DAVID K N Vs. S R CHAUBEY CHATURVEDI

JUDGEMENT

(1.) HEARD learned Advocates for the parties. Perused the record. Rule. By consent, rule is made returnable forthwith.

(2.) THE petitioner challenges the judgment and order dated 7-9-2002 passed by the Appellate Bench of Small Causes Court, Mumbai in Appeal No. 14 of 2001. By the impugned judgment the appeal filed by the petitioner against the decree of eviction dated 30-11-2000 in the suit bearing RAE and R Suit No. 258/814 of 1992 has been dismissed. The challenge to the impugned judgment and decree of eviction is on the ground that the decree has been obtained without proper and valid service of notice of demand of arrears of rent as is otherwise required to be served under section 12 (2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (herein after called as the said Act) as precondition for the filing of the suit for eviction of a tenant on the ground of default in payment of rent and, therefore, the impugned judgment and decree for eviction is bad in law.

(3.) UPON hearing the learned Advocates for the parties and perusal of record, it is apparent that both the courts below have arrived at the concurrent findings regarding service of the notice under section 12 (2) of the said Act. However, it is the contention of the petitioner that the said findings are perverse inasmuch as they are not borne out from the record, besides being contrary to the materials on record. Taking through the records, the learned Advocate for the petitioner submitted that it was a specific case pleaded by the petitioner in his written statement that no notice as alleged by the respondent was ever received by the petitioner and the said fact was stated on oath by the holder of Power of Attorney who was examined by the petitioner on his behalf before the trial Court. The fact that the petitioner was out of station from the year 1990 to 1992 was brought on record by the respondent himself in the course of cross-examination of the holder of Power of Attorney of the petitioner and the said fact was neither denied nor disputed by the respondent. Being so, there was no occasion for service of notice upon the petitioner either in the month of October 1990 as is otherwise claimed by the respondent in relation to the registered notice or in the month of March or April, 1991 which is claimed by the respondent on the ground that the notice under certificate of posting as well as pasting of notice on the door of the premises. To make good the submission on behalf of the petitioner, the learned Advocate for the petitioner has relied upon the following decisions : (Lalmani Ramnath Tiwari v. Bhimrao Govind Pawar) 2001 (3) Bom. C. R. 21 : 2001 (2) All. M. R. 415; (2) (Narayan Ganpat Bholte v. Smt. Rampyari Suchitram Gupta since deceased through heirs Hariprasad Surajbally Gupta and others) 2001 (2) Bom. C. R. 158 : 2001 (3) Mh. L. J. 234; (Hajrabi Abdul Gani v. Abdul Latif Azizulla and another) 1996 (2) Bom. C. R. 626; (Anil Kumar v. Nanak Chandra Verma) A. I. R. 1990 S. C. 1215; (B. S. Mahajan since deceased by his heirs and legal representative v. Chapsey R. Mistry) 1988 (3) Bom. C. R. 535 (Pannalal Shivlal Mutha v. Mangilal Ganpatdas Agarwal) 1987 Mah. R. C. J. 729: (Meghji Kanji Patel v. Kundanmal Chamanlal Mehtani) A. I. R. 1968 Bombay 387; (Oza Kumbhar Naran Ala v. Mehta Nanlal Jethabhai) 1987 Mah. R. C. J. 541 and (Chhedi Lal v. Munna Sardar) A. I. R. 1983 Allahabad 274.