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Jitendra Nath Das Vs. Bijoy Lal Das - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberSecond Appeal No. 281 of 1968
Judge
Reported inAIR1976Cal478
ActsTransfer of Property Act, 1882 - Section 106; ;General Clauses Act, 1897 - Section 27; ;Evidence Act, 1872 - Section 114; ;West Bengal Premises Tenancy Act, 1956 - Section 17, 17(1), 17(2) and 17(4)
AppellantJitendra Nath Das
RespondentBijoy Lal Das
Appellant AdvocateAbinash Chandra Bhattacharya, Adv.
Respondent AdvocateAnjit Kumar Ganguly, Adv.
DispositionAppeal dismissed
Cases ReferredSukumar Guha v. Naresh Chandra Ghosh
Excerpt:
- .....any protection. it was also found that ejectment notice was duly served upon the defendant through post by certificate of posting. in the appeal below, the learned subordinate judge concurred with the finding of the learned munsif. only one point was urged at the time of hearing of the appeal below regarding the service of notice of ejectment under section 106 of the transfer of property act. in particular, it was contended that the address of the defendant written on the envelope containing the ejectment notice was not correct. the learned subordinate, judge considering the evidence on record and the facts and circumstances held that the notice was duly posted under certificate of posting with correct address of the defendant and that it was duly served upon the defendant. the.....
Judgment:

R. Bhattacharya, J.

1. This is a second appeal by Jitendra Nath Das, the defendant of the original suit in which the plaintiff-respondent Bijoy Lal Das obtained a decree for eviction against the former in respect of the suit premises. An appeal was taken against that decision before the District Judge, but it was dismissed.

2. The plaintiff brought the suit against the defendant, a tenant in respect of the suit premises under the West Bengal Premises Tenancy Act and obtained a decree for eviction of the defendant on the ground of arrears of rent. The learned Munsif of the trial court found that the defendant was in arrears of rent and that he was not entitled to get any protection. It was also found that ejectment notice was duly served upon the defendant through post by certificate of posting. In the appeal below, the learned Subordinate Judge concurred with the finding of the learned Munsif. Only one point was urged at the time of hearing of the appeal below regarding the service of notice of ejectment under Section 106 of the Transfer of Property Act. In particular, it was contended that the address of the defendant written on the envelope containing the ejectment notice was not correct. The learned Subordinate, Judge considering the evidence on record and the facts and circumstances held that the notice was duly posted under certificate of posting with correct address of the defendant and that it was duly served upon the defendant. The contention of the appellant was not accepted and the appeal was dismissed.

3. In the present appeal Mr. Abinash Chandra Bhattacharya appears on behalf of the appellant and Mr. Anjit Kumar Ganguly for the respondent. The first contention raised by Mr. Bhattacharya is that the court below did not consider as to whether the appellant was entitled to get protection against eviction, the present case being the first one on ground of default. In this connexion he wants to rely upon Sub-section (4) of Section 17 of the West Bengal Premises Tenancy Act. First of all it must be said that in the appeal below at the time of hearing the finding on the question of default was not challenged. However, Ifind from the discussion of the trial Court that the matter was thoroughly discussed and considered and it was found that the defendant was in arrears of rent and the record shows that the defendant, after appearance in the suit, did not comply with the provision of Sub-sections (1) and (2) of Section 17 of the West Bengal Premises Tenancy Act. Some arrears of rent were not deposited. If the defaulting tenant wants to take advantage of the protection under Sub-section (4) of Section 17, he must have to comply with the provisions of Sub-sections (1) and (2) of Section 17 of the Act. In the present case for non-compliance with Sub-sections (1) and (2) of Section 17 of the West Bengal Premises Tenancy Act, the defendant cannot get any protection against eviction.

4. It has been next argued by Mr. Bhattacharya on behalf of the appellant that the envelope containing the ejectment notice did not bear correct and specific address of the defendant. His contention is that according to the evidence of the defendant, the plaintiff had two houses and therefore, the address on the envelope indicating the house of the plaintiff was vague. It was not stated which of the two houses was meant. This matter has been thoroughly considered by the courts below. Both the plaintiff and the defendant live in the same house and the address of the defendant mentions the name of the street where the house stands. The defendant does not say what is the location of the other house of the plaintiff of which he makes the mention. However, the finding of fact regarding the address of the defendant is concluded by the decision of the appellate Court below and on evidence I have no doubt to hold that the ejectment notice was sent to the correct address of the defendant. In this connexion it has been urged by Mr. Bhattacharya that in the certificate of posting there are the words 'in letter' in the column of the Articles sent under certificate of posting. An attempt has been made to argue that the words indicate in Inland Letter. I am afraid this interpretation is unacceptable in view of the specific evidence of the parties. Plaintiff has clearly stated that the notice was sent in envelope and it is no wonder that the words 'in letter' indicate that the notice was sent contained in a letter. However, that argument is of no value.

5. The main contention by Mr. Bhattacharya on point of law is that theejectment notice ought to have been sent by registered post and that service of such notice under certificate of posting is not permitted by law. In this connexion he has drawn my attention to Section 106 of the Transfer of Property Act according to which ejectment notice may be sent by post. The argument of Mr. Bhattacharya is that according to Section 27. of the General Clauses Act if any document is sent or served by post according to the provision of any Act, that must be sent or served by registered post and not otherwise. I am sorry, I cannot accept this proposition of law. Admittedly, no ejectment notice was sent by registered post. It was sent in the present case under certificate of posting and the finding is that it has been duly served upon the defendant. Section 27 of the General Clauses Act of 1897 reads as follows:--

'Where any Central Act or Regulation made after the commencement of this Act authorises or requires any document to be served by post, whether the expression 'serve' or either of the expressions 'give' or 'send' or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.'

6. Section 27 of the General Clauses Act does not say that wherever there would be any provision in any Act for sending any notice by post, it must be invariably by registered post. This section lays down that if any Act or Regulation requires any document to be sent or served by post and if in that case any document is sent by registered post by properly addressing the person concerned and by pre-paying, then it would be deemed that the document in question has been effectively served unless the contrary is proved. Section 27 therefore, speaks about a presumption of service if any document is sent by registered post duly pre-paid and properly addressed. This presumption is however, rebuttable. This presumption has been sanctioned only in case of posting under registration subject to the condition mentioned, in addition to the presumption under Section 114 of the Evidence Act. Although the presumption under Section 27 of the General Clauses Act does not apply to acase of a letter sent under certificate of posting, the presumption under Section 114 of the Evidence Act would apply in such a case. The Court will, however, be at liberty to see if such presumption has been rebutted in view of the evidence on record and the facts and circumstances.

7. In the present case, both the courts were satisfied to hold that the notice was duly posted with correct address. There is no evidence that there was any postal disorder or irregularity in the postal service at the relevant time. The courts ware justified on the evidence on record to hold that there was due service of notice upon the defendant-appellant. I find no reason to interfere with the findings of the courts below which rejected the evidence on the side of the defendant and accepted the evidence of the plaintiff. In this connexion I may refer to the case of Santosh Kumar Gupta v. Chinmoyee Sen, reported in : AIR1966Cal615 . In this case service of notice under Section 106 of the Transfer of Property Act came to be considered. Notice was sent both by registered post and under certificate of posting. The endorsements on the registered envelope were 'left, out of Calcutta'. Considering oral evidence it was held that there was proper service and that the endorsements were unreliable. There was the contention that notice under Section 106 of the Transfer of Property Act must have to be served by registered post and not by any other mode of posting. This contention was not accepted. The Bench was of the view that if the notice was sent by post and correctly addressed as evidenced by the certificate of posting, it would carry the presumption under illustration 'f' under Section 114 of the Evidence Act. Another decision of our Court in the case of Sukumar Guha v. Naresh Chandra Ghosh, appearing in : AIR1968Cal49 may also be considered. Herethe question of service of ejectment notice by ordinary post under certificate of posting arose and it was held by Amaresh Roy, J., as follows:

'In view of the history and legislation that added the relevant phrase in Section 106, T. P. Act and the language of the phrase that says only 'sent by post', in the relevant part, I unhesitatingly reject that argument of Mr. Mukherjee and hold that though presumption under Section 27, General Clauses Act can only arise when the notice is sent by Registered Post, these may arise a presumption under Section 114, Evidence Act when notice is sent by ordinary post or under certificate of posting.'

In view of the discussion made above and of the decisions just referred to, I must hold that Section 106 of the Transfer of Property Act does not say that the notice must be sent by registered post or that notice sent by post under certificate of posting would be illegal. There can be no doubt that the notice under Section 106 of the Transfer of Property Act may also be sent by post under certificate of posting. I cannot hold that the words 'sent by post' in Section 106 of the Transfer of Property Act would mean 'sent by registered post' alone. Section 27 of the General Clauses Act does not say that if an ejectment notice under Section 106 of the Transfer of Property Act is sent by post, it must be sent by registered post alone. I find no substance in the contention of Mr. Bhattacharya, his last ground in this appeal.

8. In the result, the appeal is dismissed with costs in favour of the respondent.

9. Mr. Bhattacharya prays forleave to appeal under Clause 15 of theLetters Patent. The prayer is rejected.


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