( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 258 OF 1991 (BOMBAY WRIT PETITION NO. 2348 OF 1981) 1. Dhondiram Krishnaji Bhujabal 2. Sau. Laxmibai Dhondiram Bhujabal (Petition abated against this petitioner vide Additional Registrar’s order dt. 9-12-1996) 3. Sau. Savitrabai Dhondiram Bhujabal 4. Krishnarao Dhondiram Bhujabal 5. Sau. Prabhavati Krishnarao Bhujabal 6. Vithal Dhondiram Bhujabal 7. Sharad Dhondiram Bhujabal 8. Suresh Dhondiram Bhujabal 9. Subhash Dhondiram Bhujabal All r/o Shrirampur, Dist. Ahmednagar. PETITIONERS VERSUS 1. Nivruti Balawantrao Girame Since deceased, by L.Rs. 1-1. Janardhan s/o Nivrati Girame, R/o Gut No. 2, Malinagar, Tq. Malshiras, Dist. Solapur. 1-2. Prabhakar s/o Nivrati Girame, R/o Gut No. 2, Malinagar, Tq. Malshiras, Dist. Solapur. 1-3. Baban s/o Nivrati Girame, R/o Balwant Bhavan, Ward No. 5, Shrirampur, Dist. Ahmednagar. 1-4. Chhaburao s/o Nivrati Girame, R/o Balwant Bhavan, Ward No. 5, Shrirampur, Dist. Ahmednagar. 1-5. Smt. Rekha @ Yamunabai w/o ( 2 ) Balasaheb Mali (Hire), R/o Prabhat Road, Galli No. 7, Walvalkar Galli, Pune. 1-6. Smt. Manda w/o Madhukar Bhalinge, R/o Savta Mali Bhavan, Byculla, Mumbai. 2. Chandrakant Dhondiram Bhujabal, R/o Shrirampur, Dist. Ahmednagar. RESPONDENTS ..... Mr. V.D. Hon, advocate for the petitioners. Mr. S.D. Kulkarni, advocate for respondents No. 1-1 to 1-6. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 4th January, 2010] ORAL JUDGEMENT : 1. By this petition, the petitioners impugn judgements rendered by learned Assistant Judge, Ahmednagar and learned Civil Judge (J.D.), Ahmednagar in an appeal (R.C.A. No. 166/1980) and suit (R.C.S. No. 177/1974), respectively, whereby they have been directed to vacate the tenanted premises. 2. There is no dispute about the fact that the house property bearing City Survey No. 521 whereupon a constructed building bearing Municipal House No. 697 is ( 3 ) standing, is owned by deceased Respondent (plaintiff). Out of the said premises, one block was rented out to the deceased appellant No. 1 (original defendant No.1). It is also not disputed that there was previous litigation amongst them vide suit bearing R.C.S. No. 88/1959. The suit was terminated on account of settlement. A compromise decree was rendered as per agreed terms. The deceased defendant No. 1 had agreed to pay the rent punctually and in time. It is undisputed that standard rent of Rs. 16.87 was fixed in the same proceedings. 3. Briefly stated, case of the plaintiff was that since 01-07-1970, the deceased defendant No. 1 did not pay any rent as per the agreement and terms of the compromise decree. So, he demanded the rent arrears vide demand notice dated 25-02-1974. He informed the deceased defendant No. 1 that the tenancy was terminated w.e.f 31-03-1974. The notice was not complied with. 4. It was pleaded by the deceased defendant No. 1 that the demand notice dated 25-02-1974 was not served ( 4 ) on him. It was further pleaded by him that there was oral agreement to pay the rent as per the convenience of the parties in as much as they are inter-related. He further asserted that he had paid Rs. 270/- on 11-03-1974 but the deceased plaintiff failed to issue receipt. Consequently, he sought dismissal of the suit. 5. Original defendants No. 2 to 10 remained absent during the trial. They are family members of the deceased defendant No. 1 and were rather formal parties. 6. The parties went to trial over issues settled below Exh-75. The learned Civil Judge came to the conclusion that the deceased defendant No. 1 committed defaults in payment of the rent. It was further held that the notice was duly served on the deceased defendant No. 1. The learned Civil Judge came to the conclusion that eviction decree was warranted in view of willful defaults and particularly as per provisions of section 12 (3) (a) of the Bombay Rents, Hotel and Lodging Houe Rates (Control) Act, 1947. Hence, the suit came to be decreed. The appeal preferred by the ( 5 ) petitioners also was dismissed, confirming the eviction decree. 7. Heard learned counsel. 8. The uncontroversial fact situation may not be reiterated. The deceased defendant No. 1 had agreed to pay the rent punctually and on time. Obviously, as per the compromise terms, he was duty-bound to pay the rent within reasonable time after commencement of the tenancy month. Though he contended that it was not a monthly tenancy, yet, his such contention is totally unacceptable in as much as the terms of the agreement (Exh-38) were binding on him. It does not lie in his mouth that the rent was payable as per convenience of the parties. The only material contention of the deceased defendant No. 1 was that he had paid the amount of Rs. 270/- for which no receipt was issued by the deceased plaintiff. The first Appellate Court noticed that the deceased defendant No. 1 had produced rent receipts on record to show the past payments. On perusal of the rent receipts, it is manifest that as and ( 6 ) when the rent was paid, written receipts were issued by the deceased plaintiff. Obviously, it is difficult to appreciate that the amount of Rs. 270/- was paid by the deceased defendant No. 1 without obtaining any receipts. His interested version has not been believed by both the Courts below. Obviously, the appreciation of such evidence is quite legal and proper. 9. Mr. Hon would submit that there was no proof regarding due service of the demand notice and, therefore, section 12 (3) (a) of the Bombay Rent Act is not attracted. I do not agree. The deceased plaintiff examined postman (PW Dhapalkar) in order to prove the endorsement which is made on the postal envelope. The testimony of PW Dhapalkar goes to show that the registered postal envelope was tendered to the deceased defendant No. 1. The latter refused to accept. Mr. Hon would point out that the endorsement was made by the postman at the post-office and not at the suit premises. He would also point out that though the notice was allegedly returned on 27-02-1997, yet, there is no postal stamp about such return of the notice. The first ( 7 ) Appellate Court has given adequate reasons to infer as to how the endorsement regarding refusal of the notice could be accepted. Even otherwise once notice is sent by registered post and the given address is correct one, there is presumption available regarding due service of the notice. It is true that such presumption can be rebutted. However, the deceased defendant No. 1 did not rebut the presumption. On the contrary, he adduced evidence to show that he was very much present in the township of Shrirampur on the relevant day. The Courts below have observed that there was no animus to the postman against the deceased defendant No. 1 and, therefore, his independent version could be implicitly relied upon. In the exercise of writ jurisdiction, such findings of fact, which are based upon appreciation of evidence cannot be upsetted. The findings of facts are not demonstratedly perverse or arbitrary. 10. Considering the concurrent findings of facts and the evidence of the parties, I have no hesitation in holding that the deceased defendant No. 1 had committed willful defaults in payment of the agreed rent. He did ( 8 ) not pay the rent within the period of one month as provided under section 12 (3) (a) of the Bombay Rent Act after service of the demand notice. It is well settled that there is no option available in such a fact situation except and save passing of the decree for eviction. In this view of the matter, I do not find any substance in the petition. Hence, the writ petition is dismissed. No costs. [ V.R. KINGAONKAR ] JUDGE NPJ/wp258-91