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Phanindra Nath Dey Vs. Bholanath Banerjeee - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberS.A. No. 1084 of 1978
Judge
Reported inAIR1982Cal397,87CWN102
ActsEvidence Act, 1872 - Sections 73 and 154; ;Code of Civil Procedure (CPC) , 1908 - Section100
AppellantPhanindra Nath Dey
RespondentBholanath Banerjeee
Appellant AdvocateInderjit Mondal, Adv.
Respondent AdvocateSamaresh Banerjee, Adv.
DispositionAppeal dismissed
Cases ReferredSecond Appeal (Harnath v. Dhanoo Devi
Excerpt:
- .....the notice to quit sent by registered post on behalf of the plaintiff. the plaintiff examined the postal peon who was permitted to be cross-examined by the plaintiff under section 154 of the evidence act, the plaintiff also examined another witness (p.w. 5) who testified to the tender of the notice by the postal peon to the defendant and the letter's refusal to accept it.5. both the courts below have concurrently found on a consideration of the evidence and circumstances of the case that the notice of ejectment was duly served on the defendant as he refused to accept it when tendered to him on 6-7-1974. the trial court has decreed the suit for ejectment on the ground of default in payment of rent under section 13 (1) (i) of the act with a finding that the ground of reasonable.....
Judgment:

Amitabha Dutta, J.

1. This is an appeal by the defendant from the decision of the learned Additional Subordinate Judge, Bankura affirming the decision of the learned Munsif, 1st Court, Bankura in Title Suit No. 92 of 1974 for ejectment of a premises tenant, arrears of rent and compensation.

2. The plaintiff brought the suit on 9-9-1974 alleging that the defendant was a monthly tenant in the suit premises comprising a drawing room and eastern portion of a covered verandah of the plaintiff's building in holding No. 315A of Lohar Moholla of Bankura Municipality at a monthly rent of Rs. 25/- per month payable according to Bengali Calendar month; that the defendant defaulted in payment of rent since Chaitra, 1377 B.S.; that the plaintiff reasonably requires the suit premises for his own occupation as owner; and that a valid notice of ejectment was served on the defendant by registered post on behalfof the plaintiff which the defendant refused to receive, terminating his tenancy on the expiry of Sraban, 1381 B.S.

3. The defendant filed a written statement denying the alleged grounds of ejectment and the service of the notice to quit.

4. The defence of the defendant against delivery of possession was struck out under Section 17 (3) of the West Bengal Premises Tenancy Act, 1956 (hereinafter called the Act) by the trial Court's order No. 31 dated 12-7-1976 as the defendant's deposits of rent with the Rent Controller were admittedly invalid deposits and the defendant did not comply with Section 17 (1) of the Act or raise any dispute under Section 17 (2) of the Act. Thereafter, the defendant contested the suit only on the point of service of the notice of ejectment, the validity of which was not challenged. The defendant denied on oath the tender and refusal to accept the notice to quit sent by registered post on behalf of the plaintiff. The plaintiff examined the postal peon who was permitted to be cross-examined by the plaintiff under Section 154 of the Evidence Act, The plaintiff also examined another witness (P.W. 5) who testified to the tender of the notice by the postal peon to the defendant and the letter's refusal to accept it.

5. Both the Courts below have concurrently found on a consideration of the evidence and circumstances of the case that the notice of ejectment was duly served on the defendant as he refused to accept it when tendered to him on 6-7-1974. The trial Court has decreed the suit for ejectment on the ground of default in payment of rent under Section 13 (1) (i) of the Act with a finding that the ground of reasonable requirement of the plaintiff for his own occupation has not been proved. His claim of the arrears of rent and compensation has also been decreed. The decision of the Court of first instance has been affirmed by the first appellate Court which has rejected the cross-objection of the plaintiff respondent, challenging the trial Court's finding on the point of the plaintiffs reasonable requirement of the suit premises for his own occupation.

6. It has been submitted on behalf of the appellant before this Court that the trial Court followed a wrong procedurein permitting the plaintiff to cross-examine P. W. 2 the postal peon although the witness did not make any inconsistent or contradictory statements in his evidence and the defendant objected to his examination under Section 154 of the Evidence Act. In this connection reliance has been placed on the decision in the case of Rabindra Kr. Dey v. State of Orissa, reported in : 1977CriLJ173 . It is further submitted that P. W. 5 being a chance witness of the alleged tender and refusal of the notice, no reliance could be placed on his evidence without corroboration from a credible source. The next submission on behalf of the appellant is that the trial Court has erred in comparing the signiture below, the purported endorsements of refusal On the registered envelope with the signature of the postal peon below his deposition in Court, Lastly, it is submitted that as there can be no presumption of service in view of the defendant's denial on oath of tender and refusal of the notice and the postal peon's positive evidence that the endorsement of refusal is not his, the Courts below have erred in holding that registered envelope containing the notice of ejectment had been served on the defendant, The learned Advocate for the respondent has sought to repel those contentions,

7. In this case, there is evidence that the notice of ejectment was sent by registered post prepaid to the correct address of the defendant, namely, the grocery shop of the defendant by the side of a shop named Bikash Radio at Lalbazar (Bankura Town) which according to D.W. 1 the defendant was his address, P.W. 2 is the postal peon who got the registered letter from the Post Office for service on the defendant. He was cited by the defendant but was examined by the plaintiff. He has said that the defendant was known to him, although the defendant in his evidence has denied that fact. There are several endorsements on the registered envelope (Ext. 1/1). One of them is a penned through endorsement in Bengali signifying that the owner of the shop was not there and it is dated 5-7-74, P. W. 2 has admitted that he made the said endorsement. There are also endorsements reading as 'Absent' dated 5-7-74 and 'Refused' dated 6-7-74. PW 2 has denied that he made or signed any such endorsement. At that stage, the Courtpermitted cross-examination of P.W. 2 by the plaintiff under Section 154 of the Evidence Act, In cross-examination P.W. 2 was not in a position to deny or affirm that he dealt with the registered envelope on 6-7-74. He has admitted that he went to the defendant's shop on 5-7-74 for the first time. He has further admitted that according to the rules a registered letter is to be kept by the postal peon for seven days in case the addressee is not found, apparently for further attempt at service before its return to the Post Office for being sent back to the sender. But P.W. 2 has said that he returned the registered envelope on 5-7-74 to the Post Office, That is not the probable conduct of a senior postal peon who was going to retire two years later. The plaintiff called for the records of the Post Office relating to the service of the registered letter in question but they were not available as the records were destroyed under the rules, P.W. 5 is a resident of the locality of the defendant's shop. He has deposed to the effect that on 6-7-74 he visited the shop of the defendant as he used to have business transactions with the defendant and that he saw P.W. 2 tendering a registered envelope to the defendant who refused to accept it. The learned Munsif has considered the evidence of P.Ws. 2 and 5. He has compared the signature below the endorsement of refusal on the registered envelope with the signature of P.W. 2 the postal peon, below his deposition and found that the signature below the endorsement is of P.W. 2, He has come to the conclusion that the postal peon has tried to suppress the truth and help the defendant. Relying on the evidence of p, W. 5, the learned Munsif has found that the registered envelope containing the notice of ejectment was tendered to the defendant and the defendant refused to accept it and so it was duly served on the defendant. The Court of appeal below has concurred in the finding of the learned Munsif considering the evidence as a whole and relying on the evidence of PW 5. He has taken into account the improbability of P.W. 2's returning the registered envelope to the Post Office on 5-7-74 as the defendant was not present in his shop without further attempt to serve it on him in the face of the rules requiringhim to keep if for seven days for such attempts.

8. In my view, the submission made on behalf of the appellant that the trial Court erred in permitting examination of P.W. 2 under Section 154 of the Evidence Act is not acceptable, Both the decision in the case of Rabindra Nath Dey v. State of Orissa, reported in : 1977CriLJ173 relied on by the appellant and the decision in the case of Sat Paul v. Delhi Administration, reported in : 1976CriLJ295 cited on behalf of the respondent support the proposition that the Court has discretion to permit examination of a witness under Section 154 of the Evidence Act when it is satisfied from the manner in which the witness gives evidence that he is not desirous of telling the truth and that it is necessary to give such permission to elicit the truth. Inconsistent or contradictory statements of the witness are not the only ground for permitting examination under Section 154 of the Act. It has been held that the Evidence Act leaves the matter entirely to the discretion of the Court and such discretion is unqualified and unfettered to be exercised liberally for extracting the truth.

9. Regarding the objection taken to the comparison of hand writing by the learned Munsif, in my view, the Court is competent to compare the disputed writing with the admitted writing under Section 73 of the Evidence Act in order to appreciate properly, the evidence produced to prove the service of notice,

10. I cannot accept the appellant's contention that p, W. 5 being a chance witness is unworthy of credit if his testimony is not corroborated by other reliable evidence. It appears that the courts below have not regarded P.W. 5 as a chance witness. There is nothing to show that he was a friend of the plaintiff or he had animus against the defendant. The evidence of a chance witness is not necessarily incredible. It requires cautious approach and scrutiny when he is a partisan witness (vide Bahal Singh v. State of Haryana, : 1976CriLJ1568 . The court of appeal below has not committed any error of law in relying on the evidence of P.W. 5 in the context of other evidence and circumstances of the case. In view of such evidence, the courts of fact have not accepted the defendant's testimony denying refusal of the registered notice. This Court cannot reassess the value of the evidence and interfere with the findingof fact on reappreciatton of the evidence in Second Appeal (P.B. Desai v. C.M. Patel. : [1974]3SCR267 . The finding of fact based on mere inadequacy or insufficiency or improper assessment of evidence does not involve an error of law so as to leave the question open to interference in Second Appeal (Harnath v. Dhanoo Devi : AIR1975Cal98 .

11. In the result, I hold that there is no sufficient ground to interfere with the concurrent finding of the courts below that the notice of ejectment was duly served on the defendant. No other point has been raised on behalf of the appellant.

12. The respondent has filed a cross-objection challenging the concurrent finding of the two courts that the plaintiff has failed to prove reasonable requirement of the suit premises for his own occupation. The learned Advocate for the respondent has not pressed the cross-objection.

13. The appeal is therefore, dismissed. The cross-objection is also dismissed as it is not pressed. The defendant is allowed time till the last day of Aswin, 1389 B. S. to vacate the suit premises.

14. No order is made as to costs.


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