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Jogendro Chunder Ghose and anr. Vs. Dwarka Nath Karmokar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1888)ILR15Cal682
AppellantJogendro Chunder Ghose and anr.
RespondentDwarka Nath Karmokar and ors.
Cases Referred and Papillon v. Brunton
Excerpt:
notice to quit - service of notice to quit by registered letter, sufficiency of. - .....and tenant existing between her and the plaintiff, became thereby a trespasser, and that in this suit notice was therefore unnecessary. now, having decided that notice was duly given, we consider it unnecessary to decide whether a notice was necessary or not, and we express no opinion upon that question at all. it must be treated as not decided upon this appeal or in these proceedings. it is important, however, to record this in our judgment, because manifestly the case between the parties was not completely gone into, and it is desirable that nothing should be said here which would at all interfere with what is, we think, the right of the parties to have on remand, viz., a complete enquiry into all matters legitimately arising in the suit--and amongst them this question may be.....
Judgment:

1. In this case the service of the notice, which it was sought to effect personally upon the defendant Khetramoni Dasi, was not proved in the opinion of the Courts below, they disbelieving the assertion of a Mahomedan witness who deposed to having actually handed the notice to the party to be served, she being a purdanashin woman. The service of the notice in another form was, however, proved, having been effected by a registered letter, the posting of which was proved, and which was produced in Court in the cover in which it was despatched, that cover containing the notice with an endorsement upon it purporting to be by an officer of the Post Office stating the refusal by the defendant to receive the document. Upon the cases cited before us--Lootf Ali Meah v. Pearee Mohun Roy 16 W.R. 223 and Papillon v. Brunton 5 H. & N. 518,-- and having regard also to Section 16, illustration (b) of the Evidence Act, we think that only a captious doubt could lead us to regard that service as insufficient. The case was dismissed in both Courts on the sole ground that the notice being necessary and not proved the plaintiff could not maintain the suit. Other matters appear to have been gone into and largely discussed,--one, that under the circumstances a notice was not necessary inasmuch as the defendant No. 3, Khetramoni Dasi, having, by her acts, repudiated the relation of landlord and tenant existing between her and the plaintiff, became thereby a trespasser, and that in this suit notice was therefore unnecessary. Now, having decided that notice was duly given, we consider it unnecessary to decide whether a notice was necessary or not, and we express no opinion upon that question at all. It must be treated as not decided upon this appeal or in these proceedings. It is important, however, to record this in our judgment, because manifestly the case between the parties was not completely gone into, and it is desirable that nothing should be said here which would at all interfere with what is, we think, the right of the parties to have on remand, viz., a complete enquiry into all matters legitimately arising in the suit--and amongst them this question may be one--without a decision of those matters being in any manner prejudiced or affected by such opinion as may have been come to by the lower Courts during the preliminary enquiries that have as yet alone taken place in this litigation. We, therefore, set aside the decrees of the lower appellate Court and the original Court. We find that the defendant, Khetramoni Dasi, was duly served with notice (Exhibit 2 put in.) We leave for future argument the question whether or not the notice was, in its terms, a proper one, limiting ourselves to holding that the service of it is established, and we remand the case to be re-tried by the original Court upon the whole facts as appear in the pleadings. The parties will be at liberty to adduce such further evidence as they may be advised to bring. The costs of all the Courts will abide the result.


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