KULKARNI PATTERNS PVT LIMITED Vs. VASANT BABURAO ASHTEKAR

JUDGEMENT

(1.) This appeal by grant of special leave is directed against the judgment of the Bombay High Court dated 30th August, 1991 in a suit for possession under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as the 'Act'). The suit was dismissed by the 7th Additional Small Causes Judge. On appeal the learned 10th Additional District Judge, Pune by judgment dated 25-4-1991 se aside the order of the trial Court and decreed the plaintiff's suit for possession. The tenants filed the writ petition in the High Court challenging the order of the Additional District Judge, but the same was dismissed and the decree for possession passed by the Additional District Judge was affirmed.

(2.) The trial Court held that the service of notice dated 7-8-1980 on the defendant tenants was not held proved. The plaintiffs were unable to prove that the postal acknowledgment Exhibit 51 contained the signatures of defendant No. 2 or 3. It was held that on the point of service of notice the case of the plaintiff was rather confusing and not clear. It was held that even assuming that the notice had been served yet the case did not fall under 12(3)(a) of the Act. The trial Court also held that the case did not fall under S.12(3)(b) of the Act as the defendants had paid Rs. 55,800/- on 16-1-1984 and thereafter made regular payment of Rupees 600 every month. According to the learned trial Court the issues were framed on 26-8-1985 and before that the defendants had made full payment as demanded in the notice and as such no decree can be passed under S. 12(3) (b) of the Act.

(3.) Learned Additional District Judge reversed the above finding of the trial Court and held that the evidence of the plaintiff showed that the copy of the notice was sent to all the defendants by registered, post. The postal receipts have been filed as Exhibits 52, 53 and 54. Learned Additional District Judge further held that when the notices are sent by registered post it is presumed to have been served and mere denial by the tenants had no value, unless they proved some extraordinary happenings or events which prevented following of usual course of business. Learned Additional District Judge further held that the notice was sent on the address given in the plaint and it was admitted by the defendant in his statement that it contained the correct address. A presumption of service of notice was drawn under S. 27 of the General Clauses Act and S. 114 of the Evidence Act. Learned Additional District Judge though affirmed the finding of the trial Court that the case is not covered under S.12(3)(a) of the Act, but the plaintiffs were entitled to a decree under S. 12(3)(b) of the Act. In this regard learned Additional District Judge recorded the finding that the entire arrears of rent amounted to Rs. 71,088 but the defendant-tenant only deposited Rs. 66,000/- till the first date of hearing and thus remained in arrears of Rs. 5,088/-. It was also held that the provisions of S. 12(3)(b) of the Act are mandatory provisions and those are required to be strictly complied with by the tenants during the pendency of the suit and also appeal when the landlord claims possession of the suit premises on the ground of S. 12(3)(b) of the Act. The defendant tenant did not deposit the entire arrears on the first date of hearing and did not deposit thefurther rent during the pendency of the appeal. Thus the defendant persistently cornmitted defaults during the pendency of the suit and also the appeal in paying the rent.