Research › Search › Judgment

Rajasthan High Court · body

2017 DIGILAW 1212 (RAJ)

Ramkishore Meena v. Mandir Srigirdhariji Trust

2017-05-11

ALOK SHARMA

body2017
JUDGMENT ORDER Alok Sharma, J. - The Rent Tribunal Jaipur Metropolitan City, Jaipur (hereinafter ''the Tribunal'') issued a certificate of possession for the respondent landlord (hereinafter ''the landlord'') under its ex-parte judgment dated 13-10-2008 and a corresponding order of eviction against the petitioner-tenant (hereinafter ''the tenant'') finding a case of default under Section 9(a) of the Rajasthan Rent Control Act, 2001 (hereinafter ''the Act of 2001'') made out. The tenant appealed under Section 19 of the Act of 2001. It was dismissed on 7-11-2014. Almost inevitably this petition under Article 227 of the Constitution of India praying that both the judgment of the Tribunal and affirming one of the Appellate Tribunal be quashed and set aside. 2. Relevant facts are that on 16-7-2007 the landlord filed an application under Sections 6 and 9 of the Act of 2001 before the Tribunal inter alia praying for revision of rent as also direction for eviction of the tenant on the ground of default. His case was that the tenant commencing November, 1999 was in arrears of rent. In the circumstance registered notice (AD) dated 28-6-2003 under the hand of the landlord''s counsel, for payment of arrears of rent but confined for reason of limitation for the period of three years commencing June 2001 to May, 2004 aggregating to Rs. 4140/- was sent requiring the tenant to deposit arrears of rent in the landlord''s account disclosed therein. The registered AD notice was however returned with the postman''s endorsement that despite repeated visits to the address none was found in the tenanted premises. A legal notice for payment of arrears Under Postal Certificate (UPC) was also sent on 26-8-2003, but not returned undelivered. The tenant continued to remain in arrears of rent. He was thus a defaulter on payment of rent within the meaning of Section 9(a) of the Act of 2001 and hence liable to be evicted and the landlord put in possession of the tenanted premises. 3. On notice on the eviction petition despite service none appeared on behalf of the tenant. Proceedings were thereupon taken ex-parte against the tenant on or about 2911-2007. The landlord Devendar Kumar Sharma examined himself in support of the eviction petition, and exhibited nine documents. On the uncontroverted evidence of the landlord, with tenant being ex-parte, the rent of the tenanted premises was revised under Section 6 of the Act of 2001 to Rs. Proceedings were thereupon taken ex-parte against the tenant on or about 2911-2007. The landlord Devendar Kumar Sharma examined himself in support of the eviction petition, and exhibited nine documents. On the uncontroverted evidence of the landlord, with tenant being ex-parte, the rent of the tenanted premises was revised under Section 6 of the Act of 2001 to Rs. 157/- effective 1-4-2003. Further, the Tribunal found that the tenant was in default on payment of rent for over a period of four months and the said arrears of rent had not been paid within 30 days of the deemed service of the registered AD notice dated 28-6-2003 under section 27 of the General Clauses Act, 1897 disclosing the bank account of the landlord. In the circumstances, the tenant was held by the Tribunal''s judgment dated 13-10-2008 to be a defaulter on payment of due rent and hence liable to be evicted and the landlord to be put in possession. 4. Aggrieved the tenant appealed before the Appellate Tribunal. His case in the appeal as evident from the memorandum of appeal was quite convoluted asserting on the one hand that he had no knowledge of the filing of the eviction petition before the Tribunal, and yet on the other in para 8 of his appeal asserting that summons on the eviction petition were not accompanied with the petition and documents in support thereof, entailing the service to be no service in the eye of law. The memorandum of appeal further stated that subsequent to the receipt of summons, the tenant approached the landlord who assured him not to worry about the summons on the eviction petition based on default in view of the fact that the amount of Rs. 4140/- claimed as due rent for the period June, 2001 to May, 2004 would be adjusted against a sum of Rs. 4500/- allegedly due from the landlord to the tenant for having constructed, on the landlord''s directions, a boundary wall around the tenanted premises. It was stated in the memorandum of appeal that however, suddenly on November 11, 2008 the landlord required vacation of the tenanted premises in view of the certificate of possession issued by the Rent Tribunal under its judgment dated 13-10-2008. It was stated in the memorandum of appeal that however, suddenly on November 11, 2008 the landlord required vacation of the tenanted premises in view of the certificate of possession issued by the Rent Tribunal under its judgment dated 13-10-2008. According to the memorandum of appeal on the very same day, the tenant obtained a copy of the Rent Tribunal''s judgment dated 13-10-2008 and filed an appeal within limitation as provided under Section 19 of the Act of 2001, reckoned from the date of knowledge. Revision of rent as directed by the Tribunal was also impugned asserting the commencement of tenancy in 1974 and not 1984, on which the Tribunal had proceeded under Section 6 of the Act of 2001. 5. The Appellate Tribunal on considering the appeal, from the evidence on record, however concluded that the uncontroverted evidence of the landlord established that the tenanted premises was let out commencing 31-10-1984 at the rate of Rs. 50/- per month. Based on the aforesaid date of commencement of tenancy the rent was rightly revised to Rs. 157/- per month effective 1-4-2003, with further yearly increase of rent at the rate of 5% as statutorily provided for, held the Appellate Tribunal. In respect of the tenant having defaulted on payment of due rent for over a period of four months, despite the landlord''s registered AD notice, and liable to be evicted under Section 9(a) of the Act of 2001, the Appellate Tribunal held that the ground of default was made out from the documentary evidence on record particularly a registered AD notice (Ex.5) demanding payment of arrears of rent having been avoided by the tenant (Ex.8) for which reason he was deemed to be served the notice. And yet thereafter the tenant continued to remain in default over a period of thirty days the Rent Tribunal found. Consequently, the Tribunal''s judgment dated 13-10-2008 was affirmed. Hence this petition. 6. Mr. R.D. Meena, counsel for the tenant has submitted that the Tribunal had wrongly initiated ex-parte proceedings against the tenant, despite the summons on eviction petition not being served in accordance with law. He submitted that consequently the judgment of the Tribunal and the affirming judgment of the Appellate Tribunal are liable to be quashed and set aside. Mr. 6. Mr. R.D. Meena, counsel for the tenant has submitted that the Tribunal had wrongly initiated ex-parte proceedings against the tenant, despite the summons on eviction petition not being served in accordance with law. He submitted that consequently the judgment of the Tribunal and the affirming judgment of the Appellate Tribunal are liable to be quashed and set aside. Mr. R.D. Meena further submitted that in any event the landlord, even in the ex-parte proceedings before the Tribunal, was not able to make out a case of default against the tenant under Section 9(a) of the Act of 2001. It was submitted that the purported registered AD notice 28-6-2003 was never received by the tenant, consequent to which an essential ingredient for making out a case of default under Section 9(a) of the Act of 2001 was not made out. He submitted that no case of default in terms of Section 9(a) of the Act of 2001 thus made out, therefore the order of eviction against the tenant and corresponding certificate of possession in favour of the landlord under the impugned judgment dated 13-10-2008 and the affirming judgment dated 7- 11-2014 are liable to be quashed and set aside. 7. Mr. Keshav Agrawal, counsel for the landlord has supported the impugned judgments passed by the Tribunal and Appellate Tribunal. 8. Heard. Considered. 9. The entire case set up by the tenant is absolutely untenable. A bare look at the tenant''s memo of appeal before the Appellate Tribunal evidences that the tenant did receive the summons on eviction petition, as he only alleged that summons were not properly served for not being accompanied with the eviction petition and documents in support thereof. The tenant thus having admitted to the receipt of summons on the eviction petition, alleged irregularity in the manner of service was of no avail to escape the ex-parte proceedings resulting from non appearance and resultant certificate of possession to the landlord and order of the tenant''s eviction. It was for the tenant to contest the eviction petition after service of summons of the eviction petition on him and require the Tribunal to ensure service of the copy of the eviction petition and supporting documents allegedly not received by him. This he did not do. Ex-parte proceedings were thus rightly drawn against the tenant by the Tribunal. It was for the tenant to contest the eviction petition after service of summons of the eviction petition on him and require the Tribunal to ensure service of the copy of the eviction petition and supporting documents allegedly not received by him. This he did not do. Ex-parte proceedings were thus rightly drawn against the tenant by the Tribunal. The tenant''s continued absence after the ex-parte proceedings entailed an eviction order against him and certificate of possession for the landlord on his uncontroverted oral and documentary evidence. 10. As far as the ground of default, allegedly not being made out from the landlord''s evidence for reason of non receipt of the landlord''s registered AD notice dated 28-6-2003 by the tenant is concerned, I am of the considered view the submission of counsel for the tenant on this count is vacuous and untenable, without reference to the facts on record. The deemed service of registered AD notice (Ex.6) by the tenant was duly proved before the Tribunal from the postman''s endorsement, on the registered AD notice to the tenant, that despite several attempts he was not found on the address. The AD notice (Ex.6) was then returned to the sender i.e. the landlord. The Apex Court in the case of State of M.P. vs. Hiralal [ (1996) 7 SCC 523 ] has held that where a registered notice is returned with the postal remarks "not available in the house", "house locked" and "shop closed" respectively, it must be deemed to have been served on the addressee. In the circumstances, the return of registered AD notice dated 28-6-2003 to the landlord, with the postman''s endorsement of the addressee not being available/found at the address despite several visits, tantamounted to deemed service. The presumption under section 27 of the General Clauses Act, 1897 is a special presumption. The burden to displace it by positive evidence is on the addressee. This the tenant as the addressee of the registered AD notice dated 28-6-2003 did not do. Service of registered notice on the tenant to pay arrears of rent by deposit in the landlord''s bank account disclosed was thus to be deemed in law. The burden to displace it by positive evidence is on the addressee. This the tenant as the addressee of the registered AD notice dated 28-6-2003 did not do. Service of registered notice on the tenant to pay arrears of rent by deposit in the landlord''s bank account disclosed was thus to be deemed in law. The tenant thereafter failed to deposit the arrears of rent for the period June, 2001 to May, 2004 within 30 days and was thus in default in payment of due rent, for over four months within the meaning under section 9(a) of the Act of 2001. The Tribunal and the Appellate Tribunal by the affirming judgment have rightly held that the tenant was liable to be evicted on the ground of default. 11. In the circumstances, I cannot find any good ground within the scope of Article 227 of the Constitution of India and even otherwise to interfere with the impugned judgments passed by the Tribunal as also the Appellate Tribunal. 12. The petition is without force. Dismissed.