TARABAI DATATRYAYA BABRAT Vs. DAYANESHWAR KESHAV KAMBLE

JUDGEMENT

(1.) THE facts leading to this petition have set out in my judgment dated 21st November, 1983 by which I sent certain points for determination to the Court below. In particular, it was directed by me that the question as to whether the petitioner had sent a money order of Rs. 326.85 after she received the notice purported to have been sent by the respondents under Section 12(2) of the Bombay Rent Act and if such amount had been sent, whether she sent it within 30 days after the receipt of the notice should be decided. The learned appellate Judge has, in a fairly exhaustive judgment, reviewed the evidence that was placed before him and has come to the following conclusions. The learned appellate Judge has held that the notice dated 1st of February, 1974, purported to be one under Section 12(2) of the Bombay Rent Act was sent by the respondents on 2nd of February, 1974. The evidence on record showed that between 4th and 13th of February, 1974, the petitioner was not in the suit premises which consists of a shop and accordingly the envelope containing the said notice at Exhibit 35 was returned to the sender.

(2.) IT has also been noted by the learned appellate Judge below that the respondents sent a notice copy of which is at Exhibit 34, under Certificate of Posting which is as Exhibit 16, on or about and of February, 1974. The learned appellate Judge has inferred from the common course of events that the said notice must have been received by the petitioner on 3rd or 4th of February, 1974. The learned appellate Judge has examined the evidence relating to certain other money which has been sent by the petitioner and basing his conclusions on the time taken by these money orders to travel from Pune to Bombay where the respondents reside, and from Bombay to Pune, the learned appellate Judge has inferred that the petitioner must not have sent the money order earlier than 10th of March, 1974. He is also of the opinion that the money order, in all probability, could have been sent on 13th or 14th of March, 1974. Since he inferred that the petitioner must have received the notice that was under Certificate of posting within two days after the said notice was sent, he held that the petitioner had not sent the money order in response to that notice within one month after the receipt thereof. On these findings the learned appellate Judge held that there was non-compliance with the notice sent under Section 12(2) and, therefore, the case falls squarely within the four corners of Section 12(3)(a) of the Bombay Rent Act, Consistent with this view which he took the learned appellate Judge held that a decree for possession became inevitable. Alternately, the learned appellate Judge also held that even if the case was one governed by the provisions of Section 12(3)(b) of the Bombay Rent Act. Since the petitioner has not made the payments regularly during the course of the suit, there was non-compliance on the part of the petitioner with the mandatory requirements of Section 12(3)(b). On this count also a decree for possession, according to the learned appellate Judge, became inevitable.

(3.) THEN there is a reply dated 1st of March, 1974 sent by the petitioner to the respondents. In this reply the petitioner has mentioned that she has recently received the notice under certificate of posting and in compliance with the requisition contained in that notice she was sending the amount of Rs. 326.85 by money order. The question is : when did the petitioner receive the notice dated 1st of February, 1974, but sent under certificate of posting ? From the material which on record it is clear that the notice could have reached the petitioner only on or about 4th of February, 1974 at the earliest. On this date, admittedly, the petitioner was not available in the suit premises to receive any communication that was sent to her on that address. Upto 13th of February, 1974. Other evidence shows, the petitioner was, again not available in the snit premises to receive any communication sent, to that address. So, the earliest that the petitioner could have received physically the sent notice under certificate of posting was on 14th of February, 1974. It is true, as Mr. Sawant has rightly pointed out that the petitioner herself should have disclosed as to when exactly she received the notice sent under certificate of posting. If she does not disclose the same, then an adverse inference should be drawn against her, I will accept this submission and draw an adverse inference against the petitioner, but that adverse inference will be limited to saying that she received the notice sent under certificate of posting on 14th of February, 1974.