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Shashi Kumar Vs. Dharam Pal Sharma and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 209 of 1980
Judge
Reported inAIR1981Delhi169; 19(1981)DLT170; 1981(2)DRJ57; 1981RLR191
ActsDelhi Rent Control Act, 1958 - Sections 14(1)
AppellantShashi Kumar
RespondentDharam Pal Sharma and anr.
Advocates: S.L. Bhatia,; C.L. Sachdev,; Maehswar Dayal and;
Cases ReferredIn Surinder Kumar v. Prem Kumar
Excerpt:
.....notice also sent under certificate of posting. tenant pays arrears within two months of the latter notice.; notice duly served : two-month period runs from the date of receipt of the last notice and rent was paid within 2 months thereof. order of eviction set aside. - - 280.00 was due on account of rent for january and february, 1978. this notice was sent by registered post as well as under certificate of posting on february 18, 1978. the registered cover was received back undelivered. it is further alleged that the appellant had enjoyed the benefit under section 14(2) of the act in previous litigation between the appellant and his the then landlady smt. 578, that service through a certificate of posting is good service. it was also held that the appellant had enjoyed..........modes of service have been prescribed, and if in both there is due service but on different date, then the tenant can contend that the time should run from the latter of the two. in the instant case the additional controller and the tribunal have also taken into consideration march 9, 1978 as the date of service on the appellant. they have held so by implication. (5) the next question is whether the appellant paid or tendered the arrears of rent. the controller and the tribunal were under the impression that the money order was remitted on may 5, 1978 on which date rent for four months i.e. rs: 560.00 was due from the appellant. he had remitted only rs.429.11paise. the amount tendered was thus held to be insufficient and thereforee an order of eviction under section 14(l)(a).....
Judgment:

Sultan Singh, J.

(1) This second appeal under section 39 of the Delhi Rent Control Act, 1958 (hereinafter called 'the Act') on behalf of the tenants/ appellants is directed against the judgment and order of the Rent Control Tribunal dated April 28, 1980 confirming the judgment and order of the Additional Controller, Delhi, dated March 23, 1979 whereby an order of eviction was passed against the appellant under section 14(l)(a) read with proviso to section 14(2) of the Act.

(2) Shashi Kumar, appellant, is a tenant under the respondents in a portion on the first floor of property situated at 176/23, Desh Bandhu Gupta Road, Dev Nagar, Karol Bagh, New Delhi, on a monthly rent of Rs. 140.00 besides electricity and water charges. The respondents had purchased the suit property on July 2, 1975. The appellant has been in arrears of rent since January 1, 1978. The respondents allege that the rent was payable in advance every month. A notice dated February 18, 1978, was issued by the respondents to the appellant alleging that the rent was payable in advance, that an amount of Rs. 280.00 was due on account of rent for January and February, 1978. This notice was sent by registered post as well as under certificate of posting on February 18, 1978. The registered cover was received back undelivered. The respondents thereafter got a copy of the said notice dated February 18, 1978, pasted at the premises of the appellant tenant in the presence of two witnesses on March 9, 1978. The appellant on April 25, 1978 remitted a sum of Rs. 429.11 paise on account of rent by money order to the respondents vide receipt Exhibit R-I. It appears that the money order was tendered to the respondents on April 29, 1978, and it was refused. The amount of the money order was repaid to the appellant on or about May 5, 1978 vide money order coupen Exhibit R-2. It appears that the appellant had deducted a sum of Rs. 130.89 paise on account of alleged water charges payable by the respondents to him. The respondents filed the eviction application under section 14(l)(a) of the Act on May 15, 1978 alleging that the appellant has neither paid nor tendered the arrears of rent inspire of the said notice of demand dated February 18, 1978 duly served upon him. It is further alleged that the appellant had enjoyed the benefit under section 14(2) of the Act in previous litigation between the appellant and his the then landlady Smt. Budhwanti in suit No. 195/72 decided on May 1, 1974.

(3) As already stated the Additional Controller and the Tribunal passed an order of eviction under section 14(l)(a) of the Act against the appellant. The learned counsel for the appellant submits that the notice of demand was not served by pasting under section 106 of the Transfer of Property Act as alleged on March 9, 1978. His contention is that the said notice dated February 18, 1978 was never tendered to the appellant or to his wife or his family member or his servants at his residence. The Additional Controller and the Tribunal on appreciation of evidence on record have held that the notice was pasted on March 9, 1978, and it was duly served. It is in evidence of AW3 that the said notice was tendered to the wife of the appellant and she did not accept the same and thereafter the same was pasted in the presence of two witnesses i.e., AW2 and AW3. No suggestion was made to AW3 in cross-examination that the lady to whom the said notice was tendered was not the wife of the appellant. Thus it seems to me that the notice was duly tendered to the appellant's wife on March 9, 1978 and when she did not accept it, the notice was duly pasted on that date. The notice as already stated was also sent under the certificate of posting and it is deemed to have been served upon the appellant, as held in Shri Om Parkash Bahal v. Shri A.K. Shroff, 1972 R.C.R 960 and Shri Kishan Chand Chopra v. Shri Satya Paul Chaddha and another, 1974 R.C.R. 578, that service through a certificate of posting is good service. The address on the envelope containing the notice is admitted to be correct. Mere denial by the appellant that the notice under certificate of posting was not received by him is of no assistance to him.

(4) The next question for decision is when the notice of demand is deemed to have been served. Notice under the certificate of posting in the ordinary course must have been delivered to the appellant after a day or two. The question for decision is from what date the period of two months for payment or tender by the tenant under section 14(l)(a) of the Act is to be counted. The learned counsel for the appellant submits that such period should be counted from March 9, 1978. On the other hand the learned counsel for the respondents submits that notice was duly served under the certificate of posting and the same must have been delivered to the appellant on or about 19th or 20th February, 1978 and thereforee the period of two months should be counted from that date. admittedly, the respondents sent notice by registered post and also under certificate of posting. The registered cover was received back undelivered. The respondents thereforee thought that the notice of demand was not served and they adopted the method of pasting the notice in terms of second part of section 106 of the Transfer of Property Act. When a notice is sent to an addressee by two methods it seems to me that the date on which the notice is last served upon the addressee should be taken to be the date of service of notice for purposes of section 14(1)(a) of the Act. By such a notice a tenant is required to pay or tender the legally recoverable arrears of rent within two months from the date of service and thereforee when he is deemed to be served twice, it would be just and proper to take the later date as the date of service of notice of demand. In Surinder Kumar v. Prem Kumar, 1980 (18) D.L.T. 255, it has been observed that when two simultaneous modes of service have been prescribed, and if in both there is due service but on different date, then the tenant can contend that the time should run from the latter of the two. In the instant case the Additional Controller and the Tribunal have also taken into consideration March 9, 1978 as the date of service on the appellant. They have held so by implication.

(5) The next question is whether the appellant paid or tendered the arrears of rent. The Controller and the Tribunal were under the impression that the money order was remitted on May 5, 1978 on which date rent for four months i.e. Rs: 560.00 was due from the appellant. He had remitted only Rs.429.11paise. The amount tendered was thus held to be insufficient and thereforee an order of eviction under section 14(l)(a) of the Act was passed. It was also held that the appellant had enjoyed the benefit of section 14(2) of the Act earlier. At the time of arguments both the counsel after examining the postal receipt remitting the amount of Rs. 429.11 paise by money order agreed that this postal receipt is dated April 25, 1978. Thus it has to be seen whether the amount remitted on April 25, 1978 was the correct amount payable by the appellant to the respondents. The learned counsel for the respondents submits that the rent was payable in advance and thereforee rent for four months Rs. 560.00 was payable by the appellant on April 25, 1978. The learned counsel for the appellant on the other hand submits that the rent was not payable in advance and no finding has been given to that effect either by the Controller or the Tribunal. There is no evidence either oral or documentary on record to show that the rent was payable in advance. The learned counsel for the respondents relies upon a rent receipt Exhibit A-I dated May 21, 1977 showing payment of rent for the month of May 1977. On the basis of this receipt it is contended by him that the rent was payable in advance. This receipt, however, does not mention anywhere that the rent was payable in advance. His argument is that the rent for May 1977 was paid on May 21, 1977 and thereforee it must be held that the rent was payable in advance as it has been paid before May 31, 1977. I do not agree. Payment of rent in advance is a matter of contract. Without evidence it cannot be held that the rent was payable in advance. On the contrary the Rent Control Tribunal by implication held that the rent was not payable in advance when it determined that on May 5, 1978 a sum of Rs. 560.00 was required to be tendered by the appellant for the period ending on April 30, 1978. I, thus, hold that the rent was not payable in advance.

(6) On April 25, 1978 rent for the months of January, February and March 1978 at Rs. 140.00 per month was only payable by the appellant to the respondents. In other words on that date a sum of Rs. 420.00 only was payable as arrears of rent by the appellant. Admittedly, the appellant remitted a sum of Rs. 429.11 paise by money order on April 25, 1978 which was refused by the respondents on April 29, 1978. Thus it seems to me that the notice of demand was served on March 9, 1978 and the appellant-tenant tendered be rent due on April 25, 1978 which the respondents did not accept.The cause of action for institution of an application for eviction on ground of non-payment of rent as mentioned in section 14(l)(a) of the Act consists of service of a notice of demand and the failure of the tenant either to pay or tender the arrears of rent demanded within a period of two months from the date of service. In the instant case the notice was served on March 9, 1978 and there has been a tender by the appellant-tenant within a period of two months from that date and thereforee it seems to me that the respondents had no cause of action to institute the present eviction application against the appellant. I, thereforee, find that the Controller and the Tribunal were not correct in holding that the appellant failed to pay or tender the amount due as they considered the date of tender as May 5, 1978 instead of April 25, 1978. The appeal is allowed and the impugned judgments and orders of the Additional Controller and the Tribunal are set aside and the eviction application filed by the respondents against the appellant is dismissed with no order as to costs throughout.


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