MEMON ADAMBHAI HAJI ISMAIL Vs. BHAIYA RAMDAS BADIUDAS

JUDGEMENT

(1.) Relevant facts to state briefly are that the petitioner is the landlord of the first opponent in respect of a residential premises. The petitioner gave a notice dated March 1 1965 through his lawyer to the said opponent of eviction and demanding arrears of rent by registered post with an acknowledgment due. The envelope in which the notice demanding possession and arrears of rent was sent is produced in the suit subsequently filed by the petitioner against the opponents to recover possession and arrears of rent. The possession of the suit premises was sought on various grounds including that of arrears of rent. The envelope produced in the case shows that there is an endorsement of not found which is dated March 3 1965 There is another endorsement of refused dated March 5 1965 On the other side of the envelop there are two cross lines across the name of the addressee tenant and between these two cross lines endorsement refused is noted which bears the date of March 4 1965 The envelope with the endorsements thereon is exhibited in the case and bears Ex. 43. The tenant had also filed an application for fixation of standard rent in respect of the suit premises on April 6 1965 under sec. 1 of the Bombay Rents Hotel and Lodging House Rates Control Act 1947 (hereinafter referred to as the Act) and Civil Revision Application No. 790 of 1968 relates to the fixation of rent under sec. 11 of the Act. Explanation to sec. 12 of the Act provides that a tenant if he makes an application under secs 11 to the Court for fixation of standard rent before expiry of the period of one month after the notice of eviction is deemed to be ready and willing to pay the amount of standard rent and permitted increases provided the tenant thereafter pays or tenders in Court the amount of rent or permitted increases specified in the order made by the Court. The question of service of notice dated March 1 1965 of eviction of the tenant assumes importance because if the opponent-tenant is held not to have received the said notice of eviction on either March 3 or 4 or 5 1965 then the tenant would get protection under the explanation to sec. 12 of the Act and a decree of eviction cannot be passed. To complete the facts it may be mentioned that subsequently on March 6 1965 the landlord had sent the very notice of eviction by a certificate of posting which would have reached the opponent tenant in ordinary course of business on March 7 1965 The landlord again gave another notice of eviction on various grounds including that of arrears of rent and this notice was sent by a registered post and a copy thereof was sent by a certificate of posting. So far as the notice of eviction and demand of rent dated March 1 1965 is concerned the case of the tenant in his written statement is that he had not received the same. However the tenant has not said a word on this point in his deposition. No issue was sought on the point of service of delivery of registered notice dated March 1 1965 and the point was not argued in the trial Court or the lower appellate Court that there was no service or delivery of the notice in fact and the effect thereof. The trial Court passed a decree of eviction against the tenant and in the appeal filed by the tenant against the said decree the same was confirmed. The tenant filed Revision Application No. 544 of 1968 in this Court wherein the arguments in respect of notice dated March 1 1965 were advanced to the effect that mere endorsement of refusal purporting to have been made by a postal official on a returned envelope without being substantiated by any evidence of the postal officer who went to deliver the letter to the addressee would not be sufficient for raising a presumption statutory or factual that the addressee in fact refused to accept the delivery of the letter and that in view of the special provision of sec. 12 of the Act the addressee tenant who refused to take delivery of the registered letter addressed to him could not be posted with knowledge of the contents of the notice. The learned Single Judge found that on the points raised before him the decisions of the Bombay High Court as well as of the other Courts are not uniform and therefore referred two points for determination to a larger Bench. The points referred by him are:

(2.) The first question that is raised is whether when notice dated March 1 1965 demanding the rent and possession of the premises under the provisions of the Rent Act was sent by the lawyer of the landlord by registered post with an acknowledgment due to the opponent and returned with two endorsements dated March 4 1965 and March 5 1965 of refusal a presumption of due service of the notice can arise in Law. The arguments advanced on behalf of the landlord in this Court were that such a presumption does arise in view of the provisions of sec. 27 of the General Clauses Act 1897 or sec- 28 of the Bombay General Clauses Act 1904 and under sec. 114 of the Indian Evidence Act. Before we refer to the aforesaid provisions of law we shall first take into account the provisions of sec. 12(2) of the Act which provide that no suit for recovery of possession shall be instituted by a landlord against a tenant on the ground of non-payment of the standard rent or permitted increases due until the expiration of one month 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 sec. 106 of the Transfer of Property Act 1882 What the aforesaid provisions require is that before suit for possession on the ground of arrears of rent is filed a notice demanding the arrears of rent possession of the premises and terminating the tenancy has to be served upon the tenant in the manner provided in sec. 106 of the Transfer of Property Act. The relevant part of sec. 106 of the Transfer of Property Act provides that every notice under this section must be in writing signed by or on behalf of the person giving it and may be sent by post to the party who is intended to be bound by it. Having noticed these relevant provisions we shall refer to sec. 27 of the General Clauses Act which is as under:

(3.) It was sought to be argued in the alternative that the words until the contrary is proved must only refer to the conditions contained in the first part of the section and have no reference to actual service and if any of these conditions are not proved the presumption that arises under the section is taken away. For this argument reliance was sought to be placed in Mrs. Achamma Thomas v. R. Fairman A.I.R. AIR 1970 Mys 77 and on the following passage: