1 srk IN THE HIGH COUT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO. 443 OF 2009 Mrs. Hanifa Abdul Razak Memon ... Applicant vs Amina Abbasbhoy Carrimjee & Ors.. ... Respondents Mr. R.A. Thorat, Advocate for the Petitioner. Mr. Shiras Rustomjee and Miss. Prembhavi Thakkar i/b desai, Deasi Carrimjee & Mulla for Respondent No.3 and 5. CORAM: R.S.MOHITE, J DATE: 9th September, 2009. P.C. 1 This is a Revision Application filed by the original defendant against concurrent judgments and decrees of the trial and appellate court. Suit of the plaintiff/landlord was for eviction. The suit property in question is a commercial shop ad-measuring 500 square meters situated at Mohammedali Road, Fort, Bombay – 400 003, which is a prime business area. Both the courts have decreed the suit on two grounds. First ground is non payment of arrears and the second ground pertains to bonafide requirement of the landlord. 2 The first ground pertains to the default. According to the defendant- tenant the demand notice dated 24.04.1994 demanding arrears was not received by her. It is the case of the tenant that on March, 1993 she left India. When she returned back to India 25th August, 1994, she was arrested at the 2 airport in connection with a Criminal case. In such circumstances, when the demand notice dated 24.04.1994 was attempted to be served by RPAD, postal acknowledgment was received back him with an endorsement “left”. Service also could not be effected though copy of the notice was sent under certificate of posting. Be that as it may, the case of the plaintiff is that demand notice was served by affixing as permitted under section 106 of the Transfer of Property Act. 3 On behalf of the tenant counsel raised two contentions, the first contention is that affixing was not properly effected and that service by affixing was a weak kind of service. There is no substance in this contention. It is seen that on behalf of the plaintiffs their employee one Mr. Chatriwala was examined and he categorically stated in the examination in chief that after failure in effecting service through other modes the demand notice was affixed on the suit premises. This witness is not cross examined. It was brought to my notice that later-on, an application was preferred in the suit to recall the witness for the cross examination but this application was not pursued. It will also not to be correct to say that the service of pasting is a weak kind of service. Section 12(2) prescribes that service of demand notice can be effected as provided by section 106 of the Transfer of Properties Act. Once section 106 of the Transfer of Properties Act permits service by affixing as a matter of last 3 resort, it can never be said that this is a weak kind of service. It is the duty of tenant that he should vigilant in paying rent and the law does not expect that tenant remains unavailable after defaulting in payment of rent. 4 The second contention was that the decree of eviction was wrongly passed for valuation of section 12 (3) of the Bombay Rent Act. In this regard, the facts are that the suit was filed on 26th September, 1994. The tenant did not appear in the suit and the bank which was licencee-co-defendant appeared and filed a written statement. Issues were based upon the pleadings as filed and were framed on 31.10.2003. It further appears that the present tenant appeared thereafter and filed a written statement on 08.06.2004 and additional issues came to be framed on 22.09.2004. Record indicates that before framing of additional issues, the evidence of the plaintiff has already commenced. The evidence in lieu of examination in chief was filed in January, 2004. It appears that the tenant preferred an application for deposit of arrears and by an order dated 09.08.2004, he was permitted to deposit arrears along-with 9% interest. It was therefore contended that provisions of section 10 (3) were complied with. It is however seen that even after the order dated 09.08.2004, the tenant failed to pay or tender in court regularly the standard rent and permitted increases. The record indicates that after a period of about five years in 2009 the tenant again applied to the trial court seeking permission to deposit the arrears and 4 some time in 2009, allowing him to deposit arrears without prejudice. In my view, such deposit, even if permitted by the court cannot amount to “payment on tendering in court regularly such standard rent and permitted increase”. What section 12 (3) contemplates is a regular payment and payment made after five years cannot be said to amount to “payment made regularly”. In this view of the matter, in my view, the decrees passed on the ground of arrears of rent are correctly passed. 5 So far as bonafide requirement is concerned, in a Revision this court can only interfere if there is an error of jurisdiction. In the case of Pandurang Dhondi Chougule and others Vs. Maruti Hari Jadhav and others, reported in AIR 1966 SC 153, the Apex Court laid down the scope of jurisdiction of this court exercising power under section 115 of the Code of Civil Procedure. The Apex Court held that error of law cannot be basis for exercising revisional jurisdiction and such jurisdiction can be exercised only when there is an error of jurisdiction of the court to try the case itself or by the subordinate courts not vested with jurisdiction or failure to exercise a jurisdiction vested or where the exercise of jurisdiction is illegal or exercised with material irregularity. 6 In the present case, the plaintiffs have come up with the case that, the premises were required for conducting a travel agency business in the suit premises. The record indicates that plaintiff no.3 stepped into witness box. 5 Her mother who was plaintiff No.2 was conducting similar business in premises situated in third floor in Fountain Area. Plaintiff No.3 was a partner in a solicitor firm. She has stated in her evidence that she wanted to discontinue her practice and join the business along-with other plaintiffs. It cannot be ignored that premises which are on the ground floor are more conducive for conducting commercial business than premises situated in third floor. It was then contended that on 01.04.1992 the landlord consented to the giving of licence for a period of 10 years and this was indicative that they had no bonafide requirement of the suit premises. To my mind, these circumstances cannot conclude the issue. At the highest it may indicate that the plaintiffs had no such requirement in the year 1992. The situation could however changed thereafter. Apart from this, in my view, the scope of the contentions raised are in this regard cannot be gone into in the limited revisional jurisdiction. In the circumstances, Civil Revision Application is summarily dismissed. 7 Advocate for the petitioner states that interim relief was granted by this court on 2nd September, 2009 was also running in the appellate court. He seeks extention of the ad-interim stay granted by this court for a period of 12 weeks. Taking into account the fact that defendant do have some other premises from where they are conducting their business, I am inclined to continue earlier ad-interim stay for a period of 12 weeks from today. 6 8 As court receiver is in possession of the suit property, it will not necessary to give an undertaking. Judge.