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Adhir Kumar Das Vs. Sm. Juthika Sen - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberA.F.A.D. No. 411 of 1973
Judge
Reported inAIR1981Cal334
ActsWest Bengal Premises Tenancy Act, 1956 - Section 13(1); ;Code of Civil Procedure (CPC) , 1908 - Order 6, Rule 17 - Order 41, Rule 27(1); ;Evidence Act, 1872 - Section 65
AppellantAdhir Kumar Das
RespondentSm. Juthika Sen
Appellant AdvocateSudhis Das Gupta and ;Pradipta Roy, Advs.
Respondent AdvocateBankim Chandra Dutt and ;Jnanendra Nath Bakshi, Advs.
DispositionAppeal allowed
Cases ReferredG. N. Box v. Gurdial
Excerpt:
- .....is also in the appellant's favour. it appears from the affidavit filed by him that he filed the postal receipt etc. in the office of the rent controller and subsequently withdrew the same. he called for the records of that rent control case and the prayer was allowed by the learned munsif. he took back the documents. the averment is that thereafter the same were mislaid. later after search the defendant found out only the postal receipt no. 134 and the other two documents are not trace-able.15. here it will be necessary to refer to the provisions of section 63(5) of the evidence act. it says that secondary evidence includes oral account of the contents of the documents given by some person who himself has seen it. but clause (c) of section 65 of the act shows that secondary evidence.....
Judgment:

Bimalendra Nath Maitra, J.

1. Appeal against the decree of Shri R. C. Ghosh, Subordinate Judge of Zillah Murshidabad in Title Appeal No. 34 of 1969 dated the 24th of June, 1972, affirming the decree of Shri G. Halder, Munsif, 2nd Court Berhampore District Murshidabad dated the 10th of December, 1968.

2. The plaintiff's case is that the defendant is her tenant regarding the disputed premises at a rental of Rs. 35/- payable ac-cording to English calendar. He has been running a printing press in that premises. From January, 1964, he has been using an electric motor with high horse-power for running the press. The result is that due to the noise and vibrations, the walk and floor of the first floor have been cracked and her heart disease has aggravated. She has no drawing room in her house for the use of her husband and son. She reasonably requires the disputed premises for using the same as her drawing room. The defendant is a defaulter. His tenancy was properly determined by a notice to quit. The suit is for ejectment.

3. The defence is a denial of the plaintiff's allegations, it has been alleged inter alia that the notice is not valid in law. He sent rent by money-order, but the plaintiff refused to accept the same. Thereafter he has been regularly depositing the rent with the Rent Controller. The tenancy is not according to English calendar, but it commenced from the 19th day of the English month.

4. The learned Munsif rejected the defendant's contention and granted a decree. The defendant preferred an appeal. The learned Subordinate Judge disagreed with the learned Munsif only on one point, that the story of creating noise and of nuisance was not true. The rest of the findings of the learned Munsif were accepted and the appeal dismissed. Hence this second appeal.

5. Three-fold submissions have been made on behalf of the appellant. It has been argued that according to the provisions of Section 13 (6) of the West Bengal Premises Tenancy Act, 1956, one month's notice expiring with the month of the tenancy has to be given. The tenancy commenced from the 19th of the English month. So the tenancy is from the 19th to the 18th of the following month according to the English calendar. The rent was paid and accepted according to the English calendar. But thai alone is not sufficient. The Bench cases of C. M. & T. Company v. Charu in : AIR1957Cal357 and Baidya Nath v. Nirmala Bala in : AIR1957Cal649 have been cited. The suit was filed in 1966, when the amended provisions of Section 13 (1) (ff) of the Act were not introduced by the amendment Act of 1969. But after that amendment, the plaintiff did not make any amendment of the plaint stating that she was not in possession of any reasonably suitable accommodation elsewhere, within the meaning of that Clause (ff). The case of B. Banerjee v. Anita Pan in : [1975]2SCR774 has been cited. An application supported by an affidavit has also been put in. It has been staled that the plaintiff's husband is since dead. Subsequently one of her rooms fell vacant in the ground, floor and it was let out by her to G. B. Pharmacy. The Court should take notice of the subsequent events to do complete justice between the parties. All the deposits were made with the Rent Controller in time. Of course according to the provisions of the Act the first deposit with the Rent Controller is to be preceded by a valid tender by the defendant. His clear case is that such a valid tender was made because the rent for the first month of September, 1965. was sent by money order within that month. It was refused on 1-10-1965. He filed the postal acknowledgement receipt to show refusal by the landlord in the office of the Rent Controller along with an affidavit for depositing the rent of Sep., 1965, regarding the premises in question. Then he took back those documents from the office of the Rent Controller for filing the same in the present suit. He also filed an application before the Rent Controller for preserving the records of the Rent Control case till the disposal of the present suit. The prayer was allowed. The plaintiff was not examined to give any denial. The money order coupon and the postal acknowledgement receipt were subsequently mislaid. The acknowledgement receipt cannot be traced by him, but the money order coupon No. 134 issued to him by the postal department in Sep., 1965. is in his custody because he has since recovered that receipt alone after search. That receipt should be accepted and an opportunity should be given to him to adduce additional evidence and also secondary evidence to support his contention. Reference has been made to the provisions of the proviso to Section 21 (1), Section 22 of the West Bengal Premises Tenancy Act, and Ss. 63(5) and 65(c) of the Indian Evidence Act. Those two sections of the Evidence Act contain provisions for acceptance of additional evidence when the document in question is lost. If additional evidence is accepted, it will prove his contention. Moreover, acceptance of additional evidence is necessary to enable the Court to pronounce the judgment in a more satisfactory manner, within the meaning of Clause (b) of Rule 27 (1) of Order 41 of the Code of Civil Procedure. In the Bench case of Sm. Anima Das Sharma in (1976) 2 Cal LJ 243. it has been slated that negligence of a party in adducing evidence before the trial Court is no bar to the admission of additional evidence, if the Appellate Court itself requires such evidence according to the provisions of Order 41. Rule 27 of the Code to pronounce judgment in a more satisfactory manner. The application before the Rent Controller is relevant in this respect to show the factum of the alleged tender and refusal averred by him. The cases of Inderdeo v. Deokaran in : AIR1955Pat292 and Hrishikesh v. Khantamoni in : AIR1959Cal257 have been referred to.

6. The learned Advocate appearing on behalf of the respondent has contended that there is concurrent finding of fad that the tenancy is held according to the English calendar. The final Court of fact took notice of the defence version that the tenancy commenced from the 19th of the English month of the English calendar and negatived the defence plea in this respect Hence this question cannot be reopened in second appeal. The defendant is negligent. There is no reason why he did not produce the money order coupon and the postal acknowledgement receipt in the trial Court or in the first Appellate Court. So this negligence cannot be condoned and the plaintiff's prayer for acceptance of additional evidence must be rejected. There is a finding of fact by the first Appellate Court that the plaintiff is not in possession of any reasonably suitable accommodation elsewhere apart from the disputed premises. In the case of Mattulal v. Radhelal in : [1975]1SCR127 it has been stated that the question of landlord's bona fide requirement is a question of fact, not a mixed question of law and fact. That matter has been concluded between the parties. Though the plaintiff did not state in the plaint that she was not in possession of any reasonably suitable accommodation elsewhere, the Appellate Court took that fact into consideration. The defendant himself admitted in his evidence that the plaintiff was not in possession of any drawing room. This factual aspect was also considered by the learned Subordinate Judge. The cases in ILR (1977) 2 Cal 625 : (AIR 1978 NOC 109) and : AIR1967Cal255 have been cited. Reference has also been made to the cases in AIR 1947 Cal 351 and : [1978]3SCR147 . It has been contended that all these cases show that subsequent facts can be considered only when an amendment is necessary. But the defect in the plaint, to aver that the plaintiff was not in possession of any reasonably suitable accommodation elsewhere, within the meaning of Section 13 (1) (ff) of the Act, has been cured by the evidence on record.

7. It is first necessary to see whether the notice is valid in law within the meaning of the provisions of Sub-section (6) of Section 13 of the Act. In the Bench case of B. Banerjee v. Manmatha in : AIR1977Cal82 , cited for the respondent, it has been stated that the question of commencement of tenancy is not a pure question of law and it cannot be allowed to be raised in second appeal. The Appellate Court considered the entries in the deed of agreement Ext. B, dated 19th May, 1953, That document shows that the contract was that the rent would be paid according to the English calendar. Hence there is no scope for an application of the principles laid down in the Bench case in : AIR1957Cal357 and : AIR1957Cal649 . It is therefore held that the tenancy is according to the English calendar and the notice to quit is valid in law. The tenancy was therefore duly determined and the notice to quit is valid.

8. The next question is whether there is a defect due to the non-amendment of the plaint according to the provisions of the amended Clause (ff) of Sub-section (1) of Section 13 of the Act. The learned Advocate appearing on behalf of the respondents has referred to the Bench case of Shanti Lal v. Mukunda Lal in : AIR1980Cal381 to show that in that case there was no averment that the plaintiff was not in possession of any sufficient accommodation elsewhere. But still the Court held that there was no defect in the plaint.

9. The Bench case of Shanti Lal v. Mukunda Lal (supra) is distinguishable because in that case the lawyer appearing on behalf of the defendants submitted a draft issue and one of the suggested issues is : 'if the plaintiff has sufficient accommodation elsewhere apart from the disputed premises'. In such circumstances it was held that the Court was therefore justified in framing an issue on the same, though that averment did not appear in the plaint.

10. Following the case of Venkatramana in : [1958]1SCR895 , it has been stated in the Bench case of West Bengal Provincial Co-operative Bank v. S. N. Ghosh, (1980) 84 Cal WN 221 that where a case has not been made out in the plaint, evidence to support such version cannot be allowed. It has also been stated that there is no necessary averment in this respect, within the meaning of the amended provision of Clause (ff) of Sub-section (1) of Section 13 of the Act. So, the Appellate Court went out of the way in arriving at a decision that the plaintiff was not in possession of any reasonably suitable accommodation elsewhere apart from the premises in question. The other cases are not applicable to the facts of the present one and are clearly distinguishable.

11. In the Bench case of Provash Chandra v. Chand Mohan in : AIR1978Cal224 , it has been stated that in view of the amended provisions of Section 13 (1) (ff) of the Act, the plaintiff is required to plead and prove that he is not in possession of any reasonably suitable accommodation elsewhere apart from the disputed premises. But the plaint cannot be thrown away on that ground alone. Though such averment did not appear in the plaint of B. Banerjee. v. Anita Pan's case : [1975]2SCR774 (supra), the Supreme Court gave an opportunity to make an amendment of the plaint. Hence for the ends of justice an opportunity would be given to the plaintiff to amend the plaint in this respect. The defendant will be given a chance to file additional written statement. Thereafter further evidence will have to be taken by the Court of first instance.

12. Then about the subsequent events alleged by the defendant's affidavit and denied by the plaintiff's affidavit. The law is that the Court can take notice of subsequent events to shorten litigation and to do justice between the parties. Since the matter will be remitted to the trial Court, that Court will have to consider whether the alleged room which has been let out to G. B. Pharmacy could be used by the plaintiff as her drawing room.

13. The defence is that the plaintiff's husband is since dead. Nevertheless it has been stated on behalf of the plaintiff-respondent that a room is required by her son. Hence this aspect of the matter will not be looked into by the trial Court after the order or remand.

14. Then about the case of default. Receipt No. 134 said to have been issued by the postal department to the defendant in September, 1965 has been filed in this Court for its acceptance as additional evidence. Section 21 (1) of the West Bengal Premises Tenancy Act shows that the tenant is empowered to deposit the rent with the Rent Controller if the landlord does not accept any rent paid by him within the time specified by Section 4 of the Act. The proviso is important for it says, 'if an amount is remitted by the tenant to the landlord by postal money order, the date of issue of the postal money order shall, for the purpose of this Sub-section, be deemed to be the date of tender of such rent by him to the landlord'. This deeming provision is also in the appellant's favour. It appears from the affidavit filed by him that he filed the postal receipt etc. in the office of the Rent Controller and subsequently withdrew the same. He called for the records of that Rent Control case and the prayer was allowed by the learned Munsif. He took back the documents. The averment is that thereafter the same were mislaid. Later after search the defendant found out only the postal receipt No. 134 and the other two documents are not trace-able.

15. Here it will be necessary to refer to the provisions of Section 63(5) of the Evidence Act. It says that secondary evidence includes oral account of the contents of the documents given by some person who himself has seen it. But Clause (c) of Section 65 of the Act shows that secondary evidence of the contents of the document can be given where the original is destroyed or lost or where the party cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time. In this case, the defendant's own default or neglect is ap-parent because he duly called for the records of rent control case, but failed to produce the same before the learned Munsif. Hence he cannot be permitted to give secondary evidence regarding the contents of the postal acknowledgment refusal receipt.

16. Nevertheless the original postal receipt No. 134 has been produced in this Court. In the Bench case of Anima Das Sharma in (1976) 2 Cal LJ 243 at page 250, it has been stated that where the document is required by the Court to remove a lacuna or defect, the question of carelessness or negligence of the party is of no consequence. In the case of Parsotin v. Lal Mohan in (1931) 58 Ind App 254 : (AIR 1931 PC 143) it has been stated that under Rule 27 (1) (b) of the Act the Court can accept additional evidence to enable it to pronounce the judgment or for any other substantial cause, but in either case, it must be the Court that requires it. But one requirement at least of any new evidence to be adduced should be that it should have a direct and important bearing on the main issue in the case. The Court should exercise such power when on examining the evidence as it stands, some inherent lacuna or defect becomes apparent This decision was followed in the case of K. Venkatramiah v. A. Seetharama in : [1964]2SCR35 . This case was also followed in the case of N. Singh v. Financial Commissioner in : [1976]3SCR620 . It appears from pages 1056 and 1057 of the report that the true test to be applied in dealing with an application for additional evidence is whether the appellate Court is able to pronounce judgment on the materials before it without taking into consideration fee additional evidence sought to be adduced.

17. Applying that test it is clear that the appellate Court is not able to pronounce the judgment satisfaciorily on the materials before it, firstly, because there was non-examination of the plaintiff the law is that non-examination of the party is the strongest possible circumstance to discredit the truth of one's case. vide the case of G. N. Box v. Gurdial in AIR 1927 PC 230. In this Court an affidavit has been tiled on behalf of the plaintiff-respondent, but that has not been sworn in by herself. Her son purported to file it. D.W.I Adhir Das is the defendant. He gave evidence. There is inherent detect or lacuna because of the deeming provision envisaged by the proviso to Section 21 of the West Bengal Premises Tenancy Act when if is considered along with the postal acknowledgement receipt No. 134. So despite the negligence of the defendant, the Court is not able to pronounce the judgment on the materials on record. In order to deliver the judgment in a more satisfactory manner, it is absolutely necessary to admit that postal receipt as additional evidence to arrive at a finding if the rent of September 1965 was sent in lime and then refused by the plaintiff, i.e. whether the same was duly tendered by the defendant.

18. Hence for ends of justice the case is to be remitted for acceptance of this additional evidence. After consideration of further evidence this point shall be disposed of by the trial Court according to law. But the amendment of pleadings and acceptance of additional evidence must be completed within May next without fail.

19. The appeal is allowed. The judgment and decree appealed against be hereby set aside and the case remitted to the trial Court for disposal according to law in the light of the observations made in the body of the judgment.

20. There will be no order as to costs.

21. Let the preparation of the decree and despatch of the records of this case be completed within this month.


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