1 wp-2793.95 Ash INTHE HIGH COURT OF JUDICTURE AT BOMBAY CIVIL APPELLATE SIDE JURISDICTION WRIT PETITION NO. 2793 OF 1995 Suresh Ramchandra Jadhav. .. Petitioner (Org. Defendant ) Vs Smt. Shankri B. Ajimal & Another. .. Respondents (Org. Plaintiffs ) -- Shri S.G. Karandikar for the Petitioner. Shri Haribhajansingh B. Ajimal, Respondent No.2 in person. -- CORAM : A.S.OKA, J. DATE : 9TH DECEMBER, 2010 ORAL JUDGMENT : . Submissions of the learned counsel appearing for the Petitioner and the 2nd Respondent appearing in person were heard on 20th October, 2010. Today, the Petition is fixed for judgment. The challenge in this Petition under Article 227 of the Constitution of India is to the decree for eviction passed by the Appeal Bench of the Court of Small Causes. With a view to appreciate the submissions made, a brief reference to the facts of the case will be necessary. 2 wp-2793.95 2. The petitioner is the original Defendant. The Respondents are the legal representatives of the original plaintiff. For the sake of convenience, reference is made to the parties to the petition as per their respective description in the suit. According to the original Plaintiff, the Defendant is a statutory tenant in respect of a room more particularly described in Paragraph 1 of the Plaint. According to the case of the Plaintiff, the Defendant was liable to pay monthly rent of Rs.32.10 exclusively of permitted increases. The allegation in the plaint is that the Defendant was in arrears of rent from 1st July, 1975. Therefore, the Plaintiff issued Advocate’s letter dated 23rd March, 1976 terminating the tenancy of the Defendant and calling upon him to pay the arrears. Another allegation made in the plaint was that the Defendant has enclosed the open varandah and has converted the same into a pucca room with the brick masonry walls without consent of the Plaintiff. 3. The Defendant filed Points of Defences and raised various contentions. The first contention is that the property on which the suit premises is constructed has been vested in the State Government as the same has been declared as a Vacant Land under the Maharashtra Vacant Land ( Prevention of Unauthorised Occupation and Summary Eviction ) Act, 1975 ( hereinafter referred to as “the Vacant Lands Act”). Moreover, another contention raised was that the larger property was a slum within the meaning of the provisions of the Maharashtra Slum Improvement Act (Improvement, Clearance and Redevelopment) Act,1971. It was denied 3 wp-2793.95 that the rent of Rs.32.10 was exclusive of permitted increases. Reliance was placed on the order dated 2nd December 1987 passed in Chamber Summons No.646 of 1977 in which, according to the Defendant, an undertaking on behalf of the Plaintiff was recorded that if the tenant pays arrears of rent, the Plaintiff will not evict the tenant or execute the decree which is already obtained from the Small Causes Court. It is contended that the Defendant has shown readiness and willingness to deposit the arrears of rent by filing an application dated 28th February, 1989. It was, therefore, contended that the suit is liable to be dismissed. The parties adduced evidence. The Trial Court proceeded to dismiss the suit. The Appellate Bench of the Court of Small Causes has interfered in an appeal preferred by the Plaintiff and has passed a decree for possession. 4. Learned counsel appearing for the Defendant has taken the Court through the pleadings, documents on record and the findings recorded by both the Courts below. He submitted that the suit is founded on the alleged notice issued by the Advocate for the Plaintiff on 23rd March, 1976. He submitted that no such Advocate’s notice was produced by the Plaintiff on record of the suit. He pointed out that the reliance was placed by the Plaintiff on a letter dated 23rd March, 1976 which is not the Advocate’s notice. He submitted that the name of the Defendant is Suresh Ramchandra Jadhav. The said notice was addressed to Suresh Ramchandra Yadav and in any event, the service of the notice to the Defendant is not proved. He pointed out that the Defendant stepped into the witness box and 4 wp-2793.95 has denied that any such notice was issued to him. He submitted that the the Appellate Court has observed that the tenant has not denied the service of the notice as pleaded in the Plaint. He submitted that what is pleaded in the Plaint is that by the Advocate’s letter dated 23rd March, 1976, the tenancy was terminated and the arrears were demanded and in fact, no such Advocate’s letter is in existence. He submitted that what is not denied is the service of Advocate’s notice dated 23rd March, 1976 and not the Plaintiff’s letter which was relied upon at the time of hearing of the suit. He, therefore, submitted that assuming that there is a failure to deny the averments made in Paragraph 4 of the Plaint, the same will not be against the tenant as the Advocate’s letter relied upon in the plaint is not at all produced. He submitted that the entire suit is based on the said Advocate’s letter. He, therefore, submitted that failure to deny what is stated in Paragraph 4 of the Plaint is of no consequence. 5. He invited attention of the Court to the undertaking of the Advocate for the Plaintiff recorded in the order dated 2nd December, 1977 passed by this Court in Chamber Summons No. 646 of 1977 taken out in Misc. Petition No. 813 of 1977. He stated that that the Misc. Petition No. 813 of 1977 was filed by the Plaintiff for challenging the action of declaring the larger property as a vacant land under the Vacant Lands Act. He submitted that on the basis of the said statement made by the Plaintiff, the Chamber Summons was disposed of. He submitted that the said order incorporates an unequivocal undertaking of the Plaintiff not to execute 5 wp-2793.95 the decree for eviction even if obtained from the Small Causes Court, in the event the tenant deposits the arrears of rent. He submitted that there is no dispute that the entire arrears of rent were deposited with the Trial Court and, therefore, the Plaintiff is bound by the solemn undertakings recorded in the order dated 2nd December, 1977 which is acted upon by this Court by disposing of the Chamber Summons. 6. He submitted that though the Vacant Lands Act was declared to be unconstitutional by this Court, a Special Leave Petition was filed before the Apex Court. He invited the attention of the Court to the Maharashtra Vacant Lands (Further Interim Protection to Occupiers from Eviction and Recovery of Arrears of Rent ) Act, 1980 ( hereinafter referred to as “the said Act of 1980”). He pointed out that under the provisions of the Vacant Lands Act as well as the said Act of 1980, there was a complete prohibition on any person collecting or making any attempt to collect from the occupiers any rent, compensation or other charges. He submitted that even under the Vacant Lands Act, there was a complete prohibition. He submitted that in view of the provisions of the aforesaid Acts, there was an embargo on the rights of the landlord to collect or even to attempt to collect the rent. He, therefore, submitted that by no stretch of imagination, it can be said that the Defendant was not ready and willing to pay the rent. He submitted that apart from the fact that the Advocate’s letter of termination of tenancy was not produced, the service of letter of demand of arrears which is produced on record was not proved and in any event, the said 6 wp-2793.95 letter is not addressed to the Defendant-tenant but it is addressed to one Suresh Ramchandra Yadav. He, therefore, submitted that the impugned judgment and decree deserves to be quashed and set aside. I have heard the 2nd Respondent appearing in person who has supported the impugned judgment and decree. 7. I have given careful consideration to the submissions. The decree passed by the Appellate Court is on the ground of default incorporated in under Section 12(3)(a) of the Bombay Rents, Hotel and Lodging House Rates (Control) Act 1947 ( hereinafter referred to as “the said Act” ). The service of notice of demand in accordance with Section 12(2) of the said Act is a condition precedent for filing such a suit seeking decree of eviction on the ground of default.. 8. In Paragraph 4 of the Plaint, the Plaintiff has stated thus:- “4. Plaintiff ultimately by his Advocate’s letter dated 23.3.76 terminated the tenancy of the Defendant and called upon him to pay the arrears of rent then due. However, the Defendant failed and neglected to pay the arrears and also failed and neglected to handover and vacate the suit premises.” 9. As pointed out earlier, the allegation made in Paragraph 2 of the Plaint is that the Defendant was in arrears of rent from 1st July, 1975. Detailed points of defences were filed by the Defendant and the points were permitted to be amended later on. The Defendant has specifically 7 wp-2793.95 dealt with the averments made in Paragraphs 1, 2, 3 and 5 of the Plaint. However, he has not dealt with Paragraph 4 of the Plaint. Thus, the averments made in paragraph 4 of the plaint were not denied specifically by the Defendant. At this stage, it will be necessary to make a reference to the letter dated 23rd March, 1976 along with the postal envelope thereof which is collectively marked as “Exhibit-A”. The returned postal envelope was opened by the Appellate Court. The said letter is a letter demanding arrears of rent from 1st July 1975 to 29th February 1976 sent by the original Plaintiff to the Defendant. The grievance made was that the Surname of the addressee on the envelope was mentioned as “Yadav” and not “Jadhav”. It is contended that the same is addressed to Suresh Ramchandra Yadav. On the postal envelope, there are various endorsements. The Appeal Bench found that there were endorsements “not found”. The Appeal Bench held there is an endorsement dated 3rd April, 1976 “N/C” which means that the packet was not claimed. There is a further endorsement made on 13th April, 1976 that it was returned to the Sender. A certificate of posting of the said letter was also placed on record. As pointed out by the learned counsel appearing for the Defendant, it is not the letter written by the Advocate for the Plaintiff but it is purportedly written by the Plaintiff himself. 10. Thus, what is placed on record is the fact that the said letter was sent by Registered Post Acknowledgment Due which was returned unserved as it was not claimed and a copy thereof was sent under 8 wp-2793.95 certificate of posting. Apart from the mode of ‘under certificate of posting’, the said letter was allegedly pasted on the suit premises. There are certain relevant admissions of the Defendant which are taken into consideration by the Appellate Court. Before going to the admissions, it must be noted here that in the original plaint, the name of the Defendant is mentioned as Suresh Ramchandra Yadav. Initially the Surname of the Defendant in the cause title was mentioned as Jadhav which is struck out and the Surname “Yadav” has been incorporated by hand. The suit summons was also issued in the name of Suresh Ramchandra Yadav which was served to the Defendant. In the cross examination, the postal packet of the letter dated 23rd March, 1976 which is marked as Exhibit-A was shown to the Defendant. In response, the Defendant stated that “shown part of Exhibit- A Colly the packet. It bears the correct address”. In the cross examination, the Defendant accepted that he has received certain notices by post. He stated that postman had given him intimation slip as he was not present. He stated that he personally approached to the Post Office and accepted the registered packets. He stated that the same packet was handed over to his previous Advocate. When the letter dated 23rd March, 1976 was shown to him, he stated that he has not received any such type of notice at all. He denied the correctness of the suggestion that he received three copies of the letter which was sent under RPAD, Under Certificate of Posting and by Pasting. He stated that he has received the said packets in the year 1984/1985. He stated that he did not remember whether these packets are sent by the original Plaintiff. He admitted that it might be possible that he 9 wp-2793.95 might have received the packet in the year 1976 also. In the further cross examination, it will be interesting to note the statements of the Defendant which have been reproduced by the Appeal Bench in paragraph 17 of its judgment which read thus:- “I cannot produce and show a notice which has been received in 1976 from the original Plaintiff and I had given it to my Advocate. It might be that the said notice was dated 23rd March 1976 sent by the original Plaintiff. However, I cannot say.” 11. Thus, again the Defendant accepted that he has received a notice in the year 1976 from the original Plaintiff. He did not rule out the possibility that the said notice was dated 23rd March, 1976 sent by the original Plaintiff. The Appellate Court has considered this admission along with the admission of the Defendant that the address on the postal envelope marked as Exhibit-A was correct. Thus, failure to deal with Paragraph 4 of the Plaintiff is not the only circumstance which has been taken into consideration against the Defendant. It must be noted here that in Paragraph 4 of the plaint , it is asserted that by the Advocate’s letter dated 23rd March, 1976, the Defendant was called upon to pay arrears. As pointed out earlier, the Defendant himself has accepted that it might be possible that he may have received the packet in the year 1976 and it might be the letter dated 23rd March, 1976 . If the aforesaid two admissions of the Defendant are taken into consideration, then failure to deny what is stated in Paragraph 4 of the Plaint certainly becomes relevant. The postal 10 wp-2793.95 envelope sent by Registered Post Acknowledgement Due admittedly bears the correct address. It was not claimed by the Defendant. A copy of the letter sent under certificate of posting was not returned, according to the case made out by the Plaintiff. All this has been considered by the Appellate Court while dealing with the case of the Plaintiff regarding service of notice of demand. Another aspect which is noted is that even in the Written Statement, the Defendant has not come out with a case that his Surname was Jadhav and not Yadav especially when in the original Plaint and on the letter dated 23 March 1976, the surname Yadav appeared. Perusal of the cause title of the present Writ Petition shows that the surname of the petitioner was typed as ‘Yadav’ which was struck out. The name ‘Jadhav’ was added by hand. In the circumstances, the Appellate Court was justified in invoking presumption of service as regards the letter of demand and holding that the same has not been rebutted. In the context of the aforesaid statements of the Petitioner in the cross-examination, the Appellate Court was justified in relying upon the averments made in Paragraph 4 of the Plaint and the failure of the Petitioner to deny the same. 12. Perusal of the cross-examination of the Defendant shows that there is an admission by the Defendant to the effect that “it is true that the demand which was made at Rs.32.10 is correct demand.” It is not in dispute that the Plaintiff had filed the Misc. Petition No. 813 of 1977 in this Court. A copy of which is placed on record and marked Exhibit G-1. Perusal of the prayer made in the application shows that the same was for 11 wp-2793.95 challenging the order dated 3rd July, 1976. The averments made in the said application disclose that there was an order passed on 3rd July, 1976 declaring the land on which the suit premises was situated as a vacant land. It will not be out of place to mention here that the Defendant was in arrears of rent from 1st July, 1975 and demand was made by the letter dated 23rd March, 1976. Reliance has been placed on the undertaking of the Plaintiff which is recorded in the Chamber Summons No. 646 of 1977 taken out by his tenants. The Chamber Summons was for permitting intervention by the tenants. The prayer was for impleading the tenants as parties to the Misc. Petition no. 813 of 1977. The order passed by this Court on 15th July, 1977 in Misc. Petition No. 813 of 1977 is on record. An affidavit of one of the tenants filed in the said proceeding records that on 12th September 1977, interim relief in terms of prayer clause (c) was granted by which the Respondents in the Petition were restrained from giving effect to the impugned order dated 3rd July, 1976 by which the land was declared as the vacant land. Reliance was placed on the order passed in the Chamber summons on 2nd December, 1977 which records the statement of the Advocate for the Plaintiff that in case the tenants pay arrears of rent the Plaintiff undertakes not to evict them or to execute the decree for eviction even though obtained from the Court of Small Causes. This was a statement which was accepted and the chamber Summons was disposed of. As stated earlier, an affidavit in support of the Chamber Summons refers to the interim order passed in terms of prayer clause (c) and it also refers to the apprehension that the tenants will be thrown out of the suit premises on 12 wp-2793.95 the basis of the said order. 13. It must be noted here that the issue regarding validity of the Vacant Lands Act was concluded in the year 1985 when the Apex Court confirmed the decision of this Court holding that the said Act was unconstitutional. On plain reading of the undertaking which is recorded in the order dated 3rd July, 1977, it cannot be inferred that the undertaking prevented the Plaintiff/landlord from prosecuting a suit against the Defendant filed under the said Act. In any event, an important aspect which needs to be noted is that the application was made by the Defendant in the present suit in the year 1989 seeking permission to deposit the rent and by an order dated 12th April, 1989, the Defendant was permitted to deposit the rent from 1st July, 1975 to 28th February, 1989. This order establishes two aspects, one is that the Defendant was in arrears of rent from 1st July 1975 and the second is that the Defendant did not comply with the requirement of paying arrears of rent. Undertaking of the Plaintiff relied upon by the Defendant is conditional subject to the tenant paying arrears of rent. Ultimately, the entire arrears of rent were deposited in the year 1990. Thus, nearly for a period of 12 years, after the undertaking dated 2nd December, 1977 was recorded, the Defendant did not deposit the arrears of rent. The undertaking could have operated provided the Defendant/Petitioner had paid the arrears. The undertaking was naturally in force till the disposal of Miscellaneous Petiton filed by the original Plaintiff was pending. After the decision of Apex Court, there was no 13 wp-2793.95 embargo on the rights of the original Plaintiff as the Vacant Lands Act or even the said Act of 1980 did not operate. Thus, neither the provisions of the Vacant Lands Act nor the provisions of the said Act of 1980 will help the Defendant in avoiding the decree on the ground of arrears of rent. 14. The finding of fact of the Appellate Court is that the notice of demand dated 23rd March, 1976 was served to the defendant. He was admittedly in the arrears of rent for more than six months. The arrears of rent were deposited in the year 1990. There was no application for fixation of standard rent filed. Moreover, the Defendant admitted in the cross- examination that the demand at the rate of Rs.32.10 per month was proper. Hence it is not possible to disturb the decree passed against the Petitioner/defendant for possession on the ground of arrears of rent. There is no merit in the Petition. The Petition is accordingly dismissed with no orders as to costs. The Rule is discharged. 15. The decree for possession shall not be executed for a period of three months from today subject to condition that the Petitioner will not create any third party interests in respect of the suit premises and will not part with possession thereof. ( A.S. OKA, J )