Delhi High Court
Shri Rajiv Katyal vs Shri Arun Kumar Paswan on 22 January, 2018
$~5
IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on:- 22nd January, 2018
+ CM(M) 596/2014
SHRI RAJIV KATYAL ..... Petitioner
Through: Mr. Subhash Chand, Advocate
versus
SHRI ARUN KUMAR PASWAN ..... Respondent
Through: Nemo.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
ORDER (ORAL)
1. The eviction case (E-08/2011) was instituted by the petitioner
(indisputably the landlord) on 21.04.2011 seeking order of eviction
against the respondent herein (concededly the tenant) on the ground of
non-payment of rent invoking Section 14(1)(a) of the Delhi Rent
Control Act, 1958 in respect of premises described as ground floor of
property No.D-217, Ganesh Nagar, Pandav Nagar Complex, Delhi-
110092, inter alia, on the ground that the tenant had neither paid nor
tendered the arrears of rent at the rate of Rs.2400/- per month w.e.f
November, 2005 in spite of notice of demand dated 07.10.2010
(Ex.PW-1/J) within a period of two months from the date of its
receipt. It appears that in the pleadings the landlord had also referred
to an earlier notice of demand dated 15.03.2008 (Ex.PW-1/A). It
further appears that the tenant denied having been served with either
of the said two demand notices and put up contest.
2. On the basis of evidence adduced, the Additional Rent
Controller (ARC), by his judgment dated 09.01.2013, upheld the case
of the landlord, returned findings including about the due service of
the demand notice, particularly the demand notice dated 07.10.2010
and held the tenant to be in breach of payment of rent and passed the
final order under Section 15(1) of the Delhi Rent Control Act, 1958,
giving time to him to tender the arrears in terms of the directions or
suffer eviction order. By subsequent order dated 22.01.2013 the ARC
held the tenant to be in breach and, therefore, declined the protection
under Section 14(2) of the Delhi Rent Control Act, 1958 granting an
eviction order.
3. The said eviction order was challenged in appeal (RCA
No.10/2013) by the respondent which was allowed by the Additional
Rent Control Tribunal (ARCT) by judgment dated 14.05.2013.
4. The prime reason why the landlord failed in the appeal before
ARCT was because the said forum was not satisfied with the evidence
about due service of the demand notice. It declined to draw
presumption of due service in terms of Section 27 of General Clauses
Act, 1897 or Section 114 of the Indian Evidence Act, 1872 on the
basis of postal receipt (Ex.PW-1/K) indicating its dispatch in postal
transit on 07.10.2010. The ARCT, thus, set aside the order of eviction,
the net result being that the eviction case stood dismissed.
5. The view taken by the ARCT in appeal is under challenge by
the petition at hand.
6. The contention of the petitioner is that the respondent has been
in the habit of forgery and fabrication, reference sought to be made in
this context to some criminal cases. This contention by itself cannot
lead the petitioner/landlord anywhere. The maintainability of eviction
case under Section 14 (1) (a) of the Delhi Rent Control Act, 1958 is
contingent upon proof of service of demand notice, for which search
will have to be made in the evidence adduced by both sides.
7. It was then contended by the petitioner landlord that though
receipt of both the demand notices, one of 15.03.2008 and other of
07.10.2010, were denied, in the evidence the respondent appearing as
his own witness (RW-1) admitted on 03.10.2012 that he had been
served with the first demand notice (PW-1/A). This may reflect
evasive conduct of the respondent. But then, it has to be borne in mind
that the eviction case was brought on the cause of action arising not
from the notice dated 15.03.2008 but from the second notice dated
07.10.2010.
8. A perusal of the pleadings in the eviction case would show that
the petitioner landlord had simply stated that the notice dated
07.10.2010 had been sent by registered AD/UPC, adding that it had
been "duly served" upon the respondent. This is how he also testified
while tendering in his affidavit in evidence. The respondent joined
issue during cross-examination by suggesting to him that notice in
question had neither been sent nor served.
9. It does appear that the ARCT while construing the evidence was
misled in observing that the postal receipt (Ex.PW-1/K) was not
sufficient proof to raise the presumption because the address of the
noticee in full was not mentioned. Concededly, the petitioner landlord
had no control over the postal clerk so as to insist that in the receipt of
dispatch he would note the address in entirety. It may be assumed that
the postal article actually handed over to the postal department against
the said receipt carried the full address. But then, question would arise
as to whether in the above facts and circumstances, the assumption of
service can be legitimately drawn.
10. As noted above, in the pleadings, and in the evidence, the
petitioner landlord simply stated that the notice had been duly served.
Ordinarily, the language employed would imply that the person
making assertion to that effect had in his possession proof of service.
Such proof of service would be in the form of proof of delivery either
by return of the acknowledgment card bearing the signatures of the
addressee or someone who may have received at his instance at the
given address at the time of tender by the postal official or by way of
some confirmation from the postal department obtained separately.
The petitioner herein did not muster any such proof. He kept his
pleadings and the evidence as vague as they could be. It is on the
basis of mere dispatch of the postal article that at the trial he prayed
for presumption to be drawn in terms of Section 27 of the General
Clauses Act and Section 114 of the Indian Evidence Act which is not
correct. For such presumption to be drawn, he also had to plead and
prove that the postal article thus sent had never returned to him.
11. In the above facts and circumstances, the case of Samittri Devi
and Another vs. Sampuran Singh & Another, (2011) 3 SCC 556 would
not help the petitioner.
12. The impugned order does not call for any interference.
13. The petition is, thus, dismissed.
R.K.GAUBA, J.
JANUARY 22, 2018
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