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2004 DIGILAW 58 (CAL)

PURNIMA GHOSH v. REKHA GHOSH

2004-01-30

GORACHAND DE

body2004
GORACHAND DE, J. ( 1 ) THE defendants preferred this second appeal being aggrieved and dissatisfied with the judgement of reversal passed on 13. 11. 90 by the learned assistant District Judge, 4th Court, Alipore in Title Appeal No. 32/1987. The first Appellate Court allowed the appeal after setting aside the judgment and decree dated 29. 9. 1986 passed by the learned Munsif, 1st Addl. Court, Alipore in Title Suit No. 78/76 and decreed the suit. ( 2 ) THE facts of this case in brief are as follows : bhabani Charan Ghosh and Abhijit Ghosh claiming themselves as the owners of the premises No. 50c, Ritchi Road, Calcutta-19, filed a title suit being t. S. No. 152/74 on 6. 5. 74 before the Second Court of Munsif at Alipore alleging inter alia that the defendant Anil Kumar Ghosh was a monthly tenant under them in respect of a southern garage of the said premises at the rent of Rs. 20/-, payable according to English calendar month under the erstwhile owner of the entire premises Sm. Manjusree Shyam Chowdhury, that the plaintiff purchased the suit property on the basis of a registered deed dated 13. 6. 72, that the tenancy of the defendants was duly attorned, that the defendants did act contrary to the provision of clauses (m) and (o) of section 108 of the Transfer of Property Act, that the defendants also made default in payment of rent. Notice to quit dated 18th June, 1973 was duly served on the defendants but as the defendants did not vacate the suit premises on the expiry of July, 1973, indicated in the notice, the plaintiff filed a suit praying for a decree for recovery of khas possession of the suit premises, mesne profit and other reliefs. ( 3 ) THE defendants contested the suit by filing a written statement on 10. 10. 1974 denying all the material allegations made in the plaint, and it is specifically stated that the defendants were not tenants in respect of the garage but they were tenants in respect of a shop room. It is also stated that the suit room was let out for the purpose of running a tailoring shop, that the defendants never committed any act contrary to provision of clauses (m) and (o) of section 108 of the Transfer of Property Act nor they made any default in payment of rent. It is also stated that the suit room was let out for the purpose of running a tailoring shop, that the defendants never committed any act contrary to provision of clauses (m) and (o) of section 108 of the Transfer of Property Act nor they made any default in payment of rent. It is also stated that notice to quit was never served upon them. Accordingly, the defendants prayed for dismissal of the suit. Subsequently, the suit was transferred to the First Additional Court of Munsif and it was renumbered as t. S. 78/76. The learned Munsif on the basis of respective pleadings framed as many as 7 issues, and thereafter considered the evidence adduced by the parties and dismissed the suit on contest. ( 4 ) AGAINST the order of the Trial Court, the plaintiff filed a title appeal being t. A. No. 32/1987 and it was transferred to the 4th Court of the learned Assistant district Judge, Alipore. During the pendency of the appeal, the original tenant anil Kumar Ghosh died and his heirs were substituted and brought on record by order No. 27, dated. 25. 8. 89. The learned Assistant District Judge after hearing the arguments of both sides was pleased to allow the appeal after setting aside the judgement and decree passed by the Trial Court and passed a decree as prayed for by the plaintiff. Against this judgement of reversal, substituted defendants filed this appeal. In course of hearing of this appeal, respondent no. 1 died and his heirs were substituted as respondent Nos. 1 (a), Kb), 1 (c) and 1 (d) and respondent No. 2. Subsequently, the respondent No. 1 (a) also died and his heirs being already on record, this fact was brought on record. ( 5 ) AT the time of admission of this appeal on 24. 4. 91, substantial question of law was not framed and it was indicated that this appeal shall be heard on the points taken in the memo of appeal. But in course of hearing of this appeal after hearing the learned Counsel of both sides and on consent of the parties, the following substantial questions of law were framed on 12. 6. 2003. (1) Were the tests required for satisfaction of the clauses (m), (o) and (p) of section 108 of T. P. Act lawfully complied with in this case? 6. 2003. (1) Were the tests required for satisfaction of the clauses (m), (o) and (p) of section 108 of T. P. Act lawfully complied with in this case? (2) Was the notice to quit legally served upon the defendant? (3) Was the notice to quit legal, valid and sufficient within the meaning of section 13 (6) of the West Bengal Premises Tenancy Act? (4) Is the judgement appealed against is a proper judgement of reversal? ( 6 ) ADMITTEDLY, the suit relates to a garage room at 50c, Ritchi Road, Calcutta and before its purchase by the present plaintiff, the predecessor-in-interest of the defendant was in occupation of the said room as a tenant. It is also decided by both the Courts of fact that the said room was being used as a tailoring shop. It is also decided that the defendant was defaulter in payment of rent and since it was a first default, the tenant was protected under section 17 (4) of the West bengal Premises Tenancy Act. So, sitting in second appeal, I do not find any reason to interfere with these findings of facts by the final Court of facts. ( 7 ) IT appears that entire dispute between the parties centers round two points. First point is, whether the notice was legal, valid and sufficient and whether it was duly served. Second point is, whether the tenant did any act contrary to the provision of clauses (m), (o) and (p) of section 108 of the Transfer of Property Act, 1882 and whether by dint of such act, the tenant is protected within the meaning of section 13 (6) of the West Bengal Premises Tenancy Act. ( 8 ) AS regards notice, the Trial Court came to a finding that the notice was not lawful and it was not duly served. On the other hand, from the judgement of the Appellate Court, it appears that the notice was treated to be not lawful but duly served. ( 9 ) AS regards the second point, the finding of the Trial Court is against the plaintiff thereby concluded that the tenant did not violate the clauses (m), (o) and (p) of section 108 of the Transfer of Property Act and that the tenant was not guilty of causing nuisance or annoyance to the landlord. ( 9 ) AS regards the second point, the finding of the Trial Court is against the plaintiff thereby concluded that the tenant did not violate the clauses (m), (o) and (p) of section 108 of the Transfer of Property Act and that the tenant was not guilty of causing nuisance or annoyance to the landlord. But the First appellate Court after analysing the evidence as well as the judgment of the trial Court, came to the finding that the tenant changed or altered the tenanted premises without the consent of landlord and that the tenant has been guilty of conduct which is a nuisance or annoyance to neighbours including the landlord within the meaning of section 13 (l) (e) of the West Bengal Premises Tenancy act, 1956. ( 10 ) UNDER the provision of section 13 (6) of the West Bengal Premises Tenancy act, 1956 before filing a suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in section 13 (1), except the grounds mentioned in clauses (j) and (k) of that sub-section, the landlord is required to give to the tenant one month's notice expiring within the month of the tenancy. ( 11 ) IN paragraph 7 of the plaint, it is specifically stated that such a notice to quit dated 18. 6. 1973 was served on the defendant-tenant thereby requiring the tenant to quit and vacate the suit premises on the expiry of the month of july, 1973. In the said paragraph, it is also indicated how the notice was served, and the particulars of such service are as hereunder :"7 (A) The said notice was tendered to the defendant personally at his residence by a peon on 27th June, 1973. The defendant refused to accept the same. (b) The said notice was sent to the defendant on 28th June, 1973 under certificate of posting. (c) Thereafter on the 30th June, 1973 the plaintiff No. 1 tendered a copy of the said notice to the defendant's son Ranju Ghosh at the said garage. He took it but refused to sign the receipt therefor. (d) Thereupon a copy of the said notice was then and there affixed on the collapsible gate of the said garage". (c) Thereafter on the 30th June, 1973 the plaintiff No. 1 tendered a copy of the said notice to the defendant's son Ranju Ghosh at the said garage. He took it but refused to sign the receipt therefor. (d) Thereupon a copy of the said notice was then and there affixed on the collapsible gate of the said garage". ( 12 ) IN paragraph 12 of the written statement, it is stated that the allegations made in paragraph 7 of the plaint are not correct. It is also stated therein that the alleged notice to quit has not been properly served and it is illegal and insufficient to determine the tenancy. In paragraph 13 of the written statement, the particulars of service of the notice are denied by the defendant-tenant. On the basis of such pleadings, the Trial Court framed issue No. 3 "is the notice to quit legal, valid and sufficient and was it duly served ?" ( 13 ) THE Trial Court took the view that no valid, legal and sufficient notice to quit was duly served upon the defendant for which the suit was found to be not maintainable and decided the issue No. 3 against the plaintiff. While discussing the Issue No. 3, the Trial Court gave much stress on the four modes of service indicated in the plaint. However, analysing the evidence he ruled out the possibility of service of the notice under the mode (a) of paragraph 7 of the plaint. Similarly he also disbelieved the service of notice under 'certificate of posting" as indicated in paragraph 7 (b) of the plaint. Thereafter, the learned trial Court analysed the evidence adduced in this case and also disbelieved the possibility of service of the notice in the manner indicated in modes (c) and (d) of paragraph 7 of the plaint. But it is interesting to note that the Trial Court in concluding paragraph of his discussion on issue Nos. 1 and 3 took the view :"next, question arises as to the validity, legality and sufficiency of the notice to quit. The plaintiffs have filed true copy of notice to quit annexure 'a' along with the plaint of this suit. It appears from the evidence of PW. 2 that the said copy of notice to quit was kept with the office of D. K. Sen and company. The PW. The plaintiffs have filed true copy of notice to quit annexure 'a' along with the plaint of this suit. It appears from the evidence of PW. 2 that the said copy of notice to quit was kept with the office of D. K. Sen and company. The PW. 2 having been one of the employees of D. K. Sen and Co. has produced the said copy of notice to quit Ext. 17. However, the copy of notice to quit bears the signatures of the plaintiffs. Though those signatures are not appearing in proper place. The ground of eviction and threat of suit are appearing in the said copy of notice to quit Ext. 17. The defendant was also asked to vacate the suit premises and the defendant was given time to vacate the suit premises. In view of the fact, I can easily hold that the notice to quit is legal and valid. Since the plaintiffs have failed to prove the service of notice to quit, it cannot be said that the notice to quit is sufficient. In eviction suit, the service of valid, legal and sufficient notice to quit is essential before institution of the suit. Otherwise, the suit for eviction of the tenant will not be maintainable. In this suit, no valid, legal and sufficient notice to quit was duly served upon the defendant. As a result, the instant suit is maintainable. Hence I decide these two issues against the plaintiffs". ( 14 ) THE First Appellate Court considered the aforesaid finding of the Trial Court and took the view that legality and validity of the notice to quit has been justly decided by the Trial Court. But only question left is about its service. The First Appellate Court, however, also accepted the finding of the Trial Court as regards the non-service of the notice by the modes (a) and (b) of paragraph 7 of the plaint. Sitting in second appeal, I do not find any reason to interfere with this concurrent finding of facts by the Trial Court and the First Appellate Court. ( 15 ) SO from the findings of the Trial Court as well as of the Appellate Court, it is clear that the notice to quit was legal, valid and sufficient. Sitting in second appeal, I do not find any reason to interfere with this concurrent finding of facts by the Trial Court and the First Appellate Court. ( 15 ) SO from the findings of the Trial Court as well as of the Appellate Court, it is clear that the notice to quit was legal, valid and sufficient. It was also found that the notice was not personally served in the manner indicated in mode (a) of paragraph 7 of the plaint. It is also the concurrent finding of both the Courts below that the service of notice under 'certificate of Posting' as indicated in mode (b) of paragraph 7 of the plaint is also not proved. On this score the First Appellate Court also placed reliance on a decision reported in 70 cwn 520 (R. Prosad vs. Sindri Iron Foundry) in support of the contention that there is no presumption of service with regard to the notice sent under 'certificate of Posting'. It is to be mentioned that in LMS Ummu Saleema vs. B. B. Gujral and Anr. , reported in 1981 (3) SCC 317 , a three Judges' Bench of the apex Court while discussing the effect of a letter sent under 'certificate of posting' took the view that there was no conclusive presumption as regards receipts of the letter by the addressee. It is also viewed that such a presumption of service may or may not be drawn and in a given facts and circumstances the court may refuse to draw such presumption. The learned Counsel appearing on behalf of the respondent placing reliance on a decision of the Patna High court reported in AIR 1978 Patna, 256 (Dineswar Prosad Singh vs. Monorama devi) made a forceful argument about the presumptive value of service of the notice sent under 'certificate of Posting". But after due consideration of the concurrent finding of facts. I do not find any reason to interfere with such finding of the Courts below specially when there is a confusion as regards the year appearing in the 'certificate of Posting'. So considering the evidence on record, it was open for the Courts below not to draw any presumption as regards the factum of receipt of the notice by the addressee. So considering the evidence on record, it was open for the Courts below not to draw any presumption as regards the factum of receipt of the notice by the addressee. ( 16 ) BUT the First Appellate Court analysed in details as to how the notice was served in the manner indicated in modes (c) and (d) of paragraph 7 of the plaint. The First Appellate Court also analysed the Trial Court's judgment and came to a conclusion that the Trial Court mis-directed himself in disbelieving a respectable witness like the PW. 6 who had no interest in the disputed property. The manner in which the Trial Court disbelieved the evidence of the PW. 6 has been rightly criticised by the First Appellate Court and took up the decision that the notice was duly served in the manner indicated in the evidence. Thus the First Appellate Court after setting aside the finding of the Trial Court took the view that the notice was duly served. ( 17 ) THE learned Counsel appearing on behalf of the appellant contended that the finding of the First Appellate Court that the notice was not legal and valid having not been challenged by means of a cross-appeal that point cannot be taken up in the second appeal. On this score, reliance was placed on J. C. Chatterjee and Ors. vs. Sri Sri Kishan Tandon and Anr, AIR 1972 SC 2526 and contended that the point as to termination of tenancy being essentially one of law can be raised in second appeal. Reliance was also placed on Santosh Hazari vs. Purushottam Tiwari, 2001 (3) Supreme Court Cases 179, in support of the contention that the judgment of the First Appellate Court must display conscious application of mind and records findings supported by reasons on all issues and contentions. It is also viewed in the said judgment that where a doubt arises as to whether First Appellate Court has carried out its functions correctly, such doubt itself may give rise to a substantial question of law. It is also viewed in the said judgment that where a doubt arises as to whether First Appellate Court has carried out its functions correctly, such doubt itself may give rise to a substantial question of law. The learned counsel for the appellant also placed reliance on another judgment of the Apex court reported in 2000 (5) Supreme Court Cases 652, State of Rajasthan vs. Harphool Singh, in support of the contention that the First Appellate Court is duty-bound to make a critical analysis of the matter before it and it cannot mechanically affirm findings of the Trial Court without due and proper application of mind. On this score reliance was also placed on an earlier judgment of the Apex Court in S. V. R. Mudaliar and Ors. vs. Rajabu F. Buhari and Ors. , reported in AIR 1995 SC 1607 and it is contended that while the finding of fact by Trial Court is going to be reversed by the First Appellate Court, it is incumbent upon such Appellate Court to take into consideration the reasons given by the Trial Court. ( 18 ) AS regards the scope of the second appeal, the learned Counsel for the respondent, however, placed reliance on AIR 1959 Supreme Court 57, Deity pattabhiramaswamy vs. S. Hanymayya and Ors. , in which a three Judges' Bench of the Apex Court took the view that the provisions of section 100 are clear and unambiguous for which there is no jurisdiction to entertain a second appeal on the ground erroneous finding of fact, however, gross the error may seem to be. It was also found in the same judgment that a Judge of the High Court has, therefore, no jurisdiction to interfere in second appeal with the findings of fact given by the First Appellate Court based upon an appreciation of the relevant evidence. In the said judgment, the practice of some Judges disposing second appeals as if they were first appeals was deprecated. Though this judgment is prior to the amendment of the Code of Civil Procedure, the same principle was subsequently followed. In the amended provision of section 100, High Court can exercise its jurisdiction under section 100 only on the basis of substantial question of law. Though this judgment is prior to the amendment of the Code of Civil Procedure, the same principle was subsequently followed. In the amended provision of section 100, High Court can exercise its jurisdiction under section 100 only on the basis of substantial question of law. ( 19 ) IN Dnyanoba Bhaurao Shemade vs. Maroti Bhaurao Marnor, reported in 1999 (2) Supreme Court Cases 471, the Apex Court viewed that the High court should not reappreciate the evidence for giving its own independent conclusion. Whether a finding of fact reached by the Courts below is against the weight of evidence or not is a question which will remain in the realm of appreciation of evidence and does not project any question of law, much less, any substantial question of law, which can enable the High Court in second appeal to upset such a finding of fact. It is also viewed that after the amendment made in 1976, the High Court can exercise its jurisdiction under section 100 cpc only on the basis of substantial question of law and thereafter, the second appeal has to be heard and decided on the basis of such duly framed substantial question of law. ( 20 ) IN M. G. Hegde and Ors. vs. Vasudev D. Hegde, reported in 2000 (2) Supreme court Cases 213, the Apex Court also deprecated the action of a learned Single judge in regular second appeal for going into the evidence and coming to a conclusion thereof contrary to that of the Court below holding that the judgment and decree was "prima facie perverse and error apparent on the face of the record". It is specifically viewed that "this is not a 'mantra' that can be employed to permit the Court to do in a second appeal what the law enjoins it not to do". ( 21 ) IN few other decisions like Navaneethammal vs. Arjuna Chetty, reported in 1996 (6) Supreme Court Cases 166 and Arunugham and Ors. vs. Sundarambal and Anr. , reported in 1999 (4) Supreme Court Cases 350, the view was taken that the High Court in second appeal cannot interfere with the judgment of the first Appellate Court by reappreciating evidence and arriving at another possible view or merely on the ground that the First Appellate Court failed to advert to the reason ascribed by the Trial Court. , reported in 1999 (4) Supreme Court Cases 350, the view was taken that the High Court in second appeal cannot interfere with the judgment of the first Appellate Court by reappreciating evidence and arriving at another possible view or merely on the ground that the First Appellate Court failed to advert to the reason ascribed by the Trial Court. ( 22 ) THE learned Counsel for the respondent also placing reliance on the provision of Order 41 Rule 22 of the Code of Civil Procedure and few decisions of the Apex Court contended that filing of cross-objection in respect of a point decided by the Court below is not necessary after the amendment of the Code in 1976. ( 23 ) IT is already discussed above that the Trial Court considered the notice to quit to be legal and valid but came to a finding that it was not sufficient being not properly served. The First Appellate Court, however, on analysis took the view that the notice to quit was not only legal and valid but it was duly served upon the defendant. Of course, the word "only" is not appearing between the words "not legal". The particular paragraph starts "in view of the above discussion, I have no hesitation to hold that the notice to quit was not legal and valid, but it was duly served upon the defendant and the defendant was well- aware about the contents of the notice. In the written statement filed by the defendant, the defendant put dispute about 'proper' service of notice but could not altogether deny it. Learned Court below travelled much on the question of non-service of notice which seems to be beyond the pleadings. . . . . . . . . . . . . . . . . . . . ". So it is rightly argued that the word "only" was dropped in the judgment. Be that as it may, the finding of the First Appellate Court indicate that it came to a conclusion that the notice to quit was legal, valid and sufficient and it is rightly served. ( 24 ) THE learned Counsel for the appellant, however, contended that the first Appellate Court failed to appreciate the reasoning given by the Trial Court on this score. ( 24 ) THE learned Counsel for the appellant, however, contended that the first Appellate Court failed to appreciate the reasoning given by the Trial Court on this score. But a close scrutiny of the judgment of both the Courts below indicate that the Trial Court based its argument by disbelieving the evidence adduced by PW. 6 being a 'ghosh' and a fellow doctor in the family of the plaintiff. But the reason for disbelieving the evidence adduced by the PW. 6 was correctly analysed by the First Appellate Court to be erroneous. On the other hand, the first Appellate Court came to a decision that the service was properly done in the manner indicated in modes (c) and (d) of paragraph 7 of the plaint in respect of which sufficient evidence was adduced in this case. This finding on the part of the final Court of fact does not call for any interference in this second appeal. The substantial question of law as framed on this score being 2 and 3 indicated hereinabove are accordingly answered in the affirmative. I do not find any lawful reason to interfere with the finding of the First Appellate Court on these two points. ( 25 ) AS regards the satisfaction of clauses (m), (n) and (p) of section 108 of the Transfer of Property Act, it appears that the judgment of the Trial Court was elaborately discussed by the First Appellate Court and after taking into consideration the evidence on record, the First Appellate Court took the view that the change or alteration done in the tenanted premises by the tenant without consent of the landlord was undoubtedly breach for which the tenant cannot evade the liability and its eventuality. ( 26 ) THE Courts below analysed the evidence specially the factual aspect of raising of the floor of the shop-room/garage to a certain height and also cutting of the collapsible gate without the consent of the landlord. It wasalso taken into consideration that on the issue of such change in the structural aspect of the premises, the landlord tried to stop the tenant for which there was a disturbance. It is also on record that the tenant created annoyance to the landlord by different methods including filing of criminal cases. It wasalso taken into consideration that on the issue of such change in the structural aspect of the premises, the landlord tried to stop the tenant for which there was a disturbance. It is also on record that the tenant created annoyance to the landlord by different methods including filing of criminal cases. The First Appellate court had also taken into consideration the different actions prejudicial to the interest of the landlord and took the view that the tenant was also responsible for causing annoyance to the landlord. ( 27 ) THE learned Counsel for the appellant, however, placing reliance on the definition of 'nuisance' appearing in section 2 (59) of the Calcutta Municipal corporation Act, 1980 submits that the evidence on record does not indicate that any such nuisance or annoyance was created by the tenant. Section 2 (59) is reproduced below :"2 (59) 'nuisance' includes any act, omission, place or thing which causes or is likely to cause injury, danger, annoyance or offence to the sense of sight smell or hearing or disturbance to rest or sleep, or which is or may be dangerous to life or injurious to health or property". ( 28 ) IN section 13 (l) (e) the ground of eviction is "where the tenant or any person residing in the premises left to the tenant has been guilty of conduct which is a nuisance or annoyance to neighbours including the landlord". The evidence adduced in the case as discussed by the Courts below are sufficient to prove the ingredients included in section 2 (59) of the Calcutta Municipal corporation Act. ( 29 ) THUS it is sufficiently indicated in the evidence that the tenant actually acted contrary to the provisions of clause (m), clause (o) and clause (p) to section 108 of the Transfer of Property Act, 1882 within the meaning of section 13 (l) (b) of the West Bengal Premises Tenancy Act, 1956 and also is guilty of conduct which is a nuisance and annoyance to the neighbours including the landlord. No evidence has been adduced to show or indicate that the collapsible gate necessitated such cutting or the floor portion of the suit premises were required to be raised upto 6". No evidence has been adduced to show or indicate that the collapsible gate necessitated such cutting or the floor portion of the suit premises were required to be raised upto 6". Accordingly, the First Appellate Court rightly took the decision that the act of the tenant was unauthorised and opposed to law and that the alteration done is a good ground for eviction. On this score, the learned counsel for the respondent rightly placed reliance on a judgment of a Division bench of this Court in Allahabad Bank vs. Sourendranath Shaw and Anr. , 101 cwn 348. ( 30 ) SO I am satisfied from the materials on record that the tests required for satisfaction of the clauses (m), (o) and (p) of section 108 of the Transfer of property Act were lawfully taken into consideration by the First Appellate Court and came to a just decision on this point. I am also satisfied that the judgment appealed against is a proper judgment of reversal and there is no legal necessity to interfere with the finding of the First Appellate Court. The substantial question of law indicated hereinabove are accordingly decided in favour of the plaintiff-respondent. In the result, the appeal fails and is hereby dismissed. The judgment and decree of the First Appellate Court are hereby confirmed. All interim orders are vacated. The time limit of 90 days given to the tenant in the ordering portion of the judgment dated 13. 11. 1990 shall start from this date of delivery of judgment. ( 31 ) THE parties do bear their own costs of this appeal. Appeal dismissed.