Bombay High Court
Parvatibai Maruti Hande vs Satish Mohanram Prajapati on 6 July, 2000
Equivalent citations: (2001)4BOMLR516
Author: A.M. Khanwilkar
Bench: A.M. Khanwilkar
JUDGMENT A.M. Khanwilkar, J.
1. This writ petition takes exception to the Judgment of the Vth Additional District Judge, Thane dated 18th December, 1986 passed in Civil Appeal No. 193 of 1985.
2. Briefly stated, the petitioner is the landlady while the respondent is the tenant who was inducted in the suit premises in the year 1977 which consisted of only one room admeasuring 7' x 7' situated at Janu Bhendi Pada, Ambernath. The petitioner gave notice on 10th December, 1978 to the respondent demanding arrears of rent from January, 1978 to November, 1978. This notice was duly replied by the respondent. It is the respondent's case that besides sending reply the respondent offered the payment but the landlady refused to accept the same. Nevertheless, the petitioner sent another notice which is the suit notice dated 8th February, 1979 (Exhibit 20) demanding arrears from January, 1978 to January, 1979. By the said notice, the petitioner claims to have terminated the tenancy of the respondent in respect of the suit premises.
3. It is stated that since the respondent did not offer the amount as demanded in the suit notice nor raised any dispute regarding standard rent of the suit premises within a period of one month from the date of reply of the suit notice, the respondent had become liable to be evicted within the meaning of Section 12(3)(a) of the Bombay Rent Act. There is, however, a serious dispute regarding the service of the suit notice on the respondent. If it is held that the suit notice has not been duly served on the respondent, in that case the suit for possession and arrears filed by the petitioner will naturally have to be dismissed for non-complying with the mandatory requirement of giving prior notice to the tenant under Section 12(2) of the Act. In the circumstances, the question which will have to be considered in this case is whether the suit notice dated 8th February. 1979 (Exhibit 20) has been duly served on the respondent and. If the same is answered in the negative, the suit will have to be dismissed on that count alone.
4. To continue the narration of events, the petitioner instituted suit against the respondent around 25th April, 1979 for possession and arrears in respect of the suit premises. The said suit was resisted by the respondent. The respondent denied that the suit notice has been duly served on him at any point of time. Both the parties adduced documentary as well as oral evidence. The plaintiff/petitioner examined two witnesses viz. Shantaram and Raghunath, P.W. 1 and P.W. 2 respectively in support that the suit notice was duly served. On the other hand, defendant examined D.W. 1 Mohanram, who is the father of respondent herein. The Trial Court, after considering the evidence on record took the view that the suit notice has been served on the respondent tenant. For arriving at this conclusion, the Trial Court referred to the circumstances of the previous notice which was sent in December, 1978 was admittedly received by the father of the respondent and, therefore, there was no reason to disbelieve that the second notice, which is the suit notice, sent under the Certificate of Posting on the same address has not been served on the respondent. In addition to this, the Trial Court relied on the evidence adduced by the plaintiff to show that the suit notice was duly pasted on the front wall of the suit premises and which, according to the Trial Court was sufficient service. Accordingly, the Trial Court decreed the suit by holding that the respondent was defaulter within the meaning of Section 12(3)(a) of the Act and ordered delivery of possession of the suit premises to the petitioner.
5. Being dis-satisfied, the respondent carried the matter in appeal before the Vth Additional District Judge, Thane being Civil Application No. 193 of 1985. The Appellate Court was pleased to reverse the said decree. The Appellate Court held that the presumption of service of notice sent by under Postal Certificate is rebuttable and, in the present case, the respondent has not only denied the same in his pleading but also denied service in any manner in evidence. The Appeal Court referred to the decision and held that it was sufficient for the defendant to have denied service of notice in pleading and by way of evidence so as to rebut the presumption. The Appellate Court accordingly held that there was no cogent proof of service of the notice under Certificate of Posting as alleged by the petitioner, in which case the suit notice was not a valid notice for maintaining the suit for eviction under Section 12(3)(a). With regard to the other mode of service, the Appellate Court, after having referred to the pleadings and evidence on record, held that the question of resorting to service by this mode would have arisen only if there was evidence to show that service of notice by post was not practicable. The Appellate Court found that it is only when service by post is not possible that the question of effecting service by tender or personal delivery would arise and; failing to effect service by that mode alone would entitle service by affixing on a conspicous part of the property. The Appellate Court, after considering the evidence has negatived the plea of sufficient service of the suit notice and, on the other hand, concluded that the plea that respondent refused to accept the suit notice cannot be accepted Consequently for want of valid service, the Appellate Court allowed the appeal and dismissed the suit by reversing the decree passed by the Trial Court.
6. It is against the aforesaid judgment, the present writ petition is filed under Article 227 of the Constitution of India. The learned counsel for the petitioner submits that the Appellate Court has clearly over-looked the purport of Section 114 of the Evidence Act r/w Section 27 of the General Clauses Act, which would draw presumption of valid service once the plaintiff has proved that the notice has been sent by under Certificate of Posting. The learned counsel further contends that in any case the petitioner had succeeded in establishing that service of suit notice was effected by affixing the same on the suit premises by the evidence of P. W. No. 1 and P. W. No. 2 besides, the panchnama Exhibit 20A.
7. Having considered the rival arguments and the record of the case, I am afraid, the stand taken by the petitioner cannot be accepted. The learned counsel for the petitioner was unable to point out any decision which has taken a contrary view than the one taken in the case of Shiv Dutt Singh v. Ram Doss. There is no reason for taking a different view from the one which has been taken by the Allahabad High Court as to the manner in which the defendant would rebut the presumption. In the present case respondent has not only denied service of the suit notice in any manner by any mode but has maintained the said stand even in the evidence. There is no reason to discard the denial of the respondent, which, in my view is sufficient rebuttal of the presumption under Section 114 of the Evidence Act and Section 27 of the General Clauses Act. Once the presumption stands rebutted, then the onus shifts on the plaintiff to prove by positive evidence that the service was actually effected on the defendant by that mode. That evidence is totally lacking in the present case. In the circumstances, the view taken by the Appellate Court regarding service by under Certificate of Posting cannot be doubted in the present case.
8. Since the plaintiff has failed to prove the service of suit notice by under Certificate of Posting, the Only mode which is pressed is that the suit notice has been served by affixing on the suit premises. On plain reading of Section 106 of the Transfer of Property Act, it would appear that the suit notice must be in writing, signed by or on behalf of the person giving it and could be either sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants, at his residence, or (if such tender or delivery is not practicable) affix to a conspicuous part of the property. Thus, service by affixing on the conspicuous part of the property would arise only when the plaintiff is able to prove that service by post or by tender was not practicable. In other words/service by affixing on the conspicuous part of the property is the last mode provided by Section 106. The Appellate Court oh examination of the record, particularly the evidence adduced by the parties has concluded that it cannot be accepted that the respondent herein refused to accept the notice tendered on behalf of the respondent. This finding of fact cannot be interfered with in exercise of writ jurisdiction. Therefore, the only other mode which has been considered by the Appellate Court is regarding affixing of suit notice on the premises. Even with regard to this mode, the finding recorded is that the plaintiff has failed to prove that the service of suit notice Was effected by this mode. Even this finding of fact recorded by the Appellate Court cannot be questioned in writ jurisdiction. Nevertheless, I have examined the deposition of P.W.1, P.W. 2. On close examination of the said evidence, ft would appear that the witnesses have not furnished any particulars regarding the time and date of affixing the suit notice on the premises. What is intriguing is that the panchas who were kept present for carrying out service by affixing are none else but closely associated with the plaintiff and interested witnesses. No independent witness has been examined. The second pancha who had accompanied while affixing the suit notice has not been examined. Evidence of P.W. No: 1 and P.W. No. 2 would indicate that they do not remember any details as to the time and date as to when suit notice was affixed. Suggestion has been put to these witnesses that the panchnama has been prepared at their residence. P.W. No. 2 has admitted that the plaintiff Is his friend and he was invited for carrying out affixing of the suit notice specially from his residence on the previous day from his residence which is situated at a distance of 15 minutes. It has come in the evidence of the plaintiff s witness that there are about 50 tenements in and around suit premises besides the shops in the suit property.
Nevertheless, no independent person from the locality has been taken as panchas at the time of affixing of the suit notice. Be that as it may, there is no reason to interfere with the finding of fact recorded by the Appellate Court that the plaintiff had failed to establish service by affixing the suit notice. In the circumstances, the plaintiff has failed to prove the service of suit notice even by this mode. Consequently, there is totally no evidence that suit notice has been duly served on the respondent. In the absence of the said evidence, no suit could be maintained by the plaintiff for eviction on the ground of arrears under Section 12 of the Bombay Rent Act. In the circumstances, the Appellate Court was right in reversing the decree passed by the Trial Court and dismissing the suit for possession as filed by the petitioner. I find no reason to interfere with the said conclusion reached by the Appellate Court and, therefore, this writ petition deserves to be dismissed with costs. .
9. For the aforesaid reason, writ petition is dismissed with costs.
Rule stands discharged.
Parties to act on an ordinary copy of this order duly authenticated by the Sheristedar of this Court.
10. Certified copy expedited.