KALIDAS CHHAGANLAL RANA Vs. BABALDAS BAPUBHAI RANA

JUDGEMENT

(1.) Can the secondary evidence of the quit notice contemplated under Sec. 12(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 ('the Rent Act' for brief) be permitted for mere asking ? Is it not necessary for the party to lay foundation for producing the secondary evidence as provided in Sec. 65 of the Evidence Act, 1872 ('the Evidence Act' for brief) ? These are the main questions arising in this revisional application under Sec. 29(2) of the Rent Act questioning the correctness of the decree of eviction passed by the learned Judge of the Small Causes Court at Baroda on 30/09/1976 in Rent Suit No. 389 of 1975 as affirmed in appeal by the learned Assistant Judge of Baroda on 19/12/1977 in Civil Appeal No. 260 of 1976.

(2.) The facts giving rise to the present appeal may be summarised thus: The petitioner is the tenant and the respondents are the landlords of the premises involved in the litigation giving rise to the present revisional application. The rented premises formerly belonged to one Bai Jamna. The tenant had taken it on lease from her. Respondent No. 1 herein is the father and respondent No. 2 is his son. The father purchased the suit premises from the previous owner in the name of his minor son by the registered sale deed executed on 15/03/1968. The sale deed is at Exh. 17 on the record of the trial Court. The original document needed some correction and the document of rectification is at Exh. 18 on the record of the trial Court. It appears that the tenant fell in arrears of rent for 31 months, from 1/01/1969 to 31/07/1971. The landlords thereupon served the defendant with a quit notice of 5/08/1971 demanding from the tenant the arrears of rent due from him upto 3/07/1971. The tenant was also called upon to vacate the rented premises. It was sent by post under registered cover. It came back to the sender with the endorsement of refusal made by the postman on the envelope. It would mean that the addressee, that is, the tenant had refused it. The landlords thereupon filed one suit in the Court of the Civil Judge (S.D.) at Vadodara against the tenant inter alia for the decree for possession on the ground of arrears of rent for more than six months. It came to be registered as Regular Civil Suit No, 1439 of 1971. On establishment of the Small Causes Court at Vadodara, it came to be transferred thereto. It was thereupon re-registered as Rent Suit No. 389 of 1975. The tenant filed his written statement at Exh. 10 on the record of the trial Court and resisted the suit on various grounds. He inter alia contended that he was not served with any notice as provided under Sec. 12(2) of the Rent Act. On the pleadings of the parties, the learned trial Judge framed the issues at Exh. 11 on the record of the trial Court. After recording evidence and hearing the parties, the learned Judge of the Small Causes Court at Vadodara, by his judgment and decree passed on 30/09/1976 in Rent Suit No. 389 of 1975, was pleased to decree the suit for possession on the ground of arrears of rent for more than six months. The aggrieved tenant thereupon invoked the appellate jurisdiction of the District Judge of Vadodara by means of his appeal against the decree of eviction passed by the trial Court. His appeal came to be registered as Civil Appeal No. 260 of 1976. It appears to have been assigned to the learned Assistant Judge of Vadodara for hearing and disposal. By his judgment and decree passed on 19/12/1977 in Civil Appeal No. 260 of 1976, the learned Assistant Judge of Vadodara was pleased to dismiss the appeal and to affirm the decree for possession passed by the trial Court. The aggrieved tenant has thereupon invoked the revisional jurisdiction of this Court under Sec. 29(2) of the Rent Act.

(3.) Smt. Davawala for the petitioner has invited my attention to the fact that the landlords in the instant case led the secondary evidence of the notice contemplated under Sec. 12(2) of the Rent Act without laying any foundation therefor as provided under Sec. 65 of the Evidence Act. Relying on this factual position, runs the submission of Smt. Davawala for the petitioner, no secondary evidence could have been permitted by the trial Court. According to her, once the secondary evidence produced in the instant case is discarded, there is no notice given to the tenant under Sec. 12(2) of the Rent Act before filing the suit for eviction under Sec. 12(3) thereof. Shri J. G. Shah for the respondents has on the other hand, submitted that the secondary evidence of the suit notice was rightly permitted by the trial Court, and as such it is not necessary to upset the decree of eviction passed by the Courts below for want of the required notice under Sec. 12(2) of the Rent Act.