Nuruddin A. Malik vs 1. Mrs. Sarifabi Abubaker Lambey

CNR No : HCBM010297812011

2026:BHC-AS:45484

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
varsha
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO. 577 OF 2011
Nuruddin A. Mallik, through his wife ]
And C.A. Mrs. Sakina Malik, Occ: Service ]
Age: 56 Yrs, Mirchandani Chawl No.2, ]
Makkawadi, Near Mill Ward, Shanti Nagar, ]
C.S.T. Road, Kurla(W),Mumbai- 400 070 ]
(Amendment carried out as per Order dt. ]
3.10.2025 vide-I & Il) ](Org. Defendant)
1. Sakina Nooruddin Shaikh (Deleted) ]
2. Hafsa Nooruddin Shaikh ]
Aged 48 years, Occupation : Service, ]
3. Mohammed Nooruddin Shaikh ]
Aged 45 years, Occupation : Service ]
No. 1 to 3 have address at Room No. 2, ]
Mirchandani Chawl No. 2, Makkawadi, ]
Near Mill Ward, Shanti Nagar, ]
C.S.T. Road, Kurla (West), ]
Mumbai – 400 070. ]
4. Asma Rahmatullah Shaikh, ]
Aged 51 years, Occupation : Housewife ]
Residing at Room No. 2-168, Sevamajal]
House, Kudupadukodi, Bantwal, D.K., ]
Karnataka – 574265. ]
5. Zahra Saeed Patel ]
Aged 50 years, Occu : Housewife ]
Residing at 402-A, Baitul Aman C.H.S. ]
nd
Ltd., 2 Maulana Azad Road, Nagpada]
Mumbai Central, Mumbai – 400 008 ]
6. Aasiya Imtiaz Baji ]
Aged 41 years, Occu : Housewife ]
Digitally
signed by
VARSHA
VIJAY
RAJGURU
Date:
2026.11.06
18:31:06
+0530
VARSHA
VIJAY
RAJGURU
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Residing at B-505, Noor Mahal C.H.S. ]
Ltd.,Pipe Line Road, Kurla (West), ]
Mumbai-400 070 ] ...Appellants
Versus
1. Mrs. Sarifabi Abubaker Lambey(deleted)]
1(a) Mohammed Ashfaq Abubakar Lambay ]
Aged : - 45 Years, Occ. Not Known ]
nd
residing at Room No. 6, 2 floor, ]
B.I.T. Chawl No. 6, Imamwada Road, ]
Mumbai – 400 009 ]
1(b) Mohammed Shehzad Abubaker Lambay]
Aged :-47 Years, Occ. Not Known ]
nd
residing at Room No. 4, 2 floor, ]
B.I.T. Chawl No. 6, Imamwada Road, ]
Mumbai – 400 009 ]
2. Abubaker Lambey ]
At present residing at B.I.T. Chawl No.6 ]
nd
2 floor, Room No. 35,Imamwada Road]
Mumbai – 400 009 ] ...Respondents
Mr. Anil R. Mishra for the Applicants in CRA/577/2011
Ms. Aditi S. Naikare a/w. Mr. Pradeep J. Thorat for the
Respondents.
CORAM : GAURI GODSE, J.
th
DATED : 29 OCTOBER 2026
JUDGMENT:
BASIC FACTS:
1. The original defendant has filed this civil revision
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application to challenge the concurrent judgments and decrees
for eviction on the ground of default. The respondents are the
Plaintiff No. 1’s heirs and legal representatives and original
Plaintiff No. 2. The heirs and legal representatives of the
deceased defendant have been brought on record in this civil
revision application.
2. The suit was filed on the ground that the defendant was
in arrears of rent, and plaintiff no.1 had issued a notice dated
rd
23 August 1984 calling upon the defendant to pay monthly
st
rent from 1 April 1983. According to the plaintiff, despite
receiving the demand notice, the defendant failed to comply
with it or reply. Hence, the plaintiff filed the suit for eviction. The
defendant filed a written statement and disputed Plaintiff No.
1’s ownership. According to the defendant, the suit premises
were rented out by Plaintiff No. 1's husband. It was contended
that Plaintiff No. 1 was never the owner of the suit property.
The defendant denied receiving the demand notice.
3. Plaintiff No. 2 was subsequently brought on record in the
suit. The defendant filed an additional written statement and
contended that, by adding Plaintiff No. 2 to the suit, he would
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not be entitled to prove his title to the suit premises. The
defendant filed one more additional written statement,
explaining that the dispute raised over the title of Plaintiff No.1
would not amount to any allegation of denial of title. It was also
contended that the subsequent addition of Plaintiff No. 2 would
be barred by limitation.
4. Based on the rival pleadings, the trial court framed an
issue on whether, on receipt of the demand notice, the plaintiff
was entitled to a decree on the ground of default. The trial court
also framed an issue as to whether the plaintiff would be
entitled to an eviction decree on the ground of denial of title.
The trial court decreed the suit on the ground of default and
also on the ground of denial of title. The appellate court has
confirmed the trial court’s decree.
SUBMISSIONS ON BEHALF OF THE APPLICANTS:
5. Learned counsel for the applicants submits that the
defendant has specifically averred in the written statement that
the demand notice was never received. The plaintiff's reliance
on proof of service by pasting and on the notice issued under
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certificate of posting was not pleaded in the plaint. Hence, the
evidence produced on pasting of notice or the notice issued
under certificate of posting cannot be accepted in the absence
of any specific pleadings in the plaint. He has relied on the
relevant part of the notes of evidence to support his submission
that the defendant raised only a ground regarding the
correctness of title to the suit property and never denied the
plaintiffs’ title.
6. According to the learned counsel for the applicants,
Plaintiff No. 2 admitted in cross-examination that, on the date of
filing of the suit, there was no registered title document in the
name of Plaintiff No. 1, and that Plaintiff No. 1 had no title to
the suit property on the date of filing of the suit. He also relied
on the admissions of Plaintiff No. 2 that the suit property did not
stand in the name of Plaintiff No.1 in the corporation’s record.
He, however, submits that, with reference to the correct status
of the title and to bring on record the factual aspect, these
averments and contents raised by the defendant cannot be
accepted as a ground to pass a decree of eviction on the
ground of denial of title.
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7. Learned counsel for the applicants further pointed out the
evidence led by Plaintiff No.2 regarding service by under-
posting certificate and pasting. He submits that, in view of the
defendant's specific denial that no such notice was ever
received, the burden was on the plaintiffs to prove valid service
of the demand notice. Learned counsel for the applicants relied
on the decision in Ram Sarup Gupta (Dead) by LRs Vs. Bishun
1
Narain Inter College and Ors , to support his submissions that,
in the absence of supporting pleadings, the evidence led by
Plaintiff No. 2 cannot be accepted as proof of valid service of
the demand notice by pasting or under a certificate of posting.
8. He submitted that the service of the demand notice is a
prerequisite for seeking eviction under Section 12 of the
Bombay Rent, Hotel and Lodging House Rates Control Act,
1947 (‘Rent Act’). Hence, in the absence of any proof of service
of the demand notice, the decree for eviction on the ground of
default would not be sustainable. He submits that since the
demand notice itself was not served, the question of depositing
the rent amount does not arise. Hence, this Court should
1 1987 AIR 1242
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interfere with the impugned judgments and decrees.
SUBMISSIONS ON BEHALF OF THE RESPONDENTS:
9. Learned counsel for the respondents supports the
impugned decrees. She submits that the suit is filed with
specific pleadings that the demand notice was served upon the
defendant. The plaintiffs led evidence to support this
contention, as the defendant denied receipt of the demand
notice. Hence, relevant evidence was produced on record to
support the basic assertion that the demand notice was served.
10. Learned counsel for the applicants submits that, in view
of the specific pleadings that the demand notice was served
upon the defendant, the supporting evidence cannot be said to
be without pleadings. The plaintiffs supported this assertion by
leading evidence and produced the returned packet of the
registered post notice, the receipt of the UPC certificate to
prove that the notice was also sent by UPC, and the
endorsement of Plaintiff No.2 regarding pasting the notice on
the suit premises.
11.
To support her submissions, she points out the relevant
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questions put to Plaintiff No. 2 on behalf of the defendant in the
cross-examination. She submits that the postal packet of the
registered postal acknowledgment was returned with the
remark ‘left’. Admittedly, the defendant was residing outside
India for job purposes. From the questions put by the
defendant in the cross-examination of Plaintiff No.2, it is clear
that the wife of Defendant No. 2 was residing in the suit
premises at the time when the notice was issued under the
certificate of posting and the notice was pasted by Plaintiff No.
2. She referred to the relevant cross-examination where
Plaintiff No. 2 was questioned as to why the pasting of the
notice was not done, although the wife of the defendant had
requested to wait for one day as she wanted to consult her
advocate before accepting the demand notice. She also points
to the relevant response in the cross-examination, where
Plaintiff No.2 was asked about the refusal by the defendant’s
wife before pasting the notice.
12. She further submits that it is not the case that the
defendant’s wife was not residing at the relevant time in the suit
premises. Hence, in the absence of any rebuttal evidence and
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the material brought on record during the cross-examination of
Plaintiff No.2, the material on record is sufficient to support the
plaintiff’s contention that the demand notice was served by
under-posting certificate and pasting. In view of the cross-
examination, it is also clear that the defendant was very well
aware of the demand notice. However, the defendant never
stepped into the witness box, and only his wife, as his power of
attorney holder, led the evidence.
13. Learned counsel for the respondents relied upon the
decision of the Apex Court in Madan and Co. Vs. Wazir Jaivir
2
Chand , followed by this Court’s decision in the case of David
3
Vs. Chaubey . She submits that, with reference to service upon
the defendant through post, the Apex Court held that, under the
Rules of the Post Office, once the packet is delivered to the
addressee, the addressee either accepts the letter or declines
to accept it. The Apex Court held that when the postman
cannot contact the addressee, or a person authorised to
receive the letter, all he can do is return it to the sender. It is
further held that the Indian Post Office Rules do not prescribe
2 (1989) 1 SCC 264
3 2003 SCC Online Bom 237
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any detailed procedure for delivering such registered letters.
When the postman is unable to deliver it on his first visit, the
general practice is for the postman to attempt to deliver it on
the next one or two days also before returning it to the sender.
The Apex Court therefore held that the postman's responsibility
cannot be equated with that of a process server entrusted with
serving a court summons under Order V of the CPC. She
submits that the Apex Court therefore held that dispatch of the
notice by registered post was sufficient compliance with this
requirement, and the landlord fulfilled it as the addressee is
found to have been residing at the given address.
14. Following the legal principles settled by the Apex Court,
this Court, in David K.N., held that the presumption regarding
proof of service applies when intimation is posted, and the
packet is returned with postal endorsement as unclaimed. The
mere absence of the tenant from the premises cannot rebut the
presumption arising under Section 28 of the Bombay General
Clauses Act. It is further held that the tenant must make
necessary arrangements to receive the notice addressed to
him in his absence at the suit premises, and the tenant's failure
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cannot enure to his benefit to contend that, on account of his
absence, the presumption of service would stand rebutted.
Hence, this Court, relying on the presumption of intimation
under Section 114 of the Indian Evidence Act and the Apex
Court's observation, has accepted that service by post is valid
service on the ground of presumption.
15. Learned counsel for the respondents submitted that, in
the present case, the defendant admittedly resided outside
India; the defendant’s wife admittedly resides in the suit
premises. The questions put to Plaintiff No. 2 in the cross-
examination support the presumption of service of notice.
Therefore, the under-certificate of posting and the service by
pasting must be accepted as valid service of the demand
notice.
16. Learned counsel for the applicants also relied upon the
decision of Narayan Ganpat Bhoite Vs. Smt. Rampyari
4
Suchitram Gupta , on the same proposition regarding
presumption of service of notice. This Court, in Narayan
Ganpat Bhoite, held that, when a postal certificate is produced
4 2000 SCC OnLine Bom 566
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in the absence of any rebuttal evidence, the possibility of
receipt cannot be ruled out by disbelieving the plaintiff’s
evidence. Learned counsel for the respondents submits that, in
the present case, documentary evidence is on record regarding
the returned postal packet sent through registered post A.D.,
the receipt of the notice sent by under-certificate of posting and
the endorsement of pasting by Plaintiff No. 2. The documentary
evidence is supported by the oral evidence led by Plaintiff No.
2, who had pasted the notice.
17. As per sub-section (2) of Section 12 of the Rent Act, the
notice of demand is required to be served in the manner
provided under Section 106 of the Transfer of Property Act. The
unamended Section 106 of the Transfer of Property Act, at the
relevant time, provided that every notice under sub-section(1)
must be in writing, signed by or on behalf of the person giving
it, and either be sent by post to the party who is intended to be
bound by it or be tendered or delivered personally to such
party, or to one of his family or servants at his residence, or (if
such tender or delivery is not practicable) affixed to a
conspicuous part of the property. Hence, notice by RPAD is not
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the sole requirement for effective service as per Section 12 of
the Rent Act. Hence, in the present case, sufficient evidence is
produced on record to prove the service of notice.
18. After examining the entire evidence on record, the trial
court held that the service of the demand notice is supported
by sufficient evidence. The presence of the defendant’s family
at the relevant time is also an important factor in accepting the
evidence led by the plaintiff to prove service of the demand
notice. The findings recorded by the trial court are confirmed by
the appeal court after examining the evidence on record. Once
service of the demand notice is accepted, the only remedy
available to the tenant to avoid any eviction decree is to deposit
the amount in the court as contemplated under Section 12(3)
(b) of the Rent Act. In the absence of any compliance by the
tenant as required under Section 12(3)(a) or 12(3)(b) of the
Rent Act, the court has no other option but to pass a decree for
eviction, as held in the decision of the Apex Court in the case of
5
Harbanslal Jagmohandas and Anr Vs. Prabhudas Shivlal
followed in Jaywant S. Kulkarni and Others Vs. Minochar
5 (1977) 1 SCC 575
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6
Dosabhai Shroff and Ors . She thus submits that the reasons
recorded by both the courts on the proof of service of demand
notice would not warrant any interference in the civil revision
application under Section 115 of the CPC. Admittedly, no
compliance has been made under Section 12(3)(a) of the Rent
Act. Hence, there is no reason to interfere with the impugned
decree.
ANALYSIS AND CONCLUSIONS:
19. I have perused the papers of the civil revision application.
The relevant provision applicable to the present case is the
pre-amended Section 12 of the Rent Act, which reads as
under:
“12. (1) A landlord shall no be entitled to the recovery of
possession of any premises so long as the tenant pays,
or is ready and willing to pay, the amount of the standard
rent and permitted increases, if any and observes and
performs the other conditions of the tenancy, in so far as
they are consistent with the provisions of this Act.
(2) No suit for recovery of possession shall be
instituted by a landlord against tenant on the ground of
non-payment of the standard rent or permitted increases
6 (1988) 4 SCC 108
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due, until the expiration of one month next after notice in
writing of the demand of the standard rent or permitted
increases has been served upon the tenant in the manner
provided in section 106 of the Transfer of Property Act,
1882.
(3)( a ) Where the rent is payable by the month and there
is no dispute regarding the amount of standard rent or
permitted increases, if such rent or increases are in
arrears for a period of six months or more and the tenant
neglects to make payment thereof until the expiration of
the period of one month after notice referred to in sub-
section (2), the [Court shall pass a decree] for eviction in
any such suit for recovery of possession.
(b) In any other case no decree for eviction shall be
passed in any such suit if, on the first day of hearing of
the suit or on or before such other date as the Court may
fix, the tenant pays or tenders in Court the standard rent
and permitted increases then due and thereafter
continues to pay or tender in Court regularly such rent
and permitted increases till the suit is finally decided and
also pays costs of the suit as directed by the Court.]
[(4) Pending the disposal of any such suit, the Court may
out of any amount paid or tendered by the tenant pay to
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the landlord such amount towards payment of rent or
permitted increases due to him as the Court thinks firt.]
Explanation [1] --- In any case where there is a dispute
as to the amount of standard rent or permitted increases
recoverable under this Act the tenanat shall be deemed
to be ready and willing to pay such amount if, before the
expiry of the period of one month after notice referred to
in sub-section(2), he makes an application to the Court
under sub-section(3) of section 11 and thereafter pays or
tenders the amount of rent or permitted increases
specified ini the order made by the Court.
[Explanation II – For the purpose of sub-section (2),
reference to “standard rent” and “ permitted increase”
shall include reference to “interim standard rent” and
“interim permitted increase” specified under sub-section
(3) or (4) of seciton 11.]
[Explanation III – For the purposes of this section where,
a tenant has deducted any amount from the rent due to
the landlord under section 173C of the Bombay Municipal
Corporation Act for recovery of any water tax or charges
paid by him to the Commissioner, the tenant shall be
deemed to have paid the rent to the extent of deductions
so made by him.]”
20. The only controversy to be determined in this case is
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whether the findings recorded by both the courts on service of
the demand notice would warrant any interference. So far as
compliance under Section 12(3)(a) of the Rent Act is
concerned, admittedly no such compliance has been made.
Regarding the service of the demand notice, both courts relied
on the documentary evidence produced at Exhibits F and G,
including the under-posting certificate receipt, the returned
RPAD postal packet, and the endorsement on the notice
pasted by Plaintiff No. 2.
21. I have perused the cross-examination of Plaintiff No. 2.
During the cross-examination of Plaintiff No. 2, much emphasis
was given to the pasting of the notice. In response to the
questions posed to Plaintiff No. 2, he referred to the notice sent
by RPAD, the certificate of posting, and the pasting. Plaintiff
No. 2 has also stated that at the time of pasting the notice, the
defendant’s wife was present and, in view of the questions put
to Plaintiff No. 2, it is clear that the defendant’s wife was
present and had refused to accept the notice, and Plaintiff No.
2 had pasted the notice on the suit premises. It is clear from
the questions put to Plaintiff No.2 in his cross-examination and
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his responses that the notice was pasted. It is also seen that
the defendant’s wife had refused to accept the notice on the
ground that she had asked for time to consult the advocate.
The postal packet under certificate of posting was never
returned to the sender; therefore, it can be presumed to have
been served, inasmuch as the defendant's address is correct,
the defendant’s wife admittedly resided in the suit premises,
and only the defendant was out of India for his employment.
Therefore, the RPAD returned packet with the remark “not
found” supports the presumption of service by the under-
certificate of posting, as the defendant’s wife was available to
accept the service. The evidence led by the defendant’s wife is
clear that she was residing in the suit premises.
22. By appreciating oral evidence with reference to the
documentary evidence regarding the pasting of the notice, both
the courts have accepted the plaintiff’s contention that the
notice of demand was served upon the defendant by under-
posting certificate and by pasting. The defendant has not led
any rebuttal evidence to show that the defendant’s family was
not present at the relevant time. In fact, the cross-examination
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of Plaintiff No.2 reveals that the defendant’s wife was very
much present when the notice was pasted at the suit premises.
23. Under Section 12 of the Rent Act, a landlord was not
entitled to recover possession till the tenant paid the standard
rent. As per sub-section (2) of Section 12 of the Rent Act, no
suit for possession could be instituted on the ground of default
until expiration of one month next after a demand notice in
writing was served upon the tenant in the manner provided
under Section 106 of the Transfer of Property Act. As per
Explanation I to Section 12, if the tenant disputed the rent
amount and applied for fixation of standard rent under Section
11, and paid or tendered rent in court, he was deemed to be
ready and willing to pay rent. However, in the present case, the
defendant has neither disputed the rent amount nor paid or
tendered the demanded amount in court.
24. Under the unamended Section 106 of the Transfer of
Property Act, applicable at the relevant time, the notice under
the said section must be in writing, signed by or on behalf of
the person giving it and either sent by post to the party
intended to be bound by it, tendered or delivered personally to
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such person or to one of his family members or affixed to the
premises. In the present case, ample evidence shows that the
defendant’s wife was residing at the address; the RPAD packet
was returned with the remark that the defendant was “not
found”; the certificate of posting packet was never returned to
the sender; and Plaintiff No. 2 had pasted the notice. Hence,
service of notice in the manner provided under Section 106 of
the Transfer of Property Act is satisfactorily proved in the
present case, in view of the presumption of facts under Section
114 of the Evidence Act.
25. The trial court has therefore rightly concluded that the
demand notice is validly served upon the defendant. Once
service of the demand notice is accepted, the eviction decree is
rightly passed, as the defendant has admittedly not complied
with the requirements under Section 12 (3)(a) of the Rent Act.
26. In Madan and Co. , the Apex Court was dealing with
Section 11 of the Jammu and Kashmir Houses & Shops Rent
Control Act, 1966. The provision requires the landlord to issue
a demand notice by registered post with acknowledgement.
Regarding the proof of service by post, the Apex Court held in
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paragraph 6 as under:
“6. We are of opinion that the conclusion arrived at by the
courts below is correct and should be upheld. It is true that the
proviso to clause ( i ) of Section 11(1) and the proviso to Section
12(3) are intended for the protection 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 insist that before any amount of rent
can be said to be in arrears, a notice has to be served through
post . All that a landlord can do to comply with this provision is
to post a prepaid registered letter (acknowledgement 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 Section 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 not prescribe any
detailed procedure regarding the delivery of such registered
letters. When the postman is unable to deliver it on his first
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visit, the general practice is for the postman to attempt to
deliver it on the next one or two days also before returning it to
the sender. However, he has neither the power nor the time to
make enquiries regarding the whereabouts of the addressee;
he is not expected to detain the letter until the addressee
chooses to return and accept it; and he is not authorised to
affix the letter on the premises because of the assessee's
absence. His responsibilities cannot, therefore, be equated to
those of a process server entrusted with the responsibilities of
serving the summons of a court under Order V of the CPC. The
statutory provision has to be interpreted in the context of this
difficulty and in the light of the very limited role that the post
office can play in such a task. If we interpret provision as
requiring that the letter must have been actually delivered to
the addressee, we would be virtually rendering it a dead letter.
The letter cannot be served where, as in this case, the tenant is
away from the premises for some considerable time. Also, an
addressee can easily avoid receiving the letter addressed to
him without specifically refusing to receive it. He can so
manipulate matters that it gets returned to the sender with
vague endorsements such as “not found”, “not in station”,
“addressee has left” and so on. It is suggested that a landlord,
knowing that the tenant is away from station for some reasons,
could go through the motions of posting a letter to him which he
knows will not be served. Such a possibility cannot be
excluded. But, as against this, if a registered letter addressed
to a person at his residential address does not get served in
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the normal course and is returned, it can only be attributed to
the addressee's own conduct. If he is staying in the premises,
there is no reason why it should not be served on him. If he is
compelled to be away for some time, all that he has to do is to
leave necessary instructions with the postal authorities either to
detain the letters addressed to him for some time until he
returns or to forward them to the address where he has gone or
to deliver them to some other person authorised by him. In this
situation, we have to choose the more reasonable, effective,
equitable and practical interpretation and that would be to read
the word “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 applied by me
27.
In David K.N. , this Court held that a bare reading of
Section 106 of the Transfer of Property Act, 1882, reveals that
the question of service by affixation can arise only when the
tender or delivery of notice either by post or by tendering or
delivering the same personally to the addressee is found to be
impracticable. This Court followed the legal principles settled
by the Apex Court in Madan and Co. and held that for service
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of demand notice under the Rent Act, the moment a letter is
sent by registered post disclosing the correct address of the
addressee, on return of such letter to the sender, apparently
disclosing postal notings of refusal or unclaimed by the
addressee, a presumption under section 28 of the Bombay
General Clauses Act would inevitably arise in relation to the
service of such notice upon the addressee. It is held that
service of notice under section 106 of the Transfer of Property
Act would trigger the presumption under section 28 of the
Bombay General Clauses Act.
28. The legal principles settled by the Apex Court in Madan
and Co., and followed by this Court in David K.N ., squarely
support the plaintiff’s contention regarding service of the
demand notice. The evidence led by Plaintiff No. 2, and more
particularly the cross-examination, clearly reveals that the
presumption of service of notice supports the plaintiff’s
contention. Considering the evidence on record regarding the
defendant’s wife’s presence at the relevant time, service of the
demand notice, accepted by both courts by relying on the
presumption under Section 114 of the Evidence Act, does not
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warrant any interference. The view taken by this Court in
Narayan Ganpat Bhoite, with reference to proof of the under-
posting certificate, also squarely applies in the present case.
This Court held that the notice sent under a certificate of
posting can also be held to be good service by raising a
presumption under Section 114 of the Evidence Act. It is further
held that, in the absence of anything indicating that the notice
was not posted under the certificate of posting, and when the
packet is not returned to the sender, it can be held to be validly
served.
29. The decision in Ram Sarup Gupta, relied upon by the
learned counsel for the applicants (defendant), would not apply
in the present case. The plaintiffs specifically pleaded that the
demand notice was served upon the defendant. Only because
the defendant denied receipt of the demand notice did the
plaintiffs establish, by documentary and oral evidence, that the
demand notice was served. The Apex Court's observation
regarding considering evidence in the absence of pleadings
therefore does not apply in the present case. Given the
admitted position that compliance has not been made under
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Section 12(a) of the Rent Act, the decisions in Harbanslal
Jagmohandas and Anr. and Jaywant S. Kulkarni and Others
squarely apply to support the eviction decree passed in the
present case. The Apex Court held that the Court is bound to
pass a decree for eviction under Section 12(3) (a) and (b) of
the Rent Act when there is failure or neglect on the part of the
tenant to pay the rent.
30. Considering the defendant's pleadings, both courts have
also passed a decree on the ground of denial of title. I have
perused the written statement. The defendant has categorically
stated that Plaintiff No. 1 was not the owner and that Plaintiff
No. 2 inducted the defendant. The questions put to Plaintiff No.
2 in cross-examination also pertain to objections to the
plaintiffs’ title. The trial court referred to the defendant's
contentions raising an objection to the plaintiffs’ title, and also
to the notice produced by the defendant addressed to the
plaintiffs regarding the rent payment receipt. According to the
defendant, Plaintiff No. 2 inducted him. The evidence led by the
plaintiffs shows that Plaintiff No. 1 is the landlord of the suit
premises. Hence, the defendant, contending that he was
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inducted by Plaintiff No. 2 and raising an objection to Plaintiff
No. 1’s title, is rightly held not to have made a bona fide denial
of title. Thus, the plaintiffs are rightly held entitled to the decree
on the ground of denial of title.
31. The defendant has not stepped into the witness box to
support his contention. The evidence led by the defendant’s
wife, as his constituted attorney, is not sufficient to rebut the
plaintiffs’ evidence. I do not find any jurisdictional error or any
other manifest error in the findings recorded by both courts
warranting any interference by this court.
32. The civil revision application is devoid of any merit.
Hence, the civil revision application is dismissed.
33. At this stage, learned counsel for the applicants seeks
continuation of the stay granted by this Court. Learned counsel
th
for the respondents submits that by order dated 30 March
2012, the applicants were directed to deposit monthly
compensation in this court. She submits that respondent no.2
be permitted to withdraw the said amount on behalf of the
respondents.
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34. The stay granted by this Court shall continue to operate
for four weeks from the date of uploading of this order on the
website, subject to the filing of an affidavit-cum-undertaking of
all the occupants of the suit premises stating that in the event
no favourable order is passed by the Apex Court, they shall
hand over possession of the suit premises to the respondents
on expiry of the period of protection granted by this order. The
affidavit shall also state that they shall continue depositing
th
monthly compensation as directed by the order dated 30
March 2012, and that they shall not create any third-party rights
or part with possession in favour of any third party. Such an
affidavit-cum-undertaking shall be filed within two weeks from
the date of uploading this Order on the website, failing which
the protection granted by this order shall stand vacated.
35. Respondent No. 2, on behalf of the respondents, is
permitted to withdraw the amount deposited by the applicants
th
in this Court pursuant to the order dated 30 March 2012.
(GAURI GODSE, J.)
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