Calcutta High Court (Appellete Side)
Smt. Hasi Dasgupta And Others vs Mrs. Sankari Banerjee And Others on 19 August, 2019
Author: Sanjib Banerjee
Bench: Sanjib Banerjee
1
01
19.08.2019
Ct. No. 16
ssd
SAT 140 of 2019
with
CAN 4655 of 2019
Smt. Hasi Dasgupta and others
Vs.
Mrs. Sankari Banerjee and others.
Mr. Rahul Karmakar
Md. Fida Rosul
...for the appellants.
Mr. Parizat Som
Mr. D. De
...for the respondents.
This proposed second appeal clearly brings out the malaise in the system, particularly in this State. This is an eviction suit of the year 1989. The West Bengal Premises Tenancy Act, 1956 has since been repealed and replaced by the West Bengal Premises Tenancy Act, 1997 from some time in July, 2001. The would-be second appellant has been able to rely on the court's delay to thwart the plaintiff's claim for more than 30 years.
Two principal grounds are taken to assail the decree of reversal by the lower appellate court: that the notice to quit 2 issued under Section 13(6) of the Act of 1956 was not proved to have been served on the original defendant; and, that there could have been no presumption of default in payment on the part of the would-be second appellant, though the application under Section 17(2) of the Act of 1956 stood dismissed for default and was not permitted to be revived later.
As to the service of the notice to quit, the plaintiffs asserted that such notice was sent by registered post with acknowledgement due and the acknowledgment card had been duly returned with the original defendant's signature thereon. In the written statement filed by original defendant prior to his death in 1995, the original defendant denied the receipt of the notice and disowned his signature thereon. However, by the time the suit went to trial, the original defendant had died and a daughter testified that the signature on the acknowledgement card was not her father's. The daughter's evidence in such regard is somewhat confusing since the daughter said in her cross-examination that she had not seen the notice to quit or the acknowledgement card pertaining thereto. She also admitted that she was not aware whether her father had taken up the matter with the postal authorities upon the plaintiff's 3 assertion that the notice was served on the original defendant and was acknowledged as such.
The defendants submit that in the absence of the plaintiffs affirmatively establishing the service of the notice under Section 13(6) of the Act of 1956 on the defendant, the suit itself was bad. According to the defendants, once the original defendant had disputed his signature on the purported acknowledgment card, it was incumbent on the plaintiffs to prove that the signature was that of the original defendant or that the notice had otherwise been duly served on the original defendant.
The defendants rely a Division Bench judgment of this court reported at 1988 (1) CHN 219 (Mano Ranjan Dasgupta v. Suchitra Ganguly) where the court brought out the distinction between the notice as required to be issued under Section 13(6) of the Act of 1956 and the notice that is required to be issued under post-amendment Section 106 of the Transfer of Property Act, 1882. The Division Bench noticed both the Bengal General Clauses Act and the central General Clauses Act and found that in respect of service in terms of any State Act, the provision of Section 28 of the Bengal General Clauses Act would be attracted if the relevant State Act required service to be effected by post. The Division 4 Bench reasoned that since Section 13 (6) of the Act of 1956 did not mandate any notice to be issued by post, the presumption available under Section 28 of the Bengal General Clauses Act would not be available in respect of such a notice.
The judgment in Mano Ranjan has to be appreciated in the context in which the court refused to give the plaintiff any benefit under Section 114 of the Evidence Act, 1872 despite noticing that such a situation may otherwise be covered by at least two of the illustrations under such provision. In Mano Ranjan, the notice to quit issued under Section 13(6) of the Act of 1956 was said to have been refused to be accepted by the defendant and it was such postal endorsement which was under challenge. It appears that a second notice was sought to be sent by the plaintiff which was returned with the postal endorsement signifying that the door always remained closed and, as such, service could not be effected. The plaintiff in that case claimed that the second endorsement was false. It was in such circumstances that the court in Mano Ranjan declined to afford to the plaintiff the benefit under Section 114 of the Evidence Act since the plaintiff, in the same breath, alleged that one of the two postal endorsements was false and the other was correct.
5
Such a situation does not arise in the present case. Though Section 13(6) of the Act of 1956 does not mandate a notice to be sent by post or registered post, yet it must be accepted that issuance of such notice is the safest, most neutral and most difficult to manipulate when such a notice has been sent by registered post and the postal acknowledgement card is returned apparently bearing the signature of the addressee. The mere denial of such signature is not enough to wish away the notice or the impact thereof. It is possible that a disingenuous noticee may affix some scribbling that does not bear any resemblance to the regular signature of such person with the motive of being able to deny the receipt of notice at a later point of time. After all, the postman delivering the notice would not be acquainted with the regular signature of the noticee and any scribble or initial put by the noticee, as long as the postman is satisfied as to the identity of the noticee, would have to be accepted by the postman.
Further, since the notice was issued through an independent and otherwise reliable official mode, the defendants in this case had to do a bit more than merely denying the signature appearing in the postal acknowledgement card. It does not even appear from the 6 evidence of DW-1 that any comparable signature of her father was tendered into evidence or any effort was made for the disputed signature to be referred to any handwriting expert. The defendants, however, say that they were only required to deny the signature and, in view of the general burden of the plaintiff, it was for the plaintiff to demonstrate or affirmatively establish that the signature appearing in the acknowledgement card was that of the original defendant. It is here that the general presumption available under Section 114 of the Evidence Act comes into play. Since the notice was issued by a regular and official mode of service not controlled by the plaintiff and such notice appeared to have been served on the noticee, the onus was on the noticee to demonstrate that the notice was not received. There does not appear to be any error committed in such regard by the first appellate court in accepting that the notice had been duly received by the original defendant.
As to the ground of default, it is the admitted position that there was no documentary proof of payment of rent for about three to four years immediately preceding the institution of the suit. The original defendant applied under Section 17(2) of the Act of 1956. Such application was not pursued and may even have been dismissed since the original 7 defendant died in 1995. However, it cannot be missed that the suit was filed in 1989 and the original defendant died some six years later. It is not clear now as to when an attempt was made to revive the application under Section 17(2) of the Act of 1956; but it is safe to notice that the substituted defendants accepted the fact that their predecessor's application under Section 17(2) of the Act of 1956 stood dismissed without being adjudicated on. The substituted defendants accepted the consequence of such dismissal without carrying the matter by way of revision or appeal or similar protest.
Thus, on the basis of the evidence before the first appellate court, the notice to quit stood proved and there was nothing to show how the rent for the three or four years immediately preceding the suit had been paid. In the circumstances, there does not appear to have been any error on the part of the first appellate court in accepting such default and proceeding to decree the suit almost 30 years after the institution of the suit.
On the ground of default, a Single Bench judgment of this court reported at 66 CWN 414 (Rupeswari Debi v. Lokenath Hosiery Mills) has been placed for the enunciation of law therein at page 418 of the report while dealing with the 8 ground of default in that case. It appears that out of seven chalans only five had been deposited and marked as exhibits and there was no explanation why the two other money order coupons had not been brought before the court. However, on facts, the court found that it was for the plaintiff to demonstrate that there was default on the part of the defendant in paying or depositing rent which the plaintiffs had failed to do in that case. The passage from the report that has been relied upon deals with the facts peculiar to that case and there does not appear to be any general enunciation of law that can be culled out therefrom to be applied to the facts of the present case.
The two issues raised have been dealt with at length herein. It is not necessary to detain the plaintiffs over such trivial matters and subject them to a further wait of a few more decades in this court. There is no other question of law or of any importance that is involved in the matter. As a consequence, SAT 140 of 2019 along with CAN 4655 of 2019 are dismissed.
There will be no order as to costs.
(Sanjib Banerjee, J.) 9 (Hiranmay Bhattacharyya, J.)