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Punamchand Daga Vs. Subhkaran Dosani - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberA.F.O.D. Nos. 49 to 57 of 1960
Judge
Reported inAIR1968Cal186,71CWN686
ActsWest Bengal Premises Tenancy Act, 1956 - Section 13(6)
AppellantPunamchand Daga
RespondentSubhkaran Dosani
Appellant AdvocateCharu Chandra Ganguly and ;Usha Dutt Mukherjee, Advs.
Respondent AdvocateSachindra Chandra Das Gupta and ;Birendra Nath Banerjee, Advs.
Cases ReferredDulinchand v. Renuka and Raj Kumari
Excerpt:
- a.k. mukherjea, j.1. these nine appeals are directed against the judgment and decree dated 16th november 1959 and 7th december 1959 respectively passed by the judge, 3rd bench city civil court, against the defendant-appellant in nine suits the judgment in question really covers ten suits all filed by the plaintiff. nine of these suits were filed against the same defendant punamchand daga and one against manack-lal bhutra punamchand daga has filed an appeal against the decree of ejectment in all the nine suits in which he was the defendant.2. the facts and circumstances of the use are briefly as follows: defendant punamchand daga was a tenant of the plaintiff in respect of four rooms on the fourth floor and five rooms on the second floor of premises no 36, shibtola street. each of these.....
Judgment:

A.K. Mukherjea, J.

1. These nine appeals are directed against the judgment and decree dated 16th November 1959 and 7th December 1959 respectively passed by the Judge, 3rd Bench City Civil Court, against the defendant-appellant in nine suits The judgment in question really covers ten suits all filed by the plaintiff. Nine of these suits were filed against the same defendant Punamchand Daga and one against Manack-lal Bhutra Punamchand Daga has filed an appeal against the decree of ejectment in all the nine suits in which he was the defendant.

2. The facts and circumstances of the use are briefly as follows: Defendant Punamchand Daga was a tenant of the plaintiff in respect of four rooms on the fourth floor and five rooms on the second floor of premises No 36, Shibtola Street. Each of these rooms was held by the defendant under a separate tenancy All the tenancies were running from Sudi 9th to Sudi 8th according to the Vikram Sambat year The rents payable by the defendant in respect of these tenancies have been stated in the respective plaints. The plaintiff complains that the defendant did not pav any rent in respect of these nine tenancies from Pous Sudi 9th, 2014 S Y (corresponding to 31st December 1957). The defendant contended that he was not a defaulter and that no ejectment notice had been served on him. He also contended that there were two tenancies and not nine as alleged by the plaintiff so that the suits as framed were bad.

3. Various issues were framed in all these nine suits; they were, however, more or less the same in each suit. The learned trial Judge found against the defendant on all the issues His findings were briefly as follows-:

(i) There were nine tenancies as alleged by the plaintiff and not two. Therefore, the suits have been correctly framed and were maintainable:

(ii) The defendant had been a defaulter in payment of rent since Pous Sudi 9th, 2014 S Y corresponding to 31st December 1957;

(iii) The ejectment notice in each of these suits had been refused by the defendant. Therefore, there was service of the ejectment notice as required by law:

(iv) The contents of the notices show that the notices were in order:

(v) With regard to the defendant's contention that there was an agreement between the partie that rent would be payable only against presentation of bills, this has been disbelieved by the learned trial Judge. He held that the rent was payable as soon as it became due -it the close of the month.

4. On these findings the learned Judg' decreed all the suits against the defendant.

5. Mr. Charu Chandra Ganguly appearing for the defendant-appellant argued that the notices had not been served. Mr. Gan-Rulv of course, realised the weakness of his case when the evidence as well as the learned Judge's findings on this point were pointed out to him and ultimately ended by saying that in the case of at least one notice, service had not been proved. This notice appears at oage 110 of Part II of the Paper Book. We compared the paper book copy of the registered cover with the original and found that the paper book copy is not quite a correct com of the writings of the original COVPT Thfif war an endorsement 'N/M bv the peon made on 26th July which does notappear in the printed copy of the registered cover. 'N/M' obviously it ands for 'Not Met' We have compared the other registered covers all dated 8th July, 1958 where we find the words 'Not Met' have been clearly written. Only in the case of this envelope the portal peon satisfied himself by merely writing 'N/M'. There is another endorsement just below the endorsement of 26th July to the effect 'Refused'. That endorsement is dated 29th July. The Paper Book unfortunately does not give this date at all. Mr. Ganguly's argument was based mainly on the mistakes contained in the copy of the registered cover. A look at the original exhibit shows clearly that there is no substance in the argument.

6. Mr. Ganguly then argued that there had been an agreement between the defendant and the plaintiff's pr'decessor-in-interest Hazarimul Hampuria under which rent would be payable only on presentation of bills and not otherwise. The learned trial Judge rejected this plea in his judgment and we see no reason to disturb his findings of fact on this point. (After considering the evidence the judgment proceeded-)

In complete agreement with the learned trial Judge we also reject the defendant contention that there was an arrangement that rent would be paid only when demanded and not when it fell due.

7. The third argument of Mr. Ganguly was an argument which almost staggered us. He complained that the ejectment notices did not state the grounds on which the defendant was sought to be ejected. Now, It is well known that in the Special Bench decision in Surya Properties Private Ltd. v. Bimalendu Nath : AIR1964Cal1 (SB) this High Court by a majority of four Judges to one had held that it was not necessary to mention in a notice under S. 13(6) of the West Bengal Premises Tenancy Act (hereinafter referred to as the said Act) the ground or grounds of ejectment for which a suit is to be instituted for recovery of possession. Four out of the five learned Judges who formed the Special Bench, namely. Bose, C. J. Bachawat J. Slnha, J (as he then was) and G. K. Mitter, J stated this to be the law in clear and unmistakable terms. Only P. N. Mookerjee. J. held otherwise. We were, therefore, a little surprised to find an Advocate of the standing of Mr. Ganguly making this point in the face of the majority decision of the Special Bench. But Mr. Ganguly tried to justify himself by producing before us the judgment in the case of M. K. Bhim-ani v. Keshab Chandra, ILR (1966) 2 Cal 1, in which a Division Bench of this High Court consisting of P. N. Mookerjee, J. and Laik, J. have held that according to the three learned Judges of the Special Bench, namely, Bose, C. J., Bachawat. J. and P. N. Mookeriep. J.

'in a case where a notice to quit does not state the grounds, there must appear,either from the correspondence or from the surrounding circumstances in the record, some such information to the tenant which might be taken as sufficient intimation to him'.

Mr. Ganguly argued that it was quite clear from the judgment that according to the Division Bench the real purport of the Special Bench decision was that unless the grounds of ejectment appeared from the surrounding circumstances or from other correspondence, the notice under Section 13(6) of the said Act must contain the grounds. I have carefully examined the judgment of the Division Bench which was written by Laik, J. and I must say in fairness to Mr. Ganguly that that indeed appears to be the intent of the Division Bench judgment. In effect, this would mean that the minority judgment of P N. Mookerjee, J. would prevail over the majority judgment of the Special Bench. This, in my opinion, is an absurd proposition. The majority view on any point in a Special Bench decision must remain operative and fully effective unless and until it is overruled or made ineffective by the decision of a higher authority or by legislation. It will be introducing a kind of anarchy in the realm of judicial precedents if a minority judgment is allowed to be converted into a mandate by the simple device of whittling down the positive and categorical findings of the majority judgment. I consider this to be such a dangerous practice that I feel constrained to deal with the Division Bench judgment in some detail - even though In ordinary circumstances I would have preferred not to say a word on this judgment because, for reasons that will appear presently it is difficult to speak of it with becoming restraint. In order that the subordinate judiciary may not get embarrassed or confused in dealing with the questions of law settled by the Special Bench, it has become necessary to repeat in unmistakable language that the findings of the Special Bench are still good law and the minority judgment still remains a minority judgment in spite of the condemnation and even mutilation of the findings of the majority Judges in the Division Bench ludgment of Laik. J That it the only reason which impels me in spite of great reluctance, to deal with the judgment of Laik J in somp detail.

8. The case of ILR (1966) 2 Cal 1 (ibid) was one of two appeals before the Division Bench. This case, it must be remembered had also been referred to the Special Bench along with F. A. No. 444 of 1961. i.e., : AIR1964Cal1 . That means, both the Special Bench and the Division Bench dealt with the same case. The question M to the nature of requirement and form of the notice contemplated under S. 13(6) of the Act was one of the questions decided by the Special Bench with direct reference to this particular case among others so that it cannot be argued that the application of thefindings of the Special Bench to this case was to be made by analogy. The question which was 'Question No. 2' before the Special Bench and which I shall refer to as such hereinafter was decided by the Special Bench for this case also. We shall presently see what becomes the fate of that decision when it came up before the Division Bench again. Laik, J. who delivered the judgment for the Division Bench deals with the answers of the five learned Judges constituting the Special Bench to 'Question No. 2' from paragraph 38 to paragraph 53 of his judgment. His Lordship then devotes as many as thirteen paragraphs from paragraph 60 to paragraph 72 to a vicarious denunciation of the four Judges who differed from the minority judgment of P. N. Mookerjee, J. in regard to 'Question No. 2' by reproducing with ill-concealed delight the 'bitter' criticism of the learned Advocates regarding the view of the four learned Judges who sat on the Special Bench and had the misfortune to deliver the majority judgment. His Lordship has sought to indicate in every paragraph, by adding the words 'It is also argued' or some such words that the disrespectful and almost scurrilous criticisms of the majority Judges of the Special Bench were being made by the members of the Bar which included at least one member who is now a Judge of this Court I find myself confronted with a dilemma in dealing with these observations. On the one hand, I find it galling to impute such exhibition of bad taste to the members of the Bar of this High Court who are well known for their dignity and decorum and who always act up to the highest traditions of the noble profession to which they belong On the other hand, since Laik, J in express words attributes them to the members of the Bar it is disrespectful on my part not to accept such statements at their face value. My difficulty is increased by the fact that all the comments of the Bar have been summarised by his Lordship, in his own language and are interspersed here and there with comments which are suggestive of sympathy and approbation. Indeed, the comments of the Bar are not at all clearly demarcated and it is difficult to distinguish the words that were used from the Bar from the words that perhaps fall from his Lordship. One has only to go by surmise and following the dictates of good taste, to decide which portions could not possibly have come from his Lordship. In proof of my predicament I cite only three illustrations.

9. Commenting on the judgment of Sinha, J (as his Lordship then was). Laik, J. writes:

'It is also argued that Sinha, J. inspired by Mesarry's Book on the English Rent Acts, though he well ransacked the same and gathered the references from his laborious trans-Atlantic sojourn vet, due to the abtence of summing up of the edifying notes.they (the lawyers), even after feeling the tremor, remained where they were'.

10. I find it impossible to decide as to whether it is couched in the language used by the Bar, or it is his Lordship's own language, since it has neither sense nor syntax. It is astonishing to hear that such language emanated from the Bar, but what is most amazing is that hip Lordship should have made it his own.

11. Again, speaking of the judgment of G. K. Mitter, J.. Laik, J observes:

'71. It is argued from the bar that the judgment of G K Mitter, J as it consists mostly of statutory provisions can be taken as read.'

12. This observation about the judgment of one of our most distinguished Judges who is even now sitting on the highest Court of law in our country is to say the least, in questionable taste and since this is not an argument but a vituperation. I do not see how that could have been an argument from the Bar But his Lordship's observation that this was an argument nlaces me in a 'fry difficult position. T am faced with two alternatives Either I have to attribute extreme bad taste to the members of the Bar who argued in the case or to disbelievr the statement neither of which T ran do without being disresnectful.

13. I give my third and last illustration by quoting a remark of Laik, J. which seems to tar all the learned members of the Special Berch with one long brush:

'72............A study of this case, say thelearned Advocates also furnishes a sidelight to the human mind to accept as credible the incredible anecdote about Newton's attempt to make two exit-holes for his two rabbits, where one hole could suffice to serve as on exit for both '

14. One does not know whether to commiserate with Newton or to commiserate with the learned Judges of the Full (Special?) Bench Newton surely cannot be touched now and as far as members of the Special Bench, one can be sure that they require no defence either Their defence had been anticipated long ago by Dr. Johnson in inimttable language: 'I have found you an argument: but I am not oblieed to find you an understanding'

15. I repeat, it will be most disrespectful even to harbour the suspicion that these paragraphs reflect the thoughts and language of his Lordship At the same time, It pains me to attribute these statements to the learned members of the Bar who of course have had no opportunities to defend themselves against such imputation Therefore, T choose the only alternative left to me: I ignore those paragraphs which contain only vituperation and pass over to those portions of the judgment where Laik J tries to prove in all seriousness that when Bose C J said no', the learned Chief Justice really meant 'yes'.

16. Question No. 2, it may be remembered, was in the following form:

'What notice is contemplated under Section 13(6) of the West Bengal Premises Tenancy Act, 1956? Is it a notice to quit or a notice of suit or a combined notice to answer both the above purposes? Is it a notice, required in addition to a notice under section 106 of the Transfer of Property Act or a notice in lieu of it? What, if any, are its necessary elements or contents? Is it necessan '' mention in it the ground or grounds of ejectment under the aforesaid Act, on which the suit is to be brought? Or, in other words need it be a notice of such ground?'

17. Bose, C.J. after having dealt with the nature of the notice contemplated under Section 13(6) of the West Bengal Premises Tenancy Act 1956 proceeds to consider

'the other material part of the second question, namely, what, if any, are the necessary elements or contents of a notice under Section 13(6) and is it necessary to mention in it the ground or grounds of ejectment under the Art'

We are concerned with the reply of Bose, C. J. to this last part of Question No. 2. His Lordship gives various reasons as to why the ground or grounds of ejectment need not be stated in the notice. His Lordship also specififically mentions the various arguments advanced before the Special Bench in support of the proposition that the notices under Section 13 (6) should mention the ground or grounds of ejectment and demolishes each one of the arguments separately. I set out below his Lordship's reasons in support of the proposition that no ground or grounds need be stated in the notice. I set out the exact language of his Lordship

(i) 'Section 13(6) does not state expressly that grounds of ejectment have to be stated in the notice

(ii) If it was open to the tenant under any of the provisions of the Act to remedy any breaches of the provisions in Section 13(1) of the Act it could very well be urged that the notice under Section 13(6) is to state the grounds to apprise the tenant of the breaches complained of and for giving him an opportunity to remedy such' breaches. The only specific provisions in the West Bengal Premises Tenancy Act. 1956. which is akin to Section 114-A of the Transfer of Property Act and Section 156 of the Bengal Tenancy Act is Section 34(4) of the Act of 1956. But according to the terms of this Sub-section (4) of Section 34 if the tenant who is under the conditions of the tenancy bound to make any repairs fails to make any such repair and even if after a notice as contemplated in that such-section is served upon him requiring him to make the repairs within the time specified in the notice or as allowed by the Controller such repairs are not effected the landlord is given a right notwithstanding anything contained in this Aft or in any contract to sue the tenant for recovery of possession of the premises. TheSub-section (4) of Section 34 is a self-confidened section and to suits brought in terms of that section the provisions of Section 13(6) have no application.

(iii) In a notice under Section 80 of the Code of Civil Procedure stating of the cause of action in the notice is expressly enjoined by the section itself. There is no such provision in Section 13(6).

(iv) It is well known that in respect of notices to quit it is not necessary to state the grounds.

(v) (a) It has been argued with reference to Section 23 of the Act that the concluding portion of the said section gives an indication that a notice to quit is to contain the grounds of ejectment referred to in Section 13(1) of the Act. The relevant portion on which reliance is placed is as follows:

'Nor shall it operate as a waiver of any notice to quit given by him to the tenant except a notice on the ground of default referred to in clause (i) and Sub-section (1) of Section 13 ' The emphasis is laid on the words 'except a notice on the ground of default' and it is suggested that this shows that a notice must specify the grounds and, therefore, as the notice contemplated in Section 13(6) is a notice to quit it must also contain the grounds of ejectment upon which a suit is brought. But as pointed out already the notice contemplated in Section 13(6) is not a notice to quit.

(b) Furthermore, there is nothing to indicate in Section 23 that the notice to quit on the ground of default must itself contain such ground.

(vi) It is not essential to state the ground of default in the notice to quit as contemplated in Section 23. It was further suggested that the notice under Section 13(6) should contain the grounds in order to give an opportunity to the tenant to decide whether he will resist the claim or vacate the premises In his possession before any suit is filed and costs are incurred It may be pointed out that this may be a desirable state of affairs but there is nothing in Section 13(6) which makes the statin? of the gronds in the notice imperative '

18. After indicating all these grounds his Lordship in ahsolutely categorical language writes down his Lordshin's 'conclusion' in the followinP words'

'I therefore hold that it is 'not necessary' in a notice under Section 13(6) to state the grounds of ejectment upon which the suit is broueht' ('The underlining (herein ' ') is mine)

19. Later on. his Lordship states clearly that the notice 'need not be in anv particular or prescribed form'. On these various grounds set out above the learned Chief Justice formulates his answer to Question No 6 in the clearest possible terms as follows.

'A notice as contemplated under Section 13(6) is essentially a notice of suitWhere it was necessary to serve a notice to 'quit under Section 106 of the Transfer of Property Act, it is still necessary to serve it. A 'notice under Section 13(6) may be combined with a notice under Section 106 but the period of such combined notice shall not be less than a month expiring with a month of the tenancy. There is no prescribed form of such a notice. It is not necessary to mention in a notice under Section 13(6) the ground or grounds of ejectment for which a suit is to be instituted for recovery of possession.' There is, however, nothing to prevent the landlord from setting out such ground in the notice. The notice, however, will not be a notice of such grounds.' (The underlining (here in ' ') is mine).

20. I do not know of any legitimate feat of verbal jugglery which can turn such a clear, unambiguous and categorical finding to the effect that 'it is not necessary to mention in a notice under Section 13(6) the ground or grounds of ejectment' into a finding that in certain circumstances it is necessarv to do so.

21. Laik, J. has quoted a stray observation of Bose, C. J. to the following effect:

'If from other correspondence passing between the parties or from surrounding circumstances it appears that the notice to quit which was given is referable to the ground of default that is sufficient. It is not essential to state the ground of default in the notice to quit as contemplated in Section 23'.

Laik, J. apparently relies on the first sentence and tries to construe it as a condition of the proposition contained in the second sentence. In doing this his Lordship has not only torn the observation out of its context, but has also given it a meaning which runs counter to the chain of arguments made by the learned Chief Justice throughout the paragraph from where this particular observation has been taken and detached. The observation was made by Bose, C. J. while his Lordship rejected the argument that Section 23 of the Act gives an indication that a notice to quit is to contain the ground of ejectment referred to in Section 13(1) of the Act. I have already quoted from the judgment of Bose. C J. certain portions where the learned Chief Justice has made a reference to this argument and has, immediately thereafter rejected it. While rejecting that argument his Lordship advances two reasons. First, his Lordship says: 'But, as pointed out already the notice contemplated in Section 13(6) is not a notice to quit' Secondly, his Lordship says:

'Furthermore, there is nothing to indicate in Section 23 that the notice to quit on the ground of default must itself contain such ground'

It is in explaining this second ground with reference to his Lordship's statement about the suggested effect of Section 23 upon a notice to quit that his Lordship says:

'It is possible to conceive of a notice to quit which does not itself specify the ground of default but is referable to the ground of default. It from other correspondence passing between the parties or from surrounding circumstances it appears that the notice to quit which was given is referable to the ground of default, that is sufficient. It is not essential to state the ground of default in the notice to quit 'as contemplated in Section 23'. (The underlinine (here into ' ') is mine).

These three sentences followed immediately in the wake of his Lordship's positive assertion that even Section 23 does not contemplate that the notice to quit should contain the ground of default. To make matters doubly certain and, perhaps as a measure of abundant caution, Bose, C. J. repeats the same proposition in the last of these three sentences. Therefore, the particular observation which Laik J. isolates for his purpose is not only immediately preceded by an assertion that no ground of default need appear in the notice to quit but itself repeats that assertion. In any case, all these four sentence refer, in general, to a notice to quit But his Lordship has prefaced them by the statement that the notice contemplated in Section 13(6) is not a notice to quit. Indeed, this proposition that the notice under Section 13(6) is not a notice to quit is the key-note of the whole Special Bench decision. Laik, J. ignores the whole context and tears out one sentence in such a manner that the meaning of the whole sentence becomes mutilated beyond recognition It is amazing that out of a paragraph which gives one after another six grounds in support of the proposition that the notice under Section 13(6) need not contain the ground or grounds of ejectment, Laik J. scoops out with a scalpel as it were, one isolated sentence used in a different context and in connection with an entirely different matter, and uses that sentence to nullify the proposition which the learned Chief Justice took so much pains to establish throughout bis Lordship's judgment.

22. Coming to Bachawat, J's judgment we find that his Lordship's answer to Question No 8 is in the following form:

'The notice under Section 13(6) is a notice of suit or proceeding The notice sufficiently complies with the requirement of Section 13(6), if by express words or necessary intendment, it conveys to the tenant conversant with the facts and circumstances of the case the information that the landlord intends to file a suit or proceeding for recovery of possession of the premises on any of the grounds mentioned in Section 13(1) except Section 13(1)(3) and (k) on the expiry of the period of the notice. A notice which gives this information is sufficient and it is not necessary that the notice should mention the particular ground or grounds or which the suit or proceeding will be instituted.'

23. Bachawat, J. does not discuss Question No. 2 as thoroughly or elaborately as Bose. C. J did. Obviously, Bachawat, J's answer is contained in the last sentence of the paragraph I have just quoted. This sentence consists of two clauses and it is really the second clause which constitutes the answer. Laik, J. has taken advantage of the first clause and has tried to construe as If Bachawat J. intended the notice under Section 13(6) to Rive some kind of information about the ground or grounds mentioned in Section 13(1) It is important to note, however, that when his Lordship mentions, 'a notice which gives this information', his Lordship has clearly in mind the tenant to whom the information is to be conveyed. By the word 'this' his Lordship refers clearly to the immediately preceding sentence where his Lordship says that it would he enough if by express words or necessary intendment the notice 'conveys to the tenant conversant with the facts and circumstances of the case the information....' The information clearly is one which only the tenant will be able to derive from the notice Bachawat, J, nowhere suggests that the notice ex facie will contain anything from which persons other than the tenant will be able to gather any information about the particular ground or grounds on which the suit is proposed to be instituted. His Lordship merely meant that the notice should be referable to the appropriate ground or grounds by the tenant. Whether a particular notice is so referable cannot and need not always appear from the notice itself That is why Bachawat, J. has no hesitation in making the clear and categorigal statement that.

' 'it is not necessary that the notice should mention the particular ground or grounds' on which the suit or proceeding will be instituted' The underlining therein' ') is mine)

Laik, J. however, has turned a categorical proposition of Bachawat, J. into a hypothetical proposition by taking the first clause of Bachawat, J's finding as a limitation upon the second clause This his Lordship has done by overlooking the context and by ignoring that according to Bachawat, J it was only for 'the tenant conversant with the facts and circumstances of the case' to find from the notice a reference to the ground or grounds of ejectment. To persons other than the tenant the reference could appear only when the facts and circumstances were brought out by adducing evidence at the time of the trial After all nobody ever suggested that a landlord can succeed in his suit without proving by clear evidence the existence in fact of one or other of the various grounds mentioned in Section 13(1) which deprive the tenant of the normal protection under the Act I am prepared, however, to concede that because of the very connciseness of Bachawat J's answer one may understandably enough, fail to cannot the answerwith its context and thus miss the precise point of the answer and think as if the first clause of the sentence was a limitation upon the second.

24. It is significant that Laik, J. does not even attempt to invoke support for this proposition from the judgment of Sinha, J. fas he then was) or Mitter, J. for, those judgments lay down in the most unequivocal manner possible that the grounds under Section 13(1) of the Act need not appear in the notice at all Therefore, even if we do not take into account Bachawat, J's judgment on the ground of its conciseness and consequent liability to be misunderstood, there would still be no room for the slightest doubt as to what was the majority view. The majority of three Judges (Viz. Bose, C. J., Sinha, J and Mitter. J ) left no scope for misunderstanding regarding their finding that the notices under Section 13(6) of the Act need not state thp grounds of ejectment.

25. I have already shown how by taking one sentence out of its context, there has been an attempt to extract from the judgment of Bose, C. J. the proposition that grounds should appear at least from some other document or correspondence. I have also shown how it is impossible to derive that proposition from the judgment of Bose, C. J. But even assuming that it were so possible, one fails to see how it can make any difference and how it can affect the main finding of the Special Bench; I turn to that aspect of the matter now.

26. Even Laik, J. could not go beyond laying down the following proposition:

'83. I do, therefore, hold that the three learned Judges of the Special Bench, viz., the learned Chief Justice and Bachawat, J. and my learned brother, have held that in a case where a notice to quit does not state the grounds there must appear, either from the correspondence or from the surrounding circumstances in the record, some such information to the tenant which might be taken as sufficient intimation to him.'

27. Standing by itself this conclusion does not completely subvert the findings of the majority Judges of the Special Bench. This conclusion would then only have meant:

(A) The notice to quit need not state the grounds: but

(B) The tenant must get notice of the ground from other correspondence or circumstances

28. The two propositions at (A) and (B) above refer to independent requirements. Non-fulfilment of the second requirement would not affect the validity of the first proposition which, it is apparent, is in perfect harmony with the majority decision of the Special Bench 1 have already shown that there is no room in the majority finding of the Special Bench for the second proposition at (B) above. But even if it were possible to extract such a proposition thatwould make no difference, for a finding like this would even for the Special Bench have been in the nature of an obiter since the Special Bench had not been called upon to answer the question as to whether a tenant could claim apart from the notice of suit, also a notice of the grounds on which the suit was proposed to be instituted.

29. Unfortunately, Lalk, J. doss not even stop here. He Lordship gives towards the end of hie Lordship's judgment (in paragraph 90) a directive to the Court below which shows that his Lordship intended the proposition that he laid down in paragraph 83 to nullify, in effect, the proposition as at (A) above. The following is his Lordship's directive to the Court below:

'The Court below will have to consider the validity and sufficiency of the notice from the viewpoint of the Special Bench decision and the 'said four decisions of this Court'.' (The underlining (here in' ') is mine).

Apparently, the suggestion is that the validity and sufficiency of the notice has to be considered in the light of the interpretation that Laik, J. had put upon the Special Bench judgment. But if Laik, J.'s judgment really amounted to what I have just now stated, how could the validity or sufficiency of the notice under section 13(6) be relevant? All that Laik J. could demand of the lower Court to do -- though it would be an absurdity from which even his Lordship apparently recoiled -- was to find out from other records whether the tenant had been told about the grounds of eviction. Therefore Laik, J 's direction to the lower Court shows that his Lordship's finding was in substance a finding that according to the Special Bench notice under Section 13(6) need not contain a ground or grounds for eviction of the tenant only if there appears either from the correspondence or from the surrounding circumstances in the record some such information to the tenant which might be taken as sufficient intimation to him. This, of course, introduces a subtle change in the finding to which Laik. J. gave express shape in language - i.e the finding which I have quoted above and which occurs in paragraph W of Laik, J's judgment In other words his Lordship had imposed a condition on the clear, categorical and positive findings of the majority Judges and construed their Judgments to mean that the notice under Section 13(6) must contain grounds for eviction unless such grounds had been intimated to the tenant aliunde. That this is the tortuous process of reasoning implicit in his Lordship's judgment would appear clearly from his Lordship's further directive that the lower Court should test the notice in the light of four decisions of this Court referred to by his Lordship in the body of his judgment. These four decisions are the two unreported decisions of a Division Bench consisting of P. N. Mookerjee, andD. Basu, JJ., in the case of Saraswati Dutta V. Krishna Raman Nag and Tarak Nath Dutta v. Krishna Raman Nag, FA Nos. 188 and 166 of 1962 (Cal) and two other decisions of the same Bench, viz, Dulinchand v. Renuka and Raj Kumari v. Ashalata, reported respectively at pages 296 and 298 of 68 Cal WN. Of these four decisions, the latter two have no relevance in connection with the question which we are now considering. So far as the two unreported decisions are concerned, Laik J.'s reference is in fact to only one judgment that was delivered in both the appeals by P. N. Mookerjee, J Perhaps Laik, J. derived his inspiration from the judgment of P. N. Mookerjee. J. where his Lordship observes: -

'It is true that, under the Special Bench decision, recently given in Special Bench References in F. A. No. 444 of 1961 and F. As. Nos. : AIR1964Cal1 'according to the majority view, the ground or grounds under section 13 need not be stated in the notice.' At the same time, the essential requirement in this respect appears to be that, at least, from something on the record, prior to the suit or the plaint, it must be found that the notice could be related to some ground under the Act. The notice, served upon Saraswati, does not, mention any such ground and the ground appears only when we come to the plaint and there the ground stated was requirement for the plaintiff's occupation or personal occupation. Prior to that, however, there is nothing on the record to connect the notice with any such ground. In the circumstances, it is difficult to hold that 'the notice, issued against Saraswati, complies with Section 13(6) of the West Bengal Premises Tenancy Act, 1956' ' (The underlining (here in ' ') is mine).

30. What is not quite clear in Laik, J.'s judgment has been clearly stated in the judgment of P.N. Mookerjee. J. His Lordship himself admits that the majority view of the Special Bench decision had held that no ground under section 13 need be stated in the notice. Immediately thereafter, by a process of reasoning, which I must with utmost respect and in all humility say is totally unintelligible. P. N. Mookeriee. J. has come to the finding that the notice in the suit concerned was bad for not stat-ine the grounds. If the grounds do not appear from something on the record that might be another defect in the suit-though even his Lordship (Unlike Laik, J.) does not say that it was the Special Bench which held that the grounds must appear from something on the record Whether this proposition is correct or not is another matter. Even if it be correct that cannot touch the notice under Section 13(6) of the Act for. even P. N Mookerjee J clearly states that 'according to the majority view, the ground or grounds under section 13 need not be stated in the notice'. The notice can there-fore never be condemned for not stating the grounds In any case, how can there be any justification for holding that a notice would become bad if the grounds do not appear from other documents? But that is precisely what P. N. Mookerjee, J. has done! If Laik, J. derived inspiration from this judgment, he has gone one step further. His Lordship has, in substance, held that unless the grounds appear from some other circumstances or documents, the notice itself must state those grounds. In effect, therefore, the judgment of Laik, J. has sought to overrule the maiority judgment of the Special Bench and to make out as if the minority judgment of P. N. Mookerjee, J. is the correct judgment. The precise logic of Laik, J. seems to be as follows: -

A need not contain B. ... (Premise no. 1)B must appear in C. ... (Premiseno 2)B does not appear in C. ... (Premise no. 3)A must contain B. ... (conclusion)

31. If 'A' stands for the 'notice under Section 13(6) of the Act'. 'B' for the 'grounds of ejectment' and 'C' for 'other documents', Premise no 1 is really a statement - with the aid of non-verbal symbols of the finding of the Special Bench (a finding which even P. N. Mookerjee. J. admits in categorical terms). Likewise, Premise no. 2 stands for the proposition stated by P. N. Mookerjee, J. In the judgment from which I have just quoted and which Latk, J. imputes to the Special Bench. Premise no. 3 is a statement of fact. That the conclusion flatly contradicts Premise no. 1 is a fact which leaps to the eye. That Itself is a conclusive proof of the faulty logic. Even if all the three premises are correct - they cannot possibly lead to the 'conclusion' It is Interesting to examine the process by which Laik, J. comes to this obviously fallacious conclusion.

32. I have already shown how Laik, J. finds by an analysis which, with great respect to his Lordship, is utterly unacceptable, that the proposition represented by Premise No. 2 above is a finding of the Special Bench We shall, further assume (without admitting) for our present purpose that Premise no 2 is indeed a finding of the Special Bench. We shall, further assume that this finding is not (though, had there really been a finding like this, it would unquestionably have been obiter). Even so, these assumptions would not validate the 'conclusion' of Laik, J By no process of logic- can we reach from Premise No. 2 read with the two other premises, the 'conclusion' that we have indicated above But that is apparently what Laik J has done. The point where the argument steps into the quagmire of fallacy is not difficult to locate. Premise no 1 and Premise no. 2 do not together amount to the following hypothetical proposition 'A need not contain B - if and only if B appears in C''' But obviously and if I may say with respect, alsocuriously, that is how Laik, J. combines the first premise and the second premise in order to reach the 'conclusion'. But the net result of all this has been that his Lordship has with the support of P. N. Mookerjee, J. overruled the Special Bench decision and has also in the process given the minority decision of P. N. Mookerjee, J. a binding character which it would not otherwise possess. This, we must point out in all humility and with utmost respect to the Judges of the Division Bench, is never permissible.

33. It is, therefore, worth repeating that the only question with which we are concerned, is whether the grounds of ejectment need be stated in the notice under section 13(6). In answer to that question Bose, C. J., Sinha, J. (as he then was) and G. K. Mitter, J. have in categorical and unmistakable terms stated 'no'. Bachawat, J. has also said 'no' - though I am prepared to concede I hat because of its terseness and conciseness his Lordship's judgment on this topic is slightly liable to be misunderstood unless read very closely. But if on this ground we do not take into account the finding of Bachawat, J. on this point, even so there cannot be the slightest scope for doubt that the majority of the Judges answered Question No. 2 in the negative. We are not prepared to see a Special Bench judgment tortured and twisted to mean that their 'no' really meant 'yes'. In these circumstances we cannot accept in any colourable form the proposition that there should be an indication of the grounds in the notice under section 13 (6). In this view of the matter the last argument of Mr Ganguly fails.

34. All the appeals, therefore, must fail and we order as follows: All the appeals are dismissed with costs and the judgment and decree dated 16th November, 1959 and 7th December. 1959 passed by the Judge, Third Bench, City Civil Court, are upheld. There will be stay of this order for six weeks.

Sinha, C.J.

35. I agree with the conclusions of my learned brother, and with all his reasonings.

36. I also agree with his view of the judgment of Laik, J. in the case of ILR (1966) 2 Cal 1 Laik. J. is welcome to hold views contrary to the majority view expressed in the Special Bench decision of : AIR1964Cal1 and it would have been refreshing to hear him say so, and leave it at that; since the Special Bench ruling holds the field until set aside by the Supreme Court and is binding on his Lordship. But what he has tried to do is to convert the minority judgment into a majority judgment by a devious method and this has been sought to be achieved partially by remanding the case to the Court below with directions which apparently nullify the Special Bench decision and cannot be tested in a higher Court for a very long time tocome. It has thrown litigants, the legal profession and the subordinate Judiciary into a confusion which was the object of the Special Bench decision to eradicate.

37. All this however could have been tolerated If the learned Judge had not forgotten the ordinary norms of Judicial courtesy and gone out of his way to be vituperative, not in a straightforward manner but under the seeming protection of the Bar, making it appear that the castigations came from them rather than his Lordship. I join with my learned brother in feeling surprised that a respectful Bar like ours could be guilty of such behaviour. But if it was, one would have expected his Lordship to reprimand rather than reproduce the museum pieces which his Lordship has written down in his iudgment, with an ill-concealed delight.

38. There must be some decorum left which must be observed in our Courts. In making such language his own, the learned Judge has deserved the reply that Dr. Rash Behary Ghosh gave to the speech of Lord Curzon.

'There was not the least trace of light or sweetness in his Lordship's speech, which was redolent, not of the Olive Groves of Academie but of the hustings. It was full of sarcasms, full of sneers, in' which sympathy and understanding .........was conspicuous by its absence.'

39. I agree with the form of the order.


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