Bombay High Court: A.S. Gadkari, J., while addressing a matter of the eviction of a tenant focused on the modes of serving a notice under Section 106 of the Transfer of Property Act, 1882.
The instant petition was preferred by a landlord impugning the decision of lower court allowing the said appeal preferred by the respondent-tenant.
Petitioner-plaintiff had filed the RCS No. 881 of 1990 for eviction of the respondent on the ground of default in payment of rent as contemplated under Section 12(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947.
Petitioner was the owner of a plot and he had constructed a chawl known as ‘Munnar Yadav chawl’. The respondent tenant was allotted in the said chawl on a monthly rental basis. The rent of the Suit property was determined at Rs 37 per month.
As the Respondent was in arrears of rent from 1-08-1982 and did not pay it despite repeated demands, the Petitioner through his Advocate issued notice and tenancy was also terminated.
As far as pasting of a notice on the conspicuous part of the concerned Suit premises, the Petitioner had proved the said fact by leading evidence of himself and examining a witness.
Trial Court’s decision
Trial Court held that, the Petitioner had proved that the Defendant had committed default in payment of arrears of rent from 1-08-1982 and despite receipt of notice dated 30-03-1990, he failed to pay the said arrears to the Petitioner or deposit the same on the date of first hearing before the Trial Court.
Appellate Court’s decision
Appellate Court had recorded a finding that, the Petitioner did not attempt to serve notice upon the Respondent by the modes prescribed under Section 106 of the Transfer of Property Act, 1882 and on that predominant rather sole ground, reversed the findings recorded by the Trial Court.
Analysis, Law and Decision
High Court noted that the evidence on record revealed that the petitioner-plaintiff did not prove the service of suit notice upon the respondent by adopting the first two modes mentioned in Section 106 of the TP Act.
Section 12(2) of the Rent Act of 1947, states that, “No suit for recovery of possession shall be instituted by a landlord against tenant on the ground of non-payment of the standard rent or permitted increases due, until the expiration of one month next after notice in writing of the demand of the standard rent or permitted increases has been served upon the tenant in the manner provided in Section 106 of the Transfer of Property Act 1882”.
Section 106 (4) of the TP Act prescribed that, every notice under sub-section (1) must be in writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property.
As far as the third mode of service was concerned i.e. by tender or delivery of the notice to one of the family members or servants at the residence of tenant is concerned, the Petitioner had averred that, though he tried to serve the said notice upon the Respondent personally, he refused to accept it. Respondent in his evidence has denied the said fact and therefore doubt is created in the mind of the Court about service of notice by adopting the third mode by the Petitioner.
As far as service of notice by the Petitioner by adopting fourth mode i.e. by fixing it on a conspicuous part of the Suit property is concerned, the Petitioner apart from leading his own evidence on that behalf, has also examined a panch witness.
High Court opined that the Appellate Court did not even touch the vital aspect of the service of notice upon the respondent by adopting the fourth mode by the petitioner. Appellate Court failed to take into consideration the necessary and relevant evidence available on record, rather had not taken into consideration it at all and therefore had committed an error in reversing the findings and passing of the decree by the Trial Court.
Therefore, the petitioner did serve the notice under Section 12(2) of the Rent Act upon the respondent by adopting the mode prescribed under Section 106 of the TP Act.
Hence, Bench held that interference of this court was required in view of the above background.
The Court directed respondents to hand over the vacant and peaceful possession of the Suit premises in favour of the Petitioner within a period of two months from the date of uploading of the present Judgment on the official website of the Bombay High Court. [Munnar Lavtan Yadav v. Ashok Dalvi, 2021 SCC OnLine Bom 6189, decided on 1-12-2021]
Advocates before the Court:
Mr Mandar Limaye for the Petitioner. None for the Respondents.