Calcutta High Court (Appellete Side)
Sri Rathindra Nath Kundu vs Sri Subir Chandra Kar on 20 November, 2019
Author: Bibek Chaudhuri
Bench: Bibek Chaudhuri
Form J(2) IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side
Present :
The Hon'ble Justice Bibek Chaudhuri
S. A. 164 of 2017
Sri Rathindra Nath Kundu
-Vs.-
Sri Subir Chandra Kar
For the Appellant : Mr. Asish Chandra Bagchi,
Mr. Amitabha Roy,
Ms. Malyasree Maity.
For the Respondent : Mr. Shenaz Tareq Mina,
Mr. Sagnik Chatterjee.
Heard & Judgement on : 20.11.2019.
Bibek Chaudhuri, J.
The appellant as plaintiff filed Ejectment Case No. 372 of 2004 against the respondent/defendant/tenant praying for his eviction from the suit shop room, recovery of possession, mesne profits and other consequential reliefs which was registered as Ejectment Case No. 372 of 2004. The said ejectment case was decreed on contest in favour of the appellant by a Judgement and Decree dated 30th August, 2010 passed by the learned Additional Civil Judge (Junior Division), Sealdah.
The defendant/tenant preferred an appeal being Title Appeal No. 57 of 2010 assailing the Judgement and Decree passed by the learned Trial Judge in Ejectment Case No. 372 of 2004 which was registered as Title Appeal No. 57 of 2010. The said appeal came up for hearing before the learned Additional District Judge, 2nd Court at Sealdah and by Judgement and Decree dated 17th June, 2014, the learned Judge in First Appellate Court set aside the Judgement and Decree passed by the Trial Court, allowed the appeal and eventually the suit was dismissed.
It is pertinent to mention at the outset that the first appeal was allowed holding, inter alia, that the plaintiff failed to prove service of ejectment notice upon the defendant/tenant before institution of the suit. As no statutory notice was served, the ejectment case was held to be not maintainable.
The aforesaid appellate Judgement and Decree was assailed before this Court in the instant appeal. The Division Bench of this Court vide order dated 17th April, 2014 admitted the instant appeal formulating the following substantial question of law: -
"Whether the learned Appellate Court committed a serious error of law in holding that notice was not duly served."
Before dealing with the respective arguments advanced by the learned Counsels for the appellant and the respondent, it will not be out of place to mention which I feel necessary to record, that the ejectment case was filed on the grounds - (i) That the defendant/respondent defaulted in payment of rent; (ii) The defendant/respondent had sublet the suit shop room to a third party without knowledge and consent of the landlord; (iii) The defendant/appellant had changed the mode of user of the suit shop room inasmuch as it was let out to him on the basis of an agreement for tenancy dated 14th March, 1986 to run a grocery-cum-stationery shop. However, the tenant has converted the said shop room to a dance school under the name and style of 'Chandam'; (iv) The defendant made addition and/or alteration in the suit premises by illegal construction and caused nuisance and annoyance to the petitioner and his family members and (v) The plaintiff reasonably requires the suit shop room for her own use and occupation as well as for the use and occupation of her family members in view of the fact that the elder son of the appellant has passed M.B. in Homeopathy medicine and he wants to start medical practice in the said tenanted shop room. Moreover, the younger son of the plaintiff is a student of LL.B. at Jogesh Chandra Chowdhury Law College and he also requires a room for his professional chamber. The plaintiff has no suitable alternative accommodation to cater the need of his children and the suit shop room is reasonably required for his own use and occupation as well as for his son's occupation.
Accordingly, the plaintiff/appellant sent a notice under Section 6(4) of the West Bengal Premises Tenancy Act on 7th June, 2004 to the defendant/respondent in his address at 33/1/AB, Hare Krishna Sett Lane under registered post with acknowledgement due. The said notice was returned to the learned Advocate for the plaintiff with postal endorsement 'not claimed'. The plaintiff also tried to serve notice of eviction to the defendant by personal service, however, he refused to accept the said notice which was tendered by the plaintiff by hand. Thereafter, the said notice was served by the plaintiff by hanging in presence of the witnesses in front of the suit shop room to the knowledge of the defendant/respondent.
The learned Trial Judge held applying the principle of Section 27 of the Central General Clauses Act that the notice sent by post in proper residential address of the defendant and pre-paid postage, but returned with postal endorsement 'not claimed', was presumed to be valid service.
The learned Trial Judge also held that the plaintiff was able to prove that the defendant had sublet the suit premises and the plaintiff reasonably requires the suit shop room for her own use and occupation.
On such finding the suit was decreed.
The First Court of Appeal set aside the Judgement and Decree passed by the Trial Court and allowed the appeal on the following ground:-
"But fact to say on peruse to the Exbt. 7 series I find all the observations behind the notice point by Court below has no material to stand in the eye of law. Envelops and the notices respectively all contain the address like "33A/1B" which is actual residential address of tenant as said by the appellant. It is fact as per argument of respondent counsel, 'tenancy agreement' and 'letter of attornment' (marked as Exbt. 8 and Exbt.g) bear this impugned address at 33/1/AB but decided law is that service of notice is an incumbent duty to the landlord to serve it properly either in hand or in proper address. On scrutiny of pleading, i.e., W.S. and evidence of tenant I find categorically he denied at his pleading that any notice to quit dated 07.06.2004 was not served upon him through any registered post or by personal tender either in his residential address or in the case property. He further said at his pleading that he refused to accept that he was not present at his residence and plaintiff hung up the said copy of the notice at outer wall of his residence in presence of witness as said by plaintiff. He categorically said that the landlord with malafide intention served the notice to another address which is not belong to him, so the tenancy was not determined by alleged notice dated 07.06.2004. I find in cross examination also, this tenant denied about service of notice to him. Consequently summing up two observations in 2011(2) ICC.S.C. Page- 618 and AIR 1989 Cal. 14, where our Higher Authorities pressed an observation that where a notice is required or authorised to be served by post under any Central or State enactment and a notice is accordingly despatched by registered post an obligatory presumption of due service would arise under the relevant provisions of the Central or the State General Clauses Act. Where any such notice is not required or authorized to be served post, but a notice is nevertheless served by post, registered or ordinary, a court may, not that it must, in a given case raise a presumption of due service under the provisions of section 114 of the Evidence Act. But in either case, the court may, in view of the sworn assertion of the addressee to the contrary, or some other reliable evidence on record, hold any such presumption, whether obligatory or optional, to have been rebutted."
The First Appellate Court, thus, held that the ejectment notice was sent to premises no. 33A/1/B, Hare Krishna Sett Lane. However, the tenancy agreement as well as letter of attornment (Exhibit - 9 and Exhibit - 'g' respectively) bear the residential address of the defendant as 33/1/AB, Hare Krishna Sett Lane. It is held by the learned Judge in First Appellate Court that notice was not sent by post at premises no. 33/1/AB, Hare Krishna Seth Lane and, therefore, presumption of due service of notice was not available to the plaintiff/appellant.
On perusal of Exhibit - '9' as well as Exhibit - 'g' it is ascertained that the learned Judge in First Appellate Court is factually wrong because Exhibit - 'g' bears the residential address of the defendant/respondent as 33/1/AB, Hare Krishna Sett Lane. The defendant admitted receipt of the said letter of attornment in his evidence. The ejectment notice was also served in the address of premises no. 33/1/AB, Hare Krishna Sett Lane. Mr. Mina, learned Advocate for the respondent submits that the notice was returned with postal endorsement 'not claimed' .
The defendant in his written statement denied tendering of postal envelope containing the notice to him at premises No.33/1/AB Hare Krishna Sett Lane. It is further submitted by Mr.Mina that the defendant actually does not reside in the said address. In support of his contention he refers to an occupier's tax receipt in respect of premises No.33A/1/B, Hare Krishna Sett Lane issued in the name of Smt. Basana Bala Kar for the first quarter of 2007- 08, marked Exhibit- 'K' during trial of the suit. It is contended by Mr.Mina that the defendant resides with his mother at premises No.33A/1/B, Hare Krishna Sett Lane. In view of denial of receipt of postal notice in the written statement coupled with Exhibit-'K', the learned Court of Appeal correctly held that notice by post was not even tendered to the defendant and question of receiving such notice by the defendant does not arise at all. Mr. Mina also submits that under such factual background, the trial Court wrongly employed the principle of presumption of due service under Section 27 of the General Clauses Act read with Section 114 of the Indian Evidence Act. In support of his contention he refers to a decision of the Hon'ble Supreme Court in the case of Puwada Venkateswara Rao -Vs.- Chidamana Venkata Ramana reported in (1976) 2 Supreme Court Cases 409. In the said report, the Hon'ble Supreme Court relied upon a decision reported in AIR 1968 Bom 387:
Meghji Kanji Patel -Vs.- Kundanmal Chamanlal to hold that a notice returned with postal endorsement "refused" cannot be held to be properly tendered and presumed to have been served simply because postman, who had made endorsement of refusal had not been produced. The Hon'ble Supreme Court held with approval the observation of the Bombay High Court that the presumption of service had been repelled by the defendant's statement on oath that he had not refused it as it was never brought to him. In this state of evidence, it was held that, unless the postman was produced, the statement of the defendant on oath must prevail.
Mr. Mina next refers to another decision of the Division Bench of this Court in the case of Mono Ranjan Dasgupta -Vs.- Suchitra Ganguly and others reported in AIR 1989 Cal 14. Paragraphs 9 and 10 of the above mentioned report is relevant for the purpose of this case and quoted below:-
"9. The upshot, therefore, appears to be that where a notice is required or authorised to be served by post under any Central or State enactment and a notice is accordingly despatched by registered post, an obligatory presumption of due service would arise under the relevant provisions of the Central or the State General Clauses Act. Where any such notice is not required or authorised to be served by post, but a notice is nevertheless served by post, registered or ordinary, a court may, not that it must, in a given case raise a presumption of due service under the provisions of S.114 of the Evidence Act. But in either case, the Court may, in view of the sworn assertion of the addressee to the contrary, or some other reliable evidence on record, hold any such presumption, whether obligatory or optional, to have been rebutted.
10. Be that as it may, if in view of the defendant's pledging his oath in denial of tender and refusal and the absence of any direct evidence as to such tender and refusal of the notice from the postman or any other witness on behalf of the plaintiff, and the plaintiffs own assertion in the plaint that the other copy of the notice, also sent by registered post, has come back with false postal endorsement, the first appellate court has declined to hold in favour of due service, it has only made a finding of fact on assessment of evidence which would be beyond challenge in second appeal, even if we are inclined to think that some other finding was also possible on a closer scrutiny of the evidence on record. As already noted, S.13(6) of the West Bengal Premises Tenancy Act not having required or authorised service of notice by post, the presumption of due service which would operate is not the obligatory one under S.28 of the Bengal General Clauses Act, but the optional one under S.114 - Illustrations (e) and (f). But such a presumption may very often be outweighed by a contrary or counter presumption operating under that very S. 114, and as is well known, one of the presumptions operating under Illustration (g) of that Section is that evidence which could be, but is not, produced, would, if produced, be unfavourable to the person who could produce it. And if under the facts and circumstances of this case, as noted above, the first appellate court has also taken into consideration the fact that the postal peon could be, but has not been examined by the plaintiff to clinch the issue as to tender and refusal, it has only assessed and appreciated the evidence on record in its own way, but cannot be said to have committed any error, far less any substantial error, of law to warrant our intervention in second appeal."
Mr. Ashis Chandra Bagchi, learned Senior Counsel on behalf of the appellant, on the other hand, submits that the defendant in his written statement evasively denied tendering of postal notice to him and stated that he did not receive notice by post. Nowhere in the pleading he denied his residential address specifically. Therefore, the Court cannot consider such evasive denial relating to service of notice upon the defendant and impose further burden upon the appellant in order to disbelieve his case regarding service of notice for non-examination of the postman. It is reiterated by Mr. Bagchi that the defendant himself received letter of attornment at premises No.33/1/AB, Hare Krishna Sett Lane sometimes in November, 2001. Ejectment notice was sent on 7th June, 2004 in the same address. From the postal remark endorsed on the envelop, it is ascertained that the defendant was intimated to receive the said notice on 8th June, 2006 and 9th June, 2006. When the defendant failed to receive the said notice it was returned with postal endorsement "not claimed".
It is urged by Mr.Bagchi that the learned First Court of Appeal committed substantial error in holding that the notice was not tendered in the residential address of the defendant/respondent. In support of his contention, Mr.Bagchi refers to a decision of Division Bench of this Court in the case of Ganesh C. Nandy -Vs.- M/s. J.N.Chatterjee & Bros. reported in 70 CWN 676. In the above-mentioned decision, the Division Bench of this Court found that the ejectment notice was perfectly in order. On the question of service, the final return of the postal peon was, no doubt, signified the endorsement that it was "not claimed". But the said endorsement is preceded by several endorsements, from which it is clear that the defendant was residing and was available at the address to which the notice was sent. In this context, the expression 'not claimed' must be read as amounting to refusal and, in that view, it was held to be a good service upon the defendant.
I have carefully considered the submission made by the learned advocates for the appellant and the respondent.
I like to record at the outset of my observation that in Puwada Venkateswara Rao (supra), the Hon'ble Supreme Court had the occasion to consider the ratio laid down in Nirmalabala Devi -Vs.- Provat Kumar Basu reported in 52 CWN 659. In the said decision, it was held by this Court that a letter sent by registered post with the endorsement "refused" on the cover, could be presumed to have been duly served upon the addressee without examining the postman who had tried to effect service. What was held there was that the fact that the letter had come back with the endorsement "refused" could not raise a presumption of failure to serve. On the other hand, the presumption under Section 114 of the Evidence Act would be that, in the ordinary course of business, it was received by the addressee and actually refused by them. The Hon'ble Supreme Court held the above observations of this Court as a correct statement of the law.
I have already recorded that the defendant in his pleading did not specifically deny that he does not reside at premises No.33/1/AB, Hare Krishna Sett Lane when the notice was tendered to him. Mr. Bagchi rightly pointed out that postal endorsement "not claimed" was preceded by endorsement that the defendant was intimated to receive the said notice. When he refused to accept the said notice, it was returned with postal endorsement "not claimed". Sub-section (4) of Section 6 of the West Bengal Tenancy Act, 1997 runs thus :-
"(4) Notwithstanding anything in any other law for the time being in force, no [suit] for the recovery of possession of any premises on any of the grounds as aforesaid, except on the ground mentioned in clause (e) of sub-section (1), shall be instituted by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy."
Section 6(4) of 1997 Act is in parimateria with Section 13(6) of the West Bengal Premises Tenancy Act, 1956. Both in 1956 Act as well as 1997 Act the landlord is under obligation to "give" a notice to the tenant before filing the suit for eviction. It does not provide any procedure whatsoever for giving that notice. It has been held Md. Shahariyar Baig -Vs.- R. P. Val : 1986 2 CHN 19 following Radharani Dassi -Vs.- Angurbala Dassi: 65 C.W.N 1119 and Satya Chorone Roquittee -Vs.- Suresh Chandra Pal : 65 CWN 1239 that all the modes prescribed for service of notice in Section 106 of Transfer of Property Act will be available for service of a notice under the West Bengal Premises Tenancy Act.
The second part of Section 106 of the Transfer of Property Act contemplates service of notice (i) by post, (ii) by personal tender or delivery to the tenant or (iii) to one of his family members or servants at his resident and lastly (iv) by affixation to a conspicuous part of the property demised. The provisions of Section 106 being part of the General Law, i.e., the Transfer of Property Act may be invoked to the extent not repelled or replaced by the Special Law viz., the West Bengal Premises Tenancy Act, 1997 for carrying into effect the purpose and provisions of the letter and that this without any further legislation will automatically attract the presumption of service as per Section 27/28 of the Central/Bengal General Clauses Act.
Decision of the Division Bench of this Court in Miss D. Ennis -Vs.- M/S. Calcutta Vyapar Pratisthan Limited and another reported in AIR 1991 Cal 152 may be relied on in support of my observation. In view of above discussion, I hold that the learned Judge in First Appellate Court substantially erred in law in holding that the ejectment notice could not be presumed to have been served upon the defendant/appellant by registered post.
The substantial question of law so formulated is, therefore, decided in favour of the appellant.
No other issues are canvassed in the instant appeal. The appellant did not file any cross appeal challenging the finding of the Trial Court on the question of sub-letting or reasonable requirement. All such findings, being essentially question of facts and furthermore not agitated in the instant appeal as substantial question of law, I have no scope to deal with such questions.
For the reasons stated above, the instant Second Appeal is allowed on contest. The judgment and decree passed by the learned Additional District Judge, Second Court at Sealdah in Title Appeal No.57 of 2010 is set aside and the Judgment and Decree passed by the Trial Judge in Ejectment Case No.372 of 2004 is affirmed.
If the defendant/appellant fails to quit, vacate and deliver peaceful possession of the suit shop room within three months from the date of this judgment, the plaintiff/respondent is at liberty to put the decree passed by the learned Trial Judge in Ejectment Case No.372 of 2004 in execution.
There shall however, be no order as to costs.
Urgent photostat certified copy of this order, if applied for, be given to the learned advocates for the parties on usual undertakings.
(Bibek Chaudhuri, J.)