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2012 DIGILAW 996 (CAL)

Nakari Sarkar v. Sailendra Nath Bakshi

2012-11-21

TARUN KUMAR GUPTA

body2012
Judgment Plaintiff is the appellant against the impugned judgment of remand passed by the learned Additional District Judge, 2nd Court, Burdwan, in Title Appeal No.81/20 of 1986. 2. The present appellant filed a suit for eviction against tenat Sailendranath Bakshi, the predecessor-in-interest of the present respondent after sending a notice to quit which returned with the remarks of the postal peon “not claimed”. The appellant plaintiff landlord prayed for eviction on the ground of default and reasonable requirement. The original defendant, Sailendranath Bakshi appeared and contested the suit by filing written statement denying the allegations of the plaint. Learned trial court framed several issues including an issue whether notice of ejectment was duly served upon the respondents and if so, the same was legal, valid and sufficient. After contested hearing, learned trial court decreed the suit on the ground of reasonable requirement treating the notice as legal and valid and having proper service. 3. The original defendant tenant Sailendranath Bakshi preferred an appeal being Title Appeal No.81/20 of 1986. After contested hearing learned lower appellate court allowed the appeal by remanding back the matter to the trial court for fresh decision on the light of the observations made in the body of the judgment after giving sufficient opportunity to the parties to prove their respective cases including adducing evidence on producing document as the case may be. 4. Being aggrieved with the impugned judgment of remand this appeal has been filed. In spite of service of notice upon the heirs of original defendant since deceased they did not care to appear before this forum to contest this appeal. 5. At the time of hearing of this appeal, the following substantial questions of law are framed:- a) Whether learned lower appellate court substantially erred in law by holding that the notice to quit was not proved to be properly served upon the defendant tenant though there were overwhelming materials on record to the contrary. b) Whether learned lower appellate court substantially erred in law by passing said order of open remand when he did not entertain or even discuss other issues settled by learned trial court after contested hearing. 6. Mr. Halder, learned advocate for the appellant plaintiff submits that notice to quit was sent to the original defendant tenant under registered post with a/d. and it returned with postal remarks “not claimed”. 6. Mr. Halder, learned advocate for the appellant plaintiff submits that notice to quit was sent to the original defendant tenant under registered post with a/d. and it returned with postal remarks “not claimed”. He further submits that the postal peon was also examined in this case as P.W.3. According to him, the postal peon who was deposing after several years from the date of attempt to deliver the postal article, deposed more or less in conformity with his endorsement “not claimed” in the postal article. He further submits that the notice sent under registered post with a/d. duly stamped and with proper address if returned unserved with postal endorsement “not claimed” then it has to be presumed that there was proper service of notice though said presumption is rebuttable. 7. In support of his contention, he has referred case laws reported in AIR 1981 SC 1284 (Har Charan Singh Vs. Shiv Rani & Ors.), 1995(2) CLJ 342 (M/s. G. Antherton & Co. (P) Ltd. Vs. Shri Abhijit Bose & Anr. And 1988(1) CLJ 250 (Mano Ranjan Dasgupta Vs. Suchitra Ganguly & Ors.). He further submits that learned trial court at the time of deciding the issue on the point of service of notice took note of a letter Exhibit-7 which was alleged to be sent by the original defendant tenant to the plaintiff after receipt of notice disclosing his intention of vacating the suit premises. Learned trial court also took note of the fact that in the written statement, the original defendant tenant though challenged legality and validity of the notice but did not specifically deny the allegation of tendering notice to him by postal peon and on account of refusal returning of the same with the postal remarks “not claimed”. According to him, learned lower appellate court without considering those important facts namely absence of specific denial regarding tender of notice and the effect of Exhibit-7, opined that the service of notice was not duly proved in view of some contradictions appearing in the evidence of the postal peon (PW3). He further submits that as the learned lower appellate court did not decide the issue regarding proper service of notice applying correct legal test and passed the order of open remand without deciding other issues already decided by the learned trial court, the impugned judgment of remand should be set aside. 8. He further submits that as the learned lower appellate court did not decide the issue regarding proper service of notice applying correct legal test and passed the order of open remand without deciding other issues already decided by the learned trial court, the impugned judgment of remand should be set aside. 8. I have considered the submissions of the learned counsel for the appellant plaintiff landlord. I have also perused the case laws referred by him vis-à-vis the judgments of both courts. Learned trial court decided that the notice was duly served as there was no specific denial to that effect and there was a presumption of service of notice when it was sent under registered post with a/d., duly stamped and properly addressed. Learned trial court also took note of the evidence of the postal peon who came to the dock and deposed in support of his endorsement “not claimed” on the postal article, and of a subsequent letter (exhibit-7) alleged to be issued by the original defendant tenant to the plaintiff expressing his desire to vacate the suit premises in view of the notice. 9. I find the learned trial court took note of all these important factors in their proper perspective and came to a clear finding of fact that the notice was duly served upon the original defendant tenant and that the same was legal and valid. It appears that the learned lower appellate court gave undue stress on some contradictions in the evidence of postal peon (PW-3) to come to the conclusion that there was no proof of proper service of notice without considering other materials on record. The learned lower appellate court did not consider the effect of omission on the part of the original defendant tenant in his written statement wherein he did not specifically deny the tender of notice to him by the postal peon. Again learned lower appellate court also did not consider the effect of the document (exhibit-7) alleged to be written by the original defendant tenant to the plaintiff though learned trial court made elaborate discussions on the document and gave reasons as to why the Court was putting reliance on the same. 10. Again learned lower appellate court also did not consider the effect of the document (exhibit-7) alleged to be written by the original defendant tenant to the plaintiff though learned trial court made elaborate discussions on the document and gave reasons as to why the Court was putting reliance on the same. 10. In view of the entire materials on record, I am of the opinion that the learned lower appellate court came to a wrong finding that the notice to quit was not properly served upon the original defendant tenant for not considering the issue in its proper perspective. 11. As the learned lower appellate court did not also discuss other issues already decided by the learned trial court on the basis of the evidence on record, the order of open remand was not justified on that score also. 12. In view of the discussions as made above I allow the instant appeal by setting aside the impugned judgment of remand dated 30th June, 1998 passed by the learned Additional District Judge, 2nd Court, Burdwan, in Title Appeal No.81/20 of 1996. The matter is remanded back to the learned lower appellate court i.e. learned Additional District Judge, 2nd Court, Burdwan, for writing a fresh judgment on all issues except the issue no.6 after giving opportunity to the parties for making further argument if any. The learned lower appellate court should dispose of this old appeal within three months from the date of receipt of the records along with the copy of the judgment. However, there will be no order as to costs. Office is directed to send down LCR if any along with a copy of this judgment to the learned lower appellate court at the earliest. Urgent Photostat certified copy of this order, if applied for, shall be given to the learned advocate for the parties as expeditiously as possible.