Kulbhushan Goel and Others vs Brij Mohan Goel

Aruna Suresh, J.—Appellants have assailed the judgment and decree dated 24.11.2006 of the appellate court whereby the appeal was dismissed and the judgment and decree of the trial court was upheld. In brief the facts of the case are that respondent Mr. Brij Mohan Goel along with his brother Sh. Om Prakash Goel was the owner of property bearing No. 61/11, Ramjas Road, Karol Bagh, New Delhi. The brothers filed a suit for partition and in the final decree for partition dated 14.11.1996, the suit premises comprising of one residential flat on the first floor fell to the share of the respondent.

The said flat was in tenancy of Mr. Banarsi Dass Goel on a monthly rent of Rs. 180/- since the year 1960. The premises were let out for residential purposes only. Respondent terminated the tenancy of Banarsi Dass Goel during his life time through his counsel, Pawan Kumar Gupta vide notice dated 3.1.1985. The said notice was sent through registered cover as well as under postal certificate on 4.1.1985 and 7.1.1985 respectively.

After termination of the tenancy, Banarsi Dass Goel became a statutory tenant in the demised premises. He died in February 1996 leaving behind his widow and the appellants. Wife of Banarsi Dass continued to enjoy the statutory tenancy rights in the said premises till her death on 17-18/3/1999. After her death the appellants are in possession of the demised premises, unauthorisedly and illegally. Since they failed to vacate the suit premises, respondent filed a suit for possession as well as damages/mesne profits against the appellants.

Appellants in their written statement challenged the jurisdiction of the civil court to entertain the suit for possession by virtue of provisions contained in Section 50 of the Delhi Rent Control Act (hereinafter referred to as DRC Act) and they also disputed the factum of receipt of notice dated 3.1.1985 by Banarsi Dass Goel, as he was hospitalised at the relevant time on account of high blood pressure and they claimed themselves to be the tenants in occupation of the demised premises.

The trial court decreed the suit of the respondent for possession as well as for recovery of damages @ Rs. 18,000/- per month effect from 1.4.1999 till the date of filing of the suit and further damage/mesne profits @ Rs. 10,000/- per month from the date of filing of the suit along with interest @ 9% per annum till the date of decree and future interest @ 6% per annum till the date of realization of amount along with cost of the suit.

Appellants challenged the judgment and decree of the trial court in appeal (RCA No. 35/2006). The appellate court, while concurring with the findings of the trial court, dismissed the appeal. Hence, this appeal.

Following substantial questions of law were formulated on 5.9.2008 by this Court:

1) Whether the respondents had discharged the onus by sending notice termination the tenancy upon the deceased father of the appellants?

2) Whether the findings of both the Courts below with regard to the mense profits is based on no evidence?

I proceed to deal with these questions one by one.

Question of Law-1

Mr. Sandeep Sethi, learned senior counsel, for the appellant has argued that Banarsi Dass Goel was hospitalised in the month of January 1985 and remained in the hospital for more than one month. Therefore, he never received notice of termination dated 3.1.1985, he has submitted that the postal receipt placed on record does not bear the address of Banarsi Dass Goel and therefore, it is not known, at what address the notice was sent and as regards notice sent by certificate of posting, it cannot be said that it was legally served upon Banarsi Dass Goel. He emphasised that since the notice of termination of tenancy was not legally served upon Banarsi Dass Goel, he continued to remain a contractual tenant and after his death, his wife and the appellants inherited the tenancy rights and after the death of the wife of Banarsi Dass Goel, appellants are in occupation of the premises in their own right as tenants.

It is also argued by Mr. Sethi that respondent did not examine the postman to prove that the notice was delivered to Banarsi Dass Goel, specially when the notice of termination was sent by the counsel and not by the respondent himself.

He has referred to (1) Anil Kumar Vs. Nanak Chandra Verma, and (2) Meghji Kanji Patel Vs. Kundanman Chamanlal Mehtani, .

Mr. B.B. Gupta, learned counsel for the respondent, has submitted that once it is proved that the notice of termination of tenancy was sent by post to Banarsi Dass Goel, presumption of service of notice upon the addressee arises and it was for the appellants to demolish this presumption, which they failed. It is submitted that appellants have failed to produce on record any medical document to indicate that in January 1985 Banarsi Dass Goel was admitted in the hospital at Bombay and he did not receive the notice, specially when notice was never received back undelivered by the respondent, nor the acknowledgement receipt was received. The appellants, therefore, have failed to rebut the presumption attached to service of notice and therefore, the trial court was right in holding that the tenancy of Banarsi Dass Goel stood terminated during his life time and that the appellants are unauthorised occupants of the demised premises. He had submitted that in any case notice was also sent by U.P.C. There are no merits in the appeal.

He has referred to (1) Madan Lal Seth Vs. Amar Singh Bhalla, , (2) M/s. Madan and Co. Vs. Wazir Jaivir Chand, and (3) C.C. Alavi Haji Vs. Palapetty Muhammed and Another, .

Mr. Pawan Kumar Gupta, Advocate, has been examined as PW-2. He in his affidavit in evidence has specifically stated that the notice dated 3.1.1985 was sent to the addressee ''Sh. Banarsi Dass Goel'' at his Bombay address as given in the notice itself by registered post as well as by ordinary post under certificate of posting, which were posted by him.

As per his cross examination, he himself posted the notice under postal certificate to the addressee but, he could not remember if the notice was sent through registered post by him or through his clerk.

Appellants admit that notice dated 3.1.1985 Ex. PW-1/2 bears the correct and complete address of Banarsi Dass Goel. Certificate of posting Ex. PW-1/4 also contains the correct address of Banarsi Dass Goel. Certificate of posting has the post office stamp of District Courts, Delhi 2006. True that the postal receipt, though does not contain complete address of Banarsi Dass Goel but, does contain the name of Banarsi Dass Goel. This postal receipt also bears the postal stamp of dispatch of the registered cover to Bombay. It has come in evidence that registered AD cover was sent on 4.1.1985 whereas the notice by UPC was sent on 7.1.1985.

Respondent Brij Mohan Goel in his cross-examination denied the suggestion that the notice was received back unserved. The notice sent by way of registered AD cover and under postal certificate, if not, received undelivered raises a presumption of service of notice on the addressee specially when it is sent at the correct address of the addressee and the principles incorporated in Section 27 of the General Clauses Act would be attracted. It is not necessary that notice should be sent to the addressee only through registered AD cover. Notice can be served by way of ordinary process as well as under certificate of posting.

In Anil Kumar v. Nanak Chandra Verma (supra), where notice u/s 106 of the Transfer of Property Act terminating the tenancy was sent to the tenant but was not received by him and the registered cover was received back with the endorsement of the postman stating that it had been refused and the tenant had taken a plea that he was not available during the period when the postman visited the premises, the statement of the tenant denying the tender and refusal to accept delivery was not accepted by the trial court, the first appellate court, as well by the Supreme Court.

It was observed:

.....In our opinion there could be no hard and fast rule on that aspect. Unchallenged testimony of a tenant in certain cases may be sufficient to rebut the presumption but if the testimony of the tenant itself is inherently unreliable, the position may be different. It is always a question of fact in each case whether there was sufficient evidence from the tenant to discharge the initial burden.

In Meghji Kanji Patel v. Kundanmal Chamanlal Mehtani (supra), summons sent to the defendant by registered post and received back containing the summons with the postal endorsement refused, it was observed that it was for the defendant to satisfy the court that the letter was not tendered to him. Under those circumstances, it was observed that if the plaintiff did not summon the postman, the statement on oath of the defendant remained uncontroverted and the court found it to be a sufficient ground for setting aside the decree.

In this case, the notice sent through registered AD cover and under postal certificate was never received back by the respondent and therefore, bald statement of DW-1, Sanjeev Goel that notice was not received, without examination of the postman, if he had or not delivered the registered cover at the address stated on the envelope, was rightly not accepted by the trial court and the appellate court.

Appellants have failed to produce any medical record to prove that Banarsi Dass Goel was admitted in the hospital at the time when the notice of termination of tenancy was likely to be served upon him. Respondent as PW-1 in his cross-examination, when asked, stated that deceased Banarsi Dass Goel suffered paralytic attack in April, 1985. Whether the notice was delivered to the addressee or not is a question of fact which was required to be determined by the courts below and on assessment of evidence of the parties placed on record, oral as well as documentary, while discarding the bald statement of DW-1, Sanjeev Goel, it was rightly held that the notice was duly delivered to the addressee. Under these circumstances, this judgment is of no help to the appellants.

In M/s. Madan and Co. v. Wazir Jaivir Chand (supra) where a notice was sent by the landlord through registered post, on correct address and the letter was returned back for non-availability of the addressee, it was observed that there was no responsibility on the sender or postman to arrange that notice is served. It was held by the Supreme Court:

We are of opinion that the conclusion arrived at by the Courts below is correct and should be upheld. It is true that the proviso to Cl. (i) of S. 11(1) and the proviso to S. 12(3) are intended for the protection of the tenant Nevertheless it will be easy to see that too strict and literal a compliance of their language would be impractical and unworkable. The proviso insists that before any amount of rent can be said to be in arrears, a notice has to be served through post. All that a landlord can do to comply with this provision is to post a prepaid registered letter (acknowledgement due or otherwise) containing the tenant''s correct address. Once he does this and the letter is delivered to the post office, he has no control over it. It is then presumed to have been delivered to the addressee under S. 27 of the General Clauses Act. Under the rules of the post office, the letter is to be delivered to the addressee or a person authorised by him. Such a person may either accept the letter or decline to accept it. In either case, there is no difficulty, for the acceptance or refusal can be treated as a service on, and receipt by, the addressee. The difficulty is where the postman calls at the address mentioned and is unable to contact the addressee or a person authorised to receive the letter. All that he can then do is to return it to the sender. The Indian Post Office Rules do not prescribe any detailed procedure regarding the delivery of such registered letters. When the postman is unable to deliver it on his first visit, the general practice is for the postman to attempt to deliver it on the next one or two days also before returning it to the sender. However, he has neither the power nor the time to make enquiries regarding the whereabouts of the addressee; he is not expected to detain the letter until the addressee chooses to return and accept it; and he is not authorised to affix the letter on the premises because of the assessee''s absence. His responsibilities cannot, therefore, be equated to those of a process server entrusted with the responsibilities of serving the summons of a Court under Order V of the C.P.C. the statutory provision has to be interpreted in the context of this difficulty and in the light of the very limited role that the post office can play in such a task. If we interpret the provision as requiring that the letter must have been actually delivered to the addressee, we would be virtually rendering it a dead letter. The letter cannot be served where, as in this case, the tenant is away from the premises for some considerable time. Also, as addressee can easily avoid receiving the letter addressed to him without specifically refusing to receive it. He can so manipulate matters that it gets returned to the sender with vague endorsements such as "not found", "not in station", "addressee has left" and so on. It is suggested that a landlord, knowing that the tenant is away from station for some reasons, could go through the motions of posting a letter to him which he knows will not be served. Such a possibility cannot be excluded. But, as against this, if a registered letter addressed to a person at his residential address does not get served in the normal course and is returned, it can only be attributed to the addressee''s own conduct. If he is staying in the premises, there is no reason why it should not be served on him. If he is compelled to be away for some time, all that he has to do is to leave necessary instructions with the postal authorities either to detain the letters addressed to him for some time until he returns or to forward them to the address where he has gone, or to deliver them to some other person authorised by him. In this situation, we have to chose the more reasonable, effective, equitable and practical interpretation, we think, will fit the situation as it is simply not possible for a landlord to ensure that a registered letter sent by him gets served on, or is received by, the tenant,

In C.C. Alavi Haji v. Palapetty Muhammed & Anr. (supra) where receipt of notice issued u/s 138 of the Negotiable Instruments Act was disputed, the Supreme Court observed:

It is thus, trite to say that where the payee dispatches the notice by registered post with correct address of the drawer of the cheque, the principle incorporated in Section 27 of the G.C. Act would be attracted; the requirement of Clause (b) of proviso to Section 138 of the Act stands complied with and cause of action to file a complaint arises on the expiry of the period prescribed in Clause (c) of the said proviso for payment by the drawer of the cheque. Nevertheless, it would be without prejudice to the right of the drawer to show that he had no knowledge that the notice was brought to his address.

As discussed above, notice sent under certificate of posting is presumed to have been served and tenant''s denial has no value unless he proves some extraordinary happening which prevented the following of usual course of business.

The appellants should have produced some other evidence to show that the usual course of post was interrupted by disturbances. It was for the appellants to prove other circumstances, to satisfy the court that the notice never reached the addressee. Mere denial by the appellants of the receipt of notice does not demolish the presumption of fact of the service of notice sent by post on their father, Banarsi Dass Goel during his life time. True that, this presumption is rebuttable. However as discussed above, the appellants have failed to rebut the strong presumption of the notice having been delivered in the ordinary course of post to Banarsi Dass Goel.

The facts of the present case, when tested on the principles of service of notice, on the threshold of the provisions of Section 27 of the General Clauses Act and Section 114 of the Indian Evidence Act, in the light of the interpretations made by the Apex Court in various judgments as above, clearly prove that respondent had successfully discharged the onus of proving that the notice terminating the tenancy of Banarsi Dass Goel was sent in accordance with the provisions of law.

Question of Law - 2

The quantum of mesne profits awarded by the trial court and upheld by the appellate court have been challenged by the appellants on the ground that the same is based on no evidence.

Mr. Sethi, learned senior counsel, for the appellants submitted that the building is 50 years old. No evidence has been produced by the respondent regarding prevalent rate of rent in the locality at the relevant time. The court, therefore, erred in fixing mesne profits/damages @ Rs. 10,000/- per month from the date of filing of the suit, without holding any inquiry under Order 20 Rule 12 CPC and therefore, the judgment and decree of the courts below suffers from infirmities apparent on the face of the record. He has referred to Hari Singh (Deceased) (Through LRs) Vs. S.S. Jogi Etc. to support his submissions.

Mr. B.B. Gupta, learned counsel for the respondent, countered the submissions of the learned senior counsel for the appellants and submitted that appellants did not cross-examine the respondent on the quantum of mesne profits claimed by him nor suggested any prevalent rate of rent in the locality at the relevant time. Therefore, under the circumstances, the trial court rightly considered the statement of the respondent while awarding mesne profits/damages to the respondent.

Brij Mohan Goel, PW-1 is the only witness who has deposed on the prevalent rate of rent. He has deposed that the premises in suit, on the date of his examination in June 2002 could fetch rent of Rs. 15,000/- per month. Significantly appellants did not choose to suggest to this witness any other rate of rent which according to them was prevalent in the locality. The only suggestion to the witness was that the premises in suit could not fetch Rs. 15,000/- if rented out to any other person. Respondent at one stage of the cross-examination has said that his neighbour of House No. 61/10 had rented out his premises @ Rs. 15,000/- per month whereas DW-1 Sanjeev Goel one of the appellants in his affidavit has stated the premises in suit could not fetch more than Rs. 1,000/- therefore, the findings of both the courts below as regards mesne profits is based on no evidence.

Since the suit was filed ten years back, it would add to the agony which the parties to the appeal are facing, if the case is remanded back for determination of mesne profits by holding an enquiry under Order 20 Rule 12(ba), c(i) of CPC, it is just and proper that instead of remanding back the case for holding an inquiry, this Court in exercise of its inherent jurisdiction, fix the quantum of mesne profits/damages which should be awarded to the respondent keeping in mind the circumstances of the case. It is not disputed that demised premises are more than 50 years old. The fact remains they are situated in Karol Bagh, i.e. in the heart of the city, in a fully commercialised area though they are residential premises. The demised premises consist of four rooms, kitchen, latrine, bath etc. These premises were let out to Banarasi Dass Goel in the year 1960 on a monthly rent of Rs. 180/- Over the years, the rate of rent in Karol Bagh area has increased tremendously. The property in suit has the address of W.E.A. Ramjas Road, which is one of the prime areas of Karol Bagh. Hence, the respondent is awarded mesne profits/damages @ Rs. 7,000/-.

In view of my discussion as above, appeal is partly allowed. The judgment and decree of the trial court and that of the appellate court as regards possession of the demised premises is maintained and the appeal is dismissed. Appellants are directed to hand over the vacant possession of the demised premises within three months from the date of the order. The judgment and decree of the courts below as regards mesne profits is hereby modified. The appellants shall pay mesne profits/damages @ Rs. 7,000/- to the respondent from 1.4.1999 till the filing of the suit and thereafter from the date of institution of the suit till the vacant possession of the suit premises is handed over to the respondent.

Under the circumstances of this case, there are no orders as to cost. Lower court record be sent back forthwith.