CM (M) 910/2008 and 1/2009. Case: 1. Puneet Bajaj, 2. Baldev Kumar Pahwa Vs 1. Baldev Kumar Pahwa, 2. Puneet Bajaj. High Court of Delhi (India)
| Case Number | CM (M) 910/2008 and 1/2009 |
| Counsel | For Appellant: Atul Nigam and A. Nayak, Advs. and Sandeep Sethi, Sr. Adv. and Pankaj Batra, Adv. and For Respondents: Sandeep Sethi, Sr. Adv. and Pankaj Batra, Adv. and Atul Nigam and A. Nayak, Advs. |
| Judges | Shiv Narayan Dhingra, J. |
| Issue | Delhi Rent Control Act, 1958 - Sections 14(1), 14(2), 15, 15(1), 26, 26(1), 27 and 27(2); Transfer of Properties Act; Civil Procedure Code (CrPC) - Order 9, Rule 13 |
| Judgement Date | May 12, 2010 |
| Court | High Court of Delhi (India) |
Judgment:
Shiv Narayan Dhingra, J.
1. By this order, I shall dispose of the above two petitions, one preferred by the landlord and the other by the tenant, arising out of the same order dated 28th August, 2003 passed in RCA 541 of 2003.
2. Brief facts relevant for purpose of deciding these petitions are that the landlord Mahendra Singh Bajaj, who is no more in this world, had filed an eviction petition bearing number 153 of 1988 against the tenant Baldev Kumar Pahwa, proprietor of 'Pahwa Garments' in respect of a shop let out to him on monthly rental of Rs. 300/- on account of non-payment of rent under Section 14(1)(a) of Delhi Rent Control Act. Notice of this eviction petition was served upon the tenant and the tenant appeared in the proceedings of eviction petition but later on stopped appearing. The eviction petition under Section 14(1)(a) was allowed ex parte. However, an order under Section 15(1) was passed by the ARC and benefit of Section 14(2) of DRC Act was given to the tenant. The tenant filed an application under Order 9 Rule 13 Civil Procedure Code for setting aside the ex parte order passed in eviction petition number 153 of 1988 giving benefit to the tenant under Section 14(2) of DRC Act. In this application under Order IX Rule 13 CPC the tenant took a stand that he had given Rs. 5,000/- in cash to the landlord, without any receipt, and the landlord had assured him that he shall not proceed further with the eviction proceedings and will withdraw the eviction petition and therefore he did not appear before the court. This plea of tenant was not believed by the ARC and the application filed by the tenant under Order 9 Rule 13 CPC was dismissed by learned ARC on 17th March, 1994 observing as under:
Regarding other pleas of the respondent that the petitioner had accepted Rs. 5000/- while the matter was pending and a compromise was reached also does not inspire confidence because the respondent was assisted by a counsel and once the matter is pending and the parties reached compromise it is recorded in the court as no compromise outside the court is recognized and admittedly when the parties were litigating and once there is litigation, how the respondent has paid a sum of Rs. 5,000/- in cash without any receipt also cannot be believed without any prima facie proof of the transaction.
3. After the first eviction petition was allowed by the learned ARC vide order dated 27th July, 1989, the landlord sent a second default notice dated 21st November 1989 to the tenant alleging second default and demanded rent with effect from 1st July, 1989 up-to-date @ Rs. 300/- per month along with 15% interest calculated from the date when rent of each month became due and for the period it was not paid. The landlord filed second default petition in March, 1993 and the same was registered as E-624/06/93. Vide order dated 22nd March, 2007, an eviction order under Section 14(1)(a) of DRC Act was passed by learned ARC holding that the tenant was guilty of second default. Against this judgment of learned ARC, tenant preferred an appeal before the learned Additional Rent Control Tribunal (ARCT) and the learned ARCT allowed the appeal of the tenant holding that there was no second default. Against this order of learned ARCT, the landlord has filed the present petition being CM(M) 910 of 2008. The tenant also filed a petition being CM(M) 1 of 2009 against the order of learned ARCT since the Tribunal gave a finding against the tenant about service of notice and upheld the decision of learned ARC that there was a valid service of second default notice on the tenant and also upheld that the tendering of rent by money order sent to the landlord received back by the tenant with the postal remarks "the landlord was not found at the address" was not valid tender of rent.
4. As far as service of notice on the tenant is concerned, the two courts below after appreciating the evidence adduced before it and keeping in view the law had come to conclusion that notice was validly served upon the tenant and AD card bearing the signatures of the tenant was duly received back. Mere denial by tenant of his signatures would not rebut the presumption of service more so when the signatures of tenant on other documents itself varied and were not uniform at difference places. I find no ground to interfere with this finding.
5. Even otherwise, I find that the fact that tenant sent money orders of rent to the landlord on 29th November 1989 while the notice was sent by the landlord to him on 21st November 1989 makes it abundantly clear that it is only after receipt of notice alone that the tenant thought of sending amount of Rs. 1200/- on account of rent by money order. If he had any intention of sending the rent to the landlord regularly by money order, he would have been sending the money order every month. The fact that he did not send money order of rental amount every month and sent lump sum payment after the date of the notice makes it crystal clear that his plea that signature on AD were not his was a false plea and the two courts below rightly came to conclusion that notice was duly served.
6. The issue whether tendering of rent by money order was a valid tender or not is no more res integra. It is now settled law that in case money order is refused by the landlord or is not received for any reason whatsoever by the landlord, the next step to be taken by the tenant is to deposit the rent under Section 27 of DRC Act and mere sending of money order would not be considered as a valid tender [M.K. Mukunthan v M. Pasupathi 2001 RLR 537 (SC)]. I, therefore, find no force in the petition of the tenant assailing the order of learned ARCT on the above two counts.
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