Sunday, 18 October 2015

How to appreciate evidence if tenant takes defence that notice is not received by him

In the case reported as AIR 1990 SC 1215 (Anil
Kumar v. Nanak Chandra Verma) it is held that there
cannot be hard and fast rule on the point as to how the
presumption available under section 27 of the General
Clauses Act can be rebutted. It is observed that it would
depend on the facts and circumstances of each case. In a
case the unchallenged testimony of tenant may be
sufficient to rebut the presumption. There cannot be any
dispute over this proposition. In this regard there are
many circumstances against the tenant. Notice was
addressed on the correct address of the tenant, intimation
of the notice was given by the postman but the notice was
not claimed and it was returned as “unclaimed”. Another
notice under certificate of posting was also sent on the
same address but it was not returned by the post office.
It is not the case of the defendant that his shop remained
closed at the relevant time but he has taken stand that he
used to visit other shop, of his brother and there is
possibility that at the relevant time he was not present in
the shop. His version is not acceptable and reliable. If his
shop was open he ought to have kept somebody to attend
his shop at the relevant time and in that case it can be
said that notice was tendered to his man like servant and
intimation was given to him. He ought to have examined
said person who was attending his shop during his
temporary absence and so there is no convincing evidence
of rebuttal. Further, the suit summons was served on the
tenant at the same address. This Court has no hesitation
to observe that presumption available under the aforesaid
provision of General Clauses Act was not at all rebutted
by the tenant and the District Court has committed error
in holding that the evidence of the tenant on oath has
rebutted the presumption. In view of the observations
made by the Apex Court in the cases cited supra if the
version of the tenant is accepted in such cases it will be
practically impossible for the landlord to get decree of
eviction on the ground of default. The tenant is bound to
take all the possible defences and it is up to the Court to
decide as to whether there is truth in his defence.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Civil Revision Application No.70 of 2014

Anant Tulshiramji Bajaj, 
Versus
Sunil s/o Gajanan Rasne
 CORAM: T.V. NALAWADE, J.

 DATE : 30th JULY 2015



1) The proceeding is filed by the landlord against
the judgment and decree of Rent Appeal No.10 of 2011
which was pending in the Court of the learned Principal
District Judge Aurangabad. The Principal District Judge

has set aside the judgment and decree of possession given
on the ground of default by the Civil Judge, Junior
Division, Aurangabad in Rent Suit No.20/2006. Both the
sides are heard.
2) The suit was filed in respect of property
bearing Municipal House No.4/3/42 (CTS No.4395)
situated at Machhali Khadak, Aurangabad. It is the case of
the plaintiff that on monthly rent of Rs.751/- the suit
premises was given to the defendant for using it as a shop.
3) It is the case of the plaintiff that the defendant
was never regular in making payment of monthly rent and
he is willful defaulter. It is contended that as the
defendant had not paid the monthly rent of 36 months
prior to the date of the notice, statutory notice dated 29-9-
2005 was given by the landlord to the defendant, tenant
and the tenancy of the defendant was terminated. It is
contended that notice was sent by registered post with
acknowledgment due and copy was sent under certificate
of posting. It is contended that notice sent by RPAD was
returned by post office with endorsement but the second

notice sent under certificate of posting was not returned
and it needs to be presumed that the notice was served on
the defendant.
4) The suit came to be filed on 19-4-2006, after
accrual of cause of action. The landlord had claimed relief
of possession on the ground of default and he had claimed
relief of recovery of the amount of Rs.42,719/- which
included the so called arrears of rent of Rs.21,779/- for
the period from 1-10-2003 to 30-9-2006 and relief of
recovery of damages of Rs.21,000/- in respect of
subsequent period was claimed. It was contended that
though the arrears of rent was around Rs.27,036/- the
landlord had restricted his claim to Rs.21,779/-.
5) The defendant filed written statement and
contested the suit. He denied the aforesaid contentions of
the landlord. He contended that in the past two suits
bearing Nos.25/97 and 121/97 were filed by the landlord
for recovery of arrears of rent but both the suits were
dismissed. The defendant contended that the plaintiff had
taken amount of Rs.65,000/- as deposit, Pagadi amount

from him and the defendant was entitled to say that the
landlord can deduct the monthly rent from this amount.
6) It is the case of the defendant that he had
suffered heavy loss in the business and he had requested
the landlord to adjust the deposit amount against the
monthly rent. The defendant contended that he was ready
and willing to pay rent. The defendant contended that
he was depositing the amount claimed with interest in the
Court by filing separate applications for the period from 1-
4-2003 to 30-9-2006, for the period of 42 months. He
denied that he is willful defaulter.
7) The defendant denied that he had received the
statutory notice dated 29-9-2005 both sent by RPAD and
under certificate of posting. He contended that the
amount demanded in the notice was not correct and under
such notice tenancy cannot be terminated. He contended
that the amount of rent for 36 months can be Rs.23,736/-
and not Rs.27,036/-.

8) Issues were framed by the trial Court on the
points like point of willful default committed by the
tenant, the point of service of statutory notice by landlord
on the tenant for terminating the tenancy, point of right
of the landlord to recover arrears of rent and the point of
right of the landlord to recover the damages in respect of
use of the suit premises after the date of termination of
tenancy.
9) The trial Court had held that the landlord had
proved the service of statutory notice. The trial Court had
held that the tenant was willful defaulter and the decree
was given. The District Court has held that service of
statutory notice is not proved by landlord and even the
default ground is not proved.
10) In respect of the case of the landlord that for
particular period tenant had not paid the rent, some
confusion was created due to the difference in the
contentions made in the statutory notice and the
pleadings and also the substantive evidence given in the
Court. It can be said that to some extent the landlord was
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responsible for such confusion but it can be said that his
counsel ought to have made the things clear. The contents
of the plaint and the statutory notice show that not much
blame can be put on the landlord when many things could
not have been denied by the tenant. The learned counsel
for the tenant has tried to make much out of these
inconsistencies. In view of this circumstance it needs to be
ascertained as to whether and for how much period the
tenant had not paid the rent prior to the statutory notice
and prior to the date of the suit.
11) There is no dispute over the agreed monthly
rent. Exhibit 45 is written agreement between the parties.
It shows that the shop premises was given on monthly
rent basis and it is situated in market place, in the heart
of the city. The agreed monthly rent was Rs.751/- and it
was to be paid by the tenant before expiry of 5th of the
month and he was to take care that receipt was obtained
by him from the landlord. It was not open to the tenant to
raise dispute regarding the payment unless he was having
receipt. It appears that agreement was made on 3-12-1984
and during pendency of the proceeding stamp duty and
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penalty was paid by the landlord and then after proof the
document it was exhibited.
12) It is admitted that two suits were filed by the
landlord for recovery of arrears of rent in the past. In Suit
No.25/1997 the amount of Rs.30,791/- was mentioned as
the arrears of rent and the period was given as September
1993 to January 1997. In the written statement filed in
that suit, the tenant had taken stand that he had given
deposit of Rs.65,000/- (Pagadi amount). The tenant had
admitted that he was in arrears of the rent but he had
contended that he had requested the landlord to deduct
the amount from the deposit money. He had also
contended that he had paid some amount but receipts
were not given. Then in the said suit the tenant deposited
Rs.30,400/- after receipt of the suit summons. He claimed
that he was not liable to pay interest on this amount but
then he paid interest also. The record of this matter shows
that in past also many times the tenant had committed
defaults and he had not paid monthly rent for the period 3
months, 6 months etc. In the previous matter the tenant
could not prove that the had given Rs.65,000/- as deposit.
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However, the suit was dismissed. The Court held that the
amount was deposited by the tenant, as mentioned above,
by depositing the amount in Court. In similar manner the
second suit was also dismissed.
13) In the present matter statutory notice was
given by the plaintiff which is dated 29-9-2005 and he had
contended that the tenant had not paid rent for the
period of 36 months prior to the date of the notice.
Though exact period during which rent was not paid was
not mentioned, it can be said that as per the contentions,
the plaintiff wanted to prove that at least from August
2003 rent was not paid. Tenancy was terminated and the
suit was filed on 19-4-2006 i.e. after expiry of statutory
period of 90 days. In the suit, the landlord claimed arrears
of rent for the period from 1-10-2003 to 30-9-2006
(paragraph No.9). The rent for this period comes to
Rs.27,036/-. It appears that when the suit was filed in
April 2006, due to mistake arrears of rent were mentioned
for period ending September 2006. However, in para 9
itself of the plaint, the plaintiff had made it clear that he
had restricted his claim to Rs.21,779/-, rent for 29 months.
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Thus rent for subsequent months was actually not claimed
in the plaint. It appears that the plaintiff tried to correct
the aforesaid error appearing in the pleading by making
application under Order 6 Rule 17 of the Code of Civil
Procedure but the trial Court rejected the application in
spite of the aforesaid circumstances.
14) In the written statement the defendant has
specifically contended in para 7 that he was liable to pay
rent for the period of 36 months only till the date of the
suit. In para 3 he, however, contended that he would
deposit amount of Rs.27,342/- for the period of 42 month.
He contended that he had requested the plaintiff to
adjust the arrears as against the aforesaid deposit of
Rs.65,000/- which, according to the defendant, was with
the plaintiff. The tenant further contended he had
sustained heavy loss in the business and so he had not
paid rent for the aforesaid period. Thus the tenant wanted
to make payment for the period from 1-4-2003 to 30-9-
2006 and he had admitted that he had not paid rent for
this period. The written statement was filed on 25-9-2006.
In view of this admission of the defendant not much can
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be made out due to the aforesaid discrepancies in the
pleadings and the contents of the statutory notice. The
defendant tenant had no receipts to show that he had
really paid any rent in respect of any of the aforesaid
period mentioned in the plaint and statutory notice.
15) In the evidence, the plaintiff tried to correct the
aforesaid so called mistakes of the pleading and he
deposed that till the date of the suit defendant was in
arrears and the plaintiff was entitled to recover the rent
for the period of at least 31 months. In the cross
examination it was not suggested that the tenant had
paid the rent in respect of that period and there is the
admission of the defendant of aforesaid nature.
16) The tenant tried to say in the evidence that
within 90 days of the date of receipt of the suit summons
he deposited amount of rent with interest in the Court.
But he was not able to prove that for period of 3 years
preceding the date of suit he had paid the rent and
interest on it.
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17) The record of the Court shows that after receipt
of the suit summons the tenant deposited amount of
Rs.27,342/- in the month of September 2006. It can be
said that some amount was deposited towards rent only.
It cannot be said that within 90 days of the receipt of the
suit summons the entire rent amount with interest was
deposited by the tenant. It is already observed that the
rent amount for this period comes to Rs.27,036/-. This
Court is discussing the position of law on this point but
here, it can be mentioned that it was up to the tenant to
show that he had paid entire amount which was due and
demanded by the plaintiff in the statutory notice with
interest. If the tenant had some dispute regarding the
amount of rent then he was taking risk of not depositing
the disputed amount. If at the end, the Court decides that
tenant was defaulter and for relevant period rent was not
paid, it was open to the Court to give decree on the
ground of default. The facts and circumstances show that
the interest amount on the amount demanded in the
statutory notice and which was admitted by tenant was
not paid by the tenant during the period which is given
by Section 15 of the Maharashtra Rent Control Act 1999
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(herein after referred to as "the Act").
18) Even during pendency of the suit and the
appeal filed by the tenant, the tenant was never regular
and punctual in depositing the rent amount. There was
written agreement to pay rent before 5th of the month
and so it was necessary for the tenant to make payment
as per the agreement. The record of the suit shows that in
November 2006 he paid rent for previous 2 months. In
July 2007 he paid rent for previous 3 months. In January
2009 he deposited amount of rent for previous two months
and in April 2009 he deposited amount for previous two
months. In June 2009 he deposited amount of previous
two months and in June 2010 he deposited amount of
previous four months. In the appeal applications at
Exhibits 14, 16, 18 and 23 show that he had deposited the
rent for 4 previous months, 11 previous months, 2
previous months and 2 previous months respectively.
19) The suit is governed by the provision of section
15 of Maharashtra Rent Control Act, 1999 (in short Act)
which runs as under :-
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"15. No ejectment ordinarily to be made if
tenant pays or is ready and willing to pay
standard rent and permitted increases. (1) A
landlord shall not be entitled to the recovery of
possession of any premises so long as the tenant
pays, or is ready and willing to pay, the amount of
the standard rent and permitted increases, if any,
and observes and performs the other conditions of
the tenancy, in so far as they are consistent with the
provision of this Act.
(2) No suit for recovery of possession shall be
instituted by a landlord against the tenant on the
ground of non-payment of the standard rent or
permitted increases due, until the expiration of
ninety days 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.
(3) No decree for eviction shall be passed by the
court in any suit for recovery of possession on the
ground of arrears of standard rent and permitted
increases, if, within a period of ninety days from the
date of service of the summons of the suit, the
tenant pays or tenders in court the standard rent
and permitted increases then due together with
simple interest on the amount of arrears at fifteen
per cent per annum; and thereafter continues to
pay or tenders in court regularly such standard
rent and permitted increases till the suit is finally
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decided and also pays cost of the suit as directed by
the court.
(4) Pending the disposal of any suit, the court
may, out of any amount paid or tendered by the
tenant, pay to the landlord such amount towards
the payment of rent or permitted increases due to
him as the court thinks fit."
20) Section 15 has three different parts and they
show the liability of the tenant to pay rent or to show
readiness and willingness to pay rent when it falls due.
They also give protection to the tenant from termination
of the tenancy on the ground of default by giving him at
least two opportunities after receipt of the statutory
notice of termination of tenancy. In section 15(1) it is
made clear that the tenant needs to pay or he should show
readiness and willingness to pay the rent. The rent means
not only standard rent but also permitted increases if any.
So long as the tenant is paying or he is ready and willing
to pay rent, the landlord cannot get relief of ejectment.
Thus landlord needs to show that tenant has committed
default and only then the landlord can file suit on this
ground. With regard to place and time of payment of rent
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the landlord can put some conditions and if those
conditions are not inconsistent with the provisions of the
Act, those conditions need to be complied by the tenant.
21) The provision of Section 15 shows that if the
tenant has no dispute about agreed rent, it is not his
case that agreed rent is not the standard rent, then he
needs to pay or he needs to show readiness and
willingness to pay the agreed rent. If he has dispute
about the standard rent then he can file proper
proceeding for fixation of standard rent. In the present
matter there is no dispute of such nature and so there is
no need to discuss the relevant provision in this regard
and the facts of the present case on that line.
22) Provision of section 15(2) of the Act shows that
the landlord cannot file suit for possession on the ground
of default unless the period of 90 days has expired after
the date of service of written notice given by him to the
tenant. The notice is expected to be as per the provision
of Section 106 of the Transfer of Property Act, 1882. This
provision shows that time is given to the tenant of 90 days

to the take protection of section 15(2) of the Act. If he
pays or shows readiness and willingness to pay the rent
due, he gets protection of section 15(2) of the Act. If he
has no dispute with regard to the agreed rate of rent and
it is not his case that it is not the standard rent and he
admits that he had committed default, then he should
deposit or pay the entire amount demanded in the
statutory notice. If he pays or deposits the rent amount
demanded in the statutory notice within prescribed time,
the landlord will not get decree of eviction on this ground.
However, if the tenant disputes the rent or disputes the
calculation made by the landlord and he deposits only
some of the amount or pays only some of the amount then
he takes risk. If at the end, the Court finds that the
amount paid or tendered by the tenant was less than the
amount due, it will be open to the Court to give decree on
the ground of default and in such a case the Court can
come to conclusion that the tenant was not ready and
willing to pay the rent and he had not paid rent which had
become due. Thus the tenant will lose the protection
which is made available under section 15(2) of the Act in
such circumstances.

23) The provision of section 15(3) of the Act gives
one more opportunity to the tenant to pay the rent due
(along with interest the rate of 15% per annum). In this
case also if there is no dispute about the rate of rent, the
tenant needs to pay or deposit entire amount demanded
by the landlord along with interest at the rate of 15% per
annum within 90 days from the date of service of suit
summons. In this case also if the tenant pays or deposits
less amount by creating some dispute then he takes the
risk. In this case also if at the end, Court comes to the
conclusion that amount due or interest mentioned in the
provision was not paid by the tenant, the Court can hold
that tenant had not paid or the tenant was not ready and
willing to pay rent which had become due. In such cases
the tenant looses the protection which is made available
under section 15(3) of the Act. The circumstance that the
tenant is expected to pay even the cost of the suit as
directed by the Court shows that readiness and
willingness of the tenant needs to be shown till the matter
is finally decided. If the tenant files appeal, in the appeal
also the tenant needs to continue to pay the rent which
falls due. In the present matter there was no claim of
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permitted increases and so this point is not discussed.
24) The provision of section 15 of the Act prevents
landlord from filing suit before expiry of 90 days from the
date of service notice which needs to be given under
section 106 of the Transfer of Property Act. In such a suit,
in view of the wording of the aforesaid provisions and the
object behind them, it is necessary for the tenant to plead
and prove that he followed the procedure given in the
section and complied with the conditions mentioned in the
section. It is possible that in the past, he was habitual
defaulter but if he uses aforesaid provisions, provisions of
section 15(2) and 15(3) of the Act, he gets the protection
of these provisions and his past conduct of committing
default becomes irrelevant.
25) The provision of section 15 shows that it is not
sufficient for the tenant to deposit the rent due as
described above, within 90 day of the date of service of
notice issued under section 106 of the Transfer of
Property Act. It is necessary for him to continue to pay or
deposit the rent every time it becomes due as per
agreement. Similarly, after depositing the amount within
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90 days of the date of service of suit summons he needs to
go on paying rent as and when it becomes due. In view of
the wording of the section, he needs to continue to pay the
amount even when the appeal is pending, the decision has
not become final. When there is no specific order from the
Court against the tenant directing him to deposit the rent
within particular time, the tenant is expected to abide by
the conditions of the written agreement or the practice.
26) The learned counsel for the tenant has placed
reliance on one case reported as (1988) 2 SCC 481
(Mohan Laxman Hede v. Noormohamed Adam
Shaikh). In this case the Apex Court has discussed the
provision of section 12(3)(b) of the Bombay Rents, Hotel
and Lodging House Rates Control Act, 1947. The term
"regularly" used in this section is discussed and
interpreted. The same term is used in section 15(3) of the
Act. In para 3 of the reported case the Apex Court has
quoted the defaults committed by the tenant in the said
case and the particulars show that on four occasions the
tenant had deposited the rent after 23 days when the rent
had become due. However, on two occasions the rent in
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advance in respect of subsequent months was also
deposited by the tenant. In view of these facts and
circumstances, the Apex Court held that the rent was
deposited with reasonable punctuality and the tenant had
deposited the rent regularly as contemplated by the
aforesaid provision. There was one more circumstance
like the order made by the Court to pay interim standard
rent and there was no written agreement about the time
of payment of the rent.
27) In the case cited supra the Apex Court placed
reliance on the ratio of the case reported as AIR 1980 SC
954 (Mranalini B. Shah v. Bapalal Mohanlal Shah). In the
case of Mranalini tenant had not paid rent regularly and
he had never paid rent in advance. On 16 occasions rent
was deposited at intervals ranging from two to four
months. It was held that there was default. In the case on
which reliance was placed by the learned counsel for the
tenant the Apex Court had referred the case of Ganpath
Ladha v. Sashikant Vishnu Shinde (AIR 1978 SC 955) also
and has made observations at paragraphs 11 and 12 as
follows :-
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“11. We have perused the recent judgment of this Court
in Ganpat Ladha v. Sashikant Vishnu Shinde. In our
opinion, the point raised by the appellants before us is
fully covered by that judgment. The following
observations of Beg, C.J., who spoke for the Court are
apposite :
“… We think that the problem of interpretation and
application of Sec.12(3)(b) need not trouble us after
the decision of this Court in Shah Dhansukhlal
Chaganlal's case (AIR 1968 SC 1109) followed by
the more recent decision in Harbanslal
Jagmohandas v. Prabhudas Shivlal, (AIR 1976 SC
2005), which completely cover the case before us.
It is clear to us that the Act interfere with the
landlord's right to property and freedom of
contract only for the limited purpose of protecting
tenants from misuse of the landlord's power to
evict them, in these days of scarcity of
accommodation, by asserting his superior rights in
property or trying to exploit his position by
extracting too high rents from helpless tenants.
The object was not to deprive the landlord
altogether of his rights in property which have also
to be respected. Another object was to make
possible eviction of tenants who fail to carry out
their obligation to pay rent to the landlord despite
opportunities given by law in that behalf. ….. But
where the conditions of Section 12 (3) (a) are not
satisfied, there is a further opportunity given to the
tenant to protect himself against eviction. He can
comply with the conditions set out in Sec.12(3)(b)

and defeat the landlord's claim for eviction. If,
however, he does not fulfill those conditions, he
cannot claim the protection of Section 12(3)(b) and
in that event, there being no other protection
available to him, a decree for eviction would have
to go against him. It is difficult to see how by any
judicial valour discretion exercisable in favour of
the tenant can be found in Section 12(3)(b), even
where the conditions laid down by it are satisfied,
to be strictly confined within the limits prescribed
for their operation. We think that Chagla, C.J., was
doing nothing less than legislating in Kalidas
Bhavan's case (1958-60 Bom LR 1359), in
converting the provisions of Section 12(3)(b) into a
sort of discretionary jurisdiction of the Court to
relieve tenants from hardship. The decisions of
this Court referred to above, in any case, make the
position quite clear that Section 12(3)(b) does not
create any discretionary jurisdiction in the Court. It
provides protection to the tenant on certain
conditions and these conditions have to be strictly
observed by the tenant who seeks the benefit of the
section. If the statutory provisions do not go far
enough to relieve the hardship of the tenant the
remedy lies with the legislature. It is not in the
hands of Courts”.
12. The above enunciation, clarifies beyond doubt
that the provision of clause (b) of Section 12(3) are
mandatory, and must be strictly complied with by
the tenant during the pendency of the suit or appeal
if the landlord's claim for eviction on the ground of
default in payment of rent is to be defeated. The
word “regularly” in clause (b) of Section 12 (3) has a

significance of its own. It enjoins a payment or
tender characterised by reasonable punctuality, that
is to say, one made at regular times or intervals. The
regularity contemplated may not be a punctuality, of
clock-like precision and exactitude, but it must
reasonably conform with substantial proximity to the
sequence of times or intervals at which the rent falls
due. Thus, where the rent is payable by the month,
the tenant must, if he wants to avail of the benefit of
the latter part of cl.(b), tender or pay it every month
as it falls due, or at his discretion in advance. If he
persistently defaults during the pendency of the suit
or appeal in paying the rent, such as where he pays
it at irregular intervals of 2 or 3 or 4 months – as is
the case before us – the Court has no discretion to
treat what were manifestly irregular payments, as
substantial compliance with the mandate of this
clause irrespective of the fact that by the time the
judgment was pronounced all the arrears had been
cleared by the tenant.”
28) Learned Single Judge of this Court has made
observations which are similar to the observations made
in Mranalini Shah's case (cited supra) by the Apex Court
in the case reported as 2010 (3) Bom. C.R. 766 (Nagpur
Bench) (Girish Gangadhar Agrawal v. Jiteshkumar
Hasmukha Vakhariya).

29) In the present case there is peculiar
circumstance like written agreement between the parties.
Even if it is presumed that after receipt of the suit
summons the tenant paid arrears of rent, he did not pay
the interest on it as required by section 15(3) of the Act.
In addition to this circumstance, he committed many
defaults in making payment of rent which became due in
the trial Court and in the appellate Court. Right from
beginning, the tenant gave excuse that he had suffered
financial crisis and so he was not able to pay rent
regularly. He tried to say that he had given Rs.65,000/- as
Pagadi, deposit amount to the landlord and he was
entitled to say that rent amount needs to be deducted
from the Pagadi amount. In view of these facts and
circumstances of the case, this Court holds that the tenant
is not entitled to the protection of any part of provision of
section 15 of the Act.
30) The learned counsel for the tenant submitted
that specific amount was not demanded as the amount
due from the tenant and so it needs to be presumed that
default ground is not proved. He placed reliance on

following reported cases :-
(i) 2010(3) Mh.L.J. 807 (Vinayak Narayan Deshpande
v. Deelip Pralhad Shisode) (Bombay High Court);
(ii) 1993 Bom. R.C. 298 (Smt. Sonubai v. Smt.
Yellawa) (Bombay High Court);
(iii) 1982 Bom. R.C. 65 (Khimji Bhimji Majithia v.
Taraben Lalji Soni) (Gujarat High Court).
 In these cases, in view of the facts of the cases,
when amount was not specified, the Courts had held that
there was no compliance of Section 12(2) of the Bombay
Rent Act.
31) On the other hand, learned counsel for the
landlord placed reliance on a case reported as 1983 BCI
(O) 28 (Chhaganlal Mulchand Jain v. Narayan Jagannath
Bangh). The relevant observations can be found at
paragraphs 10 and 11 :-
“10. It was also submitted that the notice under
section 12(2) of the Rent Act is bad because the
demand is not for the standard rent and permitted
increases and because the demand was at the agreed
rate though the standard rent was later on determined
by the Courts below at a lesser amount i.e. at 11/- per
month. The argument is that the notice under section
12(2) should be construed strictly and the tenant should

be given an advantage of any mistake that may be
appearing in the notice. In our opinion, it will not be
possible to accept this contention of a strict
construction of the notice in favour of the tenant. The
notice is a communication between the landlord and the
tenant and both the parties know their rights and
liabilities about the payment of rent. Hence any mistake
in making a demand for the larger amount would not
render the notice invalid. This has been so held by the
Supreme Court in an unreported decision of the case of
Raghunath Ravji Dandekar v. Anant Narayan Apte.
Similarly this Court in the case of Lalshankar Mulji v.
Kantilal, has held that a notice is not invalid simply
because by mistake or oversight the landlord has
demanded the rent more than it was due. It was further
held that a liberal construction should be put upon the
notice to quit in order that it should not be defeated by
inaccuracies.
11. ……. It will be very difficult to accept the
contention that a mistake here or a mistake there in the
demand notice would entail the dismissal of the suit. It
is possible that in a particular case, the landlord may
make a false and untenable demand of certain amount
among with the claim about which there will not be any
dispute. In such a cases the tenant will have an option
to pay the undisputed amount of rent and to give a
reply that the rest of the claim was a false one. If in due
course of time at the stage of the suit the claim is
proved to be false, the tenant obviously would be
protected as he has made the payment of the amount

that was actually due. But he will not be able to resist
the same if within one month from the notice he has not
paid even the arrears to which the landlord is entitled.
The view expressed in the case of Ganpat v. Motilal
(supra) that the notice would be bad if the notice
included untenable claim is too general a statement and
we disagree with it. Even in such a case the tenant is
under an obligation to remit within the prescribed time
the permissible amount payable by him. Of course, he
will have to take the risk if ultimately the Court finds
that such payment would not cover all the arrears. In
case of such a finding the landlord would be entitled
to a decree for possession. But there would not be such
a decree if the payment was sufficient to clear off all
the arrears which were payable to the landlord. Thus
everything will depend upon the facts of each case, but
primarily one has to proceed on the oasis that the
notice should be construed liberally and not with a view
to find fault in it.”
32) In the present case, this Court has already
discussed relevant facts in this regard and they show that
it cannot be said that the tenant was not aware of the
actual demand from the landlord. So, on this point also
the tenant has no case.
33) The learned counsel for the tenant placed
reliance on a case reported as 2009 (6) Mh.L.J. 906 (New

Laxmi Cycle Company v. Jagdishchandra). This case is on
altogether different point like liability of the tenant to pay
permitted increases. In the present matter the landlord
had not claimed permitted increases and this point is not
at all involved in the present matter.
34) In view of the aforesaid discussion, this Court
has no hesitation to observe that tenant of the present
case is not entitled to protection of 15 of the Act. The trial
Court had discussed the relevant material and had given
the relief. The Appellate Court has committed mistake in
ignoring the material and in setting aside the judgment
and decree given by the trial Court in favour of the
landlord on the ground of default. Thus, the decision of
the appellate Court on the point of default needs to be set
aside.
35) One more point was argued by the learned
counsel for the tenant by making submission that
statutory notice was not served on the tenant. Substantive
evidence is given by the landlord that he had sent notice
both the registered post with acknowledgment due and
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 29 CRA 70/2014
Under Certificate of Posting and they were given on the
correct address, the address where the tenant is doing
business, the suit premises. To rebut the substantive
evidence and the circumstances like postal remark and
the receipt of the notice sent under U.C.P., the tenant has
tried to say that on occasions he remains out of the shop
and he goes to the shop of his brother and so possibly he
did not receive the intimation of the postman. He has
deposed that he did not get notice sent under certificate
of posting. The District Court has held that it was
necessary to examine postman to prove endorsement of
postman appearing on the envelop. It needs to be
mentioned that statutory notice as required under section
106 of the Transfer of Property Act was sent and the suit
was filed after expiry of the statutory period mentioned in
section 15 of the Act. In this regard provision of section
106(4) of the Transfer of Property Act needs to be kept in
kind and it runs as under :
“106. Duration of certain leases in absence of
written contract or local usages.--
(1) . . .
(2) . . .
(3) . . .
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 30 CRA 70/2014
(4) 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.”
36) The District Court has observed that it was
necessary for the landlord to examine postman to prove
the endorsement on the envelope sent under the
registered post like “intimation given”. On this point
learned counsel for the landlord placed reliance on cases
reported as (1) AIR 1989 SC 630 (M/s. Madan & Co. v.
Wazir Jaivir Chand); and, (2) 2005 (2) BCJ 632 (SC) (P.T.
Thomas v. Thomas Job). The observations with regard to
postal intimation are at para 6 of the first case and at para
11 of the second case and they are as under :-
"6. We are of opinion that the conclusion arrived at
by the Courts below is correct and should be upheld.
It is true that the proviso to Cl.(i) of S.11(1) and the
proviso to S.12(3) are intended for the protection of
the tenant. Nevertheless it will be easy to see that
too strict and literal a compliance of their language
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 31 CRA 70/2014
would be impractical and unworkable. The proviso
insists that before any amount of rent can be said to
be in arrears, a notice has to be served through post.
All that a landlord can do to comply with this
provision is to post a prepaid registered letter
(acknowledgement due or otherwise) containing the
tenant's correct address. Once he does this and the
letter is delivered to the post office, he has no control
over it. It is then presumed to have been delivered to
the addressee under S.27 of the General Clauses Act.
Under the rules of the post office, the letter is to be
delivered to the addressee or a person authorised by
him. Such a person may either accept the letter or
decline to accept it. In either case, there is no
difficulty, for the acceptance or refusal can be
treated as a service on, and receipt by, the
addressee. The difficulty is where the postman calls
at the address mentioned and is unable to contact
the addressee or a person authorised to receive the
letter. All that he can then do is to return it to the
sender. The Indian Post Office Rules do not prescribe
any detailed procedure regarding the delivery of
such registered letters. When the postman is unable
to deliver it on his first visit, the general practice is
for the postman to attempt to deliver it on the next
one or two days also before returning it to the
sender. However, he has neither the power nor the
time to make enquiries regarding the whereabouts
of the addressee, he is not expected to detain the
letter until the addressee chooses to return and
accept it; and he is not authorised to affix the letter

on the premises because of the addressee's absence.
His responsibilities cannot, therefore, be equated to
those of a process server entrusted with the
responsibilities of serving the summons of a Court
under O. V of the C.P.C. The statutory provision has
to be interpreted in the context of this difficulty and
in the light of the very limited role that the post
office can play in such a task. If we interpret the
provision as requiring that the letter must have been
actually delivered to the addressee, we would be
virtually rendering it a dead letter. The letter cannot
be served where, as in this case, the tenant is away
from the premises for some considerable time. Also,
as addressee can easily avoid receiving the letter
addressed to him without specifically refusing to
receive it. He can so manipulate matters that it gets
returned to the sender with vague endorsements
such as "not found", "not in station", "addressee has
left" and so on. It is suggested that a landlord,
knowing that the tenant is away from station for
some reasons, could go through the motions of
posting a letter to him which he knows will not be
served. Such a possibility cannot be excluded. But, as
against this, if a registered letter addressed to a
person at his residential address does not get served
in the normal course and is returned, it can only be
attributed to the addressee's own conduct. If he is
staying in the premises, there is no reason why it
should not be served on him. If he is compelled to be
away for some time, all that he has to do is to leave
necessary instructions with the postal authorities

either to detain the letters addressed to him for some
time until he returns or to forward them to the
addressee where he has gone, or to deliver them to
some other person authorised by him. In this
situation, we have to chose the more reasonable,
effective, equitable and practical interpretation and
that would be to read the word "served" as "sent by
post", correctly and properly addressed to the
tenant, and the word "receipt" as the tender of the
letter by the postal peon at the address mentioned in
the letter. No other interpretation, we think, will fit
the situation as it is simply not possible for a landlord
to ensure that a registered letter sent by him get
served on, or is received by, the tenant."
"11. The High Court, in our view, has also
misinterpreted Section 27 of the Post Office Act,
1898. The requirement of the section has been
complied with in this case. The reasoning of the High
Court on this issue is not correct and not in
accordance with factual position. In the notice
issued, the postman has made the endorsement. This
presumption is correct in law. He had given notice
and intimation. Nevertheless, the respondent did not
receive the notice and it was returned unserved.
Therefore, in our view, there is no obligation cast on
the appellant to examine the postman as assumed by
the High Court. The presumption under Section 114
of the Evidence Act, 1872 operates apart from that
under the Post Office Act, 1898."

37) In the cases reported as 2003 (4) Bom. C.R.
612 (David K.N. v. S.R. Chaubey) and 2005 (4) Mh.L.J.
577 (Krishna Ramchandra Jadhav v. Shankari Ajimal) the
aforesaid point is discussed and the aforesaid cases are
also referred. In view of the observations made by the
Apex Court this Court has no hesitation to observe that it
was not necessary for the landlord to examine the
postman to prove the aforesaid intimation.
38) On the other hand learned counsel for the
tenant placed reliance on the cases reported as (1) 2001
(2) Mh.L.J. 342 (Lalmani Ramnath Tiwari v. Bhimrao
Govind Pawar); (2) 2004 (4) Mh.L.J. 873 (Vinod Shashank
Chakor Pvt. Ltd. v. H.D. Merchant). In these two cases of
Bombay High Court the aforesaid cases of the Supreme
Court are not referred. In view of this circumstance, this
Court holds that the observations made by the Bombay
High Court are of no help to the tenant.
39) In the case reported as AIR 1990 SC 1215 (Anil
Kumar v. Nanak Chandra Verma) it is held that there
cannot be hard and fast rule on the point as to how the

presumption available under section 27 of the General
Clauses Act can be rebutted. It is observed that it would
depend on the facts and circumstances of each case. In a
case the unchallenged testimony of tenant may be
sufficient to rebut the presumption. There cannot be any
dispute over this proposition. In this regard there are
many circumstances against the tenant. Notice was
addressed on the correct address of the tenant, intimation
of the notice was given by the postman but the notice was
not claimed and it was returned as “unclaimed”. Another
notice under certificate of posting was also sent on the
same address but it was not returned by the post office.
It is not the case of the defendant that his shop remained
closed at the relevant time but he has taken stand that he
used to visit other shop, of his brother and there is
possibility that at the relevant time he was not present in
the shop. His version is not acceptable and reliable. If his
shop was open he ought to have kept somebody to attend
his shop at the relevant time and in that case it can be
said that notice was tendered to his man like servant and
intimation was given to him. He ought to have examined
said person who was attending his shop during his

temporary absence and so there is no convincing evidence
of rebuttal. Further, the suit summons was served on the
tenant at the same address. This Court has no hesitation
to observe that presumption available under the aforesaid
provision of General Clauses Act was not at all rebutted
by the tenant and the District Court has committed error
in holding that the evidence of the tenant on oath has
rebutted the presumption. In view of the observations
made by the Apex Court in the cases cited supra if the
version of the tenant is accepted in such cases it will be
practically impossible for the landlord to get decree of
eviction on the ground of default. The tenant is bound to
take all the possible defences and it is up to the Court to
decide as to whether there is truth in his defence.
40) In view of the aforesaid discussion this Court
has no hesitation to hold that there was no scope to
interfere in the decision given by the trial Court in favour
of the landlord. Thus, the judgment and decree of the
appellate Court cannot sustain in law.

41) In the result, civil revision application is
allowed. The judgment and decree of the District Court
delivered in Rent Appeal is hereby set aside. The appeal is
dismissed. The judgment and decree of the trial Court is
restored. No order as to cost. The learned counsel for
the tenant seeks time to vacate the premises. Two months
time from today is granted subject to giving usual
undertaking.
 Sd/-
 (T.V. NALAWADE, J. )



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