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2018 DIGILAW 544 (CAL)

Nisha Poddar v. Banwari Lal Sharma

2018-08-07

AMRITA SINHA, JYOTIRMAY BHATTACHARYA

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JUDGMENT : JYOTIRMAY BHATTACHARYA, J. 1. This Second Appeal is directed against the judgment and decree dated 11th September, 2017 passed by the learned Judge, IInd Bench, City Civil Court at Calcutta in Title Appeal No. 27 of 2013 affirming the judgment and decree dated 21st March 2013 passed by the Learned Judge, 2nd Bench, Small Causes Court at Calcutta in Ejectment Suit No. 103 of 2005 at the instance of the defendant/appellant. 2. Let us now consider as to whether the appeal deserves any merit for admission under the provision of Order 41 Rule 11 of the Code of Civil Procedure. 3. Here is the case where we find that the plaintiff/respondent (landlord) filed a suit for eviction against the defendant/appellant (tenant) on several grounds available under the West Bengal Premises Tenancy Act, 1997. Apart from the ground of default in payment of rent, the plaintiff prayed for eviction of the tenant on the ground of reasonable requirement and also for causing nuisance and annoyance to the plaintiff and his neighbours. 4. The defendant/appellant contested the said suit by filing written statement denying the allegations made out by the plaintiff in the plaint. Service of notice under Section 6(4) of the West Bengal Premises Tenancy Act, 1997 was denied by the defendant/appellant. Both the parties adduced evidence in support of their respective claims. 5. After examining the pleadings of the parties and the evidence led by them, the learned trial court held that the plaintiff/respondent is entitled to get a decree for eviction on the ground of reasonable requirement in fact a decree for eviction on the ground of reasonable requirement was passed by the learned trial judge after drawing presumption of service of eviction notice upon the defendant/appellant. 6. Being aggrieved by and dissatisfied with the judgment and decree passed by the learned trial judge, the defendant/appellant preferred an appeal before the learned First Appellate Court. The learned First Appellate Court also dismissed the said appeal by affirming the judgment and decree of the learned trial court. The learned First Appellate Court also found that the plaintiff/respondent reasonably required the suit premises for his own occupation and for the occupation of the members of his family. The appeal court also held that the plaintiff succeeded in proving service of eviction notice upon the defendant/appellant. 7. The learned First Appellate Court also found that the plaintiff/respondent reasonably required the suit premises for his own occupation and for the occupation of the members of his family. The appeal court also held that the plaintiff succeeded in proving service of eviction notice upon the defendant/appellant. 7. The legality and/or correctness of the said decree passed by the learned First Appellate Court is under challenge in the Second Appeal before us. 8. Mr. Ghosh, learned advocate appearing for the appellant submits that both the courts below erred in drawing presumption in favour of service. In this particular case, as according to Mr. Ghosh, presumption of service following provision contained in Section 28 of the General Clauses Act cannot be drawn in a case where service of notice by Registered Post is not prescribed in the Act itself. In support of his submission, he has relied upon a Division Bench of this Court in the case of-Mano Ranjan Dasgupta –vs- Suchitra Ganguly & Ors., reported in 1988(1) CLJ 250. 9. Let us now examine the acceptability of such submission of Mr. Ghosh in the facts of the instant case. It is no doubt true that unlike Section 106 of the Transfer of Property Act, Section 6(4) of the West Bengal Premises Tenancy Act, 1997 has not prescribed the mode of service of ejectment notice upon the tenant. Section 106 of the Transfer of Property Act prescribes the mode of service of notice. Service by Registered Post is one of the modes prescribed under Section 106 of the Transfer of Property Act. However, Section 6(4) of the West Bengal Premises Tenancy Act is silent about the mode of service of notice. In our view when any particular mode is not prescribed for service of ejectment notice upon the tenant under any act, the landlord can choose any of the modes of service he likes. Here in the instant case, we find that the landlord accepted the service by Registered Post as a mode of service of ejectment notice upon the defendant/appellant (tenant). Postal Receipt showing sending such notice by Registered Post was filed by the landlord. The plaintiff/respondent proved in his evidence that the notice was properly addressed and sufficient postal cost was also deposited for effecting such service of notice upon the addressee. The Postal Receipt has been admitted into evidence on prove. Postal Receipt showing sending such notice by Registered Post was filed by the landlord. The plaintiff/respondent proved in his evidence that the notice was properly addressed and sufficient postal cost was also deposited for effecting such service of notice upon the addressee. The Postal Receipt has been admitted into evidence on prove. The landlord also produced a photo copy of the acknowledgement receipt but the said photo copy of the acknowledgement receipt was not admitted into evidence as the landlord did not take any step to prove the same by way of secondary evidence. 10. Be that as it may, the landlord has also examined the Postal Peon as his witness to prove such service of notice upon the tenant. The Postal Peon stated in his evidence that he was unable to give any evidence in support of service from his personal knowledge without consulting the records and the records were not maintained in the Sub-Post Office to which he was attached as due to passage of time the records are all sent to the Head Post Office where these records are maintained. The defendant/appellant did not make any effort to rebut the presumption attached to such service in the way as he ought to have done in the manner as it was indicated by the Hon’ble Supreme Court in the case of Gujarat Electricity Board & Anr. –vs- Atmaram Sungomal Poshani, reported in (1989) 2 SCC 602 wherein it was held that the burden to rebut the presumption lies on the party challenging the factum of service. It was held therein that mere denial was not sufficient to rebut the presumption relating to service of the registered cover. In order to successfully rebut the presumption, the party denying such service is required to prove that the address mentioned on the cover was incorrect or that the Postal Authority never tendered the registered letter to him or that there was no occasion for him to refuse the same. No such evidence is forthcoming from the defendant/appellant in the instant case for effectively rebutting the presumption attached to such service. 11. When no mode is prescribed in the act, the landlord can accept any of the modes recognized under the law. In the instant case he has accepted the service by registered post. He has proved that he posted the notice by registered post. 11. When no mode is prescribed in the act, the landlord can accept any of the modes recognized under the law. In the instant case he has accepted the service by registered post. He has proved that he posted the notice by registered post. Once the letter is posted with the postal authority, the landlord looses control over the movement of such postal article. As such, it is difficult for the landlord to prove as to how the service was effected, particularly when the acknowledgement card could be produced before the court. 12. No landlord will take the risk of defeat only on the ground of non-service of ejectment notice. As such, it is hardly believable that the landlord will avoid service of ejectment notice being effected upon the defendant/tenant. Though the tenant had the option to rebut such service by cross-examining the Postal Peon effectively but he did not do so in the instant case. He never called upon the Postal Peon to cause production of the records relating to such service. In these set of facts, we are unable to hold that the learned courts below committed any illegality in holding that service of ejectment notice was duly effected upon the defendant/appellant (tenant) in the instant case. 13. Before parting with, we like to mention here that when no particular mode of service of ejectment notice is prescribed in this Act, it would be presumed that Act recognizes service of such notice by any mode which is available to the sender and when the sender accepted the mode of service by registered post, it would be presumed that such service is recognized under the Act and consequence of such service including drawing of presumption of service will follow. 14. No other point was raised by Mr. Ghosh for challenging the legality and/or propriety of the judgment and decree, which is under challenge before this court. 15. In these set of facts we hold that no substantial question of law is raised in this appeal for which the appeal is required to be admitted for hearing under the provision of Order 41 Rule 11 of the Code of Civil Procedure. We, thus, decline to admit this appeal under Order 41 Rule 11 of the Code of Civil Procedure. The appeal thus stands dismissed. 16. Since the appeal is dismissed, no further order need be passed on the stay application. We, thus, decline to admit this appeal under Order 41 Rule 11 of the Code of Civil Procedure. The appeal thus stands dismissed. 16. Since the appeal is dismissed, no further order need be passed on the stay application. The stay application being CAN No. 3820 of 2018 is, thus, deemed to be disposed of. 17. Urgent photostat certified copy of this order be supplied to the parties if applied for as early as possible.