1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.320 OF 2010 Sayawati Pandurang Nagaonkar and ors. ..Appellants Vs. Chandrakant Natawarlal Shah ..Respondents ......... Ms.Gauri Godse, for appellants. ......... CORAM: R.G.KETKAR, J. DATE : 21st JUNE, 2010. P.C. : This appeal challenges the judgment and decree dated 9 th March, 2010 passed by the learned District Judge-2, Raigad-Alibag in Regular Civil Suit No. 131 of 2007 arising from the judgment and decree dated 15 th June, 2007 passed by the learned Civil Judge, Junior Division, Pen, in Regular Civil Suit No.134 of 2000. By the impugned judgments, the courts below decreed the suit instituted by the respondent/plaintiff for possession of a Room admeasuring 10ft. X 15 ft., more particularly described in paragraph no.1 of the plaint. 2] The respondent instituted a suit inter alia contending that he is the owner of the suit premises and one Pandurang Hari Nagaonkar was a monthly tenant. He issued a notice on 7 th May, 2000 terminating the tenancy by the end of 31 st May, 2000. The tenant neither accepted the said notice nor delivered the vacant possession of the suit premises which compelled the plaintiff to institute the suit. 320-10.sxw 2 3] The defendant/tenant resisted the suit by filing a written statement and inter alia denied the contention that he either refused or not claimed the notice. In fact, in the written statement, a positive assertion was made that no notice was issued to the tenant. 4] The landlord in support of his case examined himself as also the Postman namely Milind Thale. The courts below, after considering the evidence on record, came to the conclusion that PW 2 Postman namely Milind Thale attempted to serve the said notice on 13 th May, 2000 and 15 th May, 2000. Since the tenant was not present there to accept the service, he left an intimation on 16 th May, 2000 at the address of the tenant. Despite the intimation, the tenant did not accept the packet of notice within seven days and, therefore, on 24 th May, 2000 the Postman made an endorsement on the packet that the appellants refused to accept the service. 5] The courts below relying on the material on record held that this was a valid service having regard to Section 27 of the General Clauses Act as also Section 114(e) of the Evidence Act. Once it is established that the notice was issued by the landlord, the contention raised by the tenant in the written statement that no notice was ever issued, cannot be accepted. The courts below on the basis of material on record came to the conclusion that the tenant refused to accept the service as he did not claim the packet of notice even though the intimation was left by the Postman at his address on 16 th May, 2000. No fault can be found with the findings recorded by the courts below. 6] Learned counsel for the appellant has relied upon a judgment of the Apex 320-10.sxw 3 Court in the case of Rohini Prasad and others Vs. Kasturchand and another, (2000) 3 SCC 668 and contended that misreading of the evidence is substantial question of law raised in this Second Appeal. As indicated earlier, the courts below have rightly appreciated the evidence and recorded the findings against the appellant. This is not a case where the courts below ignored the material on record or their findings are not based on evidence. The present Second Appeal does not raise any substantial question of law. 7] Second Appeal is, accordingly, dismissed. In view of dismissal of the Second Appeal, no orders are necessary on the Civil Application. Civil Application No.827 of 2010 is disposed of. 8] On oral prayer made by the learned counsel for appellants, this order is stayed for a period of eight weeks, on the conditions that the appellants shall furnish an undertaking to this court within a period of two weeks to the effect that (i) the appellants have not so far created any third party interest in respect of the suit property and they will not create any third party interest hereinafter, (ii) they shall make payment of the compensation/rent to the landlord during this period and (iii) they will hand over the vacant and peaceful possession of the suit property to the respondent/landlord, unless they get an suitable order from the Superior Court. It is made clear that in case the appellants do not furnish the undertaking as above within the stipulated period, the stay of eights weeks to the present order granted by this court, shall stand vacated without further reference to the court. [R.G. KETKAR, J.] 320-10.sxw