1 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR SECOND APPEAL NO.287 OF 2009 Sou. Nalini vilasrao Hadke, Aged about 37 years, Occu. Business, Ramkrushna Colony, Prabhu Colony, Mahdeo Khori, Amravati, Tah. and Dist. Amravati. ....Appellant. ...VERSUS... Pradeep Narayan Sunderlal Shrivastav, Aged about 47 years, Occupation : Advocate, R/o Khaparde Garden, Amravati, Tah. and Dist. Amravati. ...Respondent. =-=-=---=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Office Notes, Office Memorandum of Coram appearances, Court's orders of directions & Registrar's orders. Court's or Judges Order =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Mr. M.K. Mishra, Advocate for the appellant. C ORAM : F. M. REIS, J. DATED : 25th JANUARY, 2010. Heard learned counsel for the appellant. This is a Second Appeal preferred against the judgment and decree, passed by the learned 1st Additional District Judge, Amravati, dated 10th February, 2009 in Regular Civil Appeal No. 91 of 2004, whereby, the judgment and decree passed by the Small Causes Court, Amravati in Small Causes Civil Suit No. 112 of 2000, dated 20th March, 2004 came to be dismissed. The respondent herein had filed Small Causes Suit on the ground that he is landlord and appellant/defendant is his tenant in respect of suit shop situated at Plot No.6 2 in Ramkrushna Housing Society, near Dental College, Wadhadi, Amravati for a monthly rent of Rs.500/-. The rent was payable in advance. The appellant-defendant occupied suit shop in the month of March, 1996. The appellant paid the rent regularly upto November, 1996, but then she is in arrears of the rent from December, 1996 to 31st March, 2000 i.e. for the period of 42 months. It is the further contention of the respondent that the appellant was in arrears of rent and accordingly a notice under Section 15 of the Maharashtra Rent Control Act, 1999 was issued on 2nd June, 2002. When the respondent went to serve the notice, the appellant's husband was in the suit shop and he refused to accept the notice and therefore, the said notice was pasted on the front portion of the suit shop in the presence of two witnesses namely, Mr. Deorao Hinge and Mr. Manohar Taley, in view of the provisions of Section 106 of Transfer of Property Act. Despite said notice, the appellant did not pay the arrears of rent within 90 days after serving said notice. As such, the suit for recovery of possession was filed by the respondent against the appellant. The appellant filed her written statement and denied the status of the respondent as landlord. It was further her contention that she was not in arrears of rent and that the respondent had given up the claim of arrears of rent and she started residing in the suit plot as per the directions of the respondent, without any rent, for taking care of the suit plot. The appellant also disputed the service of notice under Section 15 of the 3 Maharashtra Rent Control Act and consequently prayed that the petition deserves to be dismissed. By the judgment dated 20th March, 2004, the learned Civil Judge, Junior Divn., Amravati decreed the suit filed by the respondent and directed the appellant to deliver vacant possession of the suit shop to the respondent immediately. The learned Judge on the basis of material on record and considering the rent receipts produced by the respondent, came to the conclusion that the respondent was landlord of the suit premises. The learned Judge also considered that the appellant had admitted that there is monthly tenancy between the respondent and appellant in respect of the suit premises since March, 1996. The learned Judge also considered the fact that the respondent failed to give evidence on oath and chose not to enter the witness box. The learned Judge, on perusing Exh.23, which is a letter dated 11/01/1996, wherein the appellant had clearly admitted that the suit Plot No.6 was owned by the respondent and on the basis of the documentary evidence on record, specially rent receipts, came to the conclusion that the contention of the appellant that the respondent was not landlord of the suit premises, was devoid of any substance. The contention of the appellant to the effect that she was exempted from paying the rent in view of the fact that the theft had occurred in the suit premises, was also rejected by the learned Judge on the ground that the appellant failed to give any evidence to that effect. The contention of the appellant that she had not received the notice under 4 Section 15 of the Maharashtra Rent Control Act was also rejected by the learned Judge. The learned Judge found that at the time of service of the notice, the husband of the appellant was present in the suit sop and when he was asked to take the notice, he refused to receive it and therefore, the said notice was pasted on the conspicuous part of the suit shop in the presence of two witnesses namely Deorao Hinge and Manohar Taley. On perusal of the notice, the learned Judge found that it bears the signature of Deorao Hinge and Manohar Taley. The said Deorao Hinge was examined as P.W.2, who deposed that the said notice was affixed on the conspicuous part of the suit shop in his presence as husband of the appellant refused to take that notice. The learned Judge, on relying upon the provisions of Section 106 of the Transfer of Property Act, came to the conclusion that there was due compliance of the provisions while affixing the notice over suit shop and whereby the appellant was called upon to pay the arrears of rent for 42 months within a period of 90 days. There is no dispute that the appellant did not pay the said amount as demanded. In view of failure on the part of the appellant to pay arrears of rent, the learned Judge decreed the suit filed by the respondent. In the appeal, which was preferred by the appellant, learned Principal District Judge, Amravati, on perusing the records, came to the conclusion that the appellant was not ready and willing to pay the arrears of rent and that there was valid service of notice under Section 106 of the Transfer of Property Act and 5 consequently, the respondent was entitled to seek the possession of the suit premises from the appellant. The learned District Judge on the basis of evidence on record, came to the conclusion that the appellant was in arrears of rent for 42 months and the contention of the appellant that she had started residing in the shop on the say of the respondent and that the respondent accordingly had exempted from payment of rent, came be rejected. The learned District Judge on perusing the notice, found that the notice was not ambiguous and it clearly gives the details of the claim against the appellant. The learned Judge on the basis of material on record also came to the conclusion that in view of refusal to receive the said notice by the husband of appellant, the notice was pasted on the conspicuous part of the suit shop in the presence of two witnesses. The learned Judge came to the conclusion that the requirements of Section 106 of the T.P. Act were duly complied with by the respondent and as such, confirmed the findings of the learned trial Court and dismissed the appeal preferred by the appellant. The learned counsel appearing for the appellant raised only one ground before me. He submits that the Courts below erroneously came to the conclusion that the notice was duly served on the appellant. The learned counsel further submitted that the person, who deposed could not be relied upon as he was not present on the spot at the time of effecting service of the notice. On perusal of the record, I find that both the 6 Courts below on the basis of material on record came to the conclusion that the appellant was in arrears in payment of rent for the period of 42 months. The contention of the appellant that she was exempted from the payment of rent in view of the fact that she had started residing in the suit premises was rejected by the Courts below on the ground that the appellant failed to adduce any evidence on that aspect. Once it has been held that the contention of the appellant that she was exempted from payment of rent came to be rejected, naturally the appellant was liable to pay arrears of rent to the respondent. Having failed to pay the said arrears of rent, obviously the respondent was entitled to possession of the suit premises in view of non-payment of rent on the part of the appellant. With regard to the next contention of the appellant that the notice was not effected in accordance with the provisions of Section 106 of the T.P. Act, I find that both the Courts below, after examination of the material produced on record by the parties, came to the conclusion that the provisions of Section 106 of the T.P. Act were duly complied with. The person, in presence of whom the notice was pasted on the conspicuous part of the suit premises, was duly examined as P.W.2, who confirmed that the husband of appellant, who was present in the suit premises refused to accept the notice, which resulted in pasting of such notice on suit premises. These concurrent findings of fact based on the material on record cannot be interfered with in the present Second Appeal. Both the Courts below, on appreciating the 7 evidence adduced by the parties, came to the conclusion that the appellant was duly served with the notice in compliance of the provisions of Section 106 of the T.P. Act. As the husband of appellant refused to accept the said notice, naturally the service of notice on the appellant was not practicable and consequently the respondent was justified in affixing the said notice on the conspicuous part of the suit premises. The two Courts below on the basis of evidence on record correctly came to the conclusion that the notice was duly served on the appellant. Such concurrent findings of fact based on the evidence on record cannot be re- appreciated in Second Appeal. No other submissions were advanced by the learned counsel for the appellant nor any finding given by the Courts below were shown to be perverse. As such, there is no merit in the appeal and no interference is called for in the findings reached by the Courts below. Consequently, the Second Appeal stands dismissed with no order as to costs. JUDGE. Diwale