SAYEDUNISSA BEGUM Vs. JANE VICTOR RUDRIQUES

JUDGEMENT

(1.) THIS is a tenant's petition taking exception to the passing and confirmation of a decree for possession under Section 12(3)(a) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, hereinafter referred to as the "Act" or "Rent Act".

(2.) THE question that arise for determination in the present case have to be considered in the following background :- The one-room apartment figuring in this case was leased out to the rate every month. Last the agreed rent was Rs. 31.36 ps. per month. As from 1.6.1978, defendant had not paid rent. On behalf of the plaintiff, witness Advocate A.C. Bhoirewalla addressed a notice to the defendant on 12.10.1981, drawing the latter's attention to rent being in arrears from 1.6.1978 and calling upon defendant to clear the arrears within a month of the service of the notice upon her. One copy of the notice was sent per registered post. From the endorsements made on the returned envelope in which the notice was enclosed, it appears that the addressee defendant was not found on 16.10.1981 and 17.10.1981, but that she refused the same on 19.10.1981 and 20.10.1981. At this stage, a slight correction is necessary. The notice was addressed to "Smt. Sadrnnisa Begum". The address given was that of the suit premises. Defendant's name is "Sayedunissa Begum, w/o Mirza Amir Ahmed Baig", For rent paid by her, receipts were issued to her in various names including aforesaid two viz. her real name and that figuring in the aforementioned notice. On 15.10.1981 a communication under certificate of posting was sent by Advocate, Bhoirewalla to "Smt. Sadrunisa Begum" shown to be residing at the suit apartment. The communication sent by registered post was returned to Advocate Bhoirewalla, On 18.12.1981, a suit was instituted against the defendant once again describing her as "Smt. Sadrunisa Begum" and at the address of the suit apartment. The summons meant for the defendant came back with the signature of someone showing service upon the person for whom it was meant. As the addresses of the summons did not put an appearance before the Court, the case was proceeded against ex parte and plaintiff was the sole witness examined. The spoke of defendant being in arrears from 1.6.1978, service of notice of demand by registered post, under certificate of posting and by affixation on the premises, and, last, a part payment of the rent made by the defendant on 4.5.1982, which part payment had been accepted without prejudice to her rights. An ex parte decree was made and the same was executed by dispossessing the defendant. On 26.7.1983, describing herself as "Mrs. Sayedunissa Begum w/o Mirza Amir Ahmed Baig" defendant filed an application with the aid of one Advocate Mr. Khan. This application was directed to be returned to the defendant for presenting in the prescribed and proper manner. On 29.7.1983, the correct application was given and it was for setting aside the ex parte decree. The main ground taken was that defendant had not been served with a notice of demand of the summons for the suit and that the ex parte decree was the result of deception practised upon her. After an initial contest, parties came to a settlement in respect of the application for the setting aside of the ex parte decree. The same was set aside and the suit was to be treated as an eupendited one by disposing it of by 30.11.1983. After this defendant filed a written statement denying that the notice of demand had ever been tendered, received or served upon her. It was not true to say that she had made part payment on 4.6.1982. She was ready and willing to pay the rent. The trial Court held that defendant was defaulter inasmuch as she had, despite the service of notice of demand, failed to clear arrears within a month of the date of service, the Act had to be passed against her. This finding was confirmed by the Appeal Bench consisting of two learned Judges of the same Court.

(3.) BEFORE turning to the evidence, it will be necessary to say a few words in relation to the requirement of Section 12 of the Act. Sub-section (1) of that section lays it down that a landlord shall not be entitled to recovery of possession so long as the tenant pays or is ready and willing to pay the standard rent and permitted increases, apart from observing and performing the other conditions of the tenant. Sub-section (2) debars a suit for recovery of possession on the ground of failure or refusal to pay rent, except by the issue of a notice of demand and the compulsory period of waiting of one month as from the service of the said notice. The notice has to be addressed to the tenant. It has to be served upon the tenant. After the service of the notice as prescribed by Section 106 of the service of the Transfer of Property Act, 1882, there is a waiting period of one month. When the suit is instituted, if there is no dispute in regard to the standard rent, the landlord is entitled to a decree for ejectment upon proof of two facts viz. (i) that the tenant was in arrears for a period of six months or more and (ii) that he neglected to make payment within one month of the service of the notice of demand. If there be a dispute in regard to standard rent or if the rent be not payable by the month or in any other case not falling under Section 12(3)(a), it is Section 12(3)(b) which will apply. For the purposes of the case, it is necessary to turn to Section 12(3(b) at all. The crucial question in this case was whether the notice of demand had been served upon the tenant as provided by Section 106 of the Transfer of Property Act, 1882 ? So far as the communication sent by registered post is concerned defendant has testified on oath that it was never tendered to her, thus obviating the question of her refusing to accept the same. Plaintiff has not examined the postman or postman who tried to effect service on 16-10, 17-10, 19-10 and 20-10 of the year 1981. Now of course, that does not concluded the matter. Sometimes it will not be necessary to examine the postman for the falsehood in the evidence of the addressee may be blatant. Here that is not the position. What is suspicious are the endorsements upon the envelop in which the notice was enclosed. That the postman tried to trace the address twice is possible. However, it is difficult to believe that after the addressee had refused to accept the envelope on 19.10.1981, the postman considered it necessary to go again on the next day and see if the addressed had changed her mind. This shows someone making special efforts to ensure proof of the refusal of the communication by the addressee. Public servants do not on their own take this trouble, and specially if they are acting honestly. The infirmity in relation to the communication sent by registered post is that it was addressed to "Smt. Sadrunisa Begum". It is conceded that at the start of the tenancy, defendant had made it known, and enphatically so, to the plaintiff what her real name was viz. "Sayedunissa Begum w/o Mirza Amir Ahmed Baig". It is true that even after this some receipts for rent paid, continued to be issued in different names such as "Sadrunisa" and "Sayedunissa". However, if the notice was not addressed to the right person who was the tenant and the tenant was the defendant bearing the name "Sayedunissa" It cannot be said that notice as required by the statute, had been given. The mere fact that no other lady bearing the name "Sadrunnisa" resided at the address given is of no consequence. All that the postman could ask defendant for was to accept a notice meant for "Sadrunissa Begum". Defendant was within her rights in refusing to accept the communication in the name of "Sadrunisa even though the addressee on the envelope was the suit premises. It was not for defendant to assume that the communication being sent on the suit premises was for her and that she was, therefore, bound to accept the same. This will also taken care of the submission that she was served within the notice sent by under a certificate of posting. Assuming that that letter was dropped at the suit premises, defendant would be within her rights to throw out the communication as it was not addressed to her or after reading the contents to ignore the same as it was service by affixation is concerned, the Courts below have disbelieved the plaintiff's version. I need not say more on the subject. An attempt was made to support the finding of service of notice of demand by a reference to the part payment allegedly made by defendant on 4.5.1982 Advocate Bhorewalla has testified to in support of this payment. Defendant maintains that no such part payment was made by her. Without imputing motives or insinuating discreputable conduct to Advocate Bhoirewalla, it does appear that his testimony is some what incredible. If a payment was being made by the defendant and if the defendant, at that stage was accompanied by the plaintiff, the Advocate would have drawn up a receipt showing payment of rent not to him, but the landlady. Moreover, there was no reason why the Advocate failed to obtain the signature of the defendant upon the counterfoil which has been placed on record. Even otherwise, it is difficult to believe that despite knowledge of the institution of a suit, defendant was anxious to clear some part of the rent and without obtaining any commitment from the plaintiff about, the pending suit. This apart, the part payment made on 4.5.1982 would not establish service of the notice of demand as required by Section 12 of the Act. It was submitted that the statutory Courts had occasion to see the witness when they were in the witness-box and have taken into consideration the factual aspect of the case. Their conclusion cannot be said to be perverse and, therefore, the writ Court should not interfere. This argument has does not taken consideration the very important point of defendant being highly unlikely to lose her rights of tenancy which she could easily be defended by making a tender of the arrears due or raising a dispute in regard to the standard rent. Had the notice really been served upon her, she would have done the needful. Moreover, there is the evidence of the application for ex parte decree being set aside and this because of the knowledge that it would be impossible to prove service of summons upon the defendant. If an attempt was made to secure an ex parte decree on false grounds, what guarantee is there that the so called service of notice of demand was also not stage-managed. This very important aspect of the matter does not appear to have been noticed by the statutory Courts, much less given the importance to which it was entitled. In the result a case under Section 12(3)(a) had not been made out and the decree passed by the rent Court was not warranted. The appellate Court erred in confirming the same. Hence the order. Petition allowed. Rule made absolute. Decree for ejectment passed against petitioner in R.A.E. & R. Suit No. 48/167 of 1982 is hereby quashed. Plaintiff-respondent's suit is dismissed. Parties shall bear their costs throughout. In consonance with the undertaking given by plaintiff, she will restore possession of the premises to the petitioner. Operation of this order is stayed for a period of two months in order to enable the petitioner to move a higher Court. Petition allowed.