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Krity Basu Vs. Peary Mohan Sarkar and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberA.F.O.D. No. 137 of 1977
Judge
Reported inAIR1985Cal162
ActsWest Bengal Premises Tenancy Act, 1956 - Section 13(6); ;Evidence Act, 1872 - Section 114
AppellantKrity Basu
RespondentPeary Mohan Sarkar and anr.
Appellant AdvocateM.N. Ghosh and ;Hazari Lall Pramanik, Advs.
Respondent AdvocateS.P. Roy Chowdhury and ;Asit Kumar Bhattacharya (2), Advs.
DispositionAppeal dismissed
Cases ReferredHarihar Banerjee v. Ramsashi Roy
Excerpt:
- .....on the prayer of the appellant at the first instance we grant one month's time to vacate the suit premises. in case within one month from this date he files an undertaking to deliver up vacant and peaceful possession of the suit premises to the respondents, he would be granted time till 28th february, 1965 subject to his gong on remitting by money order in the name of the plaintiff no. 1 a sum of rs. 56/- per month, month by month, within the 15th day of each succeeding month according to english calendar and first of such remittances be made within the 15th day of march, 1984. in case of default of remittance for any two months, the decree for ejectment shall become executable. such money order remitiance and acceptance thereof will be without prejudice and will not create any.....
Judgment:

Mookerjee, J.

1. This appeal is at the instance of the defendant tenant against whom a decree for ejectment has been passed by the Court below under Section 13(1)(i) of the West Bengal Premises Tenancy Act, 1956. At the final hearing of the appeal the finding of the trial Court that the defendant was at the date of the hearing of the suit was a defaulter and that he had failed to comply with the orders passed under Section 17 of the West Bengal Premises Tenancy Act have not been disputed. We understand that the orders striking out the defendant tenant's defence has been already affirmed upto this Court

2. The learned Advocate for the appellant has submitted that the plaintiff landlord has failed to prove that the notice of suit under Section 13(6) of the West Bengal Premises Tenancy Act had been duly served upon the defendant appellant. Accordingly the instant suit for eviction was not maintainable in law.Having given our anxious consideration to the above submission we hold that the Court-below has rightly found that the said notice under Section 13(6) of the West Bengal Premises Tenancy Act had been served in accordance with law upon the defendant tenant One copy of the said notice was sent to the defendant on behalf of the plaintiff under registered post with acknowledgement due. The plaintiff exhibited the said postal acknowledgement and the registration receipts, exhibits 2 and 4, It is not disputed that the said registered cover containing the notice under Section 13(6) of the West Bengal Premises Tenancy Act was correctly addressed in the name of the defendant tenant. The acknowledgement receipt contained not the signature of the defendant himself but some writing in Devnagri/Oriya. According to the Court below one Raghunandan Misra had purported to sign the said receipt. The plaintiff did not prove that the said Raghunandan Misra had authority to receive on behalf of the defendant the said registered cover containing the notice of suit. In our view, the said fact alone cannot displace the presumption of due service arising from the fact, that the plaintiff had sent the registered cover properly addressed in the name of the defendant. In this connection our attention has been drawn to the decision of the Privy Council in Harihar Banerjee v. Ramsashi Roy reported in 23 Cal WN 77 at pp. 89-90 : (AIR 1918 PC 102at. P.112). In the said case also the receipt for the letter was signed on behalf of some of the addressees by a person whose authority was not established. Lord Atkinson delivering the opinion had inter alia observed that -

'a notice to quit, is proved to have been put into the post office, it is presumed that the letter reached its destination at the proper time according to the regular course of business of the post office, and was received by the person to whom it was addressed. That presumption would appear to their Lordships to apply with still greater force to letters which the sender has taken the precaution to register, and is not rebutted but strengthened by the fact that a receipt for the letter is produced signed on behalf of the addressee by some person other than the addressee himself.

We respectfully apply the above principle of law and hold that the defendant has failed torebut the presumption of due service of the said registered cover containing the notice to quit. The presumption in the instant case was one of fact and the authorities upon which Mr. Ghosh relied, in our view, do not lay down as an inflexible principle of law that whenever the addressee denies receipt of a letter sent under registered post the presumption of due service is automatically rebutted and that in every case the sender is bound to examine the postal peon to prove that the registered cover was actually delivered to the addressee. After giving reasons the Court below rightly rejected the interested testimony of the defendant and believed that the registered cover had been served property. The Court below has also correctly emphasised the fact that a previous suit for defendant's eviction had also failed on the ground of defective service of notice of suit.

3. The plaintiff has proved that the notice of suit was served in two other modes. One copy of the notice was sent under certificate of posting correctly addressed to the defendant Although such a certificate of posting raises a somewhat weak presumption nonetheless taken along with other facts we are inclined to believe that the said letter sent under certificate of posting had also reached the defendant's address. The evidence about the third mode of service was also very strong. A copy of the ejectment notice was served in the presence of the plaintiff by the Pleader's clerk, Buddhadev Chakraborty. Both the plaintiff and Buddhadev, P.Ws. 1 and 2, have given convincing evidence. Judhistir who was a barber working on the pavement has also corroborated the said affixation of the notice of the suit on the outer door of the defendant's premises. The return itself had been exhibited and marked as Exhibit 1(a). We agree with the trial Court that the premises number in the said return, Exhibit 1(a), had been apparently interpolated. It may be noted that such alteration of the premises number would be to the benefit of the defendant tenant and, therefore, it is not believable that the plaintiff was responsible for altering the premises number. Weagree with the trial Court that the said notice of affixation was made at premises No. 40, Harituki Bagan Lane. The contrary evidence given on the defendant's side is not believable. In the result we affirm the finding that the notice of the suit was duly and properly sent upon the defendant tenant.

4. In the result, the appeal fails and we accordingly dismiss this appeal. There will be no order as to costs. On the prayer of the appellant at the first instance we grant one month's time to vacate the suit premises. In case within one month from this date he files an undertaking to deliver up vacant and peaceful possession of the suit premises to the respondents, he would be granted time till 28th February, 1965 subject to his gong on remitting by money order in the name of the plaintiff No. 1 a sum of Rs. 56/- per month, month by month, within the 15th day of each succeeding month according to English Calendar and first of such remittances be made within the 15th day of March, 1984. In case of default of remittance for any two months, the decree for ejectment shall become executable. Such money order remitiance and acceptance thereof will be without prejudice and will not create any right in favour of the defendant appellant to remain in the suit premises beyond 28th February, 1985. The appellant is directed to make over copies of the challans showing deposit of rents/mesne profits in the office of the Rent Controller and/or in the Court below within one month.

Mukul Gopal Mukherji, J.

5. I agree.


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