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Chaman Lal Chawla Vs. Mohd. Shati - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 181 of 1969
Judge
Reported inILR1973Delhi870; 1973RLR25
ActsTransfer of Property Act, 1882 - Sections 106; Delhi Rent Control Act, 1958 - Sections 14(1)
AppellantChaman Lal Chawla
RespondentMohd. Shati
Advocates: S.L. Bhatia,; H.C. Malhotra and; M. Ahmed, Advs
Cases ReferredChetty v. Seethai Ache and
Excerpt:
.....of jurisdiction by him to order eviction under section 14(l)(a) of the act. 1967 j &p 141 as well as in the rest of the judgment it was not taken into consideration that section 106 of the transfer of property act provided disjointedmethods of effecting service. (9) this litigation discloses a sad state of affairs. rent controller failed to notice that the application for eviction was not signed by one of the applicants mst. shafi as well as mst. the case is remanded back to the rent control tribunal who being the court of fact as well as law while acting under section 38 will look into all grievances, which the parties will raise and will decide r......the 17th july, 1965. (2) in his statement as public witness . mohd. shafi stated before the add1. rent controller that the appellant was a tenant in the premises in dispute at rs. 18. 12 per month and that he had not paid the rent for a long time and the arrears of rent due as on the 31st august. 1964 amounted to rs. 2175.08. the witness then stated that a notice had been sent to the respondent a copy whereof was ex. p. 1. and the registration receipt showing that it had been sent. acknowledgement due was ex. p. 2. it was then deposed that the notice had not been distributed to the appellant. i have used the word 'distributed' as that would be the correct translation of the word used in urdu. the statement then was that the respondent had refused. to receive the notice and the envelope.....
Judgment:

P.S. Safeer, J.

(1) Preferred under section 39 of the Delhi Rent Control Act, Act 59 of 1958, here-in-after called the Act, this appeal is directed against the order made by the Rent Control Tribunal on the 3rd May, 1969. The relevant circumstances pertaining to this appeal may be noticed. An application was filed against the present appellant under section 14 of the Act seeking his eviction. The applicants were Mohd. Shafi and Mst. Hajra Bi. In paragraph 3(a) of the application the names and addresses of the applicants were described. In paragraph 3(b) thereof the name and address of the present appellant was cited. The eviction was sought on the ground contained in section 14(l)(a) of the Act. Concluding that the present appellant was not coming forward to contest the application of eviction in spite of service, he was proceeded against exparte. On the 11th June, 1965 the statement of the one of the applicants Mohd. Shafi was recorded and on its basis an order of eviction was made against the appellant on the 17th July, 1965.

(2) In his statement as Public Witness . Mohd. Shafi stated before the Add1. Rent Controller that the appellant was a tenant in the premises in dispute at Rs. 18. 12 per month and that he had not paid the rent for a long time and the arrears of rent due as on the 31st August. 1964 amounted to Rs. 2175.08. The witness then stated that a notice had been sent to the respondent a copy whereof was Ex. P. 1. and the registration receipt showing that it had been sent. acknowledgement due was Ex. P. 2. It was then deposed that the notice had not been distributed to the appellant. I have used the word 'distributed' as that would be the correct translation of the word used in Urdu. The statement then was that the respondent had refused. to receive the notice and the envelope containing the same was Ex. P. 3. Public Witness 1 then stated that the notice Ex. P. 1. had been pasted at the spot and the report regarding the affixation of Ex. P. 1. was correct. He stated that he had himself pasted the notice. It was not clarified in his statement as to whether the spot where the notice had been pasted was the shop in dispute or the premises where the respondent was residing. The words which deserve to be noticed as used in Urdu, were:-

'P.1''Mokiah par chaspan kia hai'. 'The translation would be 'P.1. has been pasted at the spot'.

(3) With the afore-said documentary and oral evidence being available, the Addl. Rent Controller was called upon to exercise his jurisdiction within section 14(1)(a) of the Act:-

'14(1)Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of the premises shall be made by any court or Controller in favor of any landlord against a tenant: Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely:- (a) that the tenant has neither paid nor tendered the whole of the arrears of the rent legally recoverable for him within two months of the date on which a notice of demand for the arrears of rent has been served on him by the landlord in the manner provided in section 106 of the Transfer of Property Act, 1882'.

(4) The Controller was to exercise an exceptional jurisdication furnished by the proviso. Before exercising it in terms of Clause (a) reproduced above, he was necessarily to find whether a notice of demand for arrears of rent had been served on the tenant by the landlord in the manner prescribed by section 106 of the Transfer of Property Act, 1882 which provision in its relevant part is:-

'every notice under this section must be in writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property'.

(5) If the Controller was to find that the notice demanding the arrears of rent had not been served on the tenant in accordance with section 106 of the Transfer of Property Act, 1882, he was necessarily to conclude that the landlord had failed to make out a case for the exercise of jurisdiction by him to order eviction under section 14(l)(a) of the Act. The finding that the notice demanding the arrears of rent had been validity served was to be the pre-requisite to the exercise of the jurisdiction furnished by section 14(l)(a).

(6) Turning to the relevant part of section 106 of the Transfer of Property Act, the Notice is allowed to be served by being dispatched by post to the party who is intended to be bound by it. It could also deserved by tendering or delivering it personally to such party. In the alternative, the notice could be served also by tendering or delivering it to one of the members of his family or even to one of the servants of the person, who was intended to be bound by it. The last mode of service permitted by the provision was, however, placed under a limitation and before resorting to affixation of the notice on a conspicuous part of the property so as to bind the party intended to be served it was to be shown that the tender or delivery of the notice either to the party personally or to any member of his family or any of his servants was not practicable and there were circumstances in which the alternative left was to affix the notice on a conspicuous part of the property. A distinction in the provision is that where the notice is sought to be served by tendering or delivering it personally to the party sought to be bound by it or by tendering or delivering it to one of his family members or servants then such tender or delivery is to be at the residence of the party intended to be bound by it. In case of affixation, the notice is to be affixed on a conspicuous part of the property i.e. the tenanted premises. When Mohd. Shafi made an ambiguous statement before the Addl. Rent Controller staling that the notice had been affixed by him at the spot, it was the duty of the Controller who was to find his jurisdiction within section 14(l)(a) of the Act to seek the clarification whether the notice had been affixed on the property from which eviction was sought or had been affixed on the residence of the respondent. That apart there was no statement before the Controller by Mohd. Shafi that he had resorted to affixation because in the circumstances to be stated by him it was found not practicable to tender or deliver the notice personally to the respondent at his residence or to any member of his family or to any one of his servants. There was no deposition by Mohd. Shafi that he ever went to the residence of the respondent himself. Learned counsel for the respondent has urged that in order to find whether it was established that the personal tendering was not practicable the Addl. Rent Controller apart from the statement of Mohd. Shafi depended upon the reports made by the Postman on the envelope containing the registered notice, which was not delivered. Even if that may be the case then the report on the envelope was 'several attempts had been made in order to serve the addressee, but the people at the house are not giving his whereabouts'. There was no endorsement on the envelope that the notice had been refused. The Addl. Rent Controller expressed in the eviction order that Ex. P. 3, the registered envelope showed that the registered notice was not accepted by the respondent. He did not conclude that it had been refused. The Addl. Rent Controller in no part of the exparte eviction order dealt with the requirements of section 106 of the Transfer of Property Act, which operate as an integral part of section 14(l)(a) of the Act.

(7) The proceedings being exparte against the appellant the Addl. Rent Controller should have acted with high caution in finding whether the ingredients furnishing the jurisdiction to him under section 14(l)(a) of the Act stood established or not. The learned counsel appearing for the respondent has cited Pununat v. Durga Singh, A.I.R. 1967 J& Kas 1411 and Mrs. Achamma Thomas v. E. R. Fairman, 1969 Rent Control Reporter 872 to urge that there was enough of evidence on the record for the Addl. Rent Controller to conclude that the notice demanding the arrears of rent had been validly served within the scope of section 106 of the Transfer of Property Act. I find that in A.I.R. 1967 J &p; 141 as well as in the rest of the judgment it was not taken into consideration that section 106 of the Transfer of Property Act provided disjointedmethods of effecting service. Each mode of service could be utilised independent of the other excepting that the affixation on the property could be resorted to only in the circumstances where it could be found that it was not practicable to tender the notice of demand to the party sought to be bound by it personally or to any member of his family or any of his servants. Considering the observations contained in 1969 R.C.R. 872 and taking into consideration the language employed in section 106 of the Transfer of Property Act, I am of the view that the tender or delivery personally to the person sought to be bound by the notice or to any member of his family or to any of his servants is an independent imposition in the statute and where a postman goes several times with a registered acknowledgement due notice and returns the report that it is not possible to find the where abouts of the addressee, it may reveal 'previous conduct' of the persons who had not given the whereabouts.

(8) No 'previous conduct ' even of the person sought to be bound by the notice can supersede the requirement that there should be an independent attempt to deliver or tender the notice personally to him or to any of the members of his family or his servants. The case cited me does not advance the contention that the Addl. Rent Controller had derived sufficient jurisdiction from his findings for passing the order of eviction under section 14(l)(a) of the Act.

(9) This litigation discloses a sad state of affairs. The Addl. Rent Controller failed to notice that the application for eviction was not signed by one of the applicants Mst. Hajra Bi or by any agent acting on her behalf. The power of attorney in favor of the counsel who filed the application for eviction was signed by Mohd. Shafi, one of the applicants alone.

(10) After the exparte order of eviction had been passed an application was filed by the present appellant under Order 9 Rule 13 and section 151 of the Code of Civil Procedure on the 18th January, 1966. The application which I have perused cited as petitioners both Mohd. Shafi as well as Mst. Hajra Bi. For the purpose of this decision, it is sufficient to notice that after taking evidence and hearing the parties the application was dismissed on the 14th July. 1967. The Addl. Rent Controller discussed the evidence produced before him and dismissed the application not only on the ground that it had not been filed within the time but also on merits. An appeal against the Addl. Rent Controller's order dismissing the application was filed under section 38 of the Act. When it came up before the Rent Control Tribunal on the 3rd May, 1969 a preliminary objection was raised that Mst. Hajra Bi who had an indivisiblevaluable right in the order of eviction had not been imp leaded as a co-respondent along with Mohd. Shafi and that the application filed under Order 41 Rule 20, Civil Procedure Code bearing the date 11th September, 1968 did not deserve to be allowed and that the appeal for those reasons reserved dismissal. The Rent Control Tribunal without dealing with the merits of the order under appeal dealt with the application filed under Order 41 Rule 20, Civil Procedure Code and coming to the conculsion that Mst. Hajra Bi who had acquired a valuable right had not been imp leaded as a respondent dismissing the application under Order 41 Rule 20, Civil Procedure Code dismissed the appeal. The basic authority on which the Rent Control Tribunal relied was V. P. R. V. Chocka lingam Chetty v. Seethai Ache and others . The view taken by the Privy Council which was later on followed was that there a litigant in terms of a decree in his favor acquires a valuable right and the appeal is filed against others, but, not against him and where the right in the decree becomes final by lapse of time such a litigant would not be a person interested in the result of the appeal and Order 41 Rule 20, Civil Procedure Code, would not allow the impleading of such a person. It is indeed intriguing as to why the Rent Control Tribunal did not look into the record of the appeal before him and notice that a power of attorney was there before him bearing date 26th April, 1968 which had been executed both by Mohd. Shafi and Mst. Hajra Bi in favor of the counsel defending the appeal. It is not possible to postulate what the decision by the Rent Control Tribunal would have been if he had taken into consideration :-

(A)Whether the Addl. Rent Controller had passed the ex parte order of eviction in exercise of competent jurisdictiongiven by section 14(l)(a) of the Act in the absence of a clear finding that a notice demanding the arrears of rent had been served in accordance with section 106 of the Transfer of Property Act or not and whether Mst. Hajra Bi had acquired any valuable right because of such an order. (b) The effect of the presence of power of attorney dated 26-4-1968 executed both by Mohd. Shafi and Mst. Hajra Bi which was before it on 11-9-1968. Whether Mst. Hajra Bi was not already defending the appeal as an interested person and the application under Order 41 Rule 20 required only a formal order.

(11) The Impugned order suffers from patent infirmity. The case is remanded back to the Rent Control Tribunal who being the court of fact as well as law while acting under section 38 will look into all grievances, which the parties will raise and will decide R.C.A. No. 786 of 1967 afresh in the light of the observations made in this order. The parties will appear before the Rent Control Tribunal on the 23rd December, 1972.

(12) There will be no order as to costs in this appeal.


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