Judgment:
Usha Mehra, J.
(1) APPELLANTS' main grievance against the impugned order is that the learned Courts below ignored the fact that there never existed any relationship of landlord and tenant between the appellant No.1 and the respondent. In fact appellants No.2 and 3 partners of appellant No.1 were the tenant of the premises bearing No.249, Village Khureji Khas, New Delhi. Moreover, the respondent never served any valid notice of demand. In the absence of any valid notice of demand having been served on the tenant the petition was not maintainable. Even otherwise in the earlier petition which disposed of the application under Section 15(1) of Delhi Rent Control Act (in short the Act) no benefit under Section 14(2) of the Act was given. The learned Additional Rent Controller (in short the ARC) as well as the Rent Control Tribunal (in short the Tribunal) fell in error in drawing presumption that the respondent served the appellants with a notice of demand. Such a presumption in the facts of this case was bad in law. The registered Ad notices remained unserved. Notices sent under Certificate of posting were defective because name of appellant's father was not correctly mentioned. This vital defect in the notices sent under Upc has been ignored by the Courts below. Moreover, learned Arc as well as Tribunal erroneously drew presumption of service of notice of demand on the basis of notices posted under Certificate of Posting.
(2) In order to appreciate the challenge, the brief facts of the case as put up in the petition of eviction are that the respondent landlord/ owner of premises No.249, Village Khureji Khas, New Delhi inducted appellant No.1 M/s Prince Industries as tenant in which Hashmat All Khan and Rafat Ali Khan i.e. appellants No.2 and 3 an, partners. The premises was let out for commercial purpose in the year 1970, on a monthly rent of Rs.l25.00 . The respondent sought eviction against the appellant No.1 and imp leaded appellants No.2 and 3 being partners of appellant No.l, on the ground of non-payment of rent and committing second default in paying rent. Prior to the institution of this petition, the respondent filed a petition which was listed as Suit No-272/78. In that petition the learned Arc vide order dated 3rd April,1979 passed an order under Section 15(1) of the Act thereby directing the appellant No.1 through its partners appellants No.2 and 3, to pay or deposit the arrears of rent w.e.f. 1st January, 1979 uptill that dale within one month with further direction that the amount already deposited be adjusted. The protection under Section 14(2) of the Act was, however, specifically not mentioned. When the appellant inspire of the order in petition No.272/78 did not pay rent and committed second default, he sought eviction against the appellant. It was the ease of the respondent that appellant had neither paid nor tendered the rent since 1st March,1980 despite notice of demand dated 16th April,1980. it was specifically pleaded that appellant No.1 M/s Prince Industries was the tenant and that for the purpose of service of summons the partners were imp leaded as parties. The appellants look the plea that rent w.e.f. 1st March,1980 uptill 31st July, 1980 amounting to Rs.625.00 had already been paid. That notice of demand was never served. On the basis of the material available on record the learned Arc passed the decree of eviction vide his order dated 23rd September,1981. The appellants preferred appeal against the said order. The learned Tribunal vide order dated 1st Octobcr,1982 dismissed the appeal thereby granting one month's lime to the appellants to vacate the premises.
(3) In this second appeal, the order of the Tribunal as already pointed above has been assailed primarily on two counts, namely, (i) whether appellants No.2 and 3 being partners were the tenant and not the firm i.e. appellant No.1; and (ii) whether notice of demand was validly served and if not, could a decree of eviction be passed?
(4) In order to answer the first question, we must know as to who is a 'tenant'. The word 'tenant' has been defined under Section 2(L) of the Act, to be a person who is bound in law to pay the rent. In the case in hand, tenancy was created for commercial purpose. The rent had been paid by appellant No.1 i.e. the firm through its partner. The appellants were at ad-idem with regard to the relationship of landlord and tenant. It was known that firm was inducted as tenant for running its business and thus the rent was to be paid by the firm. Thus the landlord transferred the interest in the property to the firm i.e. appellant No.l. To my mind, there existed relationship of landlord and tenant between appellant No.1 and the respondent. To arrive at this conclusion we can fall back on the facts which were proved on record. For example in para 19 of the eviction petition it was specifically pleaded by the respondent herein that M/s Prince Industries was inducted as tenant. That S/Shri Hashmat Ali Khan and Raft Ali Khan appellants No.2 and 3 being partners of appellant No.1 were implicated as parties only for the purpose of service. Prior to filing of this eviction petition, the respondent herein had filed a petition in which order under Section 15(1) of the Act was passed. The reading of that order of the learned Arc show that Court accepted appellant No.1 to be the tenant and hence passed the order under Section 15(1) against it. Similarly, in a civil suit Filed by the respondent herein seeking declaration he pleaded in that suit that appellant No.1 herein was the tenant. In defense the appellants No.2 and 3 never denied this plea and assertion of the landlord that actually the tenant was the Firm. In the written statement Filed in that civil suit these appellants No.2 and 3 never look the plea that they were the tenants and not the Firm. AW-1 Shri Said-ud-din, Attorney of respondent appearing for the respondent testified that appellant No.1 was inducted as tenant in the premises in question. Appellants No.2 and 3 were never acknowledged as tenants. He proved the contents of the pleadings of the civil suit Filed by the respondent and the decision of the civil Court which held the firm to be the tenant. The said judgment of the Civil Court was proved on record as Exhibit AW.1/12. Further deposition of Mr.Said-ud-din show that partnership firm was the tenant. Partnership Firm has a legal entity but being a civil suit partners had to be implicated as partics. In the suit it was clearly mentioned that S/Shri Hashmal Ali Khan and Rafat Ali Khan being partners of the Firm M/s Prince Industries were imp leaded as parties. This part of his testimony was never questioned nor subjected to cross-examination. The only suggestion given to him was that appellants No.2 and 3 being partners of appellant No.1 were also tenants. This suggestion was denied by AW-1 Shri Said-ud-din. The appellants No.2 and 3 never put their case to AW-1 in cross-examination. Mr.Shukla appearing for the respondent rightly contended that since appellants never put their case to the respondent hence they arc now estopped from challenging the observation of the Trial Court. That apart even Exhibit AW.1/1O shows that partnership firm was treated by the Court to be the tenant. This finding was never challenged by the appellants. So far as the receipts exhibit RW.3/A-1 and RW.3/A-2 are concerned, those have been explained by Mr.Shukla. According to him some time the receipts were issued in the name of the person who brought the rent under the impression that he was partner. But the fact remains that rent was always paid by the partnership firm. To illustrate his point he drew the attention of this Court to the contents of Exhibit RW.3/A-1 and A-2. In Exhibit RW.3/A-1 names of both the partners were mentioned whereas in Exhibit RW.3/A-2 only name of Hashmat Ali Khan has been mentioned. This shows that being partners at limes their name was shown in the receipt but tenant always remained M/s Prince Industries. To support his contention further Mr.Shukla relied on the admissions made by the appellants in the previous instituted litigations wherein it had been admitted by the appellants No.2 and 3 that the firm i.e. appellant No.1 was the tenant. The findings on this fact by the Controller as well as the Tribunal after analysing the evidence which had come on record are concurrent. In view of the concurrent finding of facts rendered by both the Courts below, to which finding no fault can be found, I find no reason or ground to interefere with those findings and reappraise the evidence afresh in this Second appeal. It is a well settled principle of law that this Court in second appeal will not go behind the facts which had already been reappraised and revalued by the Controller and the Tribunal simply to rewrite a different order. In support reference can be made to the decision of this Court in the case of Desh Bandhu v. Durga Pershad & ors., wherein it was held that in second appeal Court should not re-appreciate evidence and reverse finding of facts unless perverse or based on no evidence. To the same effect are the observations of this Court in the case of Parkash Chand Jain Vs . Madan Mohan Lal Sri Ram (P) Ltd. & anr., : 25(1984)DLT444 . It was held that if the eviction order is passed on the basis of evidence then no substantial question of law is involved and in such an eventuality the second appeal is not maintainable. In the earlier petition for eviction, the learned Arc vide his order dated 3rd April,1979 clearly observed that the firm was the tenant and, thereforee, gave direction against the appellant through its partners to pay the arrears of rent. This finding operates as estoppel and binding inter se the parties. Hence the finding of fact arrived at by the Courts below on the issue of relationship of landlord and tenant, the same cannot be faulted with nor the evidence in that regard require re-appraisal. I also don't find that the said finding is perverse or not based on evidence. Hence no ground lo interfere with the same.
(5) Turning to the question whether notice of demand was served on the tenant or not, it is established on record that notice sent by registered Ad post dated 16th April,1980 Exhibit AW.I/2 was avoided by the appellant. Copies of that notice were also sent to appellants No.2 arid 3. They too avoided receipt of the same. As per Postal Authority's remark on the envelope despite repeated visits and informations being given to the addressee they did not make themselves available to receive the notice. Hence the notices were returned as undelivered. The notice of demand was simultaneously sent under Certificate of posting because respondent found that the appellants were intentionally avoiding service. This was done in order to ensure that appellants are served with the notice of demand. The notice sent under Upc was proved on record as Exhibit AW.I/9. However, the name of appellants No.2 and 3's father was wrongly mentioned in the Upc as Mushtaq Ahmed. The real name of their father is Shaukat Ali Khan.
(6) That the question which arises for consideration is whether in view of the registered notices having not been served and on the Upc name of the father of appellants No.2 and 3 was wrongly mentioned would it amount to sufficient service? Whether in such circumstances presumption could be drawn under Section 114 of the Indian Evidence Act? Legally presumption cannot be drawn on the basis of notice sent under UPC. But the correct answer of both these questions depend on the facts of this case. Answer to these questions lie more on facts than law. Notice in this case was sent by registered Ad post as well as by UPC. Since the appellants avoided service of notice by registered post hence the notice was sent under UPC. It is in this background we can say that notice sent by Upc must have been served on the appellant No.1. Notice sent under Upc to appellant No.1 was at correct address of the firm, thereforee, the Courts below drew the conclusion that notice sent under Upc had been served on the tenant. So far as sending of copies of notice to the appellants No.2 and 3 under certificate of posting that was only as an abundant precaution. Appellant being legal entity, service on it was a proper service on the tenant. However, appellants No.2 and 3 being partners notice was endorsed to them. Service or no service on them in the facts of this case was not material. Hence wrong mentioning of their father's name had no material bearing on the merits of this case. Notice sent to the firm i.e. the tenant of the premises in question had in fact been correctly sent. It was not received back, thereforee, can be said to have been served on the appellant/tenant. The address given on the Certificate of Posting Exhibit AW.1/9 of the firm i.e. appellant No.1 was the correct address. The posting of this notice at the address had been duly proved. The service of notice under the Upc in these circumstances when registered notice sent was avoided by the tenant had rightly been held to be properly served on the tenant. Though strictly speaking presumption under Section 114 of the Indian Evidence Act as such cannot be drawn on the basis of notice sent under Upc but in the facts of this case as the appellant/tenant avoided service of notice by registered post inspire of information having been given by the postman hence notice sent under certificate of posting at correct address to the tenant and the same having not been received back, thereforee, in the peculiar facts it can be said that appellant/ tenant was served with notice of demand who inspire of service neither paid nor tendered the arrears of rent. It would not be correct on the part of Bawa Shiv Charan Singh to contend that notice of demand had not been served on the tenant or that the Tribunal wrongly concluded that the notice of demand was served. Since the notice was sent by registered post as well as under Upc to the tenant, thereforee, to my mind, the Courts below were not wrong in arriving at a conclusion that notice of demand was served. Hence there was sufficient compliance of the provisions of law. Reliance by Bawa Shiv Charan Singh on the decision of Supreme Court in the case of Gadakh Yashwantrao Kankarrao Vs . E.V. alias Balasaheb Vikhe Patil & ors. : AIR1994SC678 is of no help to him. In that case notice was only sent under Certificate of Posting and not under registered cover. It was in this backdrop the Apex Court observed that no presumption under Section 114 of the Indian Evidence Act can be drawn. The facts of that case are distinguishable. In the case in hand notice to the tenant was sent by registered Ad cover as well as under Upc, hence in the facts of this case the conclusion arrived at by the Courts below docs not require reconsideration.
(7) The contention of Bawa Shiv Charan Singh that the order of the learned Arc dated 3rd April,1979 was only under Section 15(1) of the Act and that in the said order the learned Arc did not give benefit of Section 14(2) of the Act, this argument is devoid of merits. The law as it stands today prohibits passing of a combined order by the learned Arc i.e. under Section 15(1) and 14(l)(a) of the Act. Hence the learned Arc was not required to pass an order of eviction simultaneously. Suffice it was for the learned Arc to pass an order under Section 15(1) and leave it to the appellant to comply with the same within the period prescribed. This Court in the case of Budh Prakash Sethi Vs . Sumitra Devi & ors., : 20(1981)DLT116 held that an order can be passed either under Section 15(1) or 15(b) of the Act and if the same is complied with and other conditions of Section 14(l)(a) of the Act are also proved the tenant is deemed to have enjoyed the benefit under Section 14(2) of the Act. It is not necessary to mention in the order the provision of Rent Act. Such a provision may be determined by reference to its contents. Similarly, in the final order it is not necessary to state that the tenant has enjoyed the benefit under Section 14(2) of the Act. This may also be determined by reading the order as a whole. Reading of the order dated 3rd April,1979 show that benefit under Section 14(2) was given. On this count also I find no merits in the contention of the appellants.
(8) For the reasons slated above, I find no merits in the appeal. Dismissed.