( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 3289 OF 1991 Smt. Rukhamabai w/o Dhanji Shimpi, Residing at 176, Maroti Peth, Jalgaon, District Jalgaon. PETITIONER VERSUS Dattatraya Suhasseth Shimpi, Resident of Bhawani Peth, Jalgaon, District Jalgaon. RESPONDENT WITH WRIT PETITION NO. 139 OF 1992 Dattatraya Subhashseth Shimpi (Jagtap), R/o Bhawani Peth, Jalgaon. PETITIONER VERSUS Rukhambai w/o Dhanaji Shimpi, R/o Marotipeth, Jalgaon. RESPONDENT ..... Mr. Swapnil B. Joshi, advocate holding for Mr. V.T. Chaudhary, advocate for the petitioner in Writ Petition No. 3289/1991 and for the respondent in Writ Petition No. 139/1992. Miss M.B. Vaishnav, advocate holding for Mr. P.V. Mandlik, Senior Counsel for the respondent in Writ Petition No. 3289/1991 and for the petitioner in Writ Petition No. 139/1992. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 9th March, 2010] ( 2 ) ORAL JUDGEMENT : 1. These two petitions arise out of judgement rendered by learned Additional District Judge, Jalgaon in civil appeal No. 113/1987, confirming eviction decree rendered in suit filed under provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (for short, “the Bombay Rent Act”). 2. It would be convenient to refer the parties by their first names. Dattatraya Shimpi (Jagtap) is landlord and Rukhmabai Shimpi is the tenant in respect of one room tenement out of municipal house property No. 176, constructed on plot bearing City Survey No. 1431/A, situated in Maroti Peth locality at Jalgaon. It appears that Rukhmabai Shimpi was tenant of the single room, admeasuring 15 feet x 6 feet before Dattatraya Shimpi (Jagtap) became owner thereof. The house property was purchased in name of eldest son of Dattatraya Shimpi (Jagtap). In a family partition, the part of the premises including the suit tenement had fallen to the ( 3 ) share of Dattatraya Shimpi (Jagtap). The purchase transaction was effected somewhere in 1974. The previous owner of the house property was one Shri Kulkarni and original lease transaction was between him and Rukhmabai Shimpi. The agreed rent was of Rs. 6/- p.m. The tenancy was allegedly terminated by Dattatraya Shimpi (Jagtap) by notice dated 31st August, 1983 alleging that Rukhmabai was willful defaulter for the reason that since 18th May, 1981 till 31st August, 1983, an amount of Rs. 168/- was due from her. He further alleged that she had demolished barbed wire fencing which was erected in the north-east corner of the house property. Thus, she caused nuisance to the property by causing damage valued Rs. 500/-. He filed suit for eviction (R.C.S. No. 635/1983) mainly on the ground of willful default and non-payment of rent arrears even after the service of demand notice. He lateron amended the plaint, alleging that tenant Rukhmabai had constructed some permanent structures and made alterations in the suit tenement without his permission and thereby had contravened provisions of section 13 (1) (b) of the Bombay Rent Act. The averments made by ( 4 ) Dattatraya Shimpi (Jagtap) were flatly denied by tenant Rukhmabai. She denied that she was in arrears of rent. She also denied that she had received the notice (Exh-57) dated 31st August, 1986. She contended that false averments were made in order to make out some ground for eviction. It was categorically denied that there were material alterations or construction made in the suit tenement. 3. The trial Court decreed the suit on both the grounds, namely, non-payment of the rent for more than six months and failed to pay the amount after service of notice as contemplated under section 13 (1) (b) of the Bombay Rent Act. So also, it was held that tenant Rukhmabai had constructed a wall with bricks and mud at the place where previously there was a thatched wall (----). The trial Court also came to the conclusion that she had shifted the direction of the zinc sheets placed on the roof top of the tenement. The trial Court gave finding that construction of pucca wall without consent of the landlord, amounted to material alterations and repairs which could entail eviction ( 5 ) decree under section 13 (1) (b) of the Bombay Rent Act. Consequently, the suit was decreed. The first Appellate Court held that service of demand notice (Exh-57) on the tenant was not duly proved and, therefore, there was no question of her willful default in payment of the rent arrears. It was held that the eviction decree could not be granted under section 12 (2) of the Bombay Rent Act. The first Appellate Court, however, held that tenant Rukhmabai had made permanent alteration by erecting structure of a wall at the place where there was temporary thatched wall (----) and, therefore, eviction decree could be granted under section 13 (1) (b) of the Bombay Rent Act. So, the appeal preferred by tenant Rukhmabai was dismissed. The tenant Rukhmabai is aggrieved due to the concurrent findings of both the Courts below and hence, has preferred writ petition No. 3289/1991 whereas landlord Dattatraya Shimpi (Jagtap) is aggrieved due to the finding of the first Appellate Court that she was not willful defaulter and eviction decree could not have been granted on such ground under section 12 (2) of the Bombay Rent Act. ( 6 ) 4. Heard learned counsel. 5. At the threshold, let it be noted that the son of the landlord was examined in support of the suit claim. He had not issued the notice (Exh-57). His version only purports to show that the quit notice was issued through Shri P.S. Rane, Advocate. The said notice was not issued by the registered post. The notice was allegedly issued under Certificate of Posting, a xerox copy of which was placed on record. The person who delivered the notice at the post office was not examined. Nor the postal authority or Mr. Rane, advocate had stepped into the witness box. It is well settled that presumption about service of the notice can be raised only when it is duly proved that such notice was properly sent on the correct address and the same was duly posted. The presumption cannot be extended to issuance of notice under Certificate of Posting. The presumption is available only in case of the notice sent by registered post acknowledgement due (R.P.A.D.), if such acknowledgement is placed on record. It is also available when there is endorsement of the postal ( 7 ) authority on the envelope regarding refusal to accept the notice sent by R.P.A.D. In case of despatch of quit notice only under Certificate of Posting, there is no presumption to infer due service of the notice on the address. Obviously, the view taken by the first Appellate Court cannot be faulted with. There is no perversity in the view taken by the first Appellate Court regarding absence of due service of the quit notice on the tenant – Rukhmabai Shimpi. It follows, therefore, that she was not under legal obligation to tender the rent amount within the period of 30 days as contemplated under section 12 (2) of the Bombay Rent Act (prior to amendment) in order to avert the contemplated eviction decree. Needless to say, the suit could not have been decreed on account of alleged willful default committed by tenant Rukhmabai. 6. Coming to the question of permanent alterations, it is important to note that PW1 Dattatraya Shimpi (Jagtap) asserted that the tenant constructed eastern wall and southern side wall by using bricks and mud (soil) without his consent. He further deposed that ( 8 ) the corrugated zinc sheet of the western roof were shifted on eastern side. That was the alleged permanent alteration made by the tenant. It has come on record that the Court Commissioner was appointed to visit the suit tenement and give a report. The testimony of Court Commissioner – PW3 Vijay Patil, advocate, purports to show that he drew a rough sketch during his visit. He submitted the report of spot inspection (Exh-49) alongwith a rough sketch (Exh-63). His report purports to show that towards southern side, a small wall of bricks of 4 feet height was noticed. His report further shows that said southern wall was not within the boundary limits of the tenanted premises i.e. the suit room. The western wall of the house was found fallen and dilapidated. It has come on the record that the said wall is the wall between house property of Dattatraya Shimpi (Jagtap) and one Suman Bhatu Nerkar. He admits as follows : “It is correct that there is a common wall of Suman Bhatu Nerkar and the suit premises, which is on the western side of the suit premises. It is not correct that Suman Bhatu ( 9 ) Nerkar demolished the common wall in June, 1985 and started construction of a new house. It is not correct that Suman Bhatu Nerkar constructed a new common wall after demolishing the entire wall which was in existence.” Considering the above admission of PW Dattatraya Shimpi (Jagtap), it is amply clear that the middle wall was demolished for purpose of construction of new wall at the place. It has come on record that Suman Bhatu Nerkar never lodged any report against act of removal of the middle wall by tenant Rukhmabai. It appears that due to demolition of the middle common wall, tenant Rukhmabai was required to shift the place of corrugated zinc sheets which were placed on the roof top. It does not stand to reason that she herself would have demolished the middle wall and yet, the adjacent house owner would have kept the silence inspite of such a mischief. The landlord – Dattatraya Shimpi (Jagtap) did not examine said adjoining owner by name Suman Bhatu Nerkar. The southern small portion of the wall, even if ( 10 ) it is assumed to have been constructed by means of bricks and mud, yet, that would not tantamount to permanent alteration so as to fall within the ambit of section 13 (1) (b) of the Bombay Rent Act. The eviction decree can be sought only when such alteration causes substantial change in the premises and that too, permanently. The legal position is explicit from observations in “Alisaheb Abdul Latif Mulla v. Abdul Karim Abdul Rahman Mulla and others” (AIR 1981 BOMBAY 253) and “Gopaldas Kishanchand Talreja v. Vijaysingh Bhimsingh Patil and others” (AIR 1982 BOMBAY 305). This Court observed that the structure which is erected by the tenant must be shown to be different from the demised premises and must change the character or situation and the nature of the premises demised. It is held that mere re-erection or re-construction of premises which had either fallen down or which were required to be pulled down, cannot be termed as such construction. The southern portion of the small wall was restored in place of the thatched wall, by erecting the same wall with bricks and mud. It could not be said ( 11 ) to be material alteration. The first Appellate Court utterly failed to examine the legal position and confirmed the eviction decree only on assumption that there was permanent change of structure without consent of the landlord. The view taken by the first Appellate Court in this context is quite perverse and unsustainable. 7. For the reasons aforestated, the impugned judgement is unsustainable. The eviction suit ought to have been dismissed on both the counts. Hence, the writ petition No. 3289/1991, filed by Rukhmabai Shimpi is allowed whereas writ petition No. 139/1992, filed by Dattatraya Shimpi (Jagtap) is dismissed. The impugned judgements are set aside and the eviction suit (R.C.S. No. 635/1983) shall be deemed as dismissed. The parties to bear their own costs throughout. [ V.R. KINGAONKAR ] JUDGE NPJ/wp3289-91-139-92 ( 12 )