SMT. KAILASHWANTI Vs. FAZAL MOBEEN

JUDGEMENT

(1.) This second appeal under Section 39 of the Delhi Rent Control Act, 59 of 1958 (hereinafter referred to as 'the Act'), has been filed by Kailash Wanti and Satish Chandra, respectively widow and son of Sardari Lal against the appellate order of Mr. M.L. Jain, Rent Control Tribunal dated 11th August, 1969 by which he had dismissed the appeal and affirmed the order of Mr. D.C. Aggarwal, Additional Controller, dated 12th September, 1968, finally ordering eviction of the appellants on the grounds of non-payment of rent and having committed second default in payment of rent according to law.

(2.) The material facts of the case are that half portion of the permises in dispute situated in No. 4 Club Road, Civil Lines, Delhi, was let out to Sardari Lal on or about 22nd July, 1961 on a rent of Rs. 140.75 per month. The petition giving rise to the present appeal was filed on 8th January, 1968, on the allegations that the appellants had not paid arrears of rent for the period from 1st September, 1966 to 31st July, 1967 in spite of notice of demand dated 31st July, 1967 (Ex. A2), which had been served on them and that the appellant tenants were liable to eviction and could not reap the benefit of Sub-section (2) of Section 14 of Act since in a previous petition No. 194/66) Ex. A3 which had been instituted on 1st June, 1966, on the ground of non-payment of rent, the appellants had complied with the order of the court passed under Section 15(1) of the Act and the petition had been dismissed in view of the said compliance under Sub-section (2) of Section 14 of the Act by order dated 19th September, 1966. This order followed the statement of counsel for the landlord (Ex. A5). According to the contention of the respondent landlord the aforesaid proceedings constituted the first benefit under Sub-section (2) of Section 14 of the Act and so under the proviso to the said Sub-section the appellant tenants were not entitled to any further benefit to escape eviction. The respondent, therefore, prayed that the appellants be evicted on the ground mentioned in clause (a) of the proviso to Sub-section (1) of Section 14 of the Act. The defence of the appellant tenants was manifold and a number of preliminary objections had been taken. The one that still survives for decision is contained in paragraph 8 of the petition, that the petition was bad for non-joinder of parties, as Nero daughter of Sardari Lal had not been impleaded as a necessary party. On the merits of the case, the tenants contend that paragraphs 1 to 7 and 9 to 13 needed no reply and denied knowledge of paragraph 14 and also prayed for fixation of standard rent at Rs. 75 per month. On the merits of the case the defence which had been specially urged and pressed is that no valid or legal notice terminating contractual tenancy of the tenants had been served in accordance with Section 106 of the Transfer of Property Act. A replication to the written statement was filed on behalf of the landlord. The oral evidence of the parties consists only of the statement of the attorney of the landlord examined as AWI and the statement of Kailash Wati, tenant appellant No. 1. The Additional Controller repelled the pleas of the tenant appellants and found the grounds of eviction mentioned in clause (a) of the proviso to Sub-section (1) of Section 14 of the Act had been established and the tenants were liable to eviction and that in view of their having obtained the benefit in the earlier proceedings, they were not entitled to obtain the benefit again in view of the proviso to Sub section (2) of Section 14 of the Act. He, therefore, passed an order for eviction. Feeling aggrieved, the appellants before me filed an appeal under Section 38 of the Act before the Rent Control Tribunal. The Tribunal affirmed the findings of the Additional Controller. The main point that was agitated before the Tribunal was that there was no relationship of landlord and tenant between the parties and the other legal representatives of Sardari Lal, deceased, were also tenants who had inherited the contractual tenancy from the deceased and in their absence the petition for eviction could not succeed. The other point raised was that the notice of termination of the tenancy had not been validly served and the address given on the envelope was wrong. At this stage, it may be mentioned that the notice demanding arrears of rent (Ex. A) had been duly served on the appellants and the same has not been disputed. The Rent Control Tribunal came to the conclusion that the appellants herein were the tenants and it was not necessary to implead the other parties. Furthermore, this question stood barred by the rule of res judicata in view of the decision in the previous petition for eviction. The Tribunal further came to the conclusion that the notice had been properly tendered to the appellants at the correct address and the presumption of law regarding valid service had not been rebutted. The Tribunal also observed that assuming that the notice had not been served the tenancy being prior to the enforcement of the Transfer of Property Act as applied to Delhi, was not governed by the technical rule of Section 106 of the said Act and so institution of the petition itself constituted sufficient notice to the appellants. It further found that the appellant tenants had admittedly not paid the arrears of rent for the period from 1st September, 1966 to 31st July, 1967 and so they were liable to eviction. With these observations, the Tribunal dismissed the appeal.

(3.) Mr. N.R. Suri, learned counsel for the appellants, has in support of the appeal, raised three contentions, viz. (1) the notice terminating the tenancy (Ex A9) has not been properly served on the appellant tenants and the presumption of law of sufficiency of service has been wrongly drawn by the authorities below, since the address on the envelopes was not correct and in the absence of notice of termination of tenancy the petition is invalid; (2) that on the death of Sardari Lal, his legal representatives, who admittedly included some daughters who are not parties to the proceedings had also inherited the contractual tenancy and their contractual tenancy had not been terminated and so in the absence of necessary parties neither the tenancy had been terminated nor was the petition for eviction maintainable; and (3) that the appellants had led evidence of oral tender of rent to the respondent landlord, but the same has been wrongly disbelieved by both the authorities below.