LALJI MOHANLAL THAKKAR Vs. LIYABAI MHASKE

JUDGEMENT

(1.) THIS is a plaintiff's petition seeking to challenge the dismissal of his suit for possession under Section 12(3)(a) of the Bombay Hotel and Lodging Houses Rates Control Act, 1947 (hereinafter for the sake of brevity called as 'the said Act'). The premises in question is one room situate at 'Nivara Chawl', Karnik Road, Gali No. 55, House No. 50, Kalyan. The standard rent in respect of the said premises was fixed at Rs. 11.03 per month, inclusive of permitted increases and Rs. 5/- p.m. towards the water charges.

(2.) THE defendant having fallen in arrears of rent and water charges from July, 1974, the plaintiff by his notice dated 20th September, 1976 claimed the aforesaid arrears. The said notice was sent by Registered Post Acknowledgement Due, as also under Certificate of Posting. The notice sent under Registered Post was returned with an endorsement 'Refused'. However, the notice sent under sent under Certificate of Posting is said to have been received by the defendant on or about 30th September, 1976. The defendant sent her reply dated 25th October, 1976 and remitted the amount of Rs. 364.84. The said amount consisted of amount of Rs. 308.84 towards the rent for the period from July, 1974 to October, 1976 and Rs. 60/- towards the water charges for the period from July, 1974 to June 1975. The said amount was received by the plaintiff on 29th October, 1976. On the aforesaid facts, the plaintiff filed the present suit for possession on the ground of default in payment of rent.

(3.) MRS . Gokhale, appearing in support of the petition, has vehemently contended that the endorsement 'refused' on the registered packet should have been held to be valid service of that notice on 27th September, 1976. Consequently, the payment made on 29th October, 1976, being beyond the period of one month, the decree for possession under Section 13(3)(a), ought to have been passed in favour of the plaintiff. She relied upon decisions reported in 60 B.L.R. 1075 and A.I.R. 1976 S.C. at page 869, for the proposition that it was not incumbent upon the Court, under Section 114 of Indian Evidence Act, to draw a presumption merely on the evidence of the defendant that the notice sent under Registered Post Acknowledgement Due had not been tendered to her.