Calcutta High Court
Road Transport Corporation And Anr. vs Shri Satyanarayan Prasad Bhagat on 21 February, 1997
Equivalent citations: (1997)2CALLT263(HC), 1997 A I H C 1901, (1997) 2 RENCR 272, (1998) 1 ICC 203, (1997) 2 CALLT 263
JUDGMENT Sidheswar Narayan, J.
1. This is a second appeal preferred by the defendants appellants, being the Road Transport Corporation, a partnership firm and the Branch Manager of the said Corporation, who are aggrieved of the Judgment dated March 31, 1990 passed by the Additional District Judge, third court, Burdwan, in Title Appeal No. 35 of 1995, whereby the said appeal was dismissed and the judgment and the decree of Title Suit No. 150 of 1980 passed by the trial court i.e. the Munsif, Second Court, Burdwan, in favour of the plaintiff/respondent was affirmed. The suit was for eviction of the appellants from the suit premises on the ground of reasonable requirement thereof by the respondent as also on account of default in payment of rent.
2. The case of the plaintiff/respondent in brief is that he being the sole owner of the suit premises inducted the defendant-appellant No. 1 therein as his tenant at a monthly rental of Rs. 400 payable according to the English calender month for the purpose of using it as residential quarter-cum branch office of the defendant corporation. The defendants, however, changed the mode of user of the premises and converted it into a godown-cum store house of the Corporation. The Corporation, during the course of wrong handling and storing of its heavy consignments in the suit premises, damaged the floor of the premises and rendered it unfit for use and occupation. It was further contended that the plaintiff respondent had no other house of his own besides the suit premises at Burdwan. For the present, he was residing in his mother's house under her grant and licence and, now, he has been asked by her to quit and vacate the said house and, accordingly, he had decided to make necessary addition and alteration in the suit premises for using it as his residential quarter as well as his business place. He had sufficient means to defray the expanses in carrying out the improvements in the suit premises. There was also default in payment of rent since the month of November, 1979. The plaintiff/respondent has further asserted that he served the required notice upon the defendants by registered post with A/D requesting the defendants to quit and vacate the suit premises on expiry to the month of December, 1979. Both the defendants received the notice and, thereupon, the defendant No.l sent a reply on 29.11.1979 to the plaintiff in response to the notice. Since the defendants failed even thereafter to comply with the Notice of ejectment and did not choose to vacate the suit premises, there was the necessity for the suit.
3. The suit was contested by both the defendants/appellants, who, of course, filed separate written statements but with almost the same contention. It was contended on their behalf that the suit was not maintainable in the form as presented and that the suit was also bad for want of legal, valid and sufficient Notice under Section 13(6) of the West Bengal Premises Tenancy Act, 1956. The suit was said to be bad also for defect of parties. It was asserted that the defendant No.l, being the Road Transport Corporation was not a company rather it was a partnership firm, registered under the Indian Partnership Act, and that Shri G.D. Goyel was one of the partners and not the Director or the Managing Director of the Corporation. The suit premises was earlier let out to the Corporation by the mother of the plaintiff/respondent but some time later, when the suit premises came into the khas possession of the plaintiff/respondent, it was let out to the same defendant at a monthly rental of Rs. 400 in the year 1973 for being used as its office-cum-godown-cum Manager's quarters. The defendants have denied the allegation of change in the mode of user of the premises as also of any damage caused to the floor thereof. The very purpose of the user of the suit premises was mostly for godown and it was not at all suitable for residential purpose of the plaintiff/respondent. The defendants/appellants also denied default in payment of rent of the premises. The story of plaintiffs requirement of the suit premises was said to be not bona fide or genuine one.
4. Since there was concurrent findings of facts and the appeal was deemed to have been concluded by findings of facts on the score of reasonable requirement of the suit premises for the use and occupation of the plaintiff respondent, of course, the point of default in payment of rent having been determined in favour of the defendants respondents, this appeal was admitted only on substantial question of law involved with regard to the validity of the ejectment Notice said to have been served under Section 13(6) of the West Bengal Premises Tenancy Act, 1956. A good deal of endeavour was, however, made on behalf of the appellants to make out a mixed question of facts and law on the score of reasonable requirement and, accordingly, the learned counsel for the parties were permitted to raise their respective contentions before this court even though no such substantial question of law was formally formulated.
5. Turning attention first to the Notice of Ejectment I may record certain uncontroverted facts which are as follows:
A combined Notice dated 12.11.79 under Section 13(6) of the West Bengal Premises Tenancy Act, 1956 and under Section 106 of the Transfer of Property Act was sent by Registered post by the respondent-landlord to the addressees as given below:-
(i) Sri G.D. Goyel, Managing Director, Road Transport Corporation, 14, Tarachand Dutta Street, Calcutta - 700 001.
(ii) Branch Manager, Road Transport Corporation, P.O.-Nutangang, Burdwan, Pin - 713102.
6. The Notice being Ext. 11 (as landlord's copy) was served upon the addressees as per A.D. Cards (Ext. 13 & 13/a). There was a response duly made to the notice as per letter dated 29.11.79 (Ext. 14) under the signature of one, Sri R.P. Pandey as Manager of the Road Transport Corporation before the Institution of the suit.
7. The suit as per the original plant was filed against the defendants described as below :-
(i) Road Transport Corporation, a company having their head office at 14, Tarachand Dutta Street, Calcutta being represented by Managing Director, G.D. Goyel. 14, Tarachand Dutta Street, Calcutta - 700 001;
(ii) Branch Manager, Road Transport Corporation, Burdwan Branch, Nutangang, Burdwan, P.S. & Dist.-Burdwan.
8. By way of an amendment in the plaint under order dated 13.1.87 of the trial court, the description of Defendant No. 1 was modified so as to read it as Road Transport Corporation, a partnership firm being represented by one of the partners, Sri Ghanshyam Das Goyal (place being the same).
9. Be it recorded that the Road Transport Corporation having its head office at 14, Tarachand Dutta Street, Calcutta and having its branch at Nutungang, Burdwan, was actually not a company or a corporate body, rather it was most certainly a registered partnership firm. Furthermore, Sri Ghanshyam Das Goyal as named above was one of the partners of the said firm.
10. From the uncontroverted facts as noticed above it is manifest and there is no manner of doubt about it that the identity of the defendenttenant as "Road Transport Corporation" having its Head Office at 14, Tarachand Dutta Street, Calcutta and its Branch at Nutungang, Burdwan, is available both in the Notice as well as in the plaint (before and after the amendment). By way of amendment in the plaint, there was a change in some other description of the self same Road Transport Corporation so as to indicate that it was not a company rather it was a partnership firm and that Sri G.D. Goyel was not a Managing Director rather he was one of the partners of the said Firm. It may be pointed that there was no change nor there could be as such in the Notice.
11. The counsel for the appellants has raised two contentions out of the above factual matrix, one being that the Notice was not actually served on the real tenant and, secondly, that the defendant-tenant as per the amended plaint was not the same person/body to whom the Notice was addressed to.
12. As to the first contention, above, it is to be noted that both the courts, below, have come to a concurrent finding on factual score that the ejectment Notice as required under law has been duly served upon the defendants (i.e. both the appellants). This was also for the simple reason that there was no denial of service of the Notice (Ext. 11) as per the postal Registered A/D Cards (Ext. 13 and 13/a). The sole witness on behalf of the defendants being D.W. 1, Sitaram Gupta, deposed in capacity of the Branch Manager of the Road Transport Corporation of the Burdwan Branch (exactly being the same as addressee No. 2 in the Notice) and admitted in clear words that the Notice to quit had been received by him and the information as such was given to the defendant No. 1 i.e. to the Firm. The plaintiff-respondent has produced on the record also the letter of acknowledgement dated 29.11.79 (Ext. 14) issued by and on behalf of the defendants in response to the Notice dated 12.11.79 {Ext. 13). What else was needed to prove the factum of actual service of the Notice upon the defendant/tenant i.e. the Road Transport Corporation? It is not only sufficient but abundantly proved, also so as to cover up the omission in the Notice to clearly spell whether the Road Transport Corporation was a company or a partnership Firm.
13. Since the Trade name of the defendant tenant being the "Road Transport Corporation" and the locale/place of the Head Office and the Branch office were correctly mentioned in the Notice (Ext. 11), there was valid and proper service obtained.
14. Beside the Branch Manager of Burdwan Branch of Road Transport Corporation, one Sri G.D. Goyel was the addressee in the Notice (Ext. 11). It was the admitted case of the defendants in the written statement that Sri Goyel was one of the partners of the registered partnership Firmin-question. Sri Goyel was not examined by the defendants to deny the service of Notice or the knowledge of the said Notice.
15. Needless is to say that as regards the contents of the Notice Ext. 1 asking to deliver khas possession of the premises by the expiry of the month of December, 1979, there was no discrepancy raised whatsoever by the defendants-tenants. It was only with regard to the description of the addressees given in the Notice that an attempt was made on behalf of the appellant to make out a mixed question of facts and law, but in view of what has been noticed with regard to the factual matrix of the case, I do not think, any such question could be validly raised in the instant case. It may also be recorded that the contention raised on this score by the appellants fails even to make out a mixed question of facts and law.
16. Adverting now to the legal proposition it can be firmly pointed out that when a partnership firm was a tenant, the landlord may serve a Notice upon any partner of the firm and such Notice shall be deemed to be a Notice duly served upon the firm. It has been held by Rajasthan High Court that Notice to quit addressed to the managing partner of the tenant-firm and acknowledged by the firm is a valid service notice upon the firm, vide case of S.P. Shartna v. Rakhab Das, reported in ILR (1962) 12, Rajasthan 179. It is further worth mentioning that when a Notice, sent by Registered Post to the address of the partnership firm and in the name of the firm, was received by some employee of the firm, service is deemed to be a valid service of notice upon the partnership firm. The particular facts of the instant case find support of the legal proposition stated above for a decision in favour of the landlord-respondent.
17. Simply because the appellant has been able to make out a case that the notice (Ext. 11) does not clearly speak that the defendant-concern was a partnership firm, it cannot be held that the notice was bad in law. Accuracy of any such description in the Notice was probably not the requirement of law. The whole purpose of a Notice for ejectment is to communicate the mind of the landlord to the real tenant with regard to the ejectment. In the instant case, such object of the notlce-in-question appears to have been sufficiently complied with by due communication of the fact of ejectment to the real tenant, who has actually responded to it. It was simply an objection hyper-technlcal in nature. It would not be out of place to refer to a decision of the Supreme Court in the case of Bhaghaban Das Agarwal v. Bhaghaban Das Kanu and Ors., , wherein it has been held that a notice to quit must be construed not with a desire to find faults in it which would render it defective but it must be conslrued ut resmagls valeat quam pereat. It must not be read in a hyper-crilieal manner, nor must its interpretation be affected by pedagogic pendanlism or over refined subtlety but it must be construed in a common sense way.
18. In so far as, there is no specific provision in W.B.P.T Act, 1956 with regard to the mode of service of the notice under Section 13(6) of the Act, it is open for a count of law to borrow the mode of service of summons upon a partnership firm as provided under Order 30 Rule 3 of the Code of Civil Procedure, which runs as follows:-
"Where persons are sued as partners in in the name of their firm, the summons shall be served either-
(a) Upon any one or more of the part the name of their firm, the summons shall be served either-
(b) at the principal place at which the partnership business is carried on within India upon any person having at the time of service, the control or management of the partnership business there.
as the court may direct; and such service shall be deemed good service upon the firm so sued, whether all or any of the partners are within or without India."
19. If the aforesaid mode of service is adopted also in the case of a Notice under Section 13(6) of the W.B.P.T. Act, 1956, it would be seen that there was proper service of the notice in the instant case.
20. Turning attention to another contention of the appellants that the Notice would not be deemed to have been served upon those defendants, who have been introduced in the suit by way of amendment after a long lapse of the institution of the suit. True, it was that as per the original plaint filed in the year, 1979, the defendant No. 1 was described as a corporate body i.e. a company and, subsequently, by way of amendment carried out as per order dated January 13, 1987 the defendant No. 1 was declared to be an entity as a partnership firm. The position at the best would indicate that as per the original plaint, the suit was against a company and, subsequently, by virtue of the amendment it was now against a partnership firm. The crux of the matter is simply whether the defendant firm as per the amendment plaint had been duly served with a notice under Section 13(6) of the W.B.P.T. Act. In this context, the facts already noticed above has established on the record that it was the partnership firm being the real defendant, who had been actually served with such notice as per Ext. 11 through its partner and Branch Manager. This may, however, raise a question whether the suit would be hit by law of limitation because of the long gap between the service of notice and the introduction of the real tenant, that is, the partnership firm in the suit by way of amendment carried some time in the year 1987. There was a long gap of about 8 years. Even in this view of the matter my attention was drawn to Section 21 of the Limitation Act read with Article 67 thereof, which was clear indicative of the fact that-a suit, of khas possession could be brought within 12 years of such service of notice. Therefore, in this view of the matter as well I do not find any substance in the contention raised on behalf of the appellants.
21. The learned Counsel appearing on behalf of the appellant has cited the case of Tata Engineering and Locomotive Company Ltd. and Ors. v. State of Bihar and Ors. , wherein it was held that a company has its legal entity of its own and is quite distinct from its member. He means to submit that a company is a juristic person and, therefore, a suit brought against such company in the name of any share holder would be deemed to be bad. Here is a case which is quite reverse to it in the instant case. It was a registered partnership firm when has been sued by the plaintiff-respondent and, therefore, while giving out the name of Sh. G.D. Goyel, one of the partners of the firm as also the Branch Manager of the said firm in the description as defendants would be deemed to be in due compliance of the legal requirement.
22. Having discussed the contention raised as to the notice of ejectment I may switch over to another issue with regard to the reasonable requirement of the demised premises, which is a point determined in favour of the plaintiff-respondent by both the courts below. Whether such a question could be raised at the present stage of a second appeal is a point to be considered first. Before I look into the facts on this score it was urged on behalf of the appellants that this aspect of the case was a mixed question of law and facts and, therefore, this has to be gone into even at the stage of the second appeal. As against this, learned counsel for the respondent vehemently urged before me that the facts with regard to the reasonable requirement was as simple as that could be; and there was no point of law involved therein. Though there has been some divergent views, expressed by the Supreme Court from time-to-time, it is worth referring to the principles laid down in the case of Firoz v. Chandrakant and the case of Matulal v. Radhalal as also the case of Jaikrishan v. Mamtaj Bagam, , all of which were indicative of a clear conception that the point of reasonable requirement was a question of fact. Besides, having regard to the certain factual aspect of the instant case I find no alternative than to hold that the case of the parties with regard to the reasonable requirement was a pure and simple question of fact.
23. It would not be out of place to mention here that both the courts below have duly applied their mind to the issue and have come to a definite conclusion that the plaintiff-respondent did require the suit premises for his own occupation and such requirement was quite reasonable. What was most relevant to take note of the fact is that even as per the case of the defendant-tenant, the suit premises exclusively belonged to the plaintiff and that the plaintiff was presently residing in the house of his mother which she had got in a family partition. The plaintiff-respondent has established on record that he was living in the house of his mother as per oral licence granted to him and now she has asked him to vacate the same. Both the courts below held that there was no alternative accommodation available to the plaintiff. In that view of the matter as well the reasonable requirement of the plaintiff has been upheld on the record. The first appellate court has also accepted the plaintiffs version that some portion of the suit premises was also required for the business of his son.
24. On behalf of the appellant it was urged that there was utter failure on the part of the plaintiff-respondent to have examined his mother on oath during the trial so as to corroborate him on the point that she had asked him to vacate her house. I find myself quite in disagreement with such submission made on behalf of the appellant in as much as this court is called upon to have reappraisal of the entire evidence on the point. Both the courts below have examined the pros and cons of the entire evidence on the point for a finding in favour of the plaintiff. In the given facts of the case, I do not think, there was any legal requirement of the plaintiffs mother to have adduced any such corroborative evidence. Since there was admittedly an event of partition of the family properties between the son and the mother, it was but natural to accept the above assertion in the oral evidence of the son.
25. Thus, on the score of reasonable requirement of the demised premises, the appellant has no valid point to challenge the concurrent finding of the courts below.
26. Before I part with this appeal, I may also refer to an unsuccessful endeavour of the appellant's side to agitate the issue as to maintainability of the suit as framed. The trial court held that this issue was not pressed at the time of trial or argument. The first appellate court, while dealing with this issue, applied its mind and observed that there was nothing wrong in deciding the issue by the trial court. At this stage as well I could not be persuaded to take up afresh any point abandoned at the trial and not even successfully made out at the stage of the first appeal. And, in fact, the suit as framed suffers no legal inavalidity as to its maintainability.
27. For the reasons, aforesaid, this appeal has no merit and, accordingly, this is dismissed. There shall be, however, no order as to costs.