9911796707
TMI Blog2015 (8) TMI 1557X X X X Extracts X X X X X X X X Extracts X X X X ..... umar Patil, learned Counsel for Applicant, has submitted that in this case, the suit was instituted in the year 1978. The notification, on basis of which it is alleged that the concerned area has been declared as the 'slum area', was issued in the year 1979. In such circumstances, upon a bare reading of the provision of Section 22 of the Slum Act, it would be clear that the suit was very much maintainable. At the highest, if it was indeed established that the concerned area had been declared as a 'slum area', permission would be necessary before putting the decree into execution. Mr. Patil placed reliance upon the decision of this court in the case of Yamunabai Dattoba Taware Vs. Nana Bhikoba Nagade [2006 (6) Bom.C.R. 31], and Hari Dhondu Gurav Vs. Jhonney Augustine Gomes [2011 (5) Bom.C.R. 150]. 4. In the context of service of notice under Section12(2) of the Rent Act, Mr. Patil submitted that in the present case, notice was served by 3 modes i.e. Registered Post Acknowledgment Due (R.P.A.D.), Certificate of Posting and finally affixing on the conspicuous part of the suit premises. The evidence on record clearly bears this out. The two Courts, however, held again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tuted before such commencement for the eviction of an occupier from any building or land in such area or for recovery of any arrears of rent or compensation from such occupier, or for both execute such decree or order; or (c) apply to any Judge or the Registrar of the Small Cause Court under Chapter VIII of the Presidency Small Cause Courts Act, 1882, in its application to the State of Maharashtra, or to any Court of Small Causes under Chapter IVA of the Provincial Small Cause Courts Act, 1887, in its application to the State of Maharashtra, for a distress warrant for arrears of rent against any occupier of a house or premises in a slum area." 8. In the case of Yamunabai Dattoba Taware Vs. Nana Bhikoba Nagade (supra), the suit was instituted prior to the area being declared as a 'slum area'. However, during the pendency of the suit, notification was issued under the Slum Act declaring the concerned area as 'slum area'. In this context, this Court held that the suit as instituted, was competent and a decree could have been always passed in such a suit. However, permission under Section 22 of the Slum Act from the competent authority would be necessary before suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommencement of the Act can be decided and the decree can be passed by the Civil Court, but the said decree cannot be executed unless the permission is obtained from the Competent Authority. Therefore the reasoning adopted by the District Judge is erroneous one." 9. In view of the aforesaid ruling of this Court, the conclusion recorded by the two Court as to the maintainability of the suit shall have to be interfered with. The suit, as instituted, was certainly maintainable. However, any decree therein may not be liable to be put into execution unless permission under Section 22 of the Slum Act is obtained. 10. The second issue is whether there was proper service of notice under Section 12(2) of the Rent Act. The material on record does indicate that the Applicant adopted 3 modes for service of such notice. The first being R.P.A.D. The material on record indicates that the notice, along with the envelope in which it was enclosed, was sent to the Respondents at their correct address. However, the same was returned with the endorsement 'Not found, intimation given'. The second mode adopted by the Applicant was to send the notice Under Certificate of Posting (U.C.P.). In th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be rebutted by a mere denial. In the said case as well, notice which was addressed to the tenant was returned with endorsement 'unclaimed', 'intimated', 'not claimed'. In the said case as well, the landlord had adopted 3 modes to serve the notice under Section 12(2) of the Rent Act. In this context, this Court did not accept the plea that it was for the landlord to examine the postman and in absence of examination of the postman, the presumption of proper service stands rebutted. 14. In the case of Lalmani Ramnath Tiwari Vs. Bhimrao Govind Pawar [2001 (2) Mh.L.J. 342], this Court, in the context of notice under Section 12(2) of the Rent Act, has held that a notice which is returned back with the postal remark 'not claimed' can be regarded as good service, unless the tenant rebuts the presumption arising out of Section 27 of the General Clauses Act read with Section 114 of the Indian Evidence Act. Similarly, in the case of David K. N. Vs. S. R. Chaubey (Chaturvedi) [2003 (4) Bombay Cases Reporter 612], in the similar context, the presumption under Section 114 of the Indian Evidence Act, was invoked. At para 18, this Court observed as under :" 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection of the tenant. Nevertheless it will be easy to see that too strict and literal a compliance of their language would be impractical and unworkable. The proviso insists that before any amount of rent can be said to be in arrears, a notice has to be served through posts. All that a landlord can do to comply with this provision is to post a prepaid registered letter (acknowledgment due or otherwise) containing the tenant's correct address. Once he does this and the letter is delivered to the post office, he has no control over it. It is then presumed to have been delivered to the addressee under S. 27 of the General Clauses Act. Under the rules of the post office, the letter is to be delivered to the addressee or a person authorised by him. Such a person may either accept the letter or decline to accept it. In either case, there is no difficulty, for the acceptance or refusal can be treated as a service on, and receipt by, the addressee. The difficulty is where the postman calls at the address mentioned and is unable to contact the addressee or a person authorised to receive the letter. All that he can then do is to return it to the sender. The Indian Post Office Rules do no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quitable and practical interpretation and that would be to read the words "served" as "sent by post", correctly and properly addressed to the tenant, and the word "receipt" as the tender of the letter by the postal peon at the address mentioned in the letter. No other interpretation, we think, will fit the situation as it is simply not possible for a landlord to ensure that a registered letter sent by him gets served on, or is received by, the tenant." (emphasis supplied) 16. Reliance placed by Mr. Deshmukh upon the decision in the case of The New India Assurance Co. Ltd. Versus Smt. Nasibunnisa (supra) is not quite appropriate. The issue involved in the said decision was whether a notice issued by the Court by R.P.A.D. which is returned back with the remarks of the postman 'intimation posted' and 'unclaimed' or 'not claimed' can be taken as good service. In the said decision, this Court took specific note of the decisions in the cases of Lalmani R. Tiwari Vs. Bhimrao G. Pawar (supra), David K. N. Vs. S. R. Chaubey (Chaturvedi) (supra), Krishna Ramchandra Jadhav and Others Vs. Smt. Shankari B. Ajimal and M/s. Madan and Company Vs. Wazir Jaivir Chand and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order to this effect was passed by the Trial Court on 11.1.1991. The premises in question is occupied by two defendants jointly Hari Singh and Basant Singh. Hari Singh appeared and examined himself stating that he did not receive the registered letter. However, the defendant Basant Singh did not appear and no evidence whatsoever, on his behalf, has been led to rebut the presumption in regard to service of summons sent to him under registered post with acknowledgment due. His own conduct shows that the registered summons had been duly served on him. As already noticed, Hari Singh appeared and save and except the bald statement that registered letter was not tendered to him, no evidence whatsoever was led to rebut the presumption. He could have examined the postman, who would have been the material witness and whose evidence would have bearing for proper adjudication. He has failed to discharge the onus cast upon him by the Statute. This apart, it is inherently improbable that the registered summons were duly served on Basant Singh but not to Hari Singh when they occupied the tenanted premises jointly." 18. In view of the aforesaid facts as well as the legal position, the impugned ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
