Calcutta High Court (Appellete Side)
Sri Mohanlal Manna vs Sri Lakshmi Prasad Shaw on 30 November, 2011
Author: Tarun Kumar Gupta
Bench: Tarun Kumar Gupta
1
IN THE HIGH COURT AT CALCUTTA
APPEAL FROM APPELLATE DECREE
Present: The Hon'ble Mr. Justice Tarun Kumar Gupta
Second Appeal No.732 of 1999
Sri Mohanlal Manna
Versus
Sri Lakshmi Prasad Shaw
For the appellant: Mr. S. P. Roy Chowdhury
Mr. Debjit Mukherjee
For the respondent: Mr. Partha Sarathi Bose
Mr. Raj Kumar Gupta Heard on: 06.09.2011, 8.9.2011, 14.11.2011 and 21.11.2011 Judgment on: November 30, 2011 Tarun Kumar Gupta, J.:-
The defendant is the appellant against this judgment of confirmation. Respondent being plaintiff filed a suit for eviction and mesne profit against the present appellant /defendant/tenant on the ground of default and reasonable requirement of the suit shop room for being used by his unemployed third son Sanjoy Kumar for running a grocery-cum-stationery shop. It was further alleged that plaintiff had no other reasonable accommodation elsewhere and that before filing of 2 this suit an ejectment notice dated 31st July, 1991 was sent to the tenant under registered post with A/D which returned with postal endorsement "not claimed" as defendant refused to accept the same. It was further case of the plaintiff that the defendant was original tenant under plaintiff as well as his brother in respect of a big room at a rental of Rs.35/- per month payable according to English calendar month and that after partition of the suit house in between plaintiff and his brother through a registered document southern half portion of dfendant's shop room was allotted to plaintiff and accordingly plaintiff was receiving half of the total rent i.e., Rs.17.50/- per month from the defendant for plaintiff's share of the tenanted room and that said portion of tenanted room was the suit shop room.
Defendant contested the suit by filing a written statement denying material allegations of the plaint. It was contented that the defendant was not a defaulter and that suit shop room was not required by the plaintiff for reasonable use for his third son and that notice of suit was not served upon the defendant. Defendant, however, admitted paying of rent of Rs.17.50/- per month to the plaintiff for the suit shop room. On the basis of the pleadings of the parties several issues were framed. Learned Trial Court decreed the suit on the ground of reasonable requirement after holding that notice to quit was legal, valid and sufficient and that postal endorsement "not claimed" amounted to good service in the facts and circumstances of the case. 3
Learned Lower Appellate Court also confirmed said judgment and decree of eviction.
At the time of admission of this second appeal the following substantial question of law was framed:-
"Whether an endorsement as "not claimed" on the registered cover by the postal peon would amount to refusal to accept service of notice"
Mr. S. P. Roy Chowdhury, learned senior advocate for the appellant/tenant, has submitted that from the endorsement of the postal peon on the envelope of the notice dated 31st July, 1991 it appears that there were endorsements of "absent" on 1st of August, 1991, 2nd of August,1991 and 3rd of August, 1991 followed by endorsement of "intimation left" on 5th of August, 1991 followed by another intimation "not claimed" on 13.08.91. In this connection Mr. Roy Chowdhury has further submitted that if defendant did not claim said letter till 13th of August, 1991 in spite of leaving of alleged intimation on 5th of August, 1991 what prompted the postal peon to make endorsements on 17th of August, 1991 and again on 19th of August, 1991 as "absent". According to him, defendant /tenant has categorically stated in his written statement that no notice was sent to him and that the defendant as a defence witness denied receipt of any such notice of eviction. In this connection Mr. Roy Chowdhury has referred case laws as reported in 65 C.W.N. page 1239 (Satya Chorone v. Suresh Chandra), 70 C. W. N. page 676 (Ganesh Nandy v. M/s. J. 4 N. Chatterjee & Bros.), AIR 1989 Calcutta page 14 (Mono Ranjan Dasgupta v. Suchitra Ganguly) and AIR 1976 Supreme Court page 869 ( Puwada Venkateswara Rao v. Chidamana Venkata Ramana) to impress upon this Court that the endorsement "not claimed" cannot be accepted as good service when defendant denied said service both in written statement and as well as during his evidence, so long the postal peon was not examined.
Mr. Partha Sarathi Bose, learned counsel for the respondent, on the other hand, submits that those case laws as referred by Mr. Roy Chowdhury had no application in the facts and circumstances of this case. According to him, there is no averment either in written statement or in evidence of the defendant that he was away from the station and that it rather came out from his evidence that he used to run his shop from
7. A.M. to 8.30 P.M. daily. According to Mr. Bose, when there was no enmity in between postal peon and defendant and when it appears from the endorsement of post peon that before noting the endorsement "not claimed" he made several attempts to serve the registered letter and that intimation was also left, then it was rightly held by both the Courts below that it amounted to good service. According to Mr. Bose, if after noting the endorsement "not claimed" by the postal peon on 13th August, 1991 he still made some attempts on two subsequent dates for service but could not make service, it did not falsify his earlier endorsement "not claimed". 5
In this connection, Mr. Bose has referred case laws reported in AIR 1989 Supreme Court page 630 (M/s. Madan and Co., v. Wazir Jaivir Chand), 63 C.W.N. page 253 (Union of India v. D. N. Mondal), 77 C.W.N. page 870 (Kamalabala Devi v. Durgacharan Dutta and Another), 81 C.W.N. page 739 (Sachindranath Seal v. Sudam Chandra Pal and another) and 82 C.W.N. page 306 Deokaran Nevatia v. Renuka Sarkar).
In Satya Chorone's case (ibid) it was held that postal endorsement "not claimed" could not be held to be good service if it was shown that the defendant was away or absent from the place and there was nobody to accept the letter on his behalf. In this case it is specific case of the defendant that he was all along present in the suit shop room. As such aforesaid case law as referred by learned senior counsel for the appellant has no application in this case.
In Ganesh Chandra Nandy's case (ibdi) as referred by learned senior counsel for the appellant, it appears that Hon'ble Division Bench of this Court held that when the endorsement "not claimed" was preceded by several endorsements from which it is clear that the defendant was residing and was available at the address then said expression "not claimed" should have to be accepted as refusal amounting to good service. The aforesaid case law is rather against the defendant in the facts and circumstances of this case. As in this case also the endorsement "not claimed" was preceded by several endorsements including an endorsement of "intimation left" and 6 it is also not the defendant's case that he was not present in the suit shop room during said period, said endorsement "not claimed" should be treated as good service.
In Mono Ranjan Dasgupta's case (ibid) it was also held that a notice sent under Section 13(6) of the West Bengal Premises Tenancy Act,1956 under registered post would not carry with it obligatory presumption of due service under Section 28 of the Bengal General Clauses Act, 1899 though it may draw a rebuttal presumption of service under Section 114 (e ) and (f) of the Indian Evidence Act.
P. V. Rao's case (ibid) relates to presumption of service when a notice sent under registered post returned with postal remark "refused". It was held that if defendant denied on oath about said refusal then said presumption of due service stood rebutted and plaintiff was required to produce postal peon to prove refusal, unless the evidence of defendant on that score was not believable. Said case law has not much application in this case as there is nothing to show that said letter returned showing several attempts made by the postal peon for service upon the addressee, as it was made in this case.
In M/s. Madan and Company's case (ibid) Hon'ble Apex Court discussed in details the probabilities and possibilities when post man cannot contact address in spite of several attempts and returns the postal article sent under registered post with endorsement like "not found", "not in station" "addressee has left elsewhere" etc. According to the Hon'ble Court if a registered letter addressed to a person at his 7 residential address does not get served in normal course and is returned, it could only attribute to the addressee's own conduct. According to the Hon'ble Court if he is staying in the premises, there is no reason why it should not be served on him, and if he is compelled to away for some time, all that he has to do is to leave necessary instructions with the postal authorities either to retain the letters addressed to him for some time until he returns or to forward them to the address where he has gone or to deliver them to any other person authorized by him. Accordingly, Hon'ble Apex Court held that in such situations it has to be presumed that the letter was duly served upon the addressee.
In Kamala Bala Devi's case (ibid) this Court held that in the absence of evidence to show that the defendant was away or absent from the disputed premises and there was nobody to accept the letter on his behalf a registered letter returned with the endorsement "not claimed" has to be accepted as a good service.
In Deokaran Nevatia's case (ibid) the Division Bench of this Court held that when a notice under Section 13(6) of the West Bengal Premises Tenancy Act, 1956 was sent by registered post and the postal peon went to the address on several occasions to deliver the registered letter and finally the letter was returned with the endorsement "not claimed" and it was in evidence that that the addressee was present at the address and there was no evidence that there was nobody at the address to accept service on behalf of the addressee, then it has to be taken as a good service. 8
In Sachindra Nath's case (ibid) it was held by the Division Bench of this Court that a notice sent under registered post returned with postal remark "not claimed" can be treated as good service in the absence of evidence that there was no one in the house of the defendant to accept the same.
In Union of India's case (ibid) as reported in 1963 C.W.N. page 253 it was held by this Court that if service of notice is denied no question can arise as to its legality or validity and on the other hand, a challenge as to the legality or validity of the notice postulates service of the notice.
In this case it came out that notice to quit was sent to the defendant/tenant under registered post and that it returned with postal remarks "not claimed" preceded by several notings including a noting "intimation left" showing attempts made by postal peon to cause service of the notice. It further appears that even after making endorsement "not claimed" on 13th of August, 1991 postal peon made further two endorsements showing further attempts to cause service of notice.
In para 12 of the written statement the defendant denied the contents of the ejectment notice dated 31st July, 1991 as well as its service and registration. It was further averred that no such notice was sent to the defendant. No where it was stated in the written statement that the notice was not tendered to the defendant by the postal peon though defendant while deposing alleged that there was no tender of any 9 such notice to him by the postal peon. Said evidence is rather beyond his pleadings. Apart from that learned Trial Court has categorically observed that when there was no enmity in between postal peon and defendant and when postal peon returned the notice sent under registered post with an endorsement "not claimed" preceded by several endorsements showing attempts to cause service of the notice, the notice was deemed to be served upon the defendant/tenant and that it was a valid notice.
I find no infirmity in the aforesaid findings of learned Trial Court relating to service of notice in view of the case laws discussed above.
It is true that learned Lower Appellate Court in a cryptic manner accepted said postal endorsement "not claimed" as a good service, but he relied on the findings of learned Trial Court on this score. Accordingly, it may be held that learned Lower Appellate Court did not make any elaborate discussion on the findings of learned Trial Court on this issue, as he concurred with learned Trial Court. Though a more detailed discussion on this point from the learned Lower Appellate Court was desirable but this cannot be a ground for not accepting the findings of learned Lower Appellate Court on this issue when he put reliance on the findings of the learned Trial Court who discussed this issue elaborately.
Accordingly, I am of opinion that the endorsements "not claimed" on the notice sent under registered post amounted to good service in the facts and 10 circumstances of this case and that findings of learned Courts on this score did not call for any interference by this Court.
During hearing Mr. Roy Chowdhury, learned senior counsel for the appellant/tenant, has submitted that landlord had no genuine need and / or requirement of the suit premises for running a business by his third son and that the same was mere desire.
Mr. Bose, learned counsel for the respondent, on the other hand, submits that no specific substantial question of law on that point was framed and that there is no scope of making any submission on that point. He further submits that reasonable requirement is a question of fact and that when both the Courts below came to concurrent findings of fact, on the basis of evidence on record there is little scope of interference by this Court under Section 100 of the Code of Civil Procedure.
Admittedly, reasonable requirement of the suit premises by the plaintiff / landlord is a question of fact. Both the Courts below came to concurrent findings of fact that suit premises was reasonably required by the plaintiff/landlord for using the same as grocery-cum-stationery shop of his unemployed third son. Both the Courts below came to said concurrent findings of fact on the basis of evidence on record. Even if, there is scope of interpreting the evidence on record in some other way to come to a different finding of fact, still High court should not interfere with the concurrent findings of fact of learned Courts below so long it cannot be shown that 11 the same was based on no evidence or perverse. In the case in hand, there is nothing on record to show that said concurrent findings of fact by learned Lower Courts on the points of reasonable requirement was based on no evidence or perverse. In this connection it is also pertinent to note that whether landlord reasonably required the suit premises for his family members' use and occupation, is not a question of law not to speak of a substantial question of law.
As a result, no such question of law was formulated as substantial question of law at the time of admission.
In view of the discussions made above, I am of opinion that concurrent findings of learned Courts below did not call for any interference by this Court in this second appeal.
As a result, the appeal fails.
However, I pass no order as to costs.
Send down Lower Court record along with this judgment to the Lower Court at the earliest.
Urgent xerox certified copy of this judgment be supplied to learned counsel / counsels of the parties, if applied for.
(Tarun Kumar Gupta, J.)