LAWS(BOM)-1982-2-6

PURUSHOTTAM ISHWARLAL MATCHHAR Vs. MADHUSUDAN GOVIND TAMBDE

Decided On February 15, 1982
PURUSHOTTAM ISHWARLAL MATCHHAR Appellant
V/S
MADHUSUDAN GOVIND TAMBDE,SINCE DECEASED BY HIS HEIRS Respondents

JUDGEMENT

(1.) The short point that arises in this case is whether there was any need to serve a notice on the tenant terminating his contractual tenancy according to the provisions of section 106(2) of the transfer of Property Act before possession of the suit premises could be claimed under the provisions of section 13(1)(e) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as the Rent Act). It is not disputed before me that the petitioner is the landlord of the suit premises which consist of one room in a building known as Jamuna Nivas situate at 22, Bhatwadi, Girgaum, Bombay. The building was a joint family property of which the petitioner was a member. In the Court-auction the property was sold and the petitioner became the purchaser of the building on the 8th September, 1964. While the property was still with the Court Receiver in a suit which was filed in this Court to resolve the joint family dispute with regard to he property, the Court Receiver by a notice dated the 7th May, 1963 had terminated the tenancy of the then tenant of the suit premises Madhusudan Govind Tambde and thereafter had filed a suit being RAE Suit No. 3851 of 1963 in the Small Causes Court, Bombay on the ground that the tenant had sub-let the suit premises after coming into operation of the Rent Act. After the petitioner became the purchaser, he was substitute as the plaintiff in place of the Court Receiver.

(2.) On behalf of the tenant, the suit was contested, firstly, on the ground that the notice terminating the tenancy was not in accordance with the provisions of section 106(2) of the Transfer of the Property Act, 1882 and, secondly on the ground that there was sub-letting of the suit premises. The trial Court held that the tenant had sub-let the suit premises within the meaning of section 13(1)(e) of the Rent Act. The trial Court also held that the notice served upon the tenant was in accordance with the provisions of section 106(2) of the Transfer of Property Act, and, therefore, there was a valid termination of the tenancy. Against this decision, the tenant preferred an appeal which was heard by the Appeal Court of the Small Causes Court, Bombay. The Appeal Court confirmed the finding of the trial Court that there was a sub-letting by the tenant within the meaning of the Rent Act. However, the Appeal Court came to the conclusion that there was no service of notice in accordance with the provisions of section 106(2) of the Transfer of Property Act, and therefore, there was no valid termination of the tenancy. For arriving at this finding, the appeal Court relied upon the fact that the pasting of notice on the suit premises was not done after exhausting the other two modes of service viz., the tendering of notice personally to the tenant or to one of his family members or servants at his residence. However, it appears that before arriving at this finding, the appeal Court did not take into consideration the additional fact which was on record and was undisputed viz., that the notice was also simultaneously sent to the tenant at the address of the suit premises by registered post and it had come back with the remark "not found". On the admitted position which has emerged from the evidence that neither the tenant nor any of his family members or his servants were residing in the suit premises and in any case none of them were available for such service during day time, there was no question of tendering or delivering the notice personally either to the tenant or to any of his family members or servants at the address of the suit premises. The evidence further shows that when an attempt was made to serve the tenant at the suit premises, the premises were found locked, and therefore, on the second day, i.e., at the time of the next attempt when also the premises were found locked, the notice was pasted on the suit premises. Therefore, even the reason given by the appeal Court that there was no attempt made first to tender or deliver personally to the tenant or to anyone of his family members or servants the notice in question, is contrary to the evidence on record. This is apart from the fact that the appeal Court has not at all considered the unchallenged fact that the notice was sent to the tenant at the address of the suit premises by registered post. The finding of the appeal Court is, therefore, liable to be set aside on the simple ground that it is contrary to the evidence on record and has been arrived at without taking into consideration the relevant facts.

(3.) However, it is not necessary for this Court to record a finding on the issue whether there was service of notice on the tenant in accordance with the provisions of section 106(2) of the Transfer of Property Act. It is now held by the Supreme Court in (V. Dhanapal Chettiar v. Yesodai Ammal) A.I.R. 1979 S.C. at page 1745 that where the provisions of the Rent Act under which the eviction of the tenant is sought, does not require any notice of eviction to be given, it is not necessary to serve the tenant with a notice in accordance with the provisions of section 106(2) of the Transfer of Property Act. In paragraph 9 of the judgment, the Supreme Court has specifically referred to the relevant provisions of the Rent Act and has held that it is only where a notice is required to be given in the manner provided in section 106(2) of the Transfer of Property Act that the Court will insist upon the compliance with the said provisions before suit claiming eviction of the tenant is instituted or the relief is granted. However, whereas in section 13 with which were concerned in the present case, there is no such requirement and the landlord can recover possession on making out the ground or grounds stated therein, there is no need for terminating the tenancy in accordance with the provisions of section 106(2) of the Transfer of Property Act. This being the position of law, even assuming that the Appeal Court was right in holding that there was no notice served on the tenant in the manner provided in the said section 106(2), the landlords right to claim possession on the ground of sub-letting mentioned in section 13(1)(e) of the Rent act cannot be defeated.