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sm IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 3297 OF 1993
Shashikant Narottam Lade,
(Since deceased through his L.Rs.)
1-A) Smt. Sheela Shashikant Lade,
Age 45 years.
1-B) Mrs. Jayshree Jaywant Lade,
Age 29 years.
R/o. Shradha Shanti Niwas,
6/10, Bharati Nagar, Opposite
M.H.B.Colony, Building No.6,
Tagore Nagar, Vikhroli (E),
Mumbai-400 083.
1-C) Mrs. Bhavna Mukesh Prajapati,
Age 27 years, R/o. at and post
Jhardi Kapdivad,
Tq. Umargaon, Dist. Valsad,
1-D) Miss. Alka Shashikant Lade,
Age 24 years,
1-E) Miss. Jayshree Shashikant Lade,
Age 22 years,
1-F) Mr.Chetan Shashikant Lade,
Age 20 years,
Appellants Nos. 1A, 1D to 1F
residents of Bakshsingh Chawl,
Chal No.1, Room No.1, Kurar Village,
Malad (East), Mumbai-400 097. ...Petitioners.
Vs.
1. Smt. Shankari B. Ajimal
2. Harbhajansingh B. Ajimal,
(Heirs and Legal representatives
of deceased Bakshishsingh B. Ajimal,
13, Pushpa Park, 1st Road,
Malad (East),
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Bombay - 400 097. ...Respondents.
(Heirs of Orig.
Plaintiff).
Mr.P.J.Thorat a/w Mr.V.A.Thorat a/w. Mr.R.A.Thorat
for the Petitioners.
Mr.Harbhajansingh B. Ajimal, Respondent No.2, in
person, present.
CORAM : ANOOP V.MOHTA, J.
DATED : 20TH JANUARY, 2009.
JUDGMENT:
The Petitioners who are legal heirs of Original
Tenant,
have challenged the impugned Judgment and Order
whereby the Appellate Court by reversing the trial Court
Judgment and Order, granted decree of eviction in favour
of the Respondent’s legal heirs of the original
landlord.
2. The reasoning given by the Appellate Court is based
upon the material available on record including the
evidence which need no interference, as the Appellate
Court right in holding that the Original tenant was
defaulter and not ready and willing to pay the rent,
though demanded by a statutory notice dated 1st April,
1976. The trial Court was wrong in holding that there
was no proper service of the notice, though held that he
was in arrears of rent of suit premises from 1st
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October, 1975. The Respondents / Landlords had sent
notices including of his advocate. The notices were
sent by registered post acknowledgement due and a copy
was sent under certificate of posting also, apart from
ordinary post. The notice was also pasted on the outer
door of the suit premises. The registered packet
received back with the postal remark “not claimed”. All
those notices and postal endorsements are also part of
the record and exhibited collectively. The Respondents-
Landlords, therefore, had taken all possible steps and
methods
circumstances,
to
serve
as
the
there
notice.
is no
In
contrary
the facts
material
and
on
record except mere denial, I am of the view that the
notice was duly served. I have already taken such view
in the matter of same Respondents against other
similarly situated tenant. (Krishna Ramchandra Jadhav @
Yadav & Ors. Vs. Smt. Shankari B. Ajimal, 2005(4)
ALL MR 185).
185) On this aspect, there is no much
difference in the present case. The Judgment,
therefore, relied by the learned counsel appearing for
the Petitioners in Parvatibai Maruti Hande Vs. Satish
Mohanram Prajapati,
Prajapati 2002 (Supp.) Bom.C.R.522 and Lalmani
Ramnath Tiwari Vs. Bhimrao Govind Pawar, 2001(2)
Mh.L.J. 342, have no merit because of its distinct and
distinguishable facts itself. In the present case, I
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see there is no reason to interfere with the Judgment
and Order passed by the Appellate Court whereby it is
held that the notice is duly served. There is no
perversity or illegality in deciding the same.
3. Having once held that the notice was duly served and
as admittedly the Petitioners / Tenant not paid the
arrears and never intended to pay the same inspite of
service of notice and as there is no dispute with regard
to the arrears of rent, the grant of decree of eviction
on the
followed.
ground
The
of default and arrears
Appellate Court, therefore,
of rent
right
must
in
granting the said decree on that ground.
4. The Petitioners failed to prove that the Suit
Premises is situated on the Government land and falls
within the ambit of Maharashtra Slum Area (Improvement
Clearance Redevelopment) Act, 1971. (for short,
“Maharashtra Slum Area Act”). The burden lies upon the
Petitioners / tenants to prove, if they wanted the
protection, of which in the present case they failed to
do so. There is evidence of a witness from the
Competent Authority including certificate from Deputy
Collector, Encroachment to show that C.T.S. No.
354/103 to 106 are not covered under Section 4A of the
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Maharashtra Slum Area Act and therefore, the premises in
question is not entitled for any protection as prayed.
5. Taking all this into account, I see there is no
reason to interfere with the impugned Order of decree of
eviction as passed. The Petition is, therefore,
dismissed.
6. The stay of decree of possession as granted by this
Court is also stand vacated. Rule discharged. No order
as to costs.
7. The learned counsel appearing for the Petitioners
seek stay of this judgment for eight weeks. I am
inclined to grant the same on the condition of not
creating any third party right or interest in the
property and to deposit arrears of rent, if any.
(ANOOP V. MOHTA, J.)
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