:1: :1: :1: IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT PETITION NO. 596 OF 2008 Dunlop India Ltd ...Petitioners Versus Nandiram Tahilram Mulchandani and Ors. ....Respondents ====== Smt. Sushma Singh Adv. for the petitioners. Ms.E.A Gonsalves Adv. for respondent nos.1 to 5. CORAM: S.C.DHARMADHIKARI, J. 29th January, 2008. P.C. P.C. P.C. : : : 1. By this petition, under Article 227 of the Constitution of India, the petitioner/original Defendant is challenging the judgment and order dated 31.10.2007 delivered by the Appellate Bench of court of Small Causes at Bombay in Appeal No. 3 of 2005 confirming that of the Trial Court dated 15th September, 2004. 2. The Respondents instituted T E & R Suit NO. :2: :2: :2: 5/5 of 2002 for recovery of possession of the premises which is a flat in a building situated at Khar, Mumbai. The suit premises were handed over in pursuance of a lease created by the respondents in favour of the petitioners on 13.9.1972. The period of lease was of two years from September, 1972. The lease rental was Rs.1500/- per month. It appears that the lease period expired and the petitioner occupied the premises as monthly tenant of the respondents claiming protection of the Bombay Rents Hotel and Lodging House Rates Control Act, 1947 (for short Bombay Rents Act). 3. Subsequently, the Act was repealed and replaced by Maharahstra Rent Control Act, 1999. In terms of Section 3(1)(b) of the 1999 Act, the suit premises were exempted from the applicability of the Rent Control Act. In other words, the petitioner having a paid-up capital of more than Rs.1 crore was no longer protected under the Rent Control Act. 4. Hence, by resorting to the Transfer of Property Act, 1882 the Quit Notice was issued on 18.9.2001. The Quit Notice was dated 18.9.2001 and it :3: :3: :3: was returned with the postal remark ‘left" at the Bombay office. It was sent to the Registered office of the petitioner at Calcutta and the same was duly acknowledged on or about 24.9.2001. It is in these circumstances, and for non-compliance with the Notice to quit and vacate , that the respondents filed a suit for possession. 5. Upon the Writ of Summons being served, the petitioners appeared and filed their Written Statement and raised number of defences. The Trial court drew up the necessary issues and recorded evidence of the parties. At the conclusion of the evidence, oral arguments were canvassed, which have also been considered. After due consideration of all these materials, the Trial court decreed the suit by its judgment and order dated 15.9.2004. 6. Aggrieved thereby, an Appeal came to be preferred which was placed before the Appellate bench of the court of Small Cause at Bombay. The records were summoned and after hearing both sides the lower Appellate court framed points for determination and :4: :4: :4: concluded that the petitioners are liable to be evicted and the judgment and Decree of the Trial Court requires no interference. 7. These concurrent findings are subject matter of challenge in this Writ petition. 8. Mrs.Singh, contended before me that the suit was filed on the basis of the Quit Notice issued by one of the co-owners. She submits that infact both the Quit Notice and the plaint are signed and verified by the Power of Attorney holder of the original plaintiffs. This is not a case where the Quit Notice is issued at the instance of one of the co-owners who are in management of the property or control thereof. In the absence of any authority in favour of Nandiram, he could not have addressed a Notice. In such circumstances, the Quit Notice was not in accordance with law. Further, the Trial Court and the lower Appellate court could not have relied upon the testimony and version of the Power of Attorney Holder because he was not personally aware or had knowledge of the state of affairs with regard to the lease. The :5: :5: :5: lease is admittedly of 1972 whereas the Power of Attorney Holder deposed about the facts allegedly known to him from 1975. In such circumstances, the Trial court should not have relied upon the testimony of this Power of Attorney Holder. That apart, the Power of Attorney Holder himself states that it was executed in the presence of an Advocate who knew the parties including the power of Attorney Holder. His signature is left blank. There is a signature below the Power of Attorney, that of the Notary but the same appears at two places. There is no proof that the Power of Attorney has been notarised, inasmuch as, the Notary has not been examined. In such circumstances, the Power of Attorney could have been taken on record, leave alone, relied upon. 9. Her next submission is that the Notice to Quit was not received by the petitioners. She relies upon the fact that the Annual Report of the company narrates the events which led to the company becoming sick. There were labour problems and the workers, so also, the Union were not allowing the petitioners and their :6: :6: :6: officers to enter the registered office. The petitioners had no access to the papers and documents. Therefore, the Notice to Quit could not have been served and the postal acknowledgement is incapable of being relied upon. It is not clear as to whether the rubber stamp is that of the petitioners, and in such circumstances, the very basis of the suit, so also, the cause of action narrated therein is lacking. In such circumstances, the suit could not have been decreed. 10. With the assistance of Mrs.Singh and Mrs.Gonsalves, I have gone through the petition and the Annexures thereto including the impugned judgments. In my view, there is no substance in either of the contentions of Mrs. Singh. Insofar as, the first contention is concerned, it is well settled that the the Notice to Quit can be issued and suit for eviction could be instituted by one of the co-owners. Therefore, the Notice to Quit is not invalid on that ground. That apart, the copy of the Notice to Quit is annexed to the petition. The Notice to Quit itself states that the same has been addressed on behalf of Nandiram Tahilram and others. Admittedly, Nandiram is :7: :7: :7: plaintiff no.1 and other plaintiffs are the co-owners of the building in which the suit property is located. It is nobody’s case that the notice is not addressed on behalf of the plaintiffs. A hyper-technical view of the matter therefore could not have been taken. Insofar as, the Notice to Quit is concerned, the same has to be construed in a manner indicated by the Hon’ble Supreme Court in AIR 1977 SC 1120 Bhagabandas Agarwalla vs. Bhagwandas Kanu and Ors. the Supreme Court observes thus :- "3. Now, it is settled law that a notice to quit must be construed not with a desire to find faults in it, which would render it defective, but it must be construed ut res magis valeat quam pereat. "The validity of a notice to quit", as pointed out by Lord Justice Lindley, L.J. in Side-botham v.Holland, (1895) 1 QB 378 "ought not to turn on the splitting of a straw". It must not be read in a hyper-critical manner, nor must its interpretation be affected by pedagogic pendantism or over refined subtlety, but it must be construed in a common sense way. See Harihar Banerji vs. Ramsashi Roy, 45 Ind App 222 = (AIR 1918 PC 102). The notice to quit in the present case must be judged for its validity in the light of this well recognised principle of interpretation. 11. As far as the Power of Attorney is concerned, :8: :8: :8: the courts below have considered all submissions and has specifically referred to the objections. The lower Appellate court has while discussing Point no.5, observed that the Power of Attorney is on record (Exhibit B). It was executed before the Notary. The absence of the Notary before the court or that he being not examined, cannot be of any assistance, is the conclusion. The Power of Attorney has been signed and executed in favour of the plaintiff no.1 who is the Power of Attorney Holder. That it has been executed by other plaintiffs is undisputed. The Power of Attorney Holder has deposed before the court. He has also deposed about the execution of the Power of Attorney. The Power of Attorney has been notarised and therefore reliance placed thereupon cannot be said to be vitiated by any error apparent or perversity. The Power of Attorney Holder has been cross-examined at length with regard to the case set up by the Respondents in the plaint. Even That aspect is undisputed. When the submission is that he could not have deposed abut the facts regarding which he had no knowledge, then, it cannot be said by any stretch of imagination that the Power of Attorney Holder itself should have been :9: :9: :9: discarded. Hence, there is no merit in the first submission of Mrs.Singh. 12. Insofar as, the next submission is concerned, it has been very clearly observed by the courts below that the Quit Notice dated 18.9.2001 was served at Mumbai office as well as Calcuatta’s registered office. As far as Mumbai office is concerned, the postal remark is "left". Insofar as, the Calcutta office is concerned, the registered packet has been delivered and the acknowledgement has been forwarded duly signed. It shows that the packet was served and received on 24.9.2001. Even this aspect of the matter has been gone into great details. 13. In this behalf, it must be appreciated that the plea raised is that the purported acknowledgment card, acknowledging receipt of the purported Notice to Quit does not bear the rubber stamp as is used by the office for correspondence. Once, the plea set up is that the Quit Notice could not have been received as the Workers Union had prevented functioning at the :10: :10: :10: office by the concerned staff members or delivery of letters, notices, etc. then, it is not as if the case is that the Notice was not received at all. The notice was duly dispatched by post. The fact remains that when such is the nature of defence, then, the Notice was indeed delivered and this aspect of the matter is not in serious doubt. The plea raised in the Written statement was that the Notice of termination has not been served as per the provisions of law. The legality and validity of the Notice was also put in issue. The pleas raised were therefore vague as well as contradictory. The same were not convincing enough. It is in these state of affairs, that the courts below relied upon the testimony of the Power of Attorney Holder and the Acknowledgment Card which was duly produced. There is complete opportunity given to the petitioners to cross-examine the witness examined by the respondents and to lead their own evidence. 14. In the above circumstances, I am unable to accept the submission of Mrs.Singh that the Quit Notice was not served upon the petitioners at all. It is not her case that the Quit Notice does not terminate the :11: :11: :11: tenancy. Her only submission is that it purports to terminate tenancy from the date the same is issued. In my view, even that aspect of the matter has been gone into in great details. The point no.3 framed by the lower appellate court and the discussion thereon is not demonstrated to be vitiated by any error apparent nor can be termed as perverse. This is not a Court of further Appeal. No re-appreciation or re-appraisal of the evidence is permissible. 15. In the above circumstances, there is no merit in the only contentions raised before me. The judgment and decree are rendered consistent with the oral and documentary evidence placed on record. The view taken by the Trial court and affirmed by the lower appellate court is based upon the contents of the documents and therefore suffers from no infirmity. This petition appears to be an attempt to somehow avoid eviction from the premises which are valuable and admeasuring about 1700 sq.ft. They are situated at a prime locality namely, Khar, Mumbai. 16. In my view, the concurrent finding of fac does :12: :12: :12: not require any interference under my extra ordinary or supervisory, discretionary and equitable jurisdiction under Article 227 of the Constitution of India. Petition dismissed. 17. At this stage, Mrs. Singh prays for stay of execution of the decree of possession for a period of three months from today. The said request is opposed by Ms.Gonsalves. She submits that her instructions are that the premises are unoccupied and unused. 18. Mrs.Singh denies this aspect of the matter. 19. Considering the fact that the judgments and decrees are concurrent and the views of the Trial Court and Lower appellate court are affirmed, so also, original plaintiffs being senior citizens, interest of justice would be subserved, if the execution of the decree for possession is stayed for a period of 8 weeks but on the condition that the petitioner shall not part with possession or alienate, encumber, so also, transfer the suit property in any manner for a period of 8 weeks from today. :13: :13: :13: 20. Petition is dismissed. No order as to costs. ********