S H SALASKAR Vs. M CHATTERJI

JUDGEMENT

(1.) THIS Writ Petition under Article 227 of the Constitution of India takes exception to the orders dated February 7, 1987 and July 7, 1987 passed by the Small Causes Court at Bombay in Appeal No. 414 of 1986 and in Misc. Notice No. 204 of 1987 in R. A. E. Suit No. 3043 of 1983, respectively.

(2.) BRIEFLY stated, the Petitioners are the landlords in respect of the premises being Room No. 2, Ground Floor, Harihar Nivas, Dr. B. A. Road, Dadar, Bombay-400 104. The husband of the Respondent No. 1 herein was the monthly tenant in the said premises. After his demise, his wife-Respondent No. 1 herein continued to occupy the suit premises. According to the Petitioners, since the Respondent No. 1 had shifted to Jabalpur and was keeping the demised premises closed, a suit for eviction under the provisions of the Bombay Rents (Hotel and Lodging House Rates Control) Act, 1947 (hereinafter referred to as the Bombay Rent Act) came to be filed against the Respondent No. 1 being R. A. E. Suit No. 3043 of 1983 on the grounds of non-user, acquisition of suitable residence and also bonafide requirement. The said suit was filed on 29th July, 1983. The Rent Court issued summons to the Respondent No. 1 regarding the hearing of that suit, which was not only attempted to be served on the suit premises at Bombay but also on the last known address of the Respondent No. 1 at Jabalpur. However, the packet sent through Court containing the suit summons by R. P. A. D. was returned with an endorsement dated 24-8-1983 as Refused. I am not the L. R. of Mr. Morrie Chatterji. Since the said service could not be effected, another attempt through the Court Bailiff to serve on the Respondent No. 1 on the suit premises on 14th October, 1983 and 16th October, 1983 were made and on both the occasions the premises were found locked. The Bailiff, accordingly, made his report in that behalf. In these peculiar circumstances, the Petitioners made application to the Court for substituted service. The Rent Court although allowed the said application, by order dated 21st October, 1983, out of abundant precaution also directed the Petitioners to serve the Respondent No. 1 by R. P. A. D. as well as under Certificate of Posting. The order passed by the trial Court is Service is prayed if it could not be served on the Defendant and alias once again by R. P. A. D. and Certificate of Posting at Jabalpur address. Pursuant to the directions given by the Rent Court, the summons through R. P. A. D. as well as under Certificate of Posting was sent to the Respondent No. 1 at her Jabalpur address. The summons sent by R. P. A. D. was however returned with endorsement dated 18-11-1983 as : Refused. The undersigned is not the wife of Shri. Morrie Chatterji. It is relevant to note that on both the postal remarks, referred to above, the signature of one M. Chatterji has been put. Besides, the service by R. P. A. D. and Certificate of Posting, even the substituted service was effected and the summons was pasted by the Bailiff on the suit premises and the report in that behalf was submitted to the Court dated 28th Nov. , 1983. The suit was placed for hearing before the Rent Court on 15th December, 1984 on which date, once again none appeared for Respondent No. 1. The trial Court, in the circumstances recorded that the suit summons was duly served and the matter be posted for ex-parte decree on 21st Dec. , 1984 when the Petitioners led evidence and on analysing the pleadings and evidence on record, the trial Court proceeded to pass ex-parte decree of possession on the grounds stated in the plaint. That decree was executed by the Petitioners on 13th Feb. , 1985. Only after the decree was executed and the Petitioners had also obtained the possession, Mr. Ramraj Nahata, claiming to be the son-in-law of Respondent No. 1, filed Special Misc. Notice No. 160 of 1985 on 16th Feb. , 1985 for setting aside the ex-parte decree. In the affidavit filed in support of that application by said Ramraj Nahata it is averred that the summons sent to the Respondent No. 1 on her Jabalpur address was never attempted to be served on her nor at any point of time, the Respondent No. 1 refused to accept the service of that summons or made endorsement which appears to have been initialled as M. Chatterji on the packets which were returned. After being served with the notice, the appellants filed affidavit in reply dated 18th October, 1985. Thereafter, the Respondent No. 1 caused to file the affidavit of her daughter Leela Ramraj Nahata, more or less reiterating the stand which was taken in previous affidavit of Ramraj Nahata. The affidavit of Ramraj Nahata clearly mentions that he was making the averments in the affidavit on the basis of telephonic instructions obtained from Respondent No. 1 on 14-2-1985. Thereafter, the Respondent No. 1 sworn her own affidavit on 17th Jan. , 1986. However, the Court permitted her to tender the affidavit at the time of hearing of the application. In the circumstances, that affidavit came to be tendered on record on 25-3-1986 when the Misc. notice was taken up for hearing. Even this affidavit takes a specific plea that at no point of time, the suit summons was attempted to be served on Respondent No. 1 at Jabalpur or that she had ever refused to accept that notice or for that matter made any endorsement as appears on the envelope returned back by post with remarks, as referred to above. The Petitioners further filed affidavit on 7-3-1986 controverting the allegations made in the affidavit filed by Mrs. Leela Ramraj Nahata. It is relevant to note that no oral evidence was adduced by either party. In the circumstances, the trial Court proceeded to examine the matter on the basis of the pleadings and the affidavits filed by both the sides. The trial Court, after examining the records, took the view that the plea taken by the Respondent No. 1 appears to be false and belied by the endorsement on the envelopes received back from the post. The trial Court has neatly summed up the position in paras 10 to 12 of the Judgment to reject the stand taken by the Respondent No. 1 that no attempt was ever made to serve the special suit summons on her at Jabalpur or that she had never refused or for that matter had never made endorsement which appeared on the returned envelopes back by the post. The trial Court also proceeded to examine the admitted signatures of the Respondent No. 1 and, the signatures which appeared on the returned envelopes of the post having been refused by the Respondent No. 1 and, formed its opinion that there was material similarity in these signatures. Taking overall view of the matter, the trial Court held that no sufficient cause was shown by the Respondent No. 1 for setting aside the ex-parte decree passed against her.

(3.) MR. Abhyankar appearing for the Petitioners contended that the Appellate Court has completely misdirected itself in allowing the appeal on the basis of the reasons which cannot be supported by the materials on record and, in fact, the interference drawn by the Appellate Court is completely contrary to the plea taken by the Respondent No. 1 in the affidavits filed before the Court. It is further contended that the Appellate Court has committed manifest error in concluding that the mistake appearing in the name of Morrie Chatterjee in place of Moni Chatterjee was done with purpose. According to the Petitioners, there was no such pleading nor any evidence adduced on behalf of the Respondent No. 1 and in absence of pleading and proof, the finding recorded by the Appellate Court was nothing but surmises and conjectures and unsustainable. Accordingly, the Judgment given by the Appellate Court is critisised and it is submitted that the reasons recorded by the trial Court, particularly in paras 10 & 11 is correct and is supported with the materials on record. The order passed by the trial Court, therefore, deserves to be restored. In substance, it is contended that there being no sufficient cause shown by the Respondent No. 1 for setting aside the ex-parte decree and if that be so, the application filed for and on behalf of the Respondent No. 1 had to be inevitably dismissed.