Regular Second Appeal No. 4139 of 2010 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 4139 of 2010 Date of decision : November 08, 2010 Gurjeet Singh ....Appellant versus Major Bhim Sain Mehta (Retd.) ....Respondent Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Rahul Sharma, Advocate, for the appellant L.N. Mittal, J. (Oral) Defendant Gurjeet Singh having substantially failed in both the courts below is in second appeal. Respondent Major Bhim Sain Mehta (Retd.) filed suit against defendant-appellant alleging that he has purchased the disputed flat in Mansa Devi Complex, Panchkula from its erstwhile owner Brig. M.S. Rana vide registered sale deed dated 2.5.2005. The defendant was occupying the said house as tenant since the year 1997. Agreed rent initially was ` 2800/- per month which was subsequently increased to ` 3900/- per month. The defendant had not paid rent to the previous landlord Mr. Rana with effect from 1.9.2004 and has also not paid rent to the plaintiff with effect from 2.5.2005. The plaintiff has been authorised by Mr. Rana to collect the rent Regular Second Appeal No. 4139 of 2010 -2- from the defendant since 1.9.2004 onwards. The disputed flat was allotted to Mr. Rana by the Army Welfare Housing Organization vide allotment letter dated 8.2.1996. Haryana Urban Development Authority (HUDA) issued occupation certificate to the Socieity on 2.4.1996. Since the suit was being filed within ten years thereof, provisions of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (in short the Act) were not applicable. Defendant's tenancy was terminated by serving notice dated 25.7.2005 by registered AD post as well as under postal certificate. Notice sent under postal certificate is presumed to have been delivered whereas notice sent by registered post was received with endorsement of postal authorities that addressee did not accept the same despite repeated information given to him and therefore, the same is also deemed to have been served. However, in spite of termination of defendant's tenancy, defendant did not vacate the flat nor paid the arrears of rent. Accordingly, the plaintiff claimed possession of the flat by ejectment of defendant therefrom and also claimed recovery of ` 48,000/- as rent/mesne profits with effect from 1.9.2004 till 31.8.2005 and also claimed further mesne profits at the rate of ` 7000/- per month. The defendant in the original written statement denied the relationship of landlord and tenant but in the amended written statement admitted the same. The defendant, however, denied the rate of rent pleaded by the plaintiff. The defendant alleged that agreed rate of rent was ` 1500/- per month which was increased to ` 2000/- per month. The defendant had been regularly paying rent to the previous owner Mr. Rana at the rate of ` 2000/- per month. The plaintiff cannot claim arrears of rent Regular Second Appeal No. 4139 of 2010 -3- prior to sale deed dated 2.5.2005. The defendant denied receipt of notice of termination of his tenancy. Various other pleas were also raised. Learned Civil Judge (Junior Division), Panchkula vide judgment and decree dated 29.1.2010 decreed the plaintiff's suit for possession as well as for arrears of rent at the rate of ` 3900/- per month since May, 2005 till termination of tenancy i.e. 25.7.2005 and mesne profits @ ` 7000/- per month from August, 2005 till handing over the vacant possession of the demised premises of the plaintiff along with interest @ 9% per annum. In first appeal preferred by defendant, learned Additional District Judge, Panchkula vide judgment and decree dated 3.9.2010 while maintaining the trial court's decree for possession by ejectment of the defendant from the disputed flat modified the trial court's decree regarding rate of rent and mesne profits and granted the arrears of rent to the plaintiff @ ` 2000/- per month since May, 2005 till 25.7.2005 the date of termination of tenancy and mesne profits @ ` 5000/- per month since August, 2005 onwards along with interest @ 9% per annum. Feeling aggrieved, the defendant has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Learned counsel for the appellant vehemently contended that notice of termination of tenancy was not served on the defendant and therefore, the plaintiff's suit for possession by ejectment of defendant could not be decreed. It was contended that the defendant stepped into witness box and denied receipt of any such notice whereas the plaintiff has not examined the concerned postman as witness to prove service of the notice Regular Second Appeal No. 4139 of 2010 -4- on the defendant. Reliance has been placed on judgment of Hon'ble Supreme Court in Anil Kumar versus Nanak Chandra Verma, 1990(3) SCC 603 and judgment of Delhi High Court in Jagat Ram Khullar and Anr. Versus Battu Mal, 1976 RCR (Civil) 151. I have carefully considered the aforesaid contentions but find myself unable to accept the same. The plaintiff sent notice of termination of tenancy to the defendant at correct address by registered post as well as under postal certificate. The plaintiff could not have done anything more to serve the notice of termination of tenancy on the defendant. The notice sent under postal certificate was not received back and is, therefore, deemed to have been served. Even notice sent by registered post was received back with endorsement of postal authorities that the addressee was not accepting the same despite repeated information given to him. Consequently, notice sent by registered post is also deemed to have been served. In this conclusion, I find support from judgment of Hon'ble Supreme Court in State of Madhya Pradesh versus Hira Lal, 1996(7) SCC 523. In these circumstances, examination of postman as witness by the plaintiff was not required. It is not a case of postal endorsement that the defendant refused to accept the notice. On the contrary, the postman repeatedly visited the addressee and gave information about the registered letter but nevertheless the same was not accepted. Even in the case of Anil Kumar (supra), the tenant had stepped into witness box and the postman had not been examined as witness but nevertheless the notice was held proved to have been served on the tenant. Even otherwise as fairly submitted by learned counsel for the appellant, it has to be seen on the facts and circumstances of each case Regular Second Appeal No. 4139 of 2010 -5- whether the notice has been served or not where the postal endorsement is regarding refusal. In the instant case, the notice is proved to have been served because it was served under postal certificate and also sent by registered AD post. Both the courts below have also analyzed the evidence and come to concurrent finding that the notice is proved to have been served. The said finding is supported by cogent reasons and is not shown to be perverse or illegal so as to warrant interference in the second appeal. Learned counsel for the appellant next contended that the plaintiff had not executed vakaltnama in favour of counsel who sent the notice of termination of tenancy as vakaltnama on the suit file is dated 1.9.2005 whereas the notice is dated 25.7.2005. The contention although apparently attractive is again devoid of substance. Vakaltnama dated 1.9.2005 referred to by learned counsel for the appellant was executed by the plaintiff-respondent for filing suit and not for service of notice of termination of tenancy. No such question was raised by defendant either in written statement or during cross-examination of the plaintiff so as to require the plaintiff to depict that he had authorised the counsel to send the notice of termination of tenancy. Even otherwise the very fact that the notice was served by the counsel under instructions and authority of the plaintiff as mentioned in notice itself and the same stand taken by the plaintiff himself would be sufficient to hold that the notice was sent under the authority of the plaintiff. Learned counsel for the appellant half-heartedly submitted that rate of mesne profits allowed by the lower appellate court is still excessive. Regular Second Appeal No. 4139 of 2010 -6- This submission is also unacceptable because prevailing rent in Mansa Devi Complex, Panchkula during the relevant period for independent flat was much higher than ` 5000/- per month granted by the lower appellate court. For the reasons aforesaid, I find no merit in the instant second appeal. No question of law much less substantial question of law arises for determination in the instant second appeal. Accordingly, the appeal is dismissed in limine. ( L.N. Mittal ) November 08, 2010 Judge 'dalbir'