- (1.) THIS writ petition under Article 227 of the Constitution of India is directed against the concurrent judgment and decree for eviction passed by the two courts below. The Civil Judge, Vasai decreed the plaintiff-Respondent's suit for eviction on the ground of default and reasonable and bonafide necessity on 21-7-87. The tenant-appellant carried the matter in appeal before VIIth Addl. District Judge. Thane unsuccessfully and appeal was dismissed on 29th September, 1989.
(2.) HEARD Mr. Oka, learned counsel for the petitioner. The learned counsel for petitioner has raised two fold contentions viz. (i) that the landlord was not able to proved the service of notice under section 12 (2) of the Bombay Rents, Hotel and lodging House Rates Control Act, 1947 (Bombay Rent Control Act) and (ii) that the landlord does not have any reasonable and bonafide necessity of the premises in question.
(3.) BEFORE adverting to the contentions raised by the learned counsel for petitioner, i may notice few relevant facts. The respondent herein Lal Bahadur Fulchand gupta (hereinafter referred to as 'landlord') owns the property bearing No. 156 situated in ward No. 21, Vasai Koliwada. The said property comprises of one gala alongwith two rooms. The defendant is in possession of the disputed premises for a monthly rent of Rs. 30/- per month. The family of the plaintiff comprises of 8 members and he resides in the rented premises. The tenant did not make any payment of rent after November, 1981 and therefore, a notice was sent by the landlord to the tenant on 3rd August; 1982 asking him to pay the arrears of rent and vacate the suit premises. When the tenant did not vacate the premises the landlord filed suit for eviction on the ground of default as well as on the ground that premises in question are required reasonably and bonafide. The tenant filed written statement and contested the claim of the landlord. The tenant denied the receipt of notice sent under section 12 (2) and set up the plea that he was not a defaulter. The tenant also denied plaintiffs claim that the premises in question were required reasonably and bonafide by the landlord. The trial court framed issues and the parties led evidence. The trial court, after recording the evidence, held that the landlord has been able to prove that the tenant has not paid the rent for the period of more than 6 months and thus was defaulter. The trial court also held that the landlord requires the suit premises reasonably and bonafide for his personal use and occupation and that greater hardship will be caused to him if decree of eviction was not passed. Thus, the trial court decreed the plaintiffs suit on 21-7-87. As already stated above, the appeal filed by the tenant was dismissed by the appellate court on 29th September, 1989. 3a. Coming now to the contentions raised by the learned counsel for petitioner, I may immediately observe that the landlord examined the postman for proof of service of notice which was returned with the endorsement "not claimed". The postman Mr. A. A. Patil (P. W. 2) has clearly deposed that he had gone at the addressee's place to deliver the letter but sine the addressee was not there, he gave intimation of the said letter to the lady who was in the house of the addressee. After the intimation was given, the letter was kept for 5 days but since within that time, the letter was not claimed by the addressee, it was returned by the enforcement "not claimed". This evidence has been duly appreciated by the trial court as well as the Appellate Court and they rightly reached the conclusion that in the background of the aforesaid facts, the notice would be deemed to have been served on the addressee (the tenant ). There is no dispute that the address mentioned in the notice is the correct addressed. There is also no dispute that the tenant did not make the payment of the rent or deposit the rent within time. Thus, apparently, the tenant was defaulter under section 12 (3xa) and has rightly to be held to be so by the two courts below. below.;