Kanwar Pal & Ors v. Pankaj Gupta

INDERMEET KAUR,J

DECEMBER 08, 2011/nandan

* 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 affi