Back
Gujarat High Court
Judgename :D.C.Srivastava
Natwarlal Ratilal Parekh - Appellant
Versus
Rajubhai Durlabhbhai - Respondent
C.R.A. 2053 of 1982
Decided On : 08/10/1998
The next question is whether Sec. 12(3)(a) is applicable to the facts of the case or not. The two Courts below found from the evidence on record that 34 months rent was due when the notice of demand was refused by the tenant. The defendant pleaded that the entire rent was paid. However, this pleading and evidence of the defendant was not accepted by the two Courts below for cogent reasons. No interference on this finding is also required inasmuch as the question of payment of rent by the tenant is a pure question of fact that which has been determined by the two Courts below by their concurrent findings. If the payment of rent set up by the tenant is disbelieved then it goes to show that he was in arrears of rent for 34 months which exceeded six months rent on the date of service of notice by refusal. No reply to the notice was given by the tenant. No payment of rent was made within a month of service by refusal of notice. It was a case of monthly tenancy. The rent was payable monthly. No dispute regarding standard rent was raised within a period of one month of service of notice. Such belated dispute was raised in the written statement which was not found to be bonafide dispute of standard rent by the two Courts below. Consequently Sec. 12(3)(a) was rightly applied by the two Courts below. If Sec. 12(3)(a) applied, the Courts below had no option but to decree the Suit for eviction. The lower appellate Court has also considered in alternative the defence plea that the case is governed by Sec. 12(3)(b) of the Act. The lower Appellate Court observed from the material on record that after service of notice no rent was paid by the revisionist. It further observed that during the pendency of the trial nothing was paid by the tenant nor any amount was deposited in the Trial Court. At the time of filing of appeal also nothing was deposited and after lapse of 17 months a sum of Rs. 4000/- only was deposited in appeal. In these circumstances the lower Appellate Court was perfectly justified in holding that Sec. 12(3)(b) of the Rent Act was not applicable and the tenant was not entitled to the statutory protection under Sec. 12(3)(b) of the Act.
[Para 15]
(b) Practice & Procedure - Notice sent at the correct address, presumption of reaching can be drawn.
If a registered notice at the correct address is sent by the landlord, presumption can be drawn under Sec. 27 of the General Clauses Act that in normal course it reached the addressee.
[Para 10]
( 1 ) THIS is tenants revision under Sec. 29 (2) of the Bombay Rent Act, 1947.
( 2 ) BRIEF facts are that the disputed premises was let out by the respondent to the revisionist on monthly rent of Rs. 50/ -. It was alleged that the revisionist did not pay any rent since 1. 5. 1975 and 34 months rent fell due. Thereafter notice of demand was issued. The said notice remained uncomplied. Hence the Suit for eviction, recovery of arrears of rent and mesne profits was filed.
( 3 ) THE Suit was resisted by the revisionist on the ground that the rate of rent was previously Rs. 30/- per month which was enhanced to Rs. 40/- p. m. and since 1977 it was issued Rs. 50/- p. m. He pleaded that the rent up-to-date was paid but no receipt was issued by the plaintiff respondent. He showed his readiness and willingness to pay the rent.
( 4 ) THE Trial Court found that the notice was refused by the revisionist which amounted to sufficient service of notice and since this notice remained uncomplied with and further because the revisionist was in arrears of rent for 34 months on the date of service of notice the case was covered under Sec. 12 (3) (a) of the Rent Act and the tenant was not entitled to the benefit of Sec. 12 (3) (b) of the Rent Act. The suit was accordingly decreed.
( 5 ) APPEAL was preferred which was dismissed, hence this revision.
( 6 ) ONLY two points were urged by the learned Counsel for the revisionist. The first was that the notice of demand was not duly served. Hence, suit for eviction could not be decreed. The second point urged was that the case does not fall under Sec. 12 (3) (a) of the act; rather it falls within the ambit of Sec. 12 (3) (b) of the Rent Act.
( 7 ) COMING to the first point it is found from the record that the plaint and written statement regarding manner of service of notice are silent and vague. In Para 2 of the plaint only this much is mentioned that notice was sent which was not complied with. In plaint it is not specifically mentioned that the notice was refused by the tenant revisionist. Likewise the tenant revisionist in his written statement has also not specifically denied that the notice was not refused by him. Registered envelope in which notice was sent and which was returned to the plaintiff landlord with postal endorsement of refusal was filed along with the plaint at the time of institution of the Suit. The fact, therefore, remains that the plaint is silent whether the notice was personally served on the tenant or it was refused by him. It has been contended that this silence has greatly prejudiced the tenant. I, however, do not feel that by such omission in the pleading the tenant was really prejudiced in any manner. It is true that the plaint is not happily and properly drafted. The question for consideration is whether such drafting of plaint will be a ground for holding that the notice was not refused. The mistake of the counsel in not properly drafting the plaint cannot be a ground for drawing adverse inference against the plaintiff landlord nor it can be a ground for prohibiting the landlord from adducing evidence regarding the mode of service of notice. It was not a malafide intention of the landlord to suppress the refused envelope. On the other hand he handed it over to his Counsel and the counsel filed the same along with the plaint at the time of institution of the Suit. It was also not a case where the envelope was opened before filing of the Suit. On the other hand, the envelope was intact bearing postal endorsement of refusal and the said envelope was opened only when the evidence of the plaintiff was being recorded. The plaintiff in his statement has- stated that the-notice was refused by the revisionist. When the turn of the revisionist came, he, in the witness box stated, that he was out of station in connection with his work. This version was found to be an after-thought by the Trial Court. The Appellate Court found that the contention before it was that
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
