Bombay High Court
Mukesh Kantilal Waghela And Others vs Rajkumar Shivmurat Singh And Others on 27 August, 2024
2024:BHC-AS:34177
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO.218 OF 2021
1. Mukesh Kantilal Waghela
Aged about 63 years, Occ: Tailoring,
2. Ramesh Kantilal Waghela
Aged about 60 years, Occ: Tailoring,
3. Mrs. Jiviben wd/o. Kantilal Waghela
Aged about 65 years, Occ: Household.
4. Dinesh Kantilal Waghela
Aged about 57 Years, Occ:
5 Mahesh Kantilal Waghela
Aged about 55 years,
Applicant Nos. 1 to 4
Having address at Shop No. 1
Ground Floor, Building No. 49
2nd Lane, Kamathipura, Manaji
Rajuji Road, Mumbai 400 008. ....Applicants
Versus
1. Rajkumar Shivmurat Singh
Age about 62 years
Occ: Business
2. Vijaykumar Shivmurat Singh
Age about 65 Years )
Occ: Business
3. Suresh Kumar Shivmurat Singh
(Now deceased)
4 Radha Shivmurat Singh
Age about 67 Years
Occ: Household
Respondent No. 1 to 3 all of Mumbai,
Indian Inhabitants residing at
Building No. 62 1 Floor, Kamathipura,
3rd Lane, Manaji Rajuji Road,
Mumbai-08
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5 Anjudevi Shankar Singh
Age about 70 years, Occ: Household
Of Kolkatta, Indian Inhabitant,
residing at House No. 57/D, Top Floor,)
Central Avenue, Bow Bazar,
Kolkatta 700012. ... Respondents
________
Mr. Ravi R. Gadagkar i/b Ms. Usha R. Gadagkar for the Applicants.
Mr. Tushar Dahibawkar i/b M/s. Dahibawkar & Co. for Respondents.
__________
CORAM : SANDEEP V. MARNE, J.
RESERVED ON : 19 AUGUST 2024.
PRONOUNCED ON : 27 AUGUST 2024.
J U D G M E N T:
1 Applicants have filed this Civil Revision Application challenging the
judgment and decree dated 19 September 2011 passed by the learned Judge
of Small Causes Court decreeing RAE & R Suit No.971/1680 of 2001 and
directing Applicants/Defendants to vacate the suit premises and to pay Rs.
2381.40 towards rent, property taxes and permitted increases for the period
from 1 January 1998 to 31 December 2000. An enquiry into mesne profits
from the date of filing of the Suit under Order 20, Rule 12 of the Code of
Civil Procedure, 1908, (the Code) it also directed to be conducted. The
decree dated 19 September 2011 has been unsuccessfully tested before the
Appellate Bench of Small Causes Court by filling Appeal No.103 of 2011.
The Appellate Bench has however dismissed the Appeal by its judgment
and decree dated 12 March 2021, which is also subject matter of challenge
in the present Application.
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2 Shop No.1 on Ground floor of the Building No.49, 2 nd Lane, Manaji
Rajuji Road, Kamathipura, Mumbai 400 008 admeasuring 21 square feet
are the 'suit premises'. Defendants' father was inducted as a monthly tenant
in respect of the suit premises for carrying out tailoring business. After
demise of the original tenant, Defendants, being his heirs, have been
treated as tenants. The rent in respect of the suit premises, according to
Plaintiffs, was Rs. 66.15 p.m. A notice dated 24 January 2001 was served by
Plaintiffs on Defendants contending that they were in arrears of rent from 1
April 1993. Plaintiffs also claimed arrears of repair cess at the rate of Rs.
14.65 per month from 1 October 1994. Plaintiffs also demanded increase
in the rent by Rs. 2.50 with effect from 1 April 1994 and further increase of
Rs. 2.50 with effect from 1 April 1995 and 1 April 1996. Plaintiffs also
demanded Rs. 15/- per month from 1st April 1996 towards property taxes.
Plaintiffs also demanded increase in the rent at the rate of Rs. 3/- per month
from 1 April 1997 and 1 April 1998. They demanded Rs. 11/- per month
from 1 April 1998 towards property taxes. Plaintiffs also demanded
increased rent by Rs. 3/- per month from 1 April 1999 and Rs.3.50 per
month from 1 April 2000. Plaintiffs also demanded Rs.10/- per month
being increase in the property tax from 1 April 2000. This is how Plaintiff
demanded total amount of Rs. 135.80 per month from Defendants.
3 Plaintiffs instituted RAE & R Suit No.971/1680 of 2001 in the
Court of Small Causes at Bombay on 5 November 2001. Plaintiffs sought
recovery of the possession of the suit premises on the grounds of:
(i) arrears of rent, property taxes and permitted increases from 1
April 1993,
(ii) illegal sub-letting,
(iii) change of user, tailoring business to scrap material business,
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(iv) non-user without reasonable cause for continuous period of six
months immediately preceding the date of filing of the suit,
and
(v) bonafide requirement.
4 Defendants resisted the suit by filing Written Statement. Both the
sides led evidence in support of their respective cases. After considering the
pleadings, documentary and oral evidence, the learned Judge of the Small
Causes Court decreed the suit vide judgment and order dated 19 September
2011. The learned Judge upheld the grounds of arrears of rent, change of
user, non-user and bonafide requirement. Applicants/Defendants were
directed to handover possession of the suit premises to Plaintiffs.
Defendants are also directed to pay amount of Rs.2,381.40 towards rent,
property taxes and permitted increases for the period from 1 January 1998
to 31December 2000. The Small Causes Court also directed enquiry into
mesne profits under Order 20, Rule 12 of the Code from the date of filing
of the suit till delivery of possession of suit premises.
5. Applicants/Defendants filed Appeal No.103 of 2011 before
Appellate Bench of Small Causes Court challenging the decree dated 19
September 2011. The Appellate Bench accepted the grounds of arrears of
rent, change of user and bonafide requirement. The finding of the Trial
Court on the issue of non-user was however reversed by the Appellate
Bench by answering the said issue in favour of Applicants/Defendants. The
Appellate Bench has accordingly dismissed the Appeal filed by
Applicants/Defendants. Aggrieved by the decrees passed by the Trial Court
and its Appellate Bench, Applicants/Defendants have filed the present Civil
Revision Application.
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6 Mr. Gadagkar, the learned counsel appearing for Revision Applicants
would submit that the suit filed by Plaintiffs on the ground of non-user was
not maintainable in view of failure to serve demand notice as required
under section 15(2) of the Maharashtra Rent Control Act, 1999 (the MRC
Act). Mr. Gadagkar would submit that the envelope containing the notice
was returned with postal endorsement 'left'. That the said position was
admitted in paragraph 6 of the plaint. Thus, there is no valid service of
demand notice on Defendants. Once the packet containing notice is
returned with postal remark 'left', it cannot be presumed that the notice has
been duly served. He would submit that return of notice with remark 'left'
is worse than return of notice with remark 'not claimed'. That in a case
involving the remark 'not claimed', an intimation is left by the postman
with the addressee and the packet is returned only when the addressee fails
to claim the envelope. That in the present case, since the remark on the
packet is 'left', Defendants were not found by the postman at the address
and therefore it cannot be presumed that there is a valid service on the
Defendants. In support of his contention Mr. Gadagkar relying on
judgment of this Court in Lalmani Ramnath Tiwari vs. Bhimrao Govind
Pawar, 2001 (2) Mh.L.J. 342.
7 Mr. Gadagkar would submit that in absence of valid service of
demand notice, the suit could not have been entertained. In support, he
would rely upon judgment of this Court in Sitaram Narayan Shinde and
others vs. Ibrahim Ismail Rais, 2005 (1) Mh.L.J. 35. He would submit that
once Defendants denied receipt of notice, the burden was on Plaintiffs to
prove service thereon. However, Plaintiff did not lead any evidence to prove
service of demand notice on the Defendants.
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8 So far as the ground of change of user, Mr. Gadagkar would submit
that mere change in nature of business does not amount to change of user
so long as the premises are used for commercial purposes. So far as the
ground of bonafide requirement is concerned, Mr. Gadagkar would submit
that Plaintiffs pleaded the need of the premises for carrying on business by
them and their family members. It was pleaded that Plaintiffs have no
source of income except the rent. However, according to Mr. Gadagkar,
Plaintiffs suppressed the position about their financial status. That it has
come in evidence that Plaintiffs are owners of Building Nos. 49, 51 and 52
thereby belieing their claim of insufficient income. That no evidence was
produced to prove insufficient income of Plaintiffs. Relying on the
judgment of this Court in Shankar Govindrao Bhandarkar vs. Prakash
Rambhau Karande in Writ Petition No. 6032 of 2010 decided on 15
January 2015 and Narendra Gulabrao Zade vs. Shiocharan Ghasiram
Gupta in Writ Petition No.99 of 1999 decided on 18 October 2010, Mr.
Gadagkar would submit that it was incumbent on Plaintiffs to disclose their
true and correct financial position with a view to demonstrate the alleged
insufficiency of income in support of claim of bonafide and reasonable
requirement. He would further submit that in any case, no concrete
evidence is led to prove the exact nature of bonafide requirement. That it
was incumbent for Plaintiffs to lead evidence to prove comparative
hardship and in this regard, he would rely upon judgment of this Court,
Bench at Nagpur in Dharampet Gruhanirman Sahakari Sanstha vs. Shri
Sumukh Diwakarrao Varadpande in Writ Petition No.3485 of 2016
decided on 12 October 2021. Mr. Gadagkar would therefore pray for
setting aside the decrees passed by the Trial Court and its Appellate Bench.
9 The Revision Application is opposed by Mr. Dahibawkar, the learned
counsel appearing for Respondents/Plaintiffs. He would submit that the
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demand notice was correctly dispatched on the address of the suit premises
and the Defendants do not dispute correctness of the address reflected on
the envelope. That in addition to dispatching the notice through Registered
Post AD, the same was also dispatched Under Certificate of Posting (UCP),
which is not returned thereby indicating that the same was otherwise served
on Defendants. That Defendants never objected or disputed the
genuineness of UCP. That therefore the Trial Court and its Appellate Bench
have concurrently held that service of notice is proved in the facts and
circumstances of the present case. He would rely upon the judgment of this
Court in David K.N. vs S.R. Chaubey (Chaturvedi), 2003 (4) Bom. C.R.
612, in support of his contention that mere absence of tenant in the suit
premises cannot rebut the presumption of service of notice and it is for the
tenant to make necessary arrangements to receive notice in his absence at
the suit premises. He would also rely upon judgment of the Apex Court in
Samitri Devi and another vs. Sampuran Singh and another, 2011 (3)
Mh.L.J. 740, in support of his contention that in absence of any dispute
about genuineness by UCP, the letter is deemed to have been served.
10 Mr. Dahibawkar would further submit that non-payment of rent to
the landlords is virtually admitted by Defendants in their Written
Statement. He would submit that the Defendants falsely pleaded about
alleged disputes amongst landlords for avoiding payment of rent. That no
such dispute existed and it has come in evidence that Defendants' father
used to pay rent to the original landlord Shivmurat Singh and after his
death the rent was paid to his wife Kamala Devi and after Kamala Devi's
death, rent was paid to Plaintiff No.3-Suresh Kumar. That Defendant No.1
has also admitted in the cross-examination that he used to pay rent to
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Plaintiff No.3-Suresh Kumar. That the whole defence of alleged disputes
amongst Plaintiffs is nothing but a false bogie raised by Defendants for
avoiding payment of rent. That the Defendants failed to deposit rent in the
Court even under provisions of section 15(3) of the MRC Act. That the suit
summons was served on Defendants on 8 February 2002 and the
application for deposit of rent was filed on 6 January 2003 after expiry of
period of 90 days. The application was therefore rightly rejected and the
said rejection was not challenged by the Defendants. Subsequent
application filed by Defendants for deposit of rent from 1 April 1993 was
also rejected by the Appellate Bench. Therefore, the decree of eviction on
the ground of default in payment of rent does not warrant any interference.
11 So far as the ground of bonafide requirement is concerned,
Mr. Dahibawkar would submit that Plaintiffs pleaded and proved the case
of reasonable and bonafide requirement in respect of suit premises. Though
the Defendants attempted to bring on record ownership of other buildings
by Plaintiffs, but failed to prove that Plaintiffs secured possession of any
other commercial premises for their need. He would take me through the
evidence on record to demonstrate that Plaintiffs do not have any other
promises to run their business. He would submit that Plaintiff is the best
judge of his requirement and the tenant cannot dictate the terms of
requirement of landlord. He would submit that Defendants have also
denied the title of Plaintiffs and additional issue No.1(a) has rightly been
answered by the Trial Court in this regard in favour of Plaintiffs. Landlord
is entitled to decree if Defendants deny his title, where it is proved that the
denial was not bonafide under provisions of section 116 of the Indian
Evidence Act. Mr. Dahibawkar would pray for dismissal of the Revision
Application.
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12 Rival contentions of the parties now fall for my consideration.
13 Plaintiffs' suit has ultimately been decreed only on the grounds of
arrears of rent, change of user and bonafide requirement. The grounds of
subletting and non-user have been rejected by the Appellate Bench.
Therefore correctness of findings on the three grounds of arrears of rent,
change of user and bonafide requirement is to be examined in the present
Revision Application.
14. So far as the ground of change of user is concerned, in my view, both
the Courts below have erred in upholding the said ground. There is no
dispute to the position that the suit premises are let out for commercial use.
There is nothing on record to indicate existence of any agreement under
which the tenant was under obligation to use the shop for only particular
business. Plaintiffs have not proved that suit premises were let out only for
carrying out tailoring business. In that view of the matter, acceptance of
ground of change of user by both the Courts below is clearly perverse.
Therefore, in the facts and circumstances of the present case, the ground of
change of user has not been established. Noticing this, Mr. Dahibawkar has
fairly not attempted to defend the ground of change of user during the
course of his submissions. Therefore, findings on the issue of change of user
recorded by the Small Causes Court and its Appellate Bench are
unsustainable and liable to be set aside.
15 This leaves only the grounds of arrears of rent and bonafide
requirement of landlords.
16 So far as the ground of arrears of rent is concerned, there appears to
be no serious dispute to the position that the Defendants stopped paying
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rent in respect of the suit premises since March 1993. Paragraph 7 of the
Written Statement contains a specific admission that " the Defendants state
that in the circumstances stated above the Defendants were unable to make
the payment of rent since March 1993". Though non-payment of rent is
expressly admitted by Defendants, they sought to raise the issue of non-
service of demand notice required under provisions of section 15(2) of the
MRC Act for resisting the suit for eviction. Section 15 of the MRC Act
reads thus:
"15. No ejectment ordinarily to be made if tenant pays or is ready and willing to
pay standard rent and permitted increases
(1) A landlord shall not be entitled to the recovery of possession of any
premises so long as the tenant pays, or is ready and willing to pay, the amount of
the, standard rent and permitted increases, if any, and observes and performs the
other, conditions of the tenancy, in so far as they are consistent with the
provisions of this Act.
2) No suit for recovery of possession shall be instituted by a landlord
against the tenant on the ground of non-payment of the standard rent or
permitted increases due, until the expiration of ninety days next after notice in
writing of the demand of the standard rent or permitted increases has been
served upon the tenant in the manner provided in section 106 of the Transfer of
Property Act, 1882.
(3) No decree for eviction shall be passed by the court in any suit for
recovery of possession on the ground of arrears of standard rent and permitted
increases if, within a period of ninety days from the date of service of the
summons of the suit, the tenant pays or tenders in court the standard rent and
permitted increases then due together with simple interest on the amount of
arrears at fifteen per cent per annum; and thereafter continues to pay or tenders
in court regularly such standard rent and permitted increases till the suit is finally
decided and also pays cost of the suit as directed by the court.
(4) Pending the disposal of any suit, the court may, out of any amount
paid or tendered by the tenant, pay to the landlord such amount towards the
payment of rent or permitted increases due to him as the court thinks fit."
17 Thus, no suit for ejectment of tenant on the ground of arrears of rent
can be filed unless the landlord serves on the tenant, a notice demanding
arrears of rent and permitted increases and institutes such suit after expiry
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of period of 90 days from the date of service of notice. Thus, service of
demand notice is sine qua non for maintaining suit for eviction on the
ground of non-payment of standard rent and permitted increases. In the
present case, Defendants do not seriously dispute the fact that notice dated
24 January 2001 was dispatched on the correct address of Defendants at
suit premises on 24 January 2001. The notice alleged non-payment of rent
from April 1993. The entire debate is about service of notice dated 24
January 2001 on Defendants. The said notice was dispatched by three
modes of Registered Post A.D., UCP and hand delivery. The notice
dispatched by Registered Post A.D. has been returned to the Advocate with
the remark "left". So far as the notice dispatched through UCP is concerned,
the same has not been returned to the sender. Additionally, there is a
handwritten endorsement at the foot of the notice of attempt being made to
personally serve notice at the suit premises and Defendants not being
found. The endorsement states that the notice was pasted on the door of
the suit shop. Plaintiffs' witness Rajkumar Shivmurat Singh, (PW1) led
following evidence in support of claim of service of notice, which reads
thus:
"8. I say that therefore we have forwarded notice dated 24th January 2001 to
the Defendants through my Advocate by Registered Post A.D. calling upon the
Defendants to pay arrears of rent along with various municipal charges as
mentioned hereinabove. I say that however the Registered A.D. packets
containing the said notice addressed to the Defendants have came back to the
Advocate for the Plaintiffs with the postal endorsement "left". I further say that
therefore copies of the said notice were forwarded to the Defendants under
certificate of posting. I say that the said packets have not come back to our
Advocate. I say that I have also visited the suit premises to serve the notice upon
the Defendants but at that time the Defendants were not found and hence I have
pasted a copy of the said notice on the door of the suit premises. I am producing
herewith the office copy of the said notice dated 24 th January 2001 with the
pasting endorsement made by me thereon alongwith a photocopy of the said
notice which is shown at Sr.no. 11 of the index of documents. The said notice
was given by my Advocate under my instructions and contents thereof are
correct. The signature on the said copy is of my Advocate Mr. S.B. Bobhate and I
identify his signature. The endorsement made thereon is in my handwriting and
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I have signed the same. The said office copy may be taken on record and marked
as Exhibit.
9. I am also producing herewith the undelivered Registered A.D. packets
came back to our advocate with postal endorsement "Not Known" with
photocopy of the same. Name and address of the respective Defendants thereon
is correct. The said Registered packets are shown at Sr.no.12 & 13 of the index of
Documents. The said Registered A.D. packets may be taken on record and
marked as Exhibits.
10. I am also producing herewith the certificate of posting with a photocopy
which shows the name and address of the Defendants and stamp of the post
office. The same is shown at Sr. No.14 of the index of Documents. The same
may be taken on record and marked Exhibit.
11 I submit that though the Defendants have been duly served with the said
notice, the Defendants have neither forwarded any reply to the said notice, nor
the Defendants have forwarded the arrears of rent as per demand made in the
said notice, nor the Defendants have complied with the requisition made in the
said notice and therefore the Defendants have lost the protection of the said
Act."
(emphasis supplied)
18 According to Mr. Gadagkar, since the packet containing notice has
been returned with the remark "left", the same cannot be termed as valid
service of notice on Defendants. In support of his contention Mr. Gadagkar
has relied upon judgment of Single Judge of this Court in Lalmani
Ramnath Tiwari (supra) in which this Court has held in paragraph 7 as
under:
"7. In view of the rival submissions I would first proceed to deal with the
service of notice sent by registered post. The packet sent by registered post,
undisputedly, has been received back by the petitioner with postal endorsement
"not claimed". The contention raised on behalf of the petitioner that
endorsement not claimed should be treated to be one of refusal by the
respondent is totally misplaced. There is marked distinction between expression
"not claimed" and "refused". In case of endorsement of "refused" there can be no
dispute that the Court can legally presume that service has been duly effected on
the addressee. However, the said legal presumption cannot apply to a case where
the envelope has been returned with postal endorsement "not claimed". In this
situation the non-delivery of the envelope can be due to variety of reasons, but
surely other than refusal. The service can be said to be effected only when there
is a positive evidence that it is actually served through the modes permissible in
law or even when the addressee refuses to accept the same; but in no case, if the
packet is returned with postal endorsement "not claimed", can the Court
presume that service has been effected on the addressee."
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19 In Lalmani Ramnath Tiwari this Court has held that if the packet
containing notice is received by with endorsement "not claimed" the same
cannot be treated as valid service. On the other hand, Mr. Dahibawkar has
relied upon judgment of this Court in David K.N. (supra) in which the
Single Judge of this Court has relied upon judgment of the Apex Court in
M/s. Madan and Company vs. Wazir Javir Chand, AIR 1989 SC 630 and
has held in paragraphs 7 and 18 as under:
"7 Before considering the rival contentions it will be also appropriate to scan
through the judgments which are sought to be relied upon by the parties. In M/s.
Madan & Co. case the Apex Court while dealing with the provisions regarding
the service of notice in relation to the claim of arrears by landlord under Jammu
and Kashmir Houses and Shops Rent Control Act, 1966 has observed thus:-
"The proviso to Clause (1) of section 11(1) of the J & K Houses and
Shops Rent Control Act insists that before any amount of rent can be said
to be in arrears, a notice has to be served through post. All that a landlord
can do to comply with this provision is to post a prepaid registered letter
(acknowledgment due or otherwise) containing the tenant's correct
address. Once he does this and the letter is delivered to the post office, he
has no control over it. It is then presumed to have been delivered to the
addressee under section 27 of the General Clauses Act. Under the Rules
of the post office, the letter is to be delivered to the addressee or a person
authorised by him. Such a person may either accept the letter or decline
to accept it. In either case, there is no difficulty, for the acceptance or
refusal can be treated as a service on, and receipt by the addressee. The
difficulty is where the postman calls at the address mentioned and is
unable to contact the addressee or a person authorised to receive the
letter. All that he can then do is to return it to the sender. The Indian Post
Office Rules do not prescribe any detailed procedure regarding the
delivery of such registered letters. When the postman is unable to deliver
it on his first visit, the general practice is for the postman to attempt to
deliver it on the next one or two days also before returning it to the
sender. However, he has neither the power nor the time to make
enquiries regarding the whereabouts of the addressee, he is not expected
to detain the letter until the addressee chooses to return and accept it;
and he is not authorised to affix the letter on the premises because of the
assessee's absence. His responsibilities cannot, therefore, be equated to
those of a process server entrusted to the responsibilities of serving the
summons of a Court under Order 5 of the C.P.C. The statutory provision
has to be interpreted in the context of this difficulty and in the light of
the very limited role that the post office can play in such a task. If we
interpret the provision as requiring that the letter must have been actually
delivered to the addressee, we would be virtually rendering it a dead
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letter. The letter cannot be served where, as in this case, the tenant is
away from the premises for some considerable time. Also, as addressee
can easily avoid receiving the letter addressed to him without specifically
refusing to receive it. He can so manipulate matters that it gets returned
to the sender with vague endorsements such as not found, not in station,
"addressee has left" and so on. It is suggested that a landlord, knowing
that the tenant is away from station for some reasons, could go through
the motions of posting a letter to him which he knows will not be served.
Such a possibility cannot be excluded. But as against this, if a registered
letter addressed to a person at his residential address does not get served
in the normal course and is returned, it can only be attributed to the
addressee's own conduct. If he is staying in the premises, there is no
reason why it should not be served on him. If he is compelled to be away
for some time, all that he has to do is to leave necessary instructions with
the postal authorities either to detain the letters addressed to him for
some time until he returns or to forward them to the address where he
has gone, or to deliver them to some other person authorised by him. In
this situation, we have to chose the more reasonable, effective, equitable
and practical interpretation and that would be to read the word served as
sent by post, correctly and properly addressed to the tenant and the word
receipt as the tender of the letter by the postal peon at the address
mentioned in the letter. No other interpretation, we think, will fit the
situation as it is simply not possible for a landlord to ensure that a
registered letter sent by him gets served on, or is received by, the tenant."
The above ruling by the Apex Court was delivered in a case where the statutory
provisions in J & K Houses and Shops Rent Control Act specifically provide not
only for service of notice by landlord on tenant but also used expression like
receipt of such notice by tenant. Applying the said ruling to a situation where the
provision of law speaks only of sending of letter by registered post or tendering
or delivering the notice personally to the party, one will have to conclude that
the moment a letter is sent by registered post disclosing correct address of the
addressee, on return of such letter to the sender, apparently disclosing postal
notings of refusal or unclaimed by the addressee, presumption under section 28
of the Bombay General Clauses Act would inevitably arise in relation to the
service of such notice upon the addressee. It is to be borne in mind that even in a
situation where the statutory provision speaks of requirement of receipt of the
letter to conclude the service of notice upon addressee, the Apex Court after
taking into consideration the procedure which is followed for the purpose of
service of registered letter by post office has held that Endorsement on letters
returned by post office to the sender, like not found or addressee has left would
amount to service, certainly similar such endorsement in case of service of notice
in terms of section 106 of the Transfer of Property Act would also lead to the
presumption about the service of such notice in view of the provision contained
in section 28 of the General Clauses Act."
18 In fact, as far as the contention of the petitioner about his absence in the
premises and therefore absence of occasion to receive notice and, on that count
presumption being rebutted, a complete answer is to be found in the decision of
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Apex Court in M/s. Modon & Co 's case (supra). Mere absence of the tenant in
the premises cannot rebut the presumption arising under section 28 of the
Bombay General Clauses Act. It is for the tenant to make necessary arrangement
to receive the notice addressed to him in his absence at the suit premises and,
failure on the part of tenant in that regard cannot enure to his benefit to contend
that on account of his absence at the premises, the presumption of service would
stand rebutted. It is further to be noted that postal endorsement is not of refusals
to receive but to the effect that the letter was not claimed. In other words, 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 efforts 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."
20 Thus in M/s. Madan & Company (supra) the Apex Court has held
that an addressee can easily avoid receiving letter addressed to him without
specifically refusing to receive it and by manipulating the matters with
vague endorsement such as "not found", "not at station" "addressee has left"
etc. The Apex Court has further held that if a registered letter addressed to a
person at his residential address does not get served in the normal course
and returned, it can only be attributed to the addressee's conduct. In David
K.N. (supra) Single Judge of this Court has held that mere absence of the
tenant in the premises cannot rebut the presumption arising under section
28 of the General Clauses Act and that it is for the tenant to make necessary
arrangement to receive the notice addressed to him in his absence at the suit
premises. In cases where the packet is not claimed, this Court held that
there was presumption of not only regarding service of notice but also
regarding intimation of letter having been received in the post office
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addressed to the tenant and failure to collect the same by the tenant as he
was found absent in the premises.
21 In the present case, the version of both the parties is at some variance
about the exact reason why the Defendants were not found in the suit
premises when the notice was sought to be delivered. Mr. Gadagkar has
relied upon letter submitted by tenants on 17 July 2000 to MHADA for
completion of balance repair works and according to him, the said work was
going on in the building and Plaintiffs took disadvantage of the said
position by deliberately choosing the said time for addressing notice dated
24 January 2001. In my view, mere addressing of request letter by tenants
for completion of balance repair works on 17 July 2000 cannot be accepted
in support of Applicants' contention that the notice was deliberately timed
in such a manner that the same would not served. Mr. Gadagkar has relied
upon admission given by Plaintiff in cross- examination that the
Defendants had kept the suit premises always open. In my view, the said
admission does not make the case of Defendants any better and in fact
contradicts the defence that the notice was deliberately timed when repair
works were going on. Mr. Gadagkar has attempted to suggest that because
of repair works of the building the suit shop was rendered unusable on
account of erection of scaffolding and that therefore the suit premises were
always required to be kept open for carrying out repair works at the relevant
time. In my view, it is not necessary to delve deeper into the aspect as to the
suit premises were open or shut at the time attempt was made for service of
notice. What is relevant to note is the fact that the Defendants were
admittedly not paying rent since April 1993. Plaintiffs dispatched the
notice at correct address of suit premises and there is no error in the address
on the envelope. In addition to Registered Post AD, Plaintiffs also adopted
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two more modes of service of notice i.e. hand delivery as well as UCP. Hand
delivery could not materialize on account of absence of Defendants on suit
premises. Plaintiff has led evidence of pasting of notice. Also, the envelope
dispatched through UCP is also not returned, meaning thereby the postman
dropped the envelope containing the notice at the suit premises. Thus,
Defendants could have seen the pasted notice as well as opened the
envelope dropped by the postman at the suit premises. In my view,
Plaintiffs have been diligent enough in making efforts for service of notice
and Defendants could have easily read the contents of notice by opening
the envelope left by the postman under UCP or from the pasted notice.
22. The conduct of Defendants in the matter of payment of rent
cannot be ignored altogether while deciding the issue of valid service of
notice and maintainability of the suit. Defendants never intended to pay
rent to Plaintiffs and avoided to pay rent for eight long years since the year
1993. After being served with the suit summons on 8 February 2002 by
way of pasting and on 21 February 2002 by Registered Post AD.,
Defendants took almost one year to file an application seeking permission
to deposit the rent and such application was filed on 6 January 2003. The
conduct of the Defendants in not depositing the rent in the Court
immediately after receipt of suit summons on 8 February 2002/21February
2002 speaks volumes about their intentions. Therefore, a presumption
needs to be drawn that the notice dated 24 January 2001 must have also
received by them both in the form of UCP as well as pasting of notice at the
door by the Plaintiffs' witness. Thus, this is not a case where Defendants
did not receive any intimation alleging non-payment of rent. Their conduct
shows that they had no intention of payment of rent, since rent was not
paid even after receipt of suit summon for over one year.
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23 Section 15 of the MRC Act is enacted with the objective of providing
second opportunity to Defendants to clear arrears of rent and permitted
increases so as to avoid decree for eviction. The provision is enacted
primarily with the objective of ensuring that unscrupulous landlords do not
create artificial default and use the same for seeking tenant's eviction.
Therefore, two opportunities are offered to the tenant to clear the arrears of
rent. The Defendants can clear arrears of rent after receipt of notice under
section 15(2) of the MRC Act. If he fails to do so, another opportunity is
given under section 15(3) of the MRC Act to deposit the arrears of rent,
interest and costs of the suit within a period of 90 days of receipt of the suit
summons. However, these facilities provided to the tenant does not mean
that the tenant can go on committing defaults in payment of rent and avoid
decree of eviction on technical ground of non-receipt of notice. Rent, after
all is a form of return to the landlord on his investment in respect of
tenanted premises. Timely payment of rent thus an important facet of
tenancy arrangement. The tenants are provided relief in the matter of
increase in the amount of rent by virtue of Rent Control Legislation.
However, if it is found that even such protected rent is not paid by the
tenant, the Courts cannot shy from passing decree for eviction. In the
present case, Defendants have specifically admitted in their written
statement that they were not paying rent since March/April 1993. Though
Defendants adopted defence of alleged disputes amongst family members
of landlords for avoiding payment of rent, the said defence is proved to be
false during the course of evidence. Plaintiffs are children of the original
tenant Shivmurat Singh. DW-1 admitted in his evidence that he knew that
Plaintiffs are sons of original tenant. He also admitted that Defendants'
father used to pay the rent to the original landlord Shivmurat Singh, after
whose death, rent was being paid to Kamaladevi and after Kamaladevi's
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death the rent was being paid to the Plaintiff No.3-Sureshkumar. After
being asked as to why rent was not paid to Plaintiff No.1-Rajkumar after
death of Sureshkumar, DW-1 gave vague answer that he attempted to
tender the rent to Rajkumar who refused to accept the same. However, in
the written statement a defence was taken that it was impossible to
understand as to which of the several legal heirs is the owner to whom rent
was payable. It was not contended in the written statement that the rent was
even attempted to be paid to Rajkumar or that he refused to accept the
same. In my view, the entire bogey of alleged dispute between the heirs of
original tenant sought to be raised in the written statement for avoiding
payment of rent is unbelievable. Plaintiffs were left with no other
alternative but to bring a suit for seeking recovery of possession from
Defendants, who were not paying rent from over eight years.
24 Reliance of Applicants on judgment of this Court in Sitaram Narayan
Shinde (supra) does not cut any ice in view of the fact that issuance of
notice demanding rent is proved in the present case. In Sitaram Narayan
Shinde (supra) the notice itself was not issued. In the present case, issuance
of notice is not disputed and dispute was sought to be created only with
regard to receipt of the notice, which aspect has already been dealt in the
preceding paragraphs.
25 In my view therefore no serious flaw can be found in the concurrent
findings recorded by the Small Causes Court and its Appellate Bench on the
issue of default in payment of rent prior to filing of the suit.
26 So far as the conduct of Defendants after filing of suit is concerned,
opportunity under section 15(3) of the MRC Act was again not availed by
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them by depositing the amount of arrears of rent, 15% interest and cost of
suit. The application for making deposit of rent was filed on 6 January
2003, though the summons were served on 8 February 2002/21February
2002. It is settled law that Courts cannot extend the period for deposit of
rent specified in Section 15(3) of the Act. It is thus conclusively proved that
the Defendants have defaulted in payment of rent and therefore decree for
eviction on the ground of arrears of rent cannot be found fault with.
27 So far as the ground of bonafide requirement is concerned, Plaintiffs
raised following pleadings in the plaint:
"5. That the premises are reasonably and bonafide required by the Plaintiffs
for occupation by themselves and/or members of their family for carrying on the
business. The Plaintiff Nos.1, 2 and 4 are unemployed and Plaintiff No.3 is
Psychiatric Patient and thus there are no any source of income for the Plaintiffs
except the rent received by the Plaintiffs, out of which the Plaintiffs have to pay
property tax, repair cess and Collector's tax and financially also the Plaintiffs are
unable to acquire any other premises for business purpose, though they have
been making attempt to find out alternate premises for the same."
28 In the Affidavit-of-evidence, Plaintiff's witness stated as under :
"7. I further sav that the premises have been reasonably and bonafide
required by the myself and other Plaintiffs for carrying on business by us and/or
our family members. I say that myself, the Plaintiff Nos. 2, 3 and 4 are
unemployed and thus there is no source of income for us except the rent received
by us out of which we also have to pay property tax, repair cess and Collector's
tax. I further say that the financially also we are unable to acquire any other
premises for business purpose though we are making attempt to find alternate
premises."
29 Thus, Plaintiffs set up a case that they require suit premises for
carrying out business by them and their family members. It was pleaded
that Plaintiffs No.2, 3 and 4 were unemployed and did not have any source
of income. Defendants contested the claim of bonafide requirement by
contending that Plaintiffs owned several other buildings and that the
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bonafide need set up by them was false. However, in the cross-examination,
D.W.1 admitted that Plaintiffs did not have any business premises in their
possession not just in the suit building but also in any other building.
Though suggestion was given to the Plaintiffs about filing of several suits
against various tenants, no material was produced on record by the
Defendants to prove that possession of any commercial premises was
obtained by Plaintiffs. The Trial Court therefore proceeded to accept the
ground of bonafide requirement of Plaintiffs after holding that greater
hardship would be caused to them in the event of dismissal of suit as
Defendants were not found to be carrying out any business from the suit
premises. The Appellate Bench has upheld the finding of the Trial Court
on the issue of bonafide requirement by reappreciating the evidence.
Though Mr. Gadagkar has strenuously submitted that Plaintiffs did not
produce any evidence to prove insufficiency of funds, in my view, once
Plaintiffs expressed their desire of commencing business in the suit
premises and once Defendants were unable to prove availability of any
other premises for Plaintiffs to run their business, it was not necessary for
the Plaintiffs to further prove that they did not have sufficient funds.
Mr. Gadagkar has also highlighted the fact that suit premises admeasure
only 21 sq. ft. However, the size of the suit premises would be irrelevant
and it is not for the Defendants to question Plaintiffs as how they intend to
carry out business in such small premises. Plaintiffs are best judge in
respect of their own bonafide requirement and tenant cannot dictate terms
to the Plaintiff as to how he must put the tenanted premises to use. So far as
the issue of comparative hardship is concerned, both the Courts have
concurrently held that greater hardship would be caused to the Plaintiffs in
the event of dismissal of the suit. Though the ground of non-user is
answered in favour of the Defendants by the Appellate Bench by reversing
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the finding of the Trial Court, such reversal is essentially on technical
grounds of failure on the part of the Plaintiffs to indicate the exact date
from which the suit premises were not being used. Similarly, admission
given by Plaintiff No. 1 that the suit premises were not closed and that they
were always kept open is yet another reason why the ground of non-user is
rejected. However, at the same time carrying of business continuously in
the suit premises by Defendants is not conclusively proved so as to record a
finding that greater hardship would be caused to them in the event of the
suit being decreed. I therefore do not find any valid reason to interfere with
the concurrent finding of fact recorded by the Trial Court and the Appellate
Bench on the issue of bonafide requirement.
30 Considering the overall conspectus of the case, I do not find any
palpable error in the concurrent findings recorded by the Trial Court and its
Appellate Bench on the issue of arrears of rent and bonafide requirement.
Therefore, though the issue of change of user is being answered in favour of
Defendants, I am unable to reverse the eviction decree since the findings of
grounds of default in payment of rent and bonafide requirement are being
confirmed. Therefore, the Revision Application must fail.
31 Civil Revision Application is accordingly dismissed. There shall be
no order as to costs.
(SANDEEP V. MARNE, J.)
32 After the order is pronounced, Mr. Gadagkar, after taking
instructions from the Revision Applicant, who is personally present before
the Court, seeks time till 30 November 2024 to vacate the suit premises.
Accordingly, the Revision Applicant is permitted to vacate the suit premises
on or before 30 November 2024 subject to filing of usual undertaking.
Digitally
signed by
SUDARSHAN
SUDARSHAN RAJALINGAM
(SANDEEP V. MARNE, J.)
RAJALINGAM KATKAM
KATKAM Date:
2024.08.27
15:12:09
+0530
