Ramavtar Ramasahaya Khatod vs Baban Gurunath Pathari
2004 Latest Caselaw 800 Bom

JUDGMENT

D.G. Karnik, J.

1. By the petition, the petitioner-tenant challenges the judgment and order dated 19th August, 1991 by which the VIIth Additional District Judge, Thane allowed an appeal of the landlord and passed a decree for possession.

2. The respondent is an owner and landlord of the property bearing House No. 33 Telipada, Bhivandi, District Thane. The petitioner is a tenant of the respondent occupying commercial premises bearing gala Nos. 1 and 2 (hereinafter referred to as the suit premises) situated in the said house. At the time of letting the suit premises required extensive repairs and it was agreed that the petitioner would carry out the repairs and the amount spent would be recovered by the petitioner by deducting to that effect was executed between the parties in October, 1973. According to the respondent, the petitioner was in arrears and had not paid the rent from 1st December, 1977 till 31st August, 1978. Therefore by a notice dated 13th September, 1978 the respondent terminated the tenancy of the petitioner and also called upon the petitioner to pay the arrears of rent within 10 days of the receipt of the notice. As the arrears were not paid the respondent filed a suit for possession on the ground of default as well as reasonable and bonafide requirement.

3. The petitioner resisted the suit. He contended that he had not received the notice of demand dated 13th September, 1978. He further contended that apart from the amounts spent by him for repairs, he had also paid the municipal taxes of the property and had also advanced a sum of rs. 5000/- to the respondent which he was entitled to adjust against the rent payable. If the adjustment was done, the petitioner was not in arrears of rent. On the other hand, there was excess payment to the respondent. He emphatically denied the receipt of the notice and stated that since no notice of demand was served, no decree for eviction could be passed on the ground of non payment of rent. He also resisted the claim of the respondent for possession on the ground of bonafide requirement.

4. The trial Court held that the petitioner had incurred expenditure of Rs. 8700/- towards repairs and municipal taxes; the petitioner was not irregular in payment of rent and was not a defaulter. The trial Court also negatived the claim of bonafide requirement. In appeal filed by the respondent, the ground of bonafide requirement was not pressed. The appellate Court however held that the petitioner was a defaulter in payment of rent and passed a decree for possession. That judgment is impugned in this writ petition.

5. In the written statement, the petitioner has specifically contended that he had not received the notice dated 13th September, 1978. The respondent had produced on record the office copy of the notice alongwith a postal money receipt of payment of registration charges. That is a proof despatch of the notice by registered post A.D. but not a proof of delivery or service. The postal acknowledgment of the notice was not produced. The respondent contended that the acknowledgment was not received back from the post office and had, therefore, obtained a certificate from the post office about delivery of the notice to the addressee. The certificate issued by the postal authorities was produced. The respondent further contended that apart from sending of the notice by registered post A.D. the notice was also pasted to the outer door of the suit premises on 28th September, 1978 in presence of two panch witnesses. One panch witness was examined to prove the pasting. The appellate Court has not recorded any finding of fact whether it believed the service of notice by pasting. There is only one statement in the judgment of the appellant Court regarding the service of notice and it reads thus:

"It could be stated that on the basis of the certificate issued by the postal authority (Exhibit 49) that the tenant had received it."

6. The only ground on which the appellate Court believed that the notice was served on the petitioner was on the basis of the certificate issued by the postal authorities to the effect that the notice was delivered to the addressee. To prove the certificate, the respondent examined Mr. Pandurang Atmaram Thorat, an employee of the post office who stated that the certificate (Ex 49) was issued by the post office. In the cross-examination, he admitted that the post office did not have the records about the delivery of the letter to the addressee and the records were destroyed being more than three years old. He further stated that though the notes of destruction were maintained by the post office he had not verified those notes. He further admitted that he had no knowledge about the delivery of the letter to the addressee. It is thus clear that he had no personal knowledge nor had he verified the records before issuing the certificate. He also did not say that the person who issued the certificate had verified the records before issuance of the certificate. In my view, therefore the certificate issued by the post office of the delivery of the notice is of no assistance to the petitioner. Initial presumption arising under Section 114 of the Evidence Act that letter sent by registered post and which is not received back by the sendor is delivered to the addressee was rebutted by the positive statement on oath by the petitioner that he had not received the notice. The appellate Court merely appears to have believed the certificate Exhibit 49, issued by the post office without noticing that the person who had issued the certificate was not examined and Mr. Thorat had not personally verified the records to ascertain whether the notice was delivered to the petitioner. On the other hand, the petitioner had stated on oath that he had not received the notice sent by registered post A.D.

7. The notice of demand dated 13th September, 1978 was posted on 15th September, 1978 as can be seen from the postal stamp on the postal money receipt. The panch witness has stated that the notice was affixed to the outer door of the suit premises on 28th September, 1978. No explanation is offered as to why the plaintiff felt the necessity of serving the notice by pasting on 28th September, 1978 i.e. 13 days after the notice was despatched by registered post. The respondent had not even made an enquiry with the post office as to whether the notice was delivered to the addressee before resorting to service by pasting. The respondent has not stated anything as to why he felt the need of service of notice by pasting. The panch witness who was examined to prove the pasting of notice has stated in the examination-in-chief that he knew both the plaintiff and the defendant. He has further stated that at the time of pasting he himself, the plaintiff and the defendant and one witness were present. If the petitioner-defendant was personally present, when the notice was pasted to the outer door as alleged, the notice could very well have been tendered and personally delivered to the addressee (the petitioner) which one of the modes of service prescribed under Section 106 of the Transfer of Property Act, 1882, him. Nobody has stated that the notice was tendered to the petitioner and was not accepted by him and therefore it was pasted. Therefore, case of the respondent that the notice was pasted to the outer door in presence of the petitioner-defendant is totally unbelievable. Even the appellate Court has not held that service of notice by pasting was proved. Thus, the respondent has not proved the service of notice either by pasting or by registered post A.D.

8. Section 12 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 requires a notice of demand to be issued before filing of the suit for possession on the ground of non payment of rent. A suit can be filed only after the expiry of 30 days of the notice of demand in writing. In the present case, the service of notice of demand is not proved. Therefore, the respondent was not entitled to file a suit for possession on the ground of default and no decree for possession could be passed on that ground.

9. In the circumstances, writ petition is allowed.

Rule made absolute in terms of prayer Clauses (a) and (d). No costs.