1 (WP3224/95) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3224 OF 1995 1 Antony Pedat Ferriao ) since deceased through his heirs ) and legal representatives ) ) 1(a) Mr. Francisco Antony Ferrao ) Age 47 yrs. Occ: Service, ) Flat No.101, Shankar Darshan, ) Off Link Road, Ramchandra Lane, ) Extension, Malad (W), ) Mumbai – 400 0064 ) ) 1(b) Mr. Danie Antony Ferrao, ) aged 45 years, Occ: Service ) ) 1(c) Mr. Rock Constance Antory Ferrao ) Aged 40 yrs. Occ: Service. ) ) 1(d) Mr. Savio Antony Ferrao, ) Aged 34 yrs, Occ: Service. ) ) 1(e) Miss Cheryl Ann Antony Ferrao, ) Aged 28 yrs. Occ: Service. ) ) The Applicants Nos.1b to 1c are ) presently residing at Annie Pereira ) Chawl, 7th Road, Golibar, Santacruz ) (East), Bombay – 400 055 ) .... Petitioners. V/s Umaji Ganesh Pandyam ) Annie Pereira Chawl, ) 7th Road, Golibar, ) Santacruz (East), Bombay 400055 ) .... Respondents. 2 (WP3224/95) Mr. Appasaheb S. Desai for the Petitioners. Mr. Clive D’Souza for the Respondents. CORAM: V. M. KANADE, J. DATE : 19th April, 2011 ORAL JUDGMENT: 1. Heard the learned Counsel appearing on behalf of the Petitioner and the learned Counsel appearing on behalf of the Respondent. 2. Petitioner is aggrieved by the Judgment and Order passed by the Trial Court, who was pleased to pass decree of eviction against him on the ground of arrears of rent and construction of permanent structure without seeking permission of the landlord. The said Judgment and Order was confirmed in appeal by the Appellate Bench of the Small Causes Court. 3. Brief facts are as under:- 4. Plainitff – Umaji Ganesh Pandyam filed a suit for 3 (WP3224/95) eviction against the Petitioner/tenant on the ground of arrears of rent and on the ground that he had raised height of the hut and had also constructed a loft. In the plaint, it was alleged that a demand notice was served upon the tenant. However, the rent which was demanded was not paid within one month from the date of service of notice. The tenant, Petitioner herein, filed his Written Statement and contended that the rent was paid by him upto December, 1975 and, later on, he continued to pay the rent to MHADA since Patch holder’s Card was issued to him. It was contended in the Written Statement that there was no relationship of landlord and tenant between the Plaintiff and the Defendant. It was also contended that the averment made in the Plaint that the Plaintiff is the owner Annie Pereira Chawl was not correct and that the Defendant is a tenant. It was further contended that the said structure and the premises were taken over by the Government authorities. It was, therefore, contended that the Plaintiff was not entitled to recover the rent. 5. The learned Counsel appearing on behalf of the 4 (WP3224/95) Petitioner submitted that both the lower Courts had not taken into consideration this aspect and, secondly, the question of service of statutory notice on the tenant also is not properly decided. It is submitted that burden of proof of service of statutory notice was on the landlord particularly when the Defendant had rebutted the presumption which was raised under section 114 of the Evidence Act. It is submitted that the RPAD was returned back with the remark “not known/”not found”. Defendant denied the service of notice by UPC. It is submitted that, under these circumstances, the burden had shifted back on the Plaintiff to prove the service of notice. It is submitted that the Plaintiff ought to have examined the Postmaster to prove the proper service. It is also contended that the notice was not sent at the correct address. It is submitted that in the cause title of the plaint, room number was not mentioned and, though, room number was mentioned in the plaint in para 1, the notice was sent to room No.4 instead of room No.1 and, therefore, since notice was not served at the correct address, presumption could not have been raised under section 114. It is submitted that the Plaintiff has not 5 (WP3224/95) produced any evidence to show that he was the son of Annie Pereira and, therefore, it was not established that the Plaintiff was the son of the landlord or was the rent collector. 6. I have gone through the Judgment and Order of the Trial Court as also the lower Appellate Court. In the present case, the controversy between the parties, essentially, was regarding relationship between the Plaintiff and the Defendant. Plaintiff claimed that he was a landlord and that Annie Pereira was his mother and after expiry of his mother sometime his father used to collect rent and sometime he used to collect rent and after death of his father he collected rent. 7. On the other hand, it is the case of Defendant that Plaintiff is not a landlord or rent collector. It is the case of Defendant that he was paying rent to the landlord till December, 1975 and, thereafter, Patch holder’s Card was issued by MHADA and MHADA was receiving compensation and, therefore, he was paying the rent to MHADA. The second controversy is regarding service of notice. 6 (WP3224/95) 8. I have perused the Judgment and Order of the lower Appellate Court. In my view, firstly, the lower Appellate Court has not taken into consideration certain admissions which have been given by the Plaintiff in his cross-examination and it has also not taken into consideration the evidence of D.W. 1 – Sonawane who was working in the Office of Tahasildar (E & C) Andheri (1). Secondly, the lower Appellate Court, being the First Appellate Court, was under an obligation to consider the entire evidence in its proper perspective, more particularly regarding the submissions made about service of notice. The lower Appellate Court, therefore, ought to have considered the evidence adduced by both the parties including the admissions given by both, Plaintiff and the Defendant and their witness in cross-examination and, thereafter, ought to have given finding regarding maintainability of the suit in the Small Causes Court. I do not propose to point out how the finding of the lower Appellate Court is incorrect. If such an observation is made, the lower Appellate Court is likely to be influenced by the observation. Since the lower Appellate Court has not 7 (WP3224/95) properly exercised its jurisdiction which is vested in it by law viz. of re-appreciating the entire evidence in its proper perspective, the impugned judgment and order will have to be set aside and the matter will have to be remanded. 9. Writ Petition is accordingly allowed. The Judgment and order passed by the lower Appellate Court is quashed and set aside. The matter is remanded to the lower Appellate Court. The lower Appellate Court shall consider the evidence in its proper perspective and decide the appeal on merits and in accordance with law on all points. All contentions raised by both the parties are kept open. The lower Appellate Court shall not be influenced by any observation made by this Court while passing this judgment. The lower Appellate Court shall decide the appeal expeditiously within a period of six months. Record and proceedings be sent back to the lower Appellate Court forthwith. 10. At this stage, the learned Counsel appearing on behalf of the respondent seeks stay of this judgment since respondent wants to challenge this judgment. This 8 (WP3224/95) judgment is stayed for a period of six weeks. Needless to state that respondent – landlord shall not execute the decree passed by the lower Appellate Court. It is also clarified that Petitioner herein shall not create any third party rights till pendency of the appeal in the lower Appellate Court. 11. Writ Petition is disposed of. (V.M. KANADE, J.) 9 (WP3224/95)