VALMIKI J. MEHTA, J (ORAL)

1. This petition under Article 227 of the Constitution of India is filed by the tenant impugning the judgments of the courts below; of the Rent Controller dated 16.5.2013 and the Additional Rent Control Tribunal dated 5.12.2013; by which the eviction petition of the landlord filed under Section 14(1) (a) of the Delhi Rent Control Act, 1958 (in short ‘DRC Act’) has been decreed and now the case is fixed for further proceedings to find out as to whether the petitioner/tenant has complied with the order of deposit of rent under Section 15(1) of the DRC Act. It must be noted that in case of first default, and the present is the case of first default, tenant is not evicted by virtue of the benefit of Section 14(2) of the DRC Act in case the tenant pays/deposits the rent in terms of the order passed under Section 15(1) of the DRC Act.

2. At the outset I must state that the powers under Article 227 of the Constitution of India are extraordinary and discretionary powers. While exercising these powers this Court does not sit as an appellate court. This Court does not interfere with the findings and conclusions of the courts below, once out of the two possible and plausible views, the courts below takes one possible and plausible view. The one possible and plausible view in this case is with respect to whether rate of rent was Rs.1000/- per month as stated by the petitioner/tenant or was Rs.2500/-. Courts below have held that the rate of rent was Rs.2500/- per month by appraising evidence noting the fact that the petitioner/tenant did not cross-examine the landlord or the other witness PW-2 with respect to the rate of rent, and therefore rate of rent would stand admitted.

3. The only issue argued before me by the counsel for the petitioner however is different and which is that the demand notice dated 18.10.2007 was not served upon the tenant and therefore the petition under Section 14(1)(a) of the DRC Act was bound to be dismissed. This aspect has been considered by the Additional Rent Control Tribunal/first appellate court in para 12 of the impugned judgment and which para reads as under:-

“12. To prove the “rate of rent” and “period of default” in making payment of rent, the "landlord" while examining himself as PW-1 on 12.10.2010, inter-alia, deposed in his affidavit tendered in evidence Ex.P1 that he has let out his premises to the “tenant” in the month of May 2006 at a monthly rent of Rs.2,500/- excluding electricity and water charges and the “tenant” has not paid him the rent since June 2006 till date despite his requests. He deposed that a legal notice of demand dated 22.10.2007 has been served upon the “tenant” through his counsel and despite notice, he has not paid him arrears of rent within 60 days of receipt of notice. He also deposed that the “tenant” is a habitual defaulter in making payment of rent. He proved the copy of legal notice dated 18.10.2007 Ex.PW1/A which was sent to the “tenant” vide postal receipt no.3599 dated 22.10.2007 Ex.PW1/B and UPC dated 22.10.2007 Ex.PW1/C. The registered AD envelope Ex.PW1/D sent on 22.10.2007 vide postal receipt no3599 returned with the report of the postman dated 29.10.2007 that “BAR BAR JANE PAR PRAPTKARTA NAHI MILTA”. As the receipt of this notice is admitted by the “tenant” in preliminary objection no.9 of his written statement, it appears that he has received the copy of notice sent to him through UPC on 22.10.2007. Even otherwise, the “tenant” has avoided receiving of the notice by registered AD post despite several visits of the postman which is deemed to have been served upon him and in this regard, the judgment of our Hon'ble High Court of Delhi in Prime Industries vs. Rafeeq Ahmad 1997 (1) RCR 661 can be referred to. The witness PW1 (“landlord”) was cross examined by the "tenant" on 23.11.2010 and on 23.09.2011 but there is no cross examination by the “tenant” either on the point of rate of rent of Rs.2,500/- per month or on the point of