Saibalini Saha v. Snehalata Bose — 1960 DIGILAW 102 (CAL)

JUDGMENT 1. THESE two second appeals arise out of two suits for ejectment. Second Appeal No. 1276 of 1955, arises out of Title Suit No. 463 of 1952 of the Second Additional Court of the Munsif at Alipore and the corresponding Title Appeal No. 587 of 1954 of the Court of the Additional District Judge. Alipore (Second Extra Court). The other Second Appeal No. 1433 of 1955 arises out of the analogous Title Suit No. 464 of 1952 and the corresponding Title Appeal No. 588 of 1954. 2. BOTH the above suits, which were heard together, were decreed by the learned Munsif, but, on appeal, Title Suit No. 462 of 1952 was dismissed, the corresponding Title Appeal No. 587 of 1954 being allowed, and against this appellate decision, the plaintiff has preferred the corresponding Second Appeal (Second Appeal No. 1276 of 1955). The decree of the learned Munsif in the other Title Suit No. 464 of 1952 was, however, affirmed by the lower Appellate Court in Title Appeal No. 588 of 1954, and the defendant has preferred the corresponding Second Appeal No. 1433 of 1935 from this appellate decree. The two suits, as I have said above, were suits for ejectment. They were in respect of two different portions of premises No. 173 Rash Behari Avenue. The first suit related to a portion of the ground floor of the said premises held by the defendant therein, namely, Srimati Usha Rani Bose, as a tenant under the plaintiff, from month to month, according to the English calendar, at a monthly rental of Rs. 28/-. The other Title suit concerns the first floor of the above premises No. 176 Rash Behari Avenue, which was held by the defendant in that suit, Srimati Snehalata Bose, as a tenant under the plaintiff, from month to month, according to the English Calendar, at a rental of Its. 55/- per month. 3. THE two defendants were related to each other in that the defendant in the first suit Srimati Usha Rani Bose is the wife of Sri Santi Kumar Bose, who is the son of the defendant in other suit, namely, Srimati Snehalata Bose. 55/- per month. 3. THE two defendants were related to each other in that the defendant in the first suit Srimati Usha Rani Bose is the wife of Sri Santi Kumar Bose, who is the son of the defendant in other suit, namely, Srimati Snehalata Bose. It was the plaintiff's case that the defendants in the two suits made defaults in the payment of rent since May, 1951, and that the plaintiff had served due notices upon them, terminating their respective tenancies with effect from June, 1952, and thereafter, they not having vacated the suit premises, she (the plaintiff) instituted the present suits on August 14, 1952, claiming vacant possession of the same. In the suits, there were also claims for arrears of rents from May, 1951 to June, 1952. The suits were contested by the defendants and the defense, which was more or less, common, was to the effect that the two alleged tenancies, forming the subject-matter of the above two ejectment suits, were really not distinct or separate tenancies but comprised one tenancy and the two defendants in the two suits were really joint tenants in respect of that single tenancy. The defendants also denied the plaintiff's allegation of default in the payment of rent and contended that they were not defaulters either in law or in fact, so as to be disentitled to the protection of the Rent Control legislation. There was a further plea of denial of service of the requisite notice to quit in either case, with the addition, that such notice, even if served, was illegal, insufficient and invalid. All the above defenses were overruled by the learned Munsif, who decreed both the suits in favour of the plaintiff. 4. ON appeal by the defendant (Title Appeal No. 587 of 1954), Title Suit No. 463 of 1952 has been dismissed by the learned Additional District Judge upon the view that the service of the requisite notice to quit in that case has not been proved. The other findings of the learned Munsif were, however, accepted by the learned Additional District Judge and, with regard to these findings, I have, before me, the concurrent conclusions of the two courts below in favour of the plaintiff. The other findings of the learned Munsif were, however, accepted by the learned Additional District Judge and, with regard to these findings, I have, before me, the concurrent conclusions of the two courts below in favour of the plaintiff. The other appeal (Title Appeal No. 588 of 1954) by the other defendant, arising out of the other Tide Suit No. 464 of 1952, was, however, dismissed by the learned Additional District Judge, as he agreed with the learned Munsif in all his findings, overruling all the defenses including the defense of denial of service of the notice to quit. I may also state here that, except the point of service of the notice or notices to quit, no other point has been agitated before me in any of the two appeals and all the other findings against the defendant were accepted by the parties in this Court. The only point, therefore, which 'will be necessary to discuss and consider in the two Second Appeals, will lie the question of service of the requisite notice to quit in either case purporting to terminate the particular suit tenancy. It is clear, from the materials before roe, that both the notices to quit were sent out for service under registered post with acknowledgment due. In both, again, the acknowledgment forms appear to have come back or to have been returned, one bearing an acknowledgment of acceptance of the registered notice, purporting to be signed by one S. Bose, that is, in Title Suit No. 464 of 1952, where Usarani Bose, the appellant in Second Appeal No. 1433 of 1955, is the defendant. In the other acknowledgment form, there is no endorsement of acceptance of the registered notice by anybody but there appears to be an endorsement of refusal and, prima facie, the registered letter with the acknowledgment form has come back or has been returned to the Post Office with that endorsement of refusal. 5. WITH regard to the first, the position appears to be quite simple. There is, as I have said above, an endorsement of acceptance, purporting to be over the signature of one S. Bose. During the examination in court of Santi Kumar Bose, who is the husband of defendant Usarani and son of defendant Snehalata, it was suggested to him that this endorsement was by the hand of his son Samir Kumar Bose. There is, as I have said above, an endorsement of acceptance, purporting to be over the signature of one S. Bose. During the examination in court of Santi Kumar Bose, who is the husband of defendant Usarani and son of defendant Snehalata, it was suggested to him that this endorsement was by the hand of his son Samir Kumar Bose. He, of course, denied the suggestion, but Samir was not examined to give any denial to the same. It is, moreover, wholly unnecessary even to make such a suggestion. The acknowledgment form has been received back by the Post Office with that endorsement of acceptance. Prima facie, therefore, the registered notice must have been duly delivered and there is a presumption, in such circumstances, that it must have been delivered to the addressee through the person, purporting to sign the endorsement, as her authorised representative. This was held by the Privy Council, about half a century back, in the case of Harihar Banerjee v. Ramshashi Roy (1) L.R. 45 I.A. 222, S.C. I.L.R. 46 Cal. 468 (P.C.) In view of that decision, this presumption will aid the plaintiff and, in the absence of evidence to show that the purported acceptance or signature was manufactured or falsely made, that presumption will prevail. Clearly then, so far as Title Suit No. 464 of 1954 is concerned, the decree ejectment, passed by the two courts below, must be affirmed. The corresponding Second Appeal (S. A. No. 1433 of 1955) is, accordingly, dismissed with costs, subject to certain reservation which will be made hereinafter. 6. COMING now to the other Second Appeal (S. A. No. 1276 of 1955), the position stands thus. The evidence of service is furnished by the return of the registered notice and the accompanying acknowledgment form with the endorsement of refusal. According to the latest Bench decision on the point, vide Sushil Kumar Chakravarty v. Ganesh Chandra Mitra (2) 62 C. W. N. 193, this is sufficient to prove service in the absence of evidence to the contrary. The only evidence to the contrary is the evidence of denial, given by Sri Santi Kumar Bose and the defendant Snehalata. According to the latest Bench decision on the point, vide Sushil Kumar Chakravarty v. Ganesh Chandra Mitra (2) 62 C. W. N. 193, this is sufficient to prove service in the absence of evidence to the contrary. The only evidence to the contrary is the evidence of denial, given by Sri Santi Kumar Bose and the defendant Snehalata. The learned Munsif did not choose to rely upon that evidence, he being of the opinion that that evidence cannot be relied upon in the circumstances of this case, having regard, particularly, to the evasive and untrustworthy evidence of the defendants in regard to the other acknowledgment, which bore the endorsement of acceptance by one S. Bose. The learned Additional District Judge also has not reversed the learned Munsif, so far as this particular point is concerned, and he has not clearly expressed or given any indication that the evidence of denial, given by the defendant, should be accepted. His view, however, was that, as the particular Postal Peon, who is alleged to have served this registered notice and who, accordingly, must be the person, according to the plaintiff, who has made the above endorsement of refusal, was not examined in this case, and even if the endorsement of refusal is proved otherwise,- be it by the presumption under the General Clauses Act, section 27 and/or other statutory presumptions, or the evidence of some other person or postal peon, acquainted with the handwriting of the former, namely the alleged serving peon, that would be insufficient to let in this endorsement of refusal as an admissible evidence under the Evidence Act. He purported to rely for his above view, upon the officiated decision of this Court, in the case of Govinda Chandra Saha and Anr. v. Dwarka Nath Patita (3) 20 C. L. J. 455 where certainly, there are observations, which would go to support the said view of the learned Additional District Judge and might operate to the prejudice of the plaintiff-appellant. That decision, however, has been considerably shaken and has been explained away in the two subsequent cases of this Court in the case of Nirmalabala Devi v. Pravat Kumar Basu, (4) 52 C. W. M 659, and the later Bench decision, already referred to, namely, Sushil Kumar Chakravarty v. Ganesh Chandra Mitra (2) 62 C. W. N. 193. It was pointed out by Mr. It was pointed out by Mr. Justice Chakravartti, as he then was, in 52 C. W. N. 659, that the pronouncement of this Court (by Mookerjee and Walmsley, JJ.) in (3) 20 C. L. J. 455, cannot, strictly, be taken to be a direct pronouncement on the question of admissibility of an endorsement of refusal on a registered acknowledgment form, as the said case appears to have been decided really on another ground, namely, as to the sufficiency of the post card to prove the date of service. There are, however expressions of opinion both by the said learned Judge Chakravartti, J., as he then was, in (4) 52 C. W. N. 659, and by the Bench of this Court, which decided Sushil Kumar Chakravarty v. Ganesh Chandra Mitra (2) 62 C. W. N. 193 supra, which would go directly counter to the observations in 20 C. L. J. 455 on the above point at issue. In (3) 20 C. L. J. 455, Sir Asutosh Mookerjee, while delivering the judgment of the Court, observed that, even if the endorsement of refusal be proved formally or be accepted as having been formally proved, it will merely be, at best, a record of a statement of the serving peon in the absence of his direct examination, and such record cannot be admissible in evidence except Hinder the provisions of section 32 (2) of the Indian Evidence Act and unless, therefore, there be evidence that the said postal peon was dead or was, [practically speaking, unavailable for Examination, as mentioned in the said section such endorsement, even if formally proved, would not be admissible in evidence. In the two later cases, 52 C. W. N. 659 and 62 C. W. N. 193, supra, the learned Judges expressed a directly contrary opinion. For this opinion, they relied upon the presumption, which arises under section 27 of the General Clauses Act, read with section 114, illustrations (e) and (f),- and also sec. 16, illustration (b) in 52 C. W. N. 659 supra-of the Indian Evidence Act. In doing so they went to the other extreme and did not deem it necessary that the endorsement of refusal need be even formally proved and they went to the length of holding that the above presumption would be sufficient even for that purpose. 16, illustration (b) in 52 C. W. N. 659 supra-of the Indian Evidence Act. In doing so they went to the other extreme and did not deem it necessary that the endorsement of refusal need be even formally proved and they went to the length of holding that the above presumption would be sufficient even for that purpose. I have thus before me two extreme views but, as I have said above, having regard to the fact, that the decision in 20 C. L. J. 455 is distinguishable on its facts and as the Bench decision in 62 C. W. N. 193 is a direct decision on the point in the plaintiff's favour, it is not open to me, sitting singly, to take a different view. 7. ON the authorities, therefore would have to allow the plaintiff's appeal (S. A. No. 1276 of 1955) and accept the service of notice as good service on the strength and basis of the endorsement of refusal, appearing on the registered acknowledgment form. I would merely point out that, in the context and circumstances of this case I agree with the learned Munsif in his finding that the evidence of denial, as given by the defendant, of such service or of tender of the registered letter is not acceptable,- a finding which has not been reversed by the learned Additional District Judge. This is sufficient for my present purpose and for the disposal and decree of the above (plaintiff's) appeal. 8. ONE word now as to the extreme opinion, expressed in 52 C. W. N. 659 and 62 C. W. N. 193, supra. I have no mind to cast any doubt on the said decisions or any of them, or even on the said extreme opinion which, broadly speaking,-and particularly in circumstances, discussed in 62 C. W. N. 193 at p. 196 of the report-may well be correct. I would, however, respectfully point out that in particular cases, a particular aspect of the matter may require further consideration, namely, whether, at least, a formal proof of the particular postal peon's endorsement of refusal would also be necessary or whether the statutory presumption, relied on in the above two decisions quoted, would in all cases, be sufficient and go to the length of proving, by themselves, such endorsement of refusal without, any formal proof of the same. In the instant case, of course, there is no difficulty, as the endorsement of refusal has been formally proved by a postal peon, who, though not the serving peon himself, has testified his acquaintance with the writing and signature of the said serving peon and has proved the particular endorsement 'refused' and the signature underneath the same to be his, namely, of the serving peon. In that context, namely, when it has been proved that the endorsement of refusal was made by the particular serving peon, the rest is easy. The endorsement being there, and proved as aforesaid, it can easily be taken to have been made in the usual course of business, under sec. 114, illustration (f), read with the same sec. 114, illustration (e) of the Indian Evidence Act, as to regularity of official acts and, that being so, the tender also may well be presumed in the light of that presumption of regularity and as a part of the usual course of business in the matter of service of registered letters. 9. WITH the aid of the above presumptions and the endorsement of refusal, formally proved as aforesaid, there would, then, be no difficulty in coming to the conclusion in favour of the service of the registered letter, in, the absence, of course, of any reliable evidence to the contrary. Such evidence, as I have held above, is not forthcoming in the instant case and, accordingly, the presumption in favour of due service would prevail and the finding on the point must necessarily be in the plaintiff's favour. 10. I need only point out here with reference to (3) 20 C. L. J. 455 supra, that, even if sec. 32 of the Indian Evidence Act be not available, in a particular case, for the purpose of making the endorsement of refusal admissible in evidence, that endorsement may still be otherwise admissible, as stated above, on formal proof of the same, in the light of the statutory presumption, referred to hereinbefore. I may also point out that the circumstance that the particular serving peon is on leave as in the present case, may well be sufficient to attract sec. 32 when it is remembered that it also applies in cases of delay in procuring the attendance of the particular witness. For my present purpose do not deem it necessary to prolong this discussion further. 32 when it is remembered that it also applies in cases of delay in procuring the attendance of the particular witness. For my present purpose do not deem it necessary to prolong this discussion further. In the above view, I would allow second Appeal No. 1276 of 1955, set aside the judgment and decree of the 1earned Additional District Judge, dismissing the plaintiff's suit, and restore that of the learned Munsif, subject to this reservation that the defendant will have time to vacate the disputed premises until the end of October next, provided, of course, she goes on paying to the plaintiff, or depositing to her credit in the trial court, monthly compensation by way of damages for use and occupation, at the rate of Rs. 55/-per month, month by month, according to the English Calendar, within the 15th of the next succeeding month. In default of any of the above payments or deposits, the decree for eviction will become executable at once. 11. IN regard to the other appeal, also, which as I have stated above, will be dismissed, a similar reservation will be made, giving to the defendant in that case too, time until the end of October next, to vacate the disputed premises on condition of paying, as aforesaid or depositing to the credit of the plaintiff, in the trial court, a sum of Rs. 28/-per month, on account of damages for use and occupation, month by month, according to the English Calendar, within the 15th of the next succeeding month. In default of any of the above payments or deposits in this case too, the decree for ejectment will become executable at once. Subject as aforesaid, Second Appeal No. 1276 of 1955 is allowed as above, and Second Appeal No. 1433 of 1955 is dismissed with costs, in either case, to the plaintiff-respondent, hearing fee being assessed at one gold mohur in each case. Liberty to mention to either party in case any occasion arises there for.