RAJINDER PERSHAD (DEAD) BY LRS. versus SMT. DARSHANA DEVI

Citation: [2001] SUPP. 1 S.C.R. 442 · Decided: 10-08-2001 · Supreme Court of India · Bench: S.S.M. QUADRI, S.N. PHUKAN · Disposal: Dismissed
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Judgment (excerpt)

A 
RAJINDER PERSHAD (DEAD) BY LRS. 
v. 
SMT. DARSHANA DEVI 
AUGUST IO, 200I 
B 
(SYED SHAH MOHAMMED QUADRI AND S.N. PHUKAN, JJ.) 
Evidence Act, 1872 : 
Ss. 138 and 146-Witness-Examination of-Disputed part of 
C statement-To be clarified in cross-examination. 
D 
State of U.P. v. Nahar Singh (dead) and Ors., 11998! 3 SCC 561, relied 
on. 
Rent and Eviction 
Eviction of tenant-Ground being default in payment of rent-Tenant 
refusing to receive demand notice and in court denying service of notice-
Postman examined-Rent Controller recorded a finding that tenant refused 
to receive the notice and ordered eviction-Appellate authority and High 
Court upholding eviction-Before Supreme Court tenant pleading that 
E postman being on leave during relevant period, there was no refusal by 
tenant and thus no service of notice-Held, in the absence of cross examination 
of Postman on this crucial aspect, his statement in chief-examination has 
been rightly relied on-Evidence Act, 1872-Ss. 138 and 146. 
p 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5300 of 
2001. 
From the Judgment and Order dated 2.8.99 of the Delhi High Court in 
SAO No. 41/98. 
G 
P.S. Mishra, R.V. Sinha, Vishnu Sharma, Ms. S. Chandra SheJ,<.har, U. 
Mishra and Balraj Dewan for the Appellants. 
' 
H 
P.Chidambaram and M.N. Krishnamani, Deepak Gupta, M.P. Jha, Ram 
Ekbal Roy and Anil K. Chopra for the Respondent. 
The following Order of the Court was delivered : 
442 
RA.JINDER PERSHAD (DEAD) BY LRS. v. SMT. DARSHANA DEVI 443 
Leave is granted. 
This is tenant's appeal, by Special Leave, against the judgment and 
order dated 2.8.1999 of the High Court of Judicature at New Delhi dismissing 
Second Appeal No. 41 of 1998 filed by the appellants-tenants and confirming 
the order of eviction from the suit premises passed against him in landlady's 
eviction case. 
In this order the parties will be referred to as the tenant and the 
landlady. The case of the landlady is that the tenant did not pay the rent of 
A 
B 
the suit premises from 1.7.85 in spite of service of notice of demand Exhibit 
AWl/6 dated 5.8.86 and committed three consecutive defaults in payment of C 
rent. The tenant contested the case. He denied service of demand notice. The 
Rent Controller, Delhi, on the basis of the evidence on record found that the 
tenant refused to receive notice and there was default in payment of rent and, 
therefore, ordered eviction of the tenant from the suit premises on I. 7 .1996. 
The tenant's appeal presented to the Rent Control Tribunal, was dismissed. 
He then carried the case in Second Appeal before the High Court which was D 
also dismissed by the judgment and order under challenge in this appeal. 
The only point urged albeit strenuously on behalf of the appellant, by 
Mr. P.S .. Mishra, the learned senior counsel, is that as there has been no valid 
service of notice so all proceedings taken on the assumption of service of E 
notice are illegal and void. He has invited our attention to the judgment of 
the learned Rent Control Tribunal wherein it is recorded that Exhibit AW 116 
dated 5.8.86 was sent by registered post and the same taken by the postman 
to the address of the tenant on 6.8.86, 8.8.86, 19.8.86 and 20.8.86 but on those 
days the tenant was not available; on 21.8.86 he met the tenant who refused 
to receive the notice. This finding remained undisturbed by both the Tribunal F 
as well as the High Court. Learned counsel attacks this finding on the ground 
that the postman was on leave on those days and submits that the records 
called for from the post office to prove that fact, were reported as not 
available. On those facts, submits the learned counsel, it follows that there 
was no refusal by the tenant and no service of notice. We are afraid we G 
cannot accept these contentions of the learned counsel. In the Court of the 
Rent Controller, the postman was examined as A.W.2. We have gone through 
his cross-examination. It was not suggested to him that he was not on duty 
during the period in question and the endorsement "refused" on the envelope 
was incorrect. In the absence of cross-examination of the postman on this 
crucial aspect his statement in the chief-examination has been rightly relied H 
444 
SUPREME COURT REPORTS [2001] SUPP. I S.C.R. 
A upon. There is an age old rule that if you dispute the correctness of the 
statement of a witness you must give him opportunity to explain his statement 
by drawing his attention to that part of it w
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