BHIKUBHAI MAKANJI Vs. MUKTA SHETTY

JUDGEMENT

(1.) By this petition filed under Article 227 of the Constitution of India, the Petitioners challenge the order dated 15.09.1983 passed by a Division Bench of Small Causes Court at Bombay in Appeal No.385/82. That appeal was filed by the respondents challenging the Judgment and Decree dated 10.04.1982 passed by a Judge, Small Causes Court at Bombay in R.A.E. Suit No.4607 of 1970. That Suit was filed by the present petitioners claiming therein, that they are trustees of a building known as 'Mahalaxmi Building', 37, Maruti Lane, Fort, Bombay, and that, respondent No.1 is a tenant in Shop No.4 in the said building. The landlord petitioners claimed a decree of eviction against the tenant, on several grounds. The principal ground being that the tenant has committed default in payment of rent. The Trial Court recorded finding in favour of the landlord on the ground of the default committed by the tenant in payment of rent, and decreed the suit, directing the tenant to vacate the suit premises. In the Appeal filed by the tenant, the Appellate Court, however, reversed the finding recorded by the Trial Court, allowed the appeal, and dismissed the suit.

(2.) When the petition was called for final hearing, none appeared for the petitioners, and none appeared for the respondents. I have gone through the record of the case. The record reveals that the suit building was originally owned by two ladies namely, Cooverbai and Kasibai. By a Settlement dated 30.03.1959, they created a trust, of which, the plaintiffs are the trustees. The tenant was occupying the suit premises even during the life time of the above referred two ladies. It was the case of the landlord in the suit that initially, a notice of attornment was issued to the tenants, and thereafter, a notice of demand was issued claiming arrears of rent from 01.10.1969. It was the case of the tenant that she was always ready and willing to pay the rent. However, after the death of the above referred two ladies, she did not knew to whom the rent to be paid. She denied the receipt of letter of attornment, as also, the demand notice. The Appellate Court has held that the plaintiffs have not been able to prove that the letter of attornment was served on the tenant. The Appellate Court found that the demand notice was sent by registered post acknowledgment due. However, the packet was returned with an endorsement that the addressee is not found. Therefore, the Appellate Court concluded that the notice of demand was not served on the tenant. As the notice of demand itself was not served, the Appellate Court found that it cannot be said that the tenant has committed default in payment of rent. It also held that in these circumstances, a decree under Section 12 of the Bombay Rent Act, cannot be passed against the tenant. After having gone through the detailed order of the Appellate Court, it becomes clear that the Appellate Court has considered the evidence on record in its proper perspective, and has applied its mind. The Appellate Court has given cogent reasons for reversing the finding recorded by the Trial Court. Under these circumstances, therefore, I find no justification to interfere with the order passed by the Appellate Court.

(3.) In the result, therefore, the petition fails and is dismissed. Rule discharged with no order as to costs.