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2001 DIGILAW 721 (CAL)

SIDDHARTA SEN v. PRABHAS KUMAR SENGUPTA

2001-12-03

ALTAMAS KABIR, PRANAB KUMAR CHATTOPADHYAY

body2001
A. KABIR, J. ( 1 ) THESE two appeals have been filed against the decision of the learned Additional District Judge, 9th Court, Alipore, dated 14th January, 1992, in Title Appeal No. 206 of 1991, setting aside the judgment and decree dated 23rd May, 1991, passed by the learned Additional Munsif, 1st Court, Alipore, in Title Suit No. 13 of 1990 and remanding the suit for a fresh trial on Issue No. 2 relating to service of notice of eviction on the defendant/tenant, with a direction that if such issue was answered in favour of the plaintiffs a decree for eviction should follow, and, in case tender and service was not proved the suit should be dismissed for non-service of ejectment notice which would render the suit not maintainable. ( 2 ) WHILE F. M. A. No. 1052 of 1992 has been filed by the defendant No. 1/tenant in respect of the learned Lower Appellate Court's affirmation of the findings of the learned trial Court on all issues, except for issue No. 2, F. M. A. No. 440 of 1993 has been filed by the plaintiff in respect of the order of remand passed by the learned lower appellate Court with regard to issue No. 2 relating to service of notice of eviction on the defendant No. 1/tenant. ( 3 ) THE case as made out in the plaint is that the plaintiff is the owner of premises No. 54a, Maharaja Tagore Road, under Kasba Police Station and the defendant No. 1 was a monthly tenant under him in respect of the ground floor of the premises, described in the schedule to the plaint and hereinafter referred to as the "suit premises", at a monthly rental of Rs. 150/- payable according to the English Calendar. The rents for the suit premises was being collected by the defendant No. 2, Smt. Ratna Sen, the wife of the plaintiff, as his agent, for a long time and rent receipts were issued by her under the authority of the plaintiff within the knowledge of the defendant No. 1. ( 4 ) ON 7th July, 1978, the plaintiff sent a letter to the defendant No. 1 informing him of his bonafide requirement of the suit premises, but not only was such requirement denied, but the defendant No. 1/tenant also denied the relationship of landlord and tenant between himself and the plaintiff. ( 4 ) ON 7th July, 1978, the plaintiff sent a letter to the defendant No. 1 informing him of his bonafide requirement of the suit premises, but not only was such requirement denied, but the defendant No. 1/tenant also denied the relationship of landlord and tenant between himself and the plaintiff. Subsequently, by a notice dated 24th November, 1984, the plaintiff terminated the authorisation given by him to the defendant No. 2 for collection of rent, which was duly acknowledged by the said defendant and the defendant No. 1 was informed accordingly and by a letter also dated 24th November, 1984, he was requested by the plaintiff to pay his monthly rents to the plaintiff and not to his wife, the defendant No. 2, who also wrote to the defendant No. 1/tenant on the said date, confirming the said position. ( 5 ) THE defendant No. 1/tenant by his letter dated 10th December, 1984, reiterated his earlier stand that he was a tenant under the defendant No. 2 and began to send the monthly rents by Money Order to the defendant No. 2 who refused to accept the same on the ground that she was neither the owner nor the landlady of the suit premises. According to the plaintiff the defendant No. 1/tenant defaulted in payment of the rents since December, 1984. ( 6 ) THE plaintiff through his learned Advocate sent a notice dated 7th May, 1985, to the defendant No. 1 asking him to quit and vacate the suit premises on the expiry of the month of June, 1985, by registered post with acknowledgement due which and was tendered to the said defendant on 11th May, 1985, 13th May, 1985 and 19th May, 1985, but the defendant No. 1 refused to accept the same and the same was returned with the postal endorsement "not claimed" to the learned Advocate of the plaintiff. Inspite of the said notice, the defendant No. 1 failed and neglected to quit and vacate the suit premises and to deliver khas possession thereof to the plaintiff necessitating the filing of the suit as the suit premises was reasonably required by the plaintiff for his own use and the use of the members of his family and as he had no other reasonably suitable accommodation elsewhere. ( 7 ) THE defendant No. 1 contested the suit and in his written statement he challenged the maintainability of the suit on the ground that there was no relationship of landlord and tenant between him and the plaintiff and the plaintiff was not, therefore, entitled to pray for his eviction from the suit premises. In addition, it was also alleged by the defendant No. 1 that notice of eviction had not been served on him. According to the defendant No. 1 he had been inducted as a tenant in the suit premises by the defendant No. 2 in 1971 at a monthly rent of Rs. 135/-, which was subsequently enhanced to Rs. 150/-, and he had all along paid the said monthly rents to the defendant No. 2. However, upon her refusal to accept the same from May 1982 to November, 1984, he tendered the same by Money Order and thereafter he has been depositing the rents with the Rent Controller till October, 1985. After entering appearance in the suit, he has been depositing his rents in Court. ( 8 ) THE learned munsif decreed the suit in favour of the plaintiff on all the eight issues framed. Holding that there was relationship of landlord and tenant between the plaintiff and the defendant No. 1, she found the suit to be maintainable by the plaintiff and that the notice of ejectment was legal, valid and sufficient and had been duly served on the defendant No. 1. She also found the defendant No. 1 to be a defaulter in payment of the monthly rents and that the plaintiff required the suit premises for his own use and occupation and that he had no other reasonably suitable accommodation elsewhere. ( 9 ) IN the appeal preferred by the defendant No. 1/tenant, being Title Appeal No. 206 of 1991, the learned Additional District Judge, 9th Court, Alipore, afirmed the findings of the learned trial Court on all the issues except for issue No. 2 relating to service of the ejectment notice. The learned Lower Appellate Court was of the view that the evidence on record was not sufficient to prove that the disputed registered letter had been tendered to the appellant/tenant or to any member of his family at the suit premises. The learned Lower Appellate Court was of the view that the evidence on record was not sufficient to prove that the disputed registered letter had been tendered to the appellant/tenant or to any member of his family at the suit premises. The learned Lower Appellate Court was inclined to give an opportunity to the plaintiff to examine the postal peon or to adduce any other dependable evidence to show that the notice of ejectment has been tendered to the defendant No. 1/tenant who did not show any interest to receive the same. For the said purpose, the learned Lower Appellate Court sent back the suit on a limited remand for a decision on issue No. 2 only with the direction that if the said issue was decided in favour of the plaintiff, a decree for eviction should follow in his favour, and if tender and service was not proved, the suit should be dismissed. ( 10 ) ON behalf of the defendant No. 1/tenant, it was urged that both the Courts below had erred in law in holding that there was relationship of landlord and tenant between the plaintiff and the defendant No. 1/tenant and that the suit was maintainable at the instance of the plaintiff merely on the basis of the admission purported to have been made by the defendant No. 1/tenant in the proceedings under section 17 (2) of the West Bengal Premises Tenancy Act, 1956. It was submitted that the decision in the said proceedings was only tentative and was subject to the final decision on the specific issue in the suit as to whether there was any relationship of landlord and tenant between the plaintiff and the defendant No. 1/tenant. ( 11 ) IN support of his said submission, Mr. Anilananda Mukherjee referred to the decision of the Hon'ble Supreme Court in Bharat Singh and Ors. v. Mst. Bhagirathi (AIR 1966 SC Page 405) wherein the provisions of sections 17 and 21 of the Indian Evidence Act fell for consideration and it was, inter alia, observed that admissions have to be clear if they are to be used against the person making them. Admissions are substantive evidence by themselves, in view of sections 17 and 21 of the Evidence Act, though they are not conclusive proof of the matters admitted. Admissions are substantive evidence by themselves, in view of sections 17 and 21 of the Evidence Act, though they are not conclusive proof of the matters admitted. It was also observed that what weight is to be attached to an admission made by a party is a matter different from its use as admissible evidence. ( 12 ) REFERENCE was then made to a Bench decision of this Court in Nanda Gopal Das v. Rabindra Nath De and Anr. (1987 (1) CHN Page 362) wherein it was held that the findings arrived at in determining an application under section 17 (2) of the 1956 Act are final only for the purpose of such application and not for the purpose of the suit unless any material issue is also taken up for determination along with such application and that issue is also fully and effectively determined along with such application. ( 13 ) IT was next urged that since the learned Lower Appellate Court had come to a finding that service of the ejectment notice had not been proved, it should have dismissed the suit on the said finding, without giving an opportunity to the plaintiff to fill up the lacuna by adducing further evidence on remand. ( 14 ) IN this regard reliance was placed on a Bench decision of this Court in the case of Promotha Nath Mazumdar v. Nagendra Nath Mazumdar (33 CWN Page 1211) wherein it was observed that when evidence has been fully placed before the trial Court and that Court has decided the several points involved, the Court of Appeal, if it cannot agree with the decisions, must come to proper findings of its own; it is entirely wrong and a shirking of duty to send the case back for a de novo trial, with an exposition of points of law involved. ( 15 ) MR. Mukherjee submitted that since the learned Lower Appellate Court was satisfied from the evidence adduced on behalf of the plaintiff that service of the ejectment notice has not been proved, the learned Court erred in law in giving an opportunity to the plaintiff to examine the postman who was entrusted with service of the registered notice of ejectment instead of dismissing the suit on such score. ( 16 ) MR. Mukherjee then referred to a Bench decision of this Court in Mono Ranjan Dasgupta v. Suchitra Ganguly and Ors. ( 16 ) MR. Mukherjee then referred to a Bench decision of this Court in Mono Ranjan Dasgupta v. Suchitra Ganguly and Ors. (AIR 1989 Cal. Page 14) where in respect of service of notice in an eviction such under section 13 (6) of the West Bengal Premises Tenancy Act, 1956, it was held that presumption of due service by registered post is not obligatory under section 28 of the Bengal General Clauses Act, 1899, but optional under section 114 (e) of the Evidence Act, 1872. In the said case, one copy of the ejectment notice was sent to the defendant's address at the suit premises which came back with the postal endorsement "refused". Another copy was sent to the defendant's place of business and the same was also returned with the postal endorsement "the door of the office was always closed". In the said context and in view of the defendant's categorical testimony that the notices had never been tendered to him and the fact that the postal peon had not been examined to prove such tender, it was held that the Court below rightly declined to raise a presumption of service and held instead that such a presumption stood rebuted. ( 17 ) APART from the above, Mr. Mukherjee submitted that both the Courts below had erred in fact and law in holding that there was a relationship of landlord and tenant between the plaintiff and the defendant No. 1 and that the suit premises was reasonably required by the plaintiff for his own use and occupation in the absence of any local inspection to ascertain the accommodation actually under the plaintiff's occupation. The aforesaid finding also led both the learned Courts below to erroneously hold that the defendant No. 1 was a defaulter in payment of the monthly rents for the suit premises. ( 18 ) MR. Mukherjee submitted that the legal flaws in the judgments of both the Courts below warranted that the judgment and decree of the trial Court and the judgment of the learned lower appellate Court be set aside and the suit be dismissed with costs. ( 19 ) APPEARING for the plaintiff, Mr. ( 18 ) MR. Mukherjee submitted that the legal flaws in the judgments of both the Courts below warranted that the judgment and decree of the trial Court and the judgment of the learned lower appellate Court be set aside and the suit be dismissed with costs. ( 19 ) APPEARING for the plaintiff, Mr. Partha Sarathi Bose, while opposing the appeal filed by the defendant No. 1/tenant, also urged that the learned lower appellate Court erred in remanding the suit for fresh trial in respect of issue No. 2 having regard to the settled principles regarding presumption of service, when a letter or notice is sent by registered post. Mr. Bose, submitted that beyond sending the notice of ejectment under registered cover, the plaintiff had nothing further to do regarding actual service and in such cases the presumption available under clauses (e) and (f) of section 114 of the Evidence Act had to be resorted to. ( 20 ) IN support of his submission, Mr. Bose firstly referred to the decision of the Hon'ble Supreme Court in M/s. Madan and Co. v. Wazir Jaivir Chand (AIR 1989 SC Page 630) wherein a similar situation under the J and K Houses and Shops Rent Control Act, 1966, it was held that the notice to terminate tenancy having been sent under registered post to the correct address there would be presumption of service if the letter was returned for non-availability of addressee. It was observed that there was no responsibility on the sender or the postman to arrange to see that the notice was served. The Hon'ble Supreme Court observed that in the relevant statute the expression "served" should be read as "sent by post" and the expression "receipt" should be understood as tender of the letter by the postal peon at the address mentioned in the letter. ( 21 ) REFERENCE was then made to another decision of the Hon'ble Supreme Court in the case of Puwada Venkateswara Rao v. Chidamana Venkata Ramana (AIR 1976 SC Page 869) wherein the question of presumption of service of notice sent by registered post in terms of section 114 (f) of the Evidence Act fell for consideration and it was observed that where a notice sent by registered post was returned with the endorsement "refused" it is not always necessary to produce the postman who effected service. It may be that on a closer examination of the evidence on record, the Court could have reached the conclusion that the defendant had full knowledge of the notice and had actually refused it knowledgly. ( 22 ) MR. Bose also referred to a Bench decision of this Court in Ganesh C. Nandy v. M/s. J. N. Chatterjee and Bros. (70 CWN Page 676) where a notice of ejectment sent under registered cover was returned with the postal endorsement "not claimed". The learned Judges were of the view that having regard to the earlier endorsements from which it was clear that the defendant was residing in and available at the address to which the notice had been sent, the endorsement "not claimed" must be read as amounting to refusal and, therefore, good service. ( 23 ) ON the question of presumption of service, Mr. Bose also relied on several other decisios of this Court in 1) M/s. Tide Water Oil Company (India) Limited v. K. D. Banerjee (1982 (1) CHN Page 54) 2) Deokaran Navatia v. Renuaka Sarkar (82 CWN page 306) and 3) Swadesh Ranjan Rudra and Ors. v. Sachindra Nath Ray and Anr. (1989 (2) Cal. L. T. Page 70) wherein in similar circumstances similar views were expressed and it was also held that in view of the mode of service prescribed under section 106 of the Transfer of Property Act, the fact that the postal peon had not been examined as a witness to prove refusal, though contradicted, did not affect the validity of service of the notice. ( 24 ) MR. Bose urged that simply because the postal peon had not been examined was no ground for the learned lower appellate Court to remand the suit for fresh trial on the issue involving tender and service of the ejectment notice as there was sufficient evidence on record to indicate that the defendant No. 1 was residing and available at the address to which the notice had been sent by registered post and that he had deliberately avoided receiving the same. ( 25 ) MR. Bose urged that having regard to the settled law, the learned lower appellate Court committed an error of law in remanding the suit for fresh trial on issue No. 2. ( 26 ) REGARDING the right of the owner of a premises to sue for eviction, Mr. ( 25 ) MR. Bose urged that having regard to the settled law, the learned lower appellate Court committed an error of law in remanding the suit for fresh trial on issue No. 2. ( 26 ) REGARDING the right of the owner of a premises to sue for eviction, Mr. Bose referred to the definition of "landlord" in section 2 (d) of the West Bengal Premises Tenancy Act, 1956, which included in its ambit any person, who is entitled to receive or but for a special contract, would be entitled to receive, the rent of any premises or not on his own account. Mr. Bose urged that the definition of "landlord" as above includes the owner of the premises and the suit filed by the plaintiff as owner of the suit premises had rightly been held to be maintainable by both the Courts below. ( 27 ) IN support of his submission, Mr. Bose firstly referred to a Bench decision of this Court in Lt. Col. Dr. S. K. Mitra (Retd) v. Smt. Ramola Bose (2995 (1) CHN Page 99) wherein the same view was taken and it was held that the extended definition of "landlord" in section 2 (d) of the aforesaid Act, includes the owner of the premises when the tenancy is created with the consent of the owner. ( 28 ) CERTAIN other decisions were also referred to in this regard which only has repetitive value. ( 29 ) ON the submissions made by Mr. Mukherjee with regard to the findings of both the Courts below on the other issues, Mr. Bose urged placing reliance on the decision of the Hon'ble Supreme Court in Phirose Bamanji Desai v. Chandrakant M. Patal and Ors. (AIR 1974 SC Page 1959) that they were all concurrent findings of fact which are generaly not interfered in second Appeal. Mr. Bose submitted that the findings of the learned Munsif relating to existence of relationship of landlord and tenant between the plaintiff and the defendant No. 1, as also the question of reasonable requirement and default, were pure questions of fact which had been affirmed by the learned lower Appellate Court and were neither perverse nor beyond the evidence adduced by the parties so as to render them vulnerable in Second Appeal. ( 30 ) MR. ( 30 ) MR. Bose also referred to the decisions of this Court in 1) A. K. Mukherjee v. Prodip Ranjan Sarbadhikary and Ors. (1987 (2) CLJ Page 229) 2) Sajanendra Nath Tagore v. Barindra Kumar Dutta Gupta (92 CWN Page 758) and 3) Devokinandan Boobna v. Haroxundar Sarkar (1988 (1) CLJ Page 278) wherein the scope of section 100 of the Code of Civil Procedure was considered and it was uniformly observed that interference in Second Appeal would be permissible only when a substantial question of law was involved. It was also added that purpose of the requirement was a question of law, but not the extent of the requirement. ( 31 ) MR. Bose submitted that in the above circumstances, the Appeal preferred by the defendant No. 1 was liable to be dismissed but the judgment of the learned Lower Appellate Court was liable to be set aside and the judgment and decree of the learned trial Court restored. ( 32 ) OF the eight issues framed in the suit, the most vital issue is issue No. 4, regarding the existence of relationship of landlord and tenant between the plaintiff and the defendant No. 1. The other issues are dependant on the decision in respect of issue No. 4 which has been decided by the learned trial Court in favour of the plaintiff and affirmed by the learned Lower Appellate Court. ( 33 ) BOTH the leaned Courts below have on the basis of the evidence adduced on behalf of the plaintiff found the plaintiff to be the owner of the suit premises and the landlord of the defendant No. 1. The learned trial Court has referred to the admission of the defendant No. 1 in the 17 (2) proceedings admitting the plaintiff to be his landlord and the directions given therein to the defendant No. 1 to withdraw the rents deposited by him with the Rent Controller and to deposit the same in the name of the plaintiff. Neither the said findings nor the said directions were interfered with by this Court in revision, and, on the other hand, the plaintiff's ownership of the suit premises was upheld by this Court in the revisional application filed by the defendant No. 1. The said findings have been affirmed by the learned Lower Appellate Court and do not, in our view, call for any interference in the instant appeal. The said findings have been affirmed by the learned Lower Appellate Court and do not, in our view, call for any interference in the instant appeal. ( 34 ) MOREOVER, in view of the extended definition of "landlord" in section 2 (d) of the West Bengal Premises Tenancy Act, 1956, the plaintiff would also be entitled to file and maintain a suit for eviction of the defendant No. 1 tenant. ( 35 ) IN view of the above, the finding as to default cannot also be interfered with. ( 36 ) ON the question of reasonable requirement, it is well settled that the purpose of reasonable requirement is a question of law but not the extent of such requirement. The purpose of reasonable requirement has been duly proved. The plaintiff has in his accommodation one bed-room, one sitting room and one room on the roof used as dining room, although, his family consists of himself, his wife, son and daughter-in-law and a maid servant. Besides one bed-room for himself, he requires a bed-room for his son and daughter-in-law, who are both doctors and require one room at least for their medical practice. Apart from the above, the plaintiff requires one sitting room for himself. It is also in evidence that the plaintiff does not have any reasonably suitable accommodation elsewhere. ( 37 ) THE purpose and extent of reasonable requirement of the plaintiff and his family members having been proved before the learned trial Court and affirmed by the learned lower appellate Court, we see no reason to interfere with such findings in this appeal. ( 38 ) THIS brings us to issue No. 2 relating to the validity and sufficiency and service of the notice of eject. The stand taken by the defendant No. 1 is one of denial of the notice even having been sent or tendered to him. When the learned trial Court was satisfied that the said notice must be said to have been served despite the postal endorsement "not claimed", the learned lower appellate Court on the state of evidence expressed doubt regarding service of the notice and remanded the suit for retrial on the said issue alone. When the learned trial Court was satisfied that the said notice must be said to have been served despite the postal endorsement "not claimed", the learned lower appellate Court on the state of evidence expressed doubt regarding service of the notice and remanded the suit for retrial on the said issue alone. ( 39 ) WE agree with the views expressed both by the Hon'ble Supreme Court in Puwada Venkateswara Rao's case (supra) and by this Court in Ganesh C. Nandy's case, M/s. Tide Water Oil Company's case, Deokaran Nevatia's case, and Swadesh Ranjan Rudra's case, cited by Mr. Bose, that examination of the postal peon who actually tendered the registered cover to the addressee, may not always be necessary, if service could otherwise be proved from other surrounding circumstances, but the difficulty arises when such proof is not forthcoming from such surrounding circumstances. ( 40 ) IN the instant case, there is no material on record to who under what circumstances the registered cover was not claimed by the defendant No. 1. In view of the categorical assertion of the defendant No. 1 that the said cover had not even been tendered to him, the presumption under Section 114 (e) and (f) of the Evidence Act stood rebutted and it is precisely for this reason that the learned lower appellate Court gave the plaintiff an opportunity to lead evidence to establish that such tender had, in fact, been made and, thereafter on the addressee's disinclination to accept the registered cover the same was returned to the sender as not claimed. ( 41 ) IT is quite true that apart from sending the ejectment notice by registered cover, the plaintiff could have done little more regarding actual service, but what is important is to establish that such service was actually effected. The presumption under sections 114 (e) and (f) of the Evidence Act is a rebuttable presumption, and unless it can be shown from the evidence that there was no ambiguity regarding service of the ejectment notice or that despite being offered the notice the addressee avoided receiving it, the plaintiff's obligation to prove service of the notice remains undischarged. The presumption under sections 114 (e) and (f) of the Evidence Act is a rebuttable presumption, and unless it can be shown from the evidence that there was no ambiguity regarding service of the ejectment notice or that despite being offered the notice the addressee avoided receiving it, the plaintiff's obligation to prove service of the notice remains undischarged. For ends of justice, the learned lover appellate Court has given an opportunity to the plaintiff to establish that the ejectment notice had been properly tendered to the defendant No. 1 so as to attract the provisions of section 114 (e) and (f) of the Evidence Act, and we are of the view that such discretion has been correctly exercised. ( 42 ) WE are not, therefore, inclined to interfere with the order of remand passed by the learned lower appellate court and both the appeals are accordingly dismissed, but in the circumstances without any order as to costs. If urgent xerox certified copy of this judgment is applied for, the same is to be supplied to the applicant expeditiously, subject to compliance with all the required formalities. P. K. Chattopadhyay, J.- I agree. Appeal dismissed.