Calcutta High Court (Appellete Side)
M/S. Deep Pal Consultancy Pvt. Ltd vs Smt. Uma Mukherjee on 11 September, 2019
Author: Hiranmay Bhattacharyya
Bench: Harish Tandon, Hiranmay Bhattacharyya
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
BEFORE:
The Hon'ble Justice Harish Tandon
And
The Hon'ble Justice Hiranmay Bhattacharyya
F.A. 77 of 2016
M/s. Deep Pal Consultancy Pvt. Ltd.
-vs-
Smt. Uma Mukherjee
For the Appellant : Debasish Roy
Basudeb Ghosh
Sourav Roy
For the Respondents : None
Heard on : 18.7.2019
Judgment on : 11.9.2019
Hiranmay Bhattacharyya, J.:
The instant appeal has been preferred against the judgement and decree dated August 13, 2015 passed by the Civil Judge, (Senior Division), 5th Court at Alipore in Title Suit No. 22 of 2014.
The appellant herein filed a suit for eviction under Section 6(1) of the West Bengal Premises Tenancy Act, 1997 inter alia on the grounds of default, violation of clauses (m), (o) and (p) of 2 Section 108 of the Transfer of Property Act and for building and rebuilding.
The plaint case in a nutshell runs as follows:
The plaintiff is the owner of the suit property and the defendant is a monthly tenant under the plaintiff at a rental of Rs. 130/- payable according to English Calendar month. By virtue of a deed of conveyance dated March 1, 2007 the plaintiff acquired title in respect of the suit property. The letter of attornment which was sent by the plaintiff by speed post with acknowledgement due was not accepted by the defendant. Originally one N.Mukherjee was the tenant in respect of the suit premises. Upon his death the tenancy right devolved upon his son Swapan Mukherjee. Upon the death of Swapan Mukherjee, the defendant being his wife, became the tenant in respect of the suit property. The defendant is a defaulter in payment of rent from the month of March, 2007 and is guilty of causing waste and negligence. He also violated the provisions of Clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act. The suit property is a dilapidated one and a notice under Section 411(1) of the Calcutta Municipal Corporation Act, was served upon the plaintiff directing him to demolish the dangerous 3 portion of the building. As such the suit premises is required by the plaintiff for the purpose of building or rebuilding and the plaintiff has also got the plan sanctioned from the Municipal Authority. A notice to quit dated November 14, 2013 was sent by the learned advocate of the plaintiff through registered post with acknowledgement due directing the defendant to quit and vacate the tenanted accommodation. The said notice returned with the postal endorsement "unclaimed". Since the defendant did not vacate the suit premises, the plaintiff was compelled to institute the instant suit.
The summons of the suit was sent to the defendant by registered post with acknowledgement due. The envelope containing the summons returned with the postal remark "unclaimed". The learned Trial Judge, upon being satisfied with the service of summons upon the defendant fixed the suit for ex parte hearing on December 5, 2014 as the defendant did not enter appearance in the suit to contest the same.
In order to prove the case made out in the plaint, the plaintiff/appellant herein filed an affidavit-in-chief. Several 4 documents were tendered by the plaintiff in his evidence which were marked as Exhibits.
The learned Trial Judge by a Judgement and Decree dated August 13, 2015 was pleased to dismiss the said suit ex parte. The learned Judge of the court below held that no landlord-tenant relationship between the plaintiff and the defendant in respect of the suit premises exist. The Ejectment Notice was not served upon the defendant. The ground of default and causing damage to the suit property also could not be substantiated by the plaintiff by adducing evidence.
The plaintiff/appellant herein challenged the aforesaid judgement and decree dismissing the suit for eviction in the instant appeal.
The notice of appeal was issued upon the sole respondent herein by speed post with Acknowledgement Due. An undelivered envelop with the Acknowledgement Due card came back to the concerned department of this court with the postal remark "refused". It is no longer res integra that "refusal" amounts to good service. The respondent has not entered appearence in the instant appeal to contest the same.5
Mr. Roy, learned Advocate appearing for the appellant submits that the learned Judge of the court below erred in law by not holding that when a registered envelop returns with the remark "unclaimed" the same is to be treated to be good service in a case where intimation was served and the addressee do not collect the same. He further submits that the address of the suit premises where the defendant is residing is same and identical with the address as mentioned on the envelope containing the Ejectment Notice. He thus submits that the learned Court below erred in law by not drawing a presumption of good service with regard to service of the Ejectment Notice upon the defendant in the instant case.
Mr. Roy further submits that the defendant also deliberately avoided to receive the letter of attornment which was sent to her through registered post with Acknowledgement Due in spite of the fact that she is all along residing at the address at which the letter of attornment was forwarded to.
Mr. Roy, also refers to the Exhibit-6 i.e. the certified copy of the Inspection Book of the Calcutta Municipal Corporation and submits that from the said Inspection Book it is evident that the father in law of the defendant namely N. Mukherjee was a tenant in 6 respect of the said property. He thus submits that the learned Judge of the court below erred in law by holding that the plaintiff has failed to prove that the father-in-law of the defendant namely N. Mukherjee was a tenant in respect of the suit premises.
Mr. Roy, next submits that several documents were exhibited at the instance of the plaintiff namely building sanction plan, being Exhibit-8, Building Permit, being Exhibit-9, the Stacking Memo being Exhibit-10 in order to prove that the plaintiffs require the suit premises for building and rebuilding. He also submits that the learned Trial Judge ought to have held that the plaintiff has proved the grounds of eviction as pleaded by him in the plaint.
In support of his submission that "not claimed" or "unclaimed" amounts to good service, Mr. Roy relied on the following judgements:
1. Ganesh C. Nandy vs. J.N. Chatterjee & Bros. reported at 70 CWN 676
2. Madan and Company vs. Wazir Jaivir hand reported at AIR 1989 Supreme court 630
3. New Globe Transport Corporation Vs. Magma Shrachi Finance Limited reported at AIR 2011 cal 72 7
4. Kamalabala Devi vs. Durga Charan Dutta and Ors. reported at 177 CWN 870 In Madan (supra) the Hon'ble Supreme Court has held that after a prepaid registered letter containing the correct address of the addressee is delivered to the Post Office, the sender has no control over it and it is to be presumed to have been delivered to the addressee in view of Section 27 of the General Clauses Act. It has been further observed by the Hon'ble Supreme Court in the said judgement that an addressee can easily avoid receiving the letter addressed to him without specifically refusing to receive it. He can also manipulate matters so that it gets returned to the sender with vague endorsement such as "not found", "not in station", "addressee has left" and so on. If a registered letter addressed to a person at his residential address does not get served in the normal course and is returned it can only be attributed to the addressee's conduct.
If he is staying in the premises, there is no reason why it should not be served on him. If he is compelled to be away for some time, all that he has to do is to leave necessary instructions with the postal authorities either to tender the letters addressed to him after some time until he returns or to forward him to the address where he has 8 gone or to deliver him to some other person authorised by him. The Hon'ble Supreme Court also took into consideration a fact that a landlord knowing that the tenant is away from station for some reasons could go through the motions of posting a letter to him which he knows will not be served.
In Ganesh Nandi (Supra) it has been held that in case the endorsement "not claimed" is preceeded by several endorsement from which it is clear that the defendant was residing and was available at the address to which the notice was sent, the expression "not claimed" must be read as amounting to refusal and the same would be treated to be a good service.
In New Globe Transport Corporation (supra) the learned Single Judge has held that "not claimed" tantamounts to good service.
In Kamalabala Devi (supra) it has been held that when a registered notice comes back with the endorsement "not claimed" it must be accepted as a good service.
Thus in view of the law laid down by the Hon'ble Supreme Court of India in the case of the Madan (supra), the court must be satisfied that the defendant is residing at the address at which the registered envelop was sent and also that the prepaid registered 9 letter containing the correct address was delivered to the Post Office. The Court on being satisfied with the aforesaid can then draw a presumption that such registered letter has been delivered to the defendant by applying the provisions of section 27 of the General Clauses Act.
In the instant case, the Learned Trial Judge held that the presumption of valid service cannot be drawn as the correct address of the addresses has not been proved or established by the plaintiff.
Mr. Roy, learned Advocate for the appellant in course of hearing of the instant appeal submits that the appellant has taken out an application under Order 41 Rule 27 of the Code of Civil Procedure for production of Additional Evidence before this court which is registered as CAN 3087 of 2019. It is well settled that an application under Order 41 Rule 27 of the Code is to be heard along with appeal and as such the appeal as well as the said application are taken up for hearing.
Mr. Roy submits that the appellants have filed certain documents along with the application for adducing additional evidence in order to prove that landlord and tenant relationship exists between the plaintiff and the defendant. He also submits that 10 certain documents have been filed to show that the defendant along with the members of her family are residing at the suit properties which will help the Court in drawing the presumption of valid service of the Ejectment notice upon the defendant.
Before making any comment on the documents sought to be produced by the plaintiff/ appellant as additional evidence, it would be profitable to quote the provisions laid down under Order 41 rule 27 of the Code of Civil Procedure which is as follows:
R. 27 . Production of additional evidence in Appellate Court -- (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court, But if--
(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or [(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or]
(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for 11 any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined. (2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.
From a bare reading of the aforesaid provision, it is evident that the parties to an appeal shall not be entitled to produce additional evidence whether oral or documentary in the appellate court unless the ingredients of various clauses therein are satisfied. Admittedly, the appellant did not produce these documents before the trial court and therefore, clause (a) of the said provision has no manner of application.
Clause (aa) of the said provision is applicable only when the party seeking to produce additional evidence establishes that despite exercise of due diligence, such evidence was not within his knowledge or could not be produced at the time of passing the decree. There is no averment in the application relating to due diligence in the said application. Therefore clause (aa) is also not attracted in the instant case.
However clause (b) of the said provision gives discretion to the appellate court to permit such additional evidence provided such 12 documents are required to enable the court to pronounce the judgment. The appellate court also has the power to permit the documents to be received as an additional evidence provided it is satisfied that there are other substantial causes necessitating such documents to be taken on record. For the limited purpose, whether such documents are required for pronouncement of the judgment, the appellant produced the photocopies of the documents which are annexed to the application.
From the documents annexed to the application it appears that the appellants have filed the photocopy of the order dated September 9, 2014 wherefrom it appears that the learned trial Judge after comparing the address of the defendant of the suit premises as well as the address on envelope containing the summons of the suit which came back with remark "not claimed"
held the service of summons upon the defendant to the satisfactory. The appellant has produced a photocopy of electricity bill wherefrom it appears that N. Mukherjee, i.e the father-in-law of the opposite party was one of the residents of 42, Sarat Ghosh Garden Road, Kolkata 700031 i.e. the suit premises.13
A photocopy of the print out of voter lists in respect of the suit property was also annexed to the said application in order to bring to the notice of the Court that the respondent along with her two daughters are residing at premises no. 42 Sarat Ghosh Garden Road, Kolkata 700031which is the suit premises.
The learned Trial Judge held that the notice of attornment which returned with the endorsement "not claimed" cannot be said to be a good service. The learned trial Judge further held that presumption of valid service cannot be drawn with regard to the ejectment notice as the correct address of the addressee has not been proved or established by the appellant herein. The ejectment notice returned with the endorsement "Not Claimed". The letter of attornment returned with the remark "Left". In order to draw a presumption of good service in terms of the provisions of Section 27 of the General Clauses Act, the plaintiff/appellant herein is to prove that the defendant is residing at premises no. 42, Sarat Ghosh Garden Road, Kolkata 700031.
The plaintiff/appellant has annexed the aforesaid documents along with the application for additional evidence in order to prove that the Ejectment Notice as well as the letter of attornment was 14 sent at the address where the defendant is residing. Thus we are of the view that the documents filed along with the application for production of additional evidence can throw a light on the core issue which is involved in the suit for eviction. It is no longer res integra that if the documents produced along with the application for adducing additional evidence shall help the Court to resolve the core issue involved in the suit and also that such documents are necessary for the purpose of pronouncement of the judgement, the appellate court shall permit the party to adduce additional evidence. We therefore allow the application for additional evidence. Accordingly, opportunity is to be afforded to the plaintiff/appellant hearin to prove the documents annexed to the said application in accordance with law as the same can be taken into consideration only after it is proved and marked as exhibits. If a document is tendered in evidence, the proof and admissibility of such documents are subject to the orders of the Courts and the adverse party has a right to raise an objection as to the admissibility as well as the mode of proof of such documents.
The instant suit has been filed under Section 6(1) of the West Bengal Premises Tenancy Act, 1997. Section 6(1) of the said Act 15 provides that no order or decree for recovery of the possession of any premises shall be made by the Civil Judge having jurisdiction in favour of the landlord against the tenant except on a suit being instituted by such landlord on one or more of the grounds specified in various clauses of Section 6(1) of the said Act. Therefore, it affords a tenant a protection from eviction until and unless the landlord is successful in proving one or more of the grounds specified in various clauses of Section 6(1) of the said Act. From a bare reading of the said provision it is evident that in order to institute a suit under Section 6(1) of the said Act there has to be an existence of landlord and tenant relationship between the parties.
Sub-Section (4) of Section 6 of the said Act provides that no suit for 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. In the instant case the plaintiff has not instituted the suit for eviction on the ground mentioned in Section 6(1) (e) of the said Act. Thus, a notice under Section 6(4) of the said Act is a pre- 16 requisite for institution of the suit by the plaintiff/appellant herein against the defendant/respondent.
Prior to institution of a suit for eviction under Section 6(1) of the said Act a notice under Section 6(4) of the said Act is to be sent to the tenant/defendant. Such notice is to be duly served upon the said tenant/defendant. Only upon expiry of the period mentioned in the said notice, an eviction suit under Section 6(1) of the said Act can be instituted by a landlord against the tenant on one or more grounds specified in various Clauses of Section 6(1) of the said Act. The service of Ejectment Notice is a pre-requisite for institution of a suit under Section 6(1) of the said Act and the existence of landlord and tenant relationship between the parties to the suit is the basic requirement for maintaining such suit. A court before passing a decree under Section 6(1) of the said Act is to be satisfied with the service of Ejectment Notice under Section 6(4) of the said Act and also that a landlord tenant relationship between the parties exist. The Court thereafter can proceed to consider as to whether the plaintiff is entitled to get a decree for eviction on one or more grounds specified under various Clauses of Section 6(1) of the said Act.17
Since, the learned Trial Judge specifically held that no landlord tenant relationship exist between the plaintiff and the defendant in respect of the suit premises and also that the Ejectment Notice has not been served upon the defendant/respondent herein, it is to be first decided as to whether the landlord tenant relationship exist between the parties and also as to whether the Ejectment Notice was duly served upon the defendant/respondent herein.
Now reverting back to the judgement of the Trial Court It is evident that the finding of the learned Court below with regard to the service of the notice to quit cannot be supported by us in view of the law laid down by the Hon'ble Supreme Court of India in Madan (supra). The Court below has held that no document has been filed by the plaintiff to show that N. Mukherjee since deceased was a monthly tenant in the suit premises. The said finding was arrived at by the Learned Trial Judge without taking into consideration the Inspection Book of the Kolkata Municipal corporation being Exhibit-
6 wherefrom it appears that N. Mukherjee was the tenant at premises No. 42 Sarat Ghosh Garden Road at a monthly rental of 18 Rs. 130/- under one Reba Chakraborty who was an erstwhile owner of premises No. 42 Sarat Ghosh Garden Road.
From the recitals of the Deed of conveyance dated 01.03.2007 being exhibit 2 we find that Reba Chakraborty transferred her right, title and interest in favour of one Bhairab Sadhukhan by executing a registered deed of conveyance. The said Bhairab Sadhukhan subsequently transferred his right, title and interest in respect of the suit premises in favour of the plaintiff/ appellant herein. Thus, the plaintiff/ appellant became the owner of the suit premises.
Thus the said finding of the learned court below also cannot be supported by us and the same is hereby set aside. The learned Judge of the Court below drew an adverse inference against the plaintiff with regard to the issue of relationship of landlord and tenant between the plaintiff and the defendant on the ground that the letter of attornment returned unserved. It is quite possible that the defendant avoided to receive the letter addressed to him without specifically refusing to receive it by somehow manipulating the matters so that it gets returned to plaintiff with the remark "left". The Ejectment Notice forwarded at the same address came back with the remark "not claimed". The summons of the suit also 19 returned with the endorsement "not claimed" after intimation was served. The notice of appeal of the instant appeal also returned with the remark "refused".
The letter of attornment, Ejectment notice, summons of the suit as well as the Notice of appeal were all sent at the same address. The defendant did not accept any of the aforesaid registered envelopes and some of the registered envelopes returned with the remark "Not Claimed", one of such returned with the remark "Left" and the other with the remark "refused".
The defendant chose not to contest the suit as well as the instant appeal. Thus, from the conduct of the defendant it may be possible that the defendant avoided to accept the letter of attornment as well as the Ejectment Notice. But in order of pass a decree for eviction, the court has to be satisfied with the service of the Ejectment Notice. The Learned Court below after taking into consideration the material available on record along with the additional evidence that may be adduced by the plaintiff has to arrive at a decision as to whether the Ejectment Notice was duly served upon the defendant.
20
It is well settled that even if the suit has been fixed for ex parte hearing, the plaintiff has to prove the grounds on which he seeks eviction of the tenant/defendant under Section 6(1) of the said Act. The learned Trial Judge held that the ground of default in payment of rent stands futile as because the learned Trial Judge was of the view that the landlord and tenant relationship between the parties do not exist. The grounds of eviction mentioned under various Clauses of Section 6(1) of the said Act can be decided on merit only in case there exists a landlord tenant relationship between the parties. The learned Judge of the Trial Court ought not to have held that the ground of causing waste and damage to the suit properties cannot be proved by the plaintiff by any material evidence in the instant case after returning a finding that there exists no relationship of landlord and tenant between the parties. Thus, the said finding of the learned Trial Judge cannot be sustained in the eye-of-law and the same is also set aside. The learned Judge of the Trial Court after considering the evidences of the parties has to decide the suit afresh as to whether the plaintiff/appellant herein is entitled to evict the defendant/respondent from the suit premises on one or more grounds mentioned in his pleadings only after 21 arriving at a finding that the landlord and tenant relationship exists between the parties and that the Ejectment Notice has been duly served upon the defendant/respondent.
The learned Judge of the Court below also did not deal with the ground of building and rebuilding, may be, for the reason that the learned Trial Judge was of the view that unless the plaintiff succeeds in proving the service of the Ejectment Notice no decree for eviction can be passed under Section 6 of the West Bengal Premises Tenancy Act, 1997. In other words the service of notice under Section 6(4) of the said Act is a prerequisite for passing a decree for eviction under Section 6(1) of the said Act.
For the reasons as aforesaid the instant appeal is allowed thereby setting aside the judgement and decree dated August 13, 2015 passed by the Civil Judge, (Senior Division), 5th Court at Alipore in Title Suit No. 22 of 2014 and by remitting the suit being Titile Suit No. 22 of 2014 back to the learned Trial Judge for deciding the same afresh after affording an opportunity to the parties to lead further evidence in the suit and to dispose of the suit as expeditiously as possible and preferably within a period of eight months from the date of communication of this order. 22
C.A.N. 3087 of 2019 is also allowed.
Let the Lower Court records be transmitted to the learned court below at once.
Photostat certified copy of this order, if applied for, be supplied to the applicant expeditiously, subject to compliance of all the required formalities.
I agree.
(Harish Tandon, J.) (Hiranmay Bhattacharyya, J.)