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2003 Supreme(Bom) 266
IN THE HIGH COURT OF BOMBAY
Khandeparkar R.M.S., J.
David K.N. .... Petitioner.
Versus
S.R. Chaubey (Chaturvedi).... Respondent.
Writ Petition No. 6675 of 2002, decided on 27-2-2003.
Advocates appeared :
R.D. Suryananshi, for petitioner.
A.S. Dak i/b. Surendra Raj, for respondent.
Headnote:Bombay General Clauses Act, 1904 - Section 28 - Decree of possession on grounds of arrears of rent - Service of notice, modes of service, presumption of service - Proper service of notice - As concurrent finding - Contention - Landlord was away so he could not receive notice - Contra contention - Even if landlord could not receive notice, it was duly affixed on his premises - Held - Mere absence cannot rebut presumption under Section 28 of the Act - He should have made necessary arrangement in absence to take care of postage etc. - Undisputedly, there was no such effort made by the petitioner either to receive the notice at the address sent to him during his alleged absence nor any explanation forthcoming as to why arrangement was not made to collect the letter from the postal authorities on intimation thereof. Being so, the presumption of service has not been rebutted.
As regards service of affixation on door as already observed above, the same is permissible when actual service by tendering notice to the tenant or by registered post is not practicable. In that case, once a letter is received with postal endorsement that it was not claimed by addressee, it is obvious that though the presumption of service may arise under Section 28 of the Bombay General Clauses Act, the actual service was not practical as far as the landlord is concerned. The legal presumption arising from postal endorsement is different from the understanding of the factual situation to the landlord or understanding of the landlord regarding service of notice, and in that connection if the landlord makes another attempt to serve the notice by affixation of such notice to the suit premises and the same is effected in presence of any witness or factum of affixation at the door otherwise is established, the same can be considered as good service of notice in terms of Section 106 of Transfer of Property Act, and therefore service by affixation in the case in hand cannot be found fault with.
Trade and Merchandise Marks Act, 1958 - Section 106 - Decree of possession - Grounds of arrears of rent - Service of notice - Modes of service - Presumption of service - Proper service of notice - Concurrent finding - Contention - Landlord was away, there is no question of receiving notice - Even if landlord could not receive notice it was duly affixed on his premises - Held - Mere absence cannot rebut presumption under Section 28 of Act. - There was presumption not only regarding service of the notice but also regarding intimation of a letter having been received in the post office addressed to the tenant and failure to collect the same by the tenant as he was found absent in the premises at the time when postman approaches the premises to deliver the same. The presumption regarding intimation would arise under Section 114 of the Evidence Act, as it is observed by the Apex Court, it is general practice for the postman to intimate either orally or in writing about the letter having been received in the post office addressed to the tenant when the tenant is found absent in the premises at the time when the postman approaches to serve the same. Undisputedly, there was no such effort made by the petitioner either to receive the notice at the address sent to him during his alleged absence nor any explanation was forthcoming as to why arrangement was not made to collect the letter from the postal authorities on intimation thereof. Being so, the presumption of service has not been rebutted.
Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Section 12(2) - Decree of possession on grounds of arrears of rent-service of notice, modes of service, presumption of notice - Proper service of notice - Concurrent finding - Contention - Landlord was away there is no question of receiving notice - Contra contention - Even if landlord could not receive notice it was duly affixed on his premises - Held - Mere absence cannot rebut presumption under Section 28 of Act. - As regards service of affixation on door as already observed, the same is permissible when actual service by tendering notice to the tenant or by registered post is not practicable. In that case, once a letter is received with postal endorsement that it was not claimed by addressed, it is obvious that though the presumption of service may arise under Section 28 of the Bombay General Clauses Act, the actual service was not practicable as far as the landlord is concerned. The legal presumption arising from postal endorsement is different from the understanding of the factual situation to the landlord or understanding of the landlord regarding service of notice, and in that connection if the landlord makes another attempt to serve the notice by affixation of such notice to the suit premises and the same is effected in presence of any witness or factum of affixation at the door otherwise is established, the same can be considered as good service of notice in terms of Section106 of Transfer of Property Act, and therefore service by affixation in the case in hand cannot be found fault with. In any case, the presumption arising from service of notice having not been rebutted, the concurrent findings arrived at the Courts below regarding service of notice do not warrant interference in writ jurisdiction.
2.The petitioner challenges the judgment and order dated 7-9-2002 passed by the Appellate Bench of Small Causes Court, Mumbai in Appeal No. 14 of 2001. By the impugned judgment the appeal filed by the petitioner against the decree of eviction dated 30-11-2000 in the suit bearing RAE R Suit No. 258/814 of 1992 has been dismissed. The challenge to the impugned judgment and decree of eviction is on the ground that the decree has been obtained without proper and valid service of notice of demand of arrears of rent as is otherwise required to be served under section 12(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (herein after called as the said Act) as precondition for the filing of the suit for eviction of a tenant on the ground of default in payment of rent and, therefore, the impugned judgment and decree for eviction is bad in law.
3.Upon hearing the learned Advocates for the parties and perusal of record, it is apparent that both the courts below have arrived at the concurrent findings regarding service of the notice under section 12(2) of the said Act. However, it is the contention of the petitioner that the said findings are perverse inasmuch as they are not borne out from the record, besides being contrary to the materials on record. Taking through the records, the learned Advocate for the petitioner submitted that it was a specific case pleaded by the petitioner in his written statement that no notice as alleged by the respondent was ever received by the petitioner and the said fact was stated on oath by the holder of Power of Attorney who was examined by the petitioner on his behalf before the trial Court. The fact that the petitioner was out of station from the year 1990 to 1992 was brought on record by the respondent himself in the course of cross-examination of the holder of Power of Attorney of the petitioner and the said fact was neither denied nor disputed by the respondent. Being so, there was no occasion for service of notice upon the petitioner either in the month of October 1990 as is otherwise claimed by the respondent in relation to the registered notice or in the month of March or April, 1991 which is claimed by the respondent on the ground that the notice under certificate of posting as well as pasting of notice on the door of the premises. To make good the submission on behalf of the petitioner, the learned Advocate for the petitioner has relied upon the following decisions : (Lalmani Ramnath Tiwari v. Bhimrao Govind Pawar)1, 2001(3) Bom.C.R. 21 : 2001(2) All.M.R. 415; (2) (Narayan Ganpat Bholte v. Smt. Rampyari Suchitram Gupta since deceased through heirs Hariprasad Surajbally Gupta and others)2, 2001(2) Bom.C.R. 158 (Hajrabi Abdul Gani v. Abdul Latif Azizulla and another)3, 1996(2) Bom.C.R. 626; (Anil Kumar v. Nanak Chandra Verma)4, A.I.R. 1990 S.C. 1215; (B.S. Mahajan since deceased by his heirs and legal representative v. Chapsey R. Mistry)5, 1988(3) Bom.C.R. 535 (Pannalal Shivlal Mutha v. Mangilal Ganpatdas Agarwal)6, 1987 Mah.R.C.J. 729: (Meghji Kanji Patel v. Kundanmal Chamanlal Mehtani)7, A.I.R. 1968 Bombay 387; (Oza Kumbhar Naran Ala v. Mehta Nanlal Jethabhai)8, 1987 Mah.R.C.J. 541 and (Chhedi Lal v. Munna Sardar)9, A.I.R. 1983 Allahabad 274.
4.On the other hand, it is sought to be contended by the learned Advocate for the respondent that considering the fact that the petitioner was not available at the site, the notice was also affixed to the door in the presence of a person who was found occupying the suit premises at the relevant time and also considering the same there is due compliance of the provisions of section 106 of the Transfer of Property Act, 1882 as far as service of notice is concerned, and therefore, no fault can be found with the findings arrived at by the courts below regarding service of notice. Besides co
