SRJ 1 wp-5070-93.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.5070 OF 1993 Smt. Parvatibai Namdeo Sutar ] (since deceased) through her legal ] heirs:- (1) Smt. Sushilabai P. Kadam ] (2) Shri Dasrath P. Kadam ] (3) Shri Chandrakant P. Kadam ] (4) Shri Suresh P. Kadam ] (5) Smt.Mangala R.Aher ] all residing at 4614, Dindori ] Naka, Opp: Forest Depot, ] Panchavati, Nashik. ] .. Petitioners. v/s. Shivaji Monjibhai Thakkar @ ] Majithiya, aged 55 years, ] Occupation  Business, Resident ] of Dindori Naka, Panchavati, ] Nasik 422 003. ] .. Respondent. Mr. S.M. Gorwadkar, for Petitioner. CORAM :A.S.OKA,J. DATE :7th APRIL,2010 JUDGMENT:- 1] Heard Shri Gorwadkar, learned counsel appearing for the Petitioners. The Petitioners are the legal representatives of the original Defendant. The Respondent is the Plaintiff. The Respondent filed a suit for eviction under the provision of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (herein after referred to as said Act). The suit relates to suit premises more SRJ 2 wp-5070-93.sxw particularly described in the plaint. A case made out by the Respondent is that the rent payable was Rs.6.72/- per month inclusive of the education cess. It is stated in the plaint that the rent is Rs.6/- per month and education cess is 72 paise per month. The suit premises is a residential premises. Reliance was placed on the demand notice dated 14th November, 1979 by which arrears of rent from 1st October, 1978 onwards were demanded. The case made out in the plaint is that the notice was refused by the Petitioner. According to the case of the Respondent, the original Petitioner in collusion with the Postman ensured that the aforesaid demand notice was returned with an incorrect endorsement. It is stated that a copy of the notice was also sent under certificate of posting. 2] The suit was contested by the original Petitioner by contending that though rent was offered from time to time, the Respondent did not accept the same and, therefore, by a Money Order was issued on 25th March, 1980, rent for the period of 10 months was sent. The original Petitioner denied that the notice was served to her. She stated that postman has never approached her for tendering the notice. 3] The Trial Court framed various issues. The Trial Court held that notice was duly served. It was held by the Trial Court that the notice was duly served and the Respondent has proved that the original Petitioner was a defaulter for a period of more than six months. The decree was passed only on the ground under section 12(3)(a)of the SRJ 3 wp-5070-93.sxw said Act. An appeal preferred by the Petitioner has been dismissed by the Appellate Court. 4] The Learned Counsel appearing for the Petitioner invited the attention of the Court to the sub-section 2 of the section 12 of the said Act. He submitted that notice of demand is to be served in accordance with section 106 of the Transfer of Property Act, 1882. He submitted that in view of section 27 of the General Clauses Act, 1897, the notice has to be sent by registered post. He submitted that similar provision has been incorporated under section 28 of the Bombay General Clauses Act. He submitted that service of notice of demand is a condition precedent for passing a decree under section 12(3) of the said Act and, therefore, when service is sought to be effected by post, unless the landlord establishes that there is a service by registered post or a deemed service by registered post, a decree cannot be passed only on the basis of service effected under certificate of posting. He, therefore, submitted that as service of notice by Registered Post is not effected, there is no service of notice. He pointed out that the notice sent by Registered Post was returned unserved with the remark that the address of the original Petitioner was incomplete. He pointed that there is a demand made by the Respondent landlord of education cess along with the rent. He submitted that the education cess is payable yearly and, therefore, a part of the rent was not payable by month and, hence, clause (a) of sub-section (3) of Section 12 of the said Act is not applicable. SRJ 4 wp-5070-93.sxw 5] Lastly, he relied upon the decision of this Court in the case of Dhruvakumar Haribhau Gujrathi vs. Dattatraya Shankar Chikhlikar  [(2005 (6) Bom.C.R.102]. He submitted that there is a specific statement by the Petitioner that notice sent by post was never tendered to her. 6] I have given careful consideration to the submissions. I have perused the findings recorded by the courts below on the issue of service of notice of demand. There are concurrent findings recorded against Petitioner on the said question. As one of the contentions is that the presumption under section 114 of the Evidence Act, 1872 stands rebutted, I have perused the notes of evidence and other material on record. The Respondent stated in the deposition that he had issued a notice to the Petitioner informing that he has become the owner of the property and, therefore, rent should be paid to him. An office copy of the said notice is produced at Exhibit 29. The postal acknowledgment allegedly bearing thumb impression of the original petitioner has been produced at Exhibit 30. He produced an office copy of notice of demand dated 14th November, 1979 and stated that same was sent by Registered Post and a copy thereof was sent under certificate of posting. The Posting Certificate is produced at Exhibit 33 and the envelope which was returned was produced on record at Exhibit 32. A suggestion was given to him in the cross examination that he had never sent notice dated 11th November, 1979 (Exhibit 29) informing that he has become SRJ 5 wp-5070-93.sxw the owner of the suit premises. He denied the correctness of the suggestion. 7] The Petitioner stepped into the witness box. She stated that Exhibit 30 which is the alleged acknowledgment of the notice dated 11th November, 1979 does not bear her thumb impression. She stated that no notice of demand was served to her. She stated that her grand-son had approached the Respondent for payment of rent on three occasions but the same was not accepted by the Respondent and thereafter, the amount has been sent by the Money Order. 8] The Trial Court observed that the address on postal acknowledgment at Exhibit 30 is the same address at which notice of demand dated 14th November, 1979 was issued. Packet sent by Registered Post A.D. was returned with the remark of the postman dated 19th November, 1979 that the address was incomplete. The Certificate of Posting produced by the Respondent at Exhibit 33 shows that a copy of notice of demand dated 14th November, 1979 was sent at the same address. It is pertinent to note that the same address was mentioned by the Respondent in the cause title of the plaint and the suit summons has been served to the Petitioner at the same address. In the suit, Petitioner has not given any other address as her registered address. These factual aspects have been considered by the Courts below. The perusal of the record shows that the aforesaid factual aspects are borne out by the record. Perusal of the cross examination of the SRJ 6 wp-5070-93.sxw Respondent shows that there is no specific suggestion given that Exhibit 30 does not bear the thumb impression of the Petitioner and that notice sent under certificate of posting was not received by the Petitioner. It is true that in her deposition, the Petitioner has disputed the thumb impression on the acknowledgment at Exhibit 30. 9] The submission of the Learned Counsel appearing for the Petitioner is that one of the three recognized modes under section 106 of the said Act of 1882 for service of notice is a service by post and that section 27 of the General Clause Act contemplates that the notice by post should be a notice sent by Registered Post. 10] In the case of Narayan G. Bhote vs. Smt. Rampyari S. Gupta [(2001) Mh.L.J. - page 234], this Court dealt with the issue whether a notice of demand under section 12 (2) of the said Act can be sent under certificate of posting. This Court held that a notice sent Under Certificate of Posting can also be held as a good service in view of presumption under section 114 of the Indian Evidence Act, though there is a possibility that the Postal Certificate can be manipulated or procured. 11] Reliance is placed in the case of Dhruvakumar Haribhau Gujrathi (Supra). The Court did not hold that a service of notice of demand made only under certificate of posting is bad in law. In the facts of the case before it, this Court came to the conclusion that service of demand notice under certificate of posting is doubtful. In view of the decision, this Court in the case of Narayan SRJ 7 wp-5070-93.sxw (supra), service of notice of demand under section 12(2)of the said Act by sending the same Under Posting Certificate is a recognized mode of service. However, while drawing presumption of service in accordance with section 114 of the Indian Evidence Act, the Court is required to consider the facts and circumstances of each case. The Court has to be cautious as a certificate of posting can be manipulated. 12] Now turning to the facts of the present case, it is not the case made out by the Petitioner that the certificate of posting at Exhibit 33 is a false certificate. In fact, there is no challenge to the said certificate which records that the letter was sent to the original petitioner on 23rd November, 1979. It is pertinent to note that the address of the Petitioner mentioned in notices dated 11th November, 1979 and 14th November, 1979 and the address of the Petitioner mentioned in the cause title of the plaint is the same. The acknowledgment of notice dated 11th November, 1979 which is at Exhibit 30 bears the alleged thumb impression of the Petitioner which is denied by her. Moreover, service of summons of the suit was made at the same address. The Petitioner has not furnished any other address of service to the trial Court. The notice dated 14th November, 1979 was sent by Registered Post acknowledgment due at the same address which is returned with the remark In sufficient address . What is brought on record is that the address mentioned in the notice as well as certificate of posting is correct. In SRJ 8 wp-5070-93.sxw the cross-examination of Respondent, the Petitioner has not challenged the certificate of posting at Exhibit 33 by giving a suggestion that the same was fabricated or false. In the cross-examination of Respondent, there is no challenge on the ground that the Certificate of Posting at Exhibit 34 is false or fabricated. If the aforesaid factors are considered, the Courts below have rightly held that in view of certificate of posting at Exhibit 33, a presumption of service under section 114 (F) of the Indian Evidence Act arises. Considering material on record, it is not possible to find fault with the said findings. 13] The second submission was that there is a composite demand for arrears of rent and education cess. It was contented that the education cess is not payable by month and therefore section 12(3) (a) of the said Act has no application in as much as a part of the rent was not payable by month. However in the Plaint there is a clear averment that there was an agreement to pay rent of Rs.6/- and education cess of 72 paise every month alongwith the rent. It is not the case of the Petitioner that there was no such agreement to pay education cess per month alongwith the monthly rent. It is settled law that parties can agree to pay education cess every month alongwith the monthly rent. Such agreement can also be inferred from the facts and circumstances of the case. In the present case there is no denial by the Petitioner of the averments in paragraph 1 of the plaint. Thus, it is accepted position that rent along with education cess was being paid per SRJ 9 wp-5070-93.sxw month and, therefore, agreement to pay taxes along with rent can be easily interfered. Admittedly, on the date on which the notice of demand was issued, the Petitioner was in arrears of rent and permitted increases for a period of more than six months. Notwithstanding the service of notice, the amount was neither tendered nor deposited. Admittedly, the Petitioner did not file any application for fixation of standard rent. Therefore, Courts below had no option but to pass a decree for possession under section 12(3)(a) of the said Act of 1947. Hence, no interference is called for with the impugned judgments and decrees. 14] Petition is rejected. Rule is discharged with no order as to costs. 15] On the prayer made by the learned counsel appearing for the Petitioner, the decree for possession shall not be executed for the period of four months from today subject to conditions that the Petitioner will not create third party interests and will not part with the possession of the suit premises to any third party. (A.S.OKA,J.)