Bombay High Court
Vinod Shashank Chakor Pvt. Ltd. vs H.D. Merchant Since Deceased Through ... on 24 June, 2004
Equivalent citations: 2004(6)BOMCR190, 2004(4)MHLJ873, 2004 A I H C 4246, (2005) 1 RENTLR 129, (2005) 1 RECCIVR 9, (2004) 4 MAH LJ 873, 2005 BOM LR 1 569, (2005) 1 RENCJ 332, (2004) 6 BOM CR 190
Author: D.G. Karnik
Bench: D.G. Karnik
JUDGMENT D.G. Karnik, J.
1. By this Writ Petition the petitioner challenges the judgment had order of the appellate Bench of the Small causes Court, Bombay allowing the appeal and setting aside the decree for possession passed against the respondent by trial Court.
2. The facts giving rise to the Writ Petition are short and are stated below:-
The suit property which consists of a flat on the ground floor in the building known as 'Neela House' situated in a posh locality in Bombay at Carmichael Road, (Peddar Road) belongs to the petitioner company. The respondent is a tenant occupying the suit flat since long on the monthly rent of Rs. 456.36. The respondent was in arrears of rent from 1st October 1967 to 31st May 1968. By a notice dated 18th June 1968, the petitioner demanded the rent which was paid by the respondent. As the respondent again fell in arrears of rent from 1st July 1968 till 31st May 1969, by another notice dated 11th February 1969 the petitioner demanded the arrears of rent which the respondent failed and neglected to pay. The petitioner therefore filed a suit against the respondent for possession on the ground of default in payment of rent within one month of the notice of demand. The respondent resisted the suit contending that the notice dated 11th February 1969 was never received by him and as such the respondent could not be evicted Under Section 12(3)(a) of the Bombay Rents Hotels Lodging and House Rates control Act 1947 (for short 'Bombay Rent Act'). The Small Causes Court, Mumbai by its judgment and order dated 19th February 1985 held that the petitioner had proved the issuance of the notice dated 11th February 1969 and had also proved that the notice was received by the respondent and as the rent was not paid within one month from the receipt of the notice, the respondent was a defaulter. Consequently, the trial Court passed a decree for possession. On appeal, the Appellate Bench of the Small Causes, Mumbai held that the notice dated 11.2.1969 was not received by the respondent or his representative and therefore the respondent was not liable to be evicted on the ground of non payment of the rent. The Appellate Bench allowed the appeal and dismissed the petitioner's suit for possession. That judgment is impugned in this Writ Petition.
3. Learned counsel for the respondent submits whether the notice dated 11th February 1969 was received by the respondent or not is purely a question of fact. The finding recorded by the appellate Court that the notice was not received by the respondent is a pure finding of fact and therefore cannot be interfered with in exercise of a writ jurisdiction under Article 227 of the Constitution of India, (see Babhutmal Raichand Oswal v. Laxmibai R. Tarte, ) Per cantra, the learned counsel for the petitioner contends that the finding as to whether the notice was served or not though normally would be a question of fact, in the peculiar facts and circumstances of this case was a mixed question of law and facts. He submits that there was no dispute that the notice dated 11th February 1969 was despatched by Registered post A.D. The original registration receipt showing the despatch of the receipt on 11th February 1969 was produced before the trial Court and both the Courts below have held that the notice had been despatched. The only issue was whether the notice was received by the respondent. The notice was properly addressed and despatched. Under Section 114 of the Evidence Act read with Section 27 of the General Clauses Act there was a presumption of service. Though the trial Court had properly appreciated the scope of the presumption, the appellate Court erred in not applying the presumption of service. The question as to whether the notice was served was required to be determined in accordance with law and by applying the provisions of Section 114 of the Evidence Act read with Section 27 of the General Clauses Act and hence the question was a mixed question of law and facts and was open to scrutiny. He further submits that the finding of the appellate Court of non service of a notice was perverse in as much as proper presumption were not drawn and the material evidence was ignored by the appellate Court, in view the rival submissions, it would be necessary to examine whether the finding reached by the appellate Court that the notice was not served on the respondent is contrary to law, being reached without proper application of the presumption under Section 114 of the Evidence Act read with Section 27 of the General Clauses Act and as such whether the said finding is perverse. Such scrutiny would not be beyond the limits of judicial scrutiny under Article 227 of the Constitution of India.
4. The notice dated 11th February 1969 was addressed and sent to the respondent at the address "Neela House, Carmichael Road, Bombay 400 026", which is the proper and correct residential address of the respondent. A registration receipt of despatch of the notice by registered post on 11th February 1969 is filed on record. This proves despatch of the notice to the respondent at the proper address. An acknowledgement signed by one Jane purportedly for the respondent was received back from the post office. The signature on the acknowledgement is not made in ink but is made in lead pencil and reads: "Jane for H.D. Merchant". The admitted position is that the notice was not received by the respondent Dr. H.D. Merchant personally but the contention is that the notice was delivered to his maid servant who was authorised to receive the notice on behalf of the respondent. To prove service on the maid servant of the respondent, the petitioner examined two witnesses, Mr. Arvind Govind Pradhan who is the Manager of the plaintiff and Mr. Sitaram Laxman Parte. In his examination is chief, Mr. Pradhan states that the notice was received by the representative of the respondent. However, in the cross examination, he admits that he did not know who was the respondent's representative who received the notice. He further admits that he was reading the name "Jaen" appearing on the acknowledgement for the first time in the Court on the day of his evidence. He did not state that he knew any person by name "Jaen". Thus the evidence of Mr. Pradhan is of no assistance to ascertain whether "Jaen" was a maid servant of the respondent and/or was his authorised representative. Mr. Sitaram Parte is stated to be working as a driver with Mr. Lalchand Hirachand, a director of the petitioner Company. He states that he was given accommodation to reside in one room at the rear side of "Neela House" i.e. the suit building. He states that at the relevant time, the respondent had two servants, one male by name "Govind" and one lady by name "Jenny". He does not state Jenny means "Jaen". However, it is argued by the learned counsel for the petitioner that this "Jenny" should be construed and understood as "Jaen" who had received the notice of behalf of the respondent. This submission, made without any assertion to that effect by any witness cannot be accepted. Besides, the appellate Court did not believe Parte at all and has discarded his evidence entirely. The appellate Court disbelieved the statement of Mr. Parte that he was living in a room on the rear side of the suit building and has cogent reasons for this conclusion. In the cross-examination, Mr. Parte states that the respondent resides on the first floor of the suit building whereas the respondent resides on the ground floor indicating that Mr. Parte was not aware even of the place of residence of the respondent, leave alone servants employed by him. Mr. Parte further states that he did not know the full name of Jenny but she used to speak sometimes in Marathi and sometimes in Hindi. He does not says that Jenny ever spoke in English. The signature on the postal acknowledgement is in English. The conclusion reached by the appellate Court that Parte at the relevant time was not residing in a room on the rear side of the suit premises and could not have a knowledge of the servants of the respondents is a possible finding. There is no other evidence on record to indicate that the respondent had ever employed any servant by name "Jenny" or "Jaen". Therefore, the service of the notice on a representative of the respondent is not proved as a fact.
5. Learned counsel for the petitioner however contends that the appellate Court ought to have drawn a presumption of service. He firstly relies upon Section 14 of the Evidence Act which reads as under:-
114. Court may presume existence of certain facts - The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
Illustrations: The Court may presume.....
(f) That the common course of business has been followed in particular cases;
(other illustrations given below the section, being not relevant, are omitted) The learned counsel for the petitioner also relies upon a decision of the Privy Council in Harihar Banarji and Ors. v. Ramshashi Roy and Ors. reported in AIR 1918 Privy Council, wherein it is observed:
"For instance, if a servant in the addressee's house saw a notice handed in by the postman carried to the addressee, and handed to him that servant could certify that it was delivered to his master and could, if requested by the master, sign the receipt on the latter's behalf, though he was not the agent of the master authorised to take delivery on his, i.e. the master's behalf."
It is true that the notice need not be received by the addressee personally but may be received by a servant on his behalf and the servant may even sign the acknowledgement if so authorised by the master. The ratio of the decision in Harihar Banarji's case would apply if the notice is served on a servant. The question here is not whether the notice was served on "Jaen" but whether "Jaen" was a servant of the respondent or whether the respondent ever had any servant by name "Jaen". The respondent who examined himself has stated on oath that he has not received the notice and that he never had any servant by name "Jane". As regards the acknowledgement, he states that the acknowledgement does not bear the signature of any of this employees working in his clinic or the residence nor any of the members of his family. He further states that the name "Jaen" does not resemble the name or nick name of any of this employees. With this positive evidence that "Jaen" was never employed by the petitioner, no presumption can be drawn that service of notice on "Jaen" was a service on the respondent.
6. The learned counsel for the petitioner also refers to Section 27 of the General Clauses Act which reads as under:-
27. Meaning of service by post. Where any Central Act or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression "serve" or either of the expressions "give" or "send" or any other expression is sued, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is provided, to have been effected at the time at which the letter would be delivered in the ordinary course of post."
7. Relying on Section 27 he contends that since it was proved that the notice had been properly addressed and sent by registered post to the respondent, unless the contrary was proved, service should be presumed to have been effected at the time when the letter would have been delivered in the ordinary course of post. The presumption of service is not weakened by production of an acknowledgement purportingly signed by "Jaen" for the respondent, but the onus was shifted on the respondent to prove that the notice was not received by him or his servant on his behalf. When the respondent entered the witness box and on oath stated that the notice was not received by him, that there was no person by name "Jaen" or similar name employed by him, and that the acknowledgement did not bear the signature of any of his employees the onus was discharged. The presumption Under Section 27 of the General Clauses Act is a rebuttable presumption. It was rebutted by the respondent by his positive evidence on oath. As the presumption was rebutted, the petitioner was required to prove as a fact the service of notice on the respondent. In Green View Radio Service v. Laxmibai Ramji the Supreme Court has observed:
"Thus in our view the presumption of service of a letter sent by registered post can be rebutted by the addressee by appearing as witness and stating that the never received such letter. If the acknowledgement due receipt contains the signatures of the addressee himself and the addressee as a witness states that he never received such letter and the acknowledgement due does not bear his signature and such statement of the addressee is believed then it would be a sufficient rebuttal of the presumption drawn against him. The burden would then shift on the plaintiff who wants to rely on such presumption to satisfy the court by leading oral or documentary evidence to prove the service of such letter on the addressee. This rebuttal by the defendant of the presumption drawn against him would of course depend on the veracity of his statement. The court in the facts and circumstances of a case may not consider such denial by the defendant as truthful and in that case such denial alone would not be sufficient. But if there is nothing to disbelieve the statement of the defendant then it would be sufficient rebuttal of the presumption of service of such letter of notice sent to him by registered post.
8. Relying upon the latter part of the aforesaid observation, the learned counsel for the petitioner submits that though the presumption of service can be rebutted by the addressee by making a statement on oath that he had not received the notices, the Court may examine the veracity of the said statement, and if the Court considered that the addressee was not truthful, the Court would consider the denial to be insufficient. Learned counsel for the petitioner submits that in the present case there were circumstances to indicate that the denial of receipt of the notice by the respondent was not truthful. Prior to the suit notice, an earlier notice was issued to the respondent on 18th May 1968 demanding the arrears of rent for the period 1st October 1967 to 31st May 1968. This earlier notice was also referred to in the plaint. In the written statement the respondent had denied the receipt of both the notices i.e. the notice of 18th May 1960 as well as the suit notice dated 11th February 1969. In the course of his evidence the respondent, however, admitted receipt of the notice dated 18th May 1960 which indicates that the initial denial in the written statement was not true. Therefore, submits Mr. Thorat, the respondent's evidence should be disbelieved. The maxim "Falsus in uno falsus in omnibus" is not applicable in civil cases. Mere fact that one statement of a person, whether in the witness box or in the pleadings, is shown to be erroneous does not mean that his all other statements in the pleadings or in the evidence are false. If a person is shown to have lied at one place the Court may consider his evidence with greater caution but in the absence of any other circumstances doubting his veracity, may not discard this entire evidence on that ground alone. In the present case, the respondent has explained in his deposition the error committed by him in denying receipt of the earlier notice dated 18th May 1968. He has stated that the notice dated 18th May 1968 was misplaced and was not available with him when he filed the written statement. When he subsequently found out the notice, he admitted receipt of that notice in his examination at oath. The explanation is possible and has been believed by the appellate Court. I see no reason to take a different view. It was secondly contended that even after the suit notice, there were some communications addressed to the respondent at the same address and they were all received by the respondent. The fact that the respondent was receiving communications prior to and after the suit notice dispatched at the same address only strengthens the initial presumption of service arising Under Section 27 of the General Clauses Act. Once the presumption was rebutted by a positive statement of the respondent on oath, something more was necessary for the petitioner to prove the service. It is worthwhile to note that though receipt of the suit notice was specifically denied in the written statement itself and the petitioner was aware of such denial, the petitioner chose not to examine the postman who allegedly delivered the notice to "Jaen". No explanation - like the postman had retired or transferred and was not available - was offered by the petitioner for non examining the postman. The initial presumption of service was properly rebutted by the respondent, and hence it was necessary for the petitioner to examine the postman or prove the service of the suit notice by some other positive evidence.
9. The appellate Court after careful examination of the evidence adduced on record and has come to a conclusion that the notice was not received by the petitioner. All the evidence which was pointed out before me was also pointed out before me was also pointed out to the appellate Court. On appreciation of the evidence as well as after considering the effect of the presumptions arising under Section 114 of the Evidence Act and Section 27 of the General Clauses Act, the appellate Court came to the conclusion that the notice was not received by the respondent and was not delivered to the authorised representative of the respondent. The view taken by the appellate Court is possible. As held by the Apex Court in the case of Babhutmal Raichand Oswal v. Laxmibai R. Tarte (Supra) this court, in exercise of writ jurisdiction under Article 227 of the Constitution of India, cannot interfere in a finding of fact, unless the finding is perverse. No perversity is shown in the finding reached by the appellate Court. Sub-section (2) of Section 12 of the Bombay Rent Act lays down that no suit for recovery of possession on the ground of non payment of rent shall be filed until the expiration of one month next after written notice of demand has been served on the tenant in the manner provided in Section 106 of the Transfer of Property Act 1882. As the notice of demand is not proved to have been served on the respondent, the suit for possession on the ground of default was not maintainable, though suit for possession on other grounds could be filed without notice in view of the judgment of the Apex Court in Dhanpal Chettiar v. Yesodai Ammal .
10. For these reasons, Writ Petition is dismissed with costs. Rule discharged with costs.