Case Note & Summary
The applicant, Indira Rani Ugrasen, filed Civil Revision Application No. 139 of 2007 in the Bombay High Court against the judgments and decrees dated 30/06/1999 and 27/10/2005 of the Trial Court and the Appeal Court, which dismissed her R.A.E. Suit No. 2489 of 1978 seeking eviction of the respondents, Vijaya B. Desai and others, on the ground of default in payment of rent. The Trial Court and the Appeal Court held that there was no proper service of notice under Section 12(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (Rent Act) and that since the suit premises were located in a slum area declared under the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 (Slum Act), permission under Section 22 of the Slum Act was mandatory, making the suit not maintainable. The applicant's counsel, Mr. Anil Kumar Patil, argued that the suit was instituted in 1978, while the slum notification was issued in 1979, so Section 22 of the Slum Act did not bar the suit's maintainability; permission would only be necessary before executing the decree. He relied on Yamunabai Dattoba Taware v. Nana Bhikoba Nagade and Hari Dhondu Gurav v. Jhonney Augustine Gomes. Regarding notice service, he submitted that notice was served by three modes: Registered Post Acknowledgment Due (R.P.A.D.), Certificate of Posting, and affixture on the suit premises. The courts below erred in requiring examination of the postman, as Section 27 of the General Clauses Act, 1897 provides a statutory presumption of due service. He relied on Krishna Ramchandra Jadhav @ Yadav and Others v. Smt. Shankari B. Ajimal and a Supreme Court decision. The High Court allowed the revision, holding that the notice was validly served and that the suit was maintainable. The court set aside the impugned judgments and decrees and remanded the matter to the Trial Court for fresh disposal on merits, directing the parties to appear on 14/09/2015.
Headnote
A) Rent Control - Service of Notice - Section 12(2) Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Statutory Presumption - The landlord sent notice by registered post, certificate of posting, and affixture. The courts below held service invalid for failure to examine the postman. However, under Section 27 of the General Clauses Act, 1897, there is a presumption of due service when a letter is properly addressed and posted. The landlord need not examine the postman if the acknowledgment is received or if the certificate of posting is proved. The trial court and appellate court erred in requiring the postman's examination. (Paras 4-6) B) Slum Areas - Maintainability of Suit - Section 22 Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 - The suit was filed in 1978, and the slum notification was issued in 1979. Section 22 requires permission for eviction of tenants from slum areas, but it does not bar the institution of the suit. Permission is required only at the stage of execution of the decree. The courts below erred in dismissing the suit as not maintainable for want of prior permission. (Paras 3, 7-8)
Issue of Consideration
Whether the eviction suit was maintainable without prior permission under Section 22 of the Slum Act when the slum notification was issued after the suit was filed, and whether the notice under Section 12(2) of the Rent Act was validly served.
Final Decision
The High Court allowed the Civil Revision Application, set aside the impugned judgments and decrees of the Trial Court and Appeal Court, and remanded the matter to the Trial Court for fresh disposal on merits. The parties were directed to appear before the Trial Court on 14/09/2015.
Law Points
- Service of notice under Section 12(2) of Bombay Rent Act
- 1947 can be proved by statutory presumption under Section 27 of General Clauses Act
- 1897 without examining postman
- Permission under Section 22 of Maharashtra Slum Areas Act
- 1971 is not a condition precedent for maintainability of eviction suit but only for execution of decree
