2015 (8) TMI 1557 - HC - Indian Laws

Seeking eviction of the Respondents - default in the payment of rent - proper service of notice under Section 12(2) of The Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 - statutory presumption contained in Section 27 of the General Clauses Act - Respondents have denied receiving notice under Section 12(2) of the Rent Act - whether such bald denial is sufficient for the purposes of rebutting the statutory presumption arising out of the provisions contained in Section 27 of the General Clauses Act read with Section 114 of the Indian Evidence Act? HELD THAT - The finding that there was no valid service of notice under Section 12(2) of the Rent Act is vitiated by perversity as well as material irregularity and illegality. This is a case where the onus of proof was incorrectly and in any case excessively cast upon the Applicant landlord. The presumption arising out of Section 27 of the General Clauses Act and Section 114 of the Indian Evidence Act was not allowed its full play. As noted earlier, the Respondents have admitted in the course of their evidence that the address to which the envelopes containing the notices were addressed, are correct addresses. The Respondents have also admitted that they normally receive their correspondence at such address. There is material on record which establishes that the notices were indeed sent by R.P.A.D. and U.C.P. There is no evidence led by the Respondents either by way of examination of postman or otherwise to establish that such notices were not served. The Appeal Court, in such circumstances, was not right in holding that a bald statement that the notices were not served, suffice to rebut the statutory presumption. The Appeal Court, has already recorded the findings of fact that the Respondents were clearly in arrears in the payment of rent for a period of in excess of six months. Such findings have not been challenged by the Respondents. For all these reasons, the impugned Judgments and Decrees are liable to be set aside. This Civil Revision Application is allowed.

Summary

Issues Involved:
1. Maintainability of the suit due to the area being declared a 'slum area' under the Slum Act.
2. Proper service of notice under Section 12(2) of the Rent Act.

Issue-wise Detailed Analysis:

1. Maintainability of the Suit Due to the Area Being Declared a 'Slum Area' Under the Slum Act:
The suit was instituted in 1978, and the notification declaring the area as a 'slum area' was issued in 1979. According to Section 22 of the Slum Act, the institution of any suit for eviction in a slum area requires prior permission from the Competent Authority. However, the court held that since the suit was filed before the area was declared a slum, it was maintainable. The court referenced the case of *Yamunabai Dattoba Taware Vs. Nana Bhikoba Nagade*, where it was established that a suit filed before the declaration could proceed, but the execution of any decree would require permission from the Competent Authority. Therefore, the court concluded that the suit was maintainable, but any decree would need permission before execution.

2. Proper Service of Notice Under Section 12(2) of the Rent Act:
The Applicant used three modes to serve notice: Registered Post Acknowledgment Due (R.P.A.D.), Certificate of Posting (U.C.P.), and affixing the notice on the conspicuous part of the premises. The Trial and Appeal Courts dismissed the suit due to improper service of notice, emphasizing the failure to examine the postman. However, the court highlighted the statutory presumption under Section 27 of the General Clauses Act and Section 114 of the Indian Evidence Act, which assumes that a notice sent to the correct address is deemed served unless rebutted.

The Respondents admitted that the address was correct and that they usually received correspondence there. The court found that a mere denial of receiving the notice was insufficient to rebut the presumption of service. The court referenced various cases, including *Krishna Ramchandra Jadhav Vs. Smt. Shankari B. Ajimal* and *Basant Singh and Another Vs. Roman Catholic Mission*, to support the view that the presumption of service stands unless effectively rebutted by the addressee.

The court concluded that the Applicant had fulfilled the requirements for service of notice, and the Respondents had not provided sufficient evidence to rebut the presumption of service. Therefore, the finding of improper service of notice was set aside.

Conclusion:
The court set aside the Judgments and Decrees dated 30/06/1999 and 27/10/2005, and decreed the Applicant's R.A.E. Suit No.2489 of 1978. However, the decree cannot be executed until permission under Section 22 of the Slum Act is obtained from the Competent Authority. The rule was made absolute to this extent, with no order as to costs.