated copy of the report filed by the respondent is incorrect and does not depict the correct picture.

12. The actual translation of the summons report reads as follows:

"Sir, Today i.e. on 13.08.1991, I went to the written address for the service

on Sh.Deepak Raj and enquired about him. He was found at the spot. I did not know him personally. Summons and the copy thereof were served. Report is submitted.

Sd/-

I declare on oath that the report is true.

13. In the light of the above report of the process server, it is clear that he has served the summons on the correct person. The respondent has not bothered to summon the process server or the postal department on any of these issues. Clearly the respondent has failed to discharge the onus on whom to prove that he was not served with the summons.

14. In the light of the above facts, in my opinion there were no reasons for the appellate court to disturb the findings of fact recorded by the ARC. The ARC came to the conclusion of facts based on cogent and reliable evidence. The respondent was given adequate opportunity to lead his evidence as per the directions of this court dated 03.09.2007 by remanding the matter back. There was no reason or occasion to give him another opportunity to lead further evidence and quash the order of the ARC.

15. Accordingly, in view of the above, the impugned order suffers from material irregularity and has been passed contrary to settled legal position. The impugned order is accordingly quashed and the order of the ARC dated 09.07.2015 is restored.

16. In view of the above, the present petition stands disposed of. All pending applications also stand disposed of.

JAYANT NATH, J FEBRUARY 22, 2017/rb