2001 (1) TMI 1017 - HC - Indian Laws

Summary

Issues Involved:
1. Validity of service of eviction notice under Section 12(3)(a) of the Bombay Rent Act.
2. Presumption of service of notice sent by registered post.
3. Presumption of service of notice sent by under certificate of posting.

Detailed Analysis:

1. Validity of Service of Eviction Notice:
The Petitioner-landlord filed a suit for eviction and possession against the Respondent-tenant on the grounds of default and arrears exceeding six months, as per Section 12(3)(a) of the Bombay Rent Act. The primary issue was whether the eviction notices dated 6.6.1981 (Exhibits 40 and 47) were duly served on the Respondent-tenant. Section 12 mandates that no suit for recovery of possession can be initiated unless a notice demanding standard rent or permitted increases has been served on the tenant, following Section 106 of the Transfer of Property Act, 1882.

2. Presumption of Service of Notice Sent by Registered Post:
The Petitioner-landlord contended that the notice sent by registered post, which was returned with the postal endorsement "not claimed," should be treated as duly served. The Trial Court initially decreed in favor of the Petitioner, holding that the notice was duly served. However, the lower Appellate Court reversed this decision, stating that a "not claimed" endorsement does not equate to "refused" and hence cannot be presumed as service. The Appellate Court emphasized that service can only be presumed if there is positive evidence of actual service or refusal by the tenant.

3. Presumption of Service of Notice Sent by Under Certificate of Posting:
The Petitioner also argued that the notice sent by under certificate of posting should be presumed to be received by the Respondent-tenant, as it was not returned. The Respondent-tenant denied receiving any notice. The Appellate Court held that no presumption of service could be drawn merely because the notice was not returned. The Court noted that the certificate of posting only certifies that a packet was received by the post office for delivery, not that it was actually delivered to the addressee. The Court also observed that the tenant's denial of receipt on oath, which remained unchallenged in cross-examination, was sufficient to rebut the presumption of service.

Conclusion:
The High Court upheld the lower Appellate Court's judgment, concluding that the service of notice by either registered post or under certificate of posting was not duly proved. The Court reiterated that mere postal endorsements like "not claimed" do not suffice to presume service, and the tenant's denial on oath effectively rebutted any presumption of service. Consequently, the writ petition was dismissed, affirming that the suit for eviction could not be maintained due to the lack of proper service of notice.