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1995 DIGILAW 461 (CAL)

Gobinda Chandra Biswas v. Balaram Dey

1995-12-21

S.Narayan

body1995
JUDGMENT S. Narayan, J.: This application under s. 115 of the CPC has been filed against the order dated 31.3.94 passed by Sri R.K. Mitra, Judge, 4th Bench of the City Civil Court at Calcutta in Ejectment Suit No. 886 of 1986 whereby, the petitions dated 10.2.1987 of the Defendant/Petitioner filed under Ss. 17(1). 17(2) and (2a)(b) of the West Bengal Premises Tenancy Act. 1956 were rejected as time barred. 2. The factual score depicts that the Plaintiffs/O.Ps. filed a suit being Ejectment Suit No. 886 of 1986 against the Defendant/Petitioner for eviction from the Suit Premises on the ground of default in payment of rent and also of reasonable requirement. Summons were issued in the Suit. Sometime, thereafter the defendant/petitioner entered into appearance on 10.2.87 and filed three applications one under s. 17(1), the other under s. 17(2) and yet another under s. 17(2a)(b) of the West Bengal Premises Tenancy Act. 1956 (hereinafter referred to as the Act). While submitting these petitions the defendant petitioner asserted that summons in the suit were served upon him by affixing the same on the door of his house as late as on 12.1.87 and. accordingly, his aforesaid petitions were filed within one month of the date of service of summons. On the other side, the Plaintiffs/O.Ps. contended that there was service of summons by registered post with A/D as early as on 22.12.86 i.e. more than one month prior to the filing of the aforesaid petitions. 3. The law as laid down in s. 17(1) of the Act was quite clear and explicit on the point that a petition under s. 17(2) and (2a)(b) must be filed within one month from the service of summons. This provision admits of no exception in itself and that being as such, it was only on the factual score that a decision was required to be taken. It may be added here that the Defendant/Petitioner solely banked upon acceptance of his contention that the summons were served only on 12.1.87 and, therefore, his petitions were not at all time-barred. 4. The Learned Court below has gone through the oral as well as documentary evidence adduced on the either side and, after careful consideration of the pros and cons of the matter, he accepted the earlier mode of service of summons i.e. by way of Registered Post with A/D as valid. 5. 4. The Learned Court below has gone through the oral as well as documentary evidence adduced on the either side and, after careful consideration of the pros and cons of the matter, he accepted the earlier mode of service of summons i.e. by way of Registered Post with A/D as valid. 5. What was very unfortunate in the case was that the acknowledgment due card of the Registered Post through which the summons was sent to the defendant/petitioner was misplaced from the Lower Court Record. This was detected very soon after the filing of the petitions under s. 17(1). 17(2) and (2a)(b) of the Act. This would be gathered from the order dated 18.2.87 of the Trial Court. Under this adverse circumstance of the case the attention of the Trial Court was however drawn to a relevant entry in the internal Peon Book of the Court, which was maintained in due course of official business with regard to return of all the acknowledgement due cards of different suits from the post office. The relevant entry in the Book was duly proved on the record as Ext. D. This entry would disclose that the bunch of A/D cards received in the office on a particular date included that of the present Ejectment Suit No. 886 of 1986 also. Since the A/D card was not available, a question would naturally arise whether the Registered Card has been actually served upon the sole defendant in the Suit. In this context, there was the oral evidence of an over-sheer of the concerned Post Office i.e. Amherst Street Post Office who was examined as O.P. W.1 on behalf of the Plaintiffs/O.Ps. He was earlier posted as a postman in the city post office in the year 1986 and, in that capacity, he proved on the basis of a register with entry of registration No. 14432 dated 17.12.86 and the signature of the addressee (marked Ext. A) that one, Gobind Charan Biswas (i.e. the defendant) was served with a registered letter against his own signature. The oral evidence of this witness taken together with the relevant entry (Ext. A) has been accepted and also banked upon by the learned Trial Court for a decision in the matter. I do not find any substantial reason to disagree with this decision of the Lower Court. The oral evidence of this witness taken together with the relevant entry (Ext. A) has been accepted and also banked upon by the learned Trial Court for a decision in the matter. I do not find any substantial reason to disagree with this decision of the Lower Court. Hence, in spite of the fact that the relevant A/D Card was misplaced from the Lower Court Record, the relevant entries, one of the end of the office of the trial Court and the other in the office of the postal department considered together with the oral evidence of the postman (O.P.W.1) has got to be banked upon; and this would certainly establish on the record that the summons issued through registered post were served on the defendant/petitioner on 17.12.86. 6. So far as the defendant's plea of service of summons by affixing on his door was concerned, there was nothing beside his oral evidence. There was no documentary evidence either in the form of the service report of the process-server or anything else to show that there was any such mode of service by affixing summons on the door. Such plea thus appears to have been rightly rejected by the Trial Court. The materials on the record thus, repels the contention of the Defendant/Petitioner, and I find no alternative than to uphold the decision taken by the Learned Trial Court. 7. In the premises, I find no merit in the instant revisional petition and, accordingly, it is dismissed. There shall be no order as to costs. Application dismissed.