The judgment emphasizes the presumption of service of notice sent by registered post and the tenant's obligation to comply with the notice. It also highlights the application of section 12(3)(b) for eviction in cases where the rent is not payable monthly.

ORAL JUDGMENT : - The Appellate Bench of the Court of Small Causes reversed the findings of the trial Judge and decreed the landlords suit for eviction on the ground of a default by the tenant in the payment of rent.

2. The landlord sued for possession of two tenanted rooms situated in Block, on the Second Floor, of a building called Vanraj Bhuvan, at Bhau Daji Cross Lane, Matunga, Mumbai. The landlord issued a notice of demand claiming arrears of rent from the tenants on 27th June, 1972. The arrears were calculated at the rate of Rs. 35.70 p.m. for the period from February, 1970 till September 1971 and at the rate of Rs. 36.12 from the month of October, 1971. According to the landlord, the notice of demand was remitted by registered post with acknowledgment due and the postal packet was returned with the remark "refused". It was averred that a notice had also been sent Under Certificate Posting. Another notice was stated to have been pasted on the premises. In the Written Statement, the tenants denied receipt of the notice of demand and claimed that they were ready and willing to pay the rent.

3. Evidence was adduced before the trial Court by the parties. The trial Judge dismissed the suit on 30th November, 1991. The trial Court held that service of the notice of demand was not proved. The Third defendant stepped into the witness box and denied that the notice had been tendered by the postman. The trial Judge held that parties reside in close proximity in the same block of tenements and upon the denial by the Third defendant of the service of the notice, the landlord failed to establish service of the notice of demand. Insofar as the ground for eviction was concerned, the trial Judge held, following the judgment of the Supreme Court in Raju Kakara Shetty vs. Ramesh Prataprao Shirole, 1991 Bom.C.R. 255, that education cess payable under the Maharashtra Education (Cess), 1962 is not payable monthly and since it forms part of the rent, the rent was not payable monthly. There was, the trial Court held, no agreement between the parties that the education cess would be paid with the rent on a monthly basis. In that view of the matter, section 12(3)(a) of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 as it then stood, was held not to be attracted and the case was to be governed by section 12(3)(b). The tenant was held to be entitled to the protection of section 12(3)(b) since on or before the first day of the hearing of the suit, the tenant had duly deposited the arrears of rent and that thereafter, the rent had been deposited regularly as and when it fell due.

4. The Appellate Bench of the Court of Small Causes has reversed the judgment of the trial Court. Insofar as the question of service is concerned, the Appellate Bench held that there is a presumption under section 27 of the General Clauses Act that postal packet which is sent by registered post has been delivered. Thereafter, the burden was cast upon the tenant to rebut the presumption. The Third defendant who was one of the heirs of the original tenant, was not present during office hours at his residence, but his mother and sister who were residing there were present at the premises. The mother expired by the time evidence was adduced. But, though the sister was available to give evidence, she was not produced as a witness. The Appellate Bench noted that the tenant had not adduced the evidence of the Postman in support of his case that the notice had not been delivered. The Court noted that the postal packet bore the postal endorsement of the postal offices through which the notice had been transmitted and the presumption of good service which arose under the law had not been duly rebutted. Insofar as the ground for eviction is concerned, the finding of the Appellate Bench in the present case is that the rent was to be paid at the interval of every six months after the payment of Municipal taxes. Upon receipt of the notice, the defendants were either

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