dgm gm gm 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 WRIT WRIT PETITION NO.8226 OF 2008 PETITION NO.8226 OF 2008 PETITION NO.8226 OF 2008 Mr.P.K.Ayappan & anr. Petitioners Vs. Mrs.Ettie R. Gomes & ors. Respondents. Mr.E.K.Sasidharan for the Petitioners. Mr.R.V.Govilkar i/b. Mr.Bharat L. Jain for the Respondent no.1. CORAM CORAM CORAM : ANOOP V.MOHTA, J. : ANOOP V.MOHTA, J. : ANOOP V.MOHTA, J. DATED DATED DATED : 18th December 2008. : 18th December 2008. : 18th December 2008. P.C. P.C. P.C. The petitioners/tenants have challenged two court’s findings of facts, whereby it is concurrently held that defendant no.1 is in arrears of rent from September 1988 to 31st July,1992; notice under section 12(2) of the Bombay Rents, Hotel and Lodging House Rent Control Act, 1947 is legal; validly served upon defendants; the defendant is irregular in payment of rent and permitted increases and, lastly, defendant no.2 is illegally and unauthorised occupant of the suit premises inducted by defendant no.1 and thereby granted the decree of eviction against the defendants. 2. The submission that there was no notice served has ( 2 ) no substance for simple reason that admittedly the tenant was not residing in the suit premises at the relevant time and prior and even thereafter. The presumption of under certificate of posting service unless rebutted just cannot be overlooked. Admittedly, if tenant is not residing, the postal endorsement just cannot be overlooked. The presumption goes against the petitioners. 3. The fact that the tenant was not residing in the said premises and defendant no.2 who is alleged to be nephew residing in the premises, itself shows/proves the case of sub-tenancy as admittedly tenant had already left the premises and defendant no.2 is residing there. In such circumstances, it is difficult to get the clear and/or documentary evidence to show that there was some monetary consideration paid or received by defendant no.1 and/or even otherwise. The fact that third person who is occupying in a situation, where original tenant has left the premises is relevant consideration which both the courts have considered and accepted the case of the landlord/respondent. 4. Taking all this into account, I see there is no perversity in the order. Both the orders are within ( 3 ) the frame work of law and the record. Resultantly, the petition is dismissed. No costs. 5. The learned counsel for the petitioners seeks time to vacate the premises. Considering the facts and circumstances, six months time is granted to vacate the premises subject to filing usual undertaking on or before 10.1.2009. In the meantime, thee should be no creation of third party right or interest in the property. 6. The petitioners to pay arrears of rent, if any. ( ANOOP V. MOHTA, J.) ANOOP V. MOHTA, J.) ANOOP V. MOHTA, J.)