Bholanath Pramanick vs Jatu Kundu and Others

Tarun Kumar Gupta, J.—This second appeal is directed against the judgment and the decree dated 26th March, 1985 passed by learned Assistant District Judge, Nadia in Title Appeal No. 119 of 1974 reversing the judgment and the decree dated 22nd May, 1974 passed by learned Munsif, Ranaghat in Title Suit No. 402 of 1971. The respondent as plaintiff filed said suit for eviction being Title Suit No. 402 of 1971 against the appellant tenant alleging that he was a tenant under the plaintiff at a rental of Rs. 20 per month in respect of the suit premises according to the English calendar month and that he defaulted in payment of rent and accordingly the plaintiff terminated his tenancy by sending a notice to him. It is further case of the plaintiff landlord that in spite of service of notice the defendant did not vacate the suit premises and hence was the suit.

The appellant being defendant tenant contested said suit by filing written statement denying material allegations of the plaint and contending inter alia that he was not a defaulter and that no notice was served upon him and the notice was not also legal and valid and that the suit was liable to be dismissed.

Learned Trial Court framed several issues including an issue as to whether the tenant was a defaulter and another issue as to whether the notice was legal and valid and was duly served upon the defendant tenant. Learned Trial Court held the defendant tenant to be a defaulter as his defence against delivery of possession was struck off u/s 17(3) of the West Bengal Premises Tenancy Act, 1956 for violation of Section 17(1) of said Act of 1956 by making delayed deposit of rents for two months without any satisfactory explanation. However, learned Trial Court declined to pass any decree for eviction though the notice was found to be legal and valid as the service of notice upon the defendant tenant was found not to be satisfactory.

The appeal being Title Appeal No. 119 of 1974 was initially allowed by a judgment dated 11th of April, 1975 by holding that the endorsement of the postal peon "not claimed" amounted to good service in the facts and circumstances of the case.

The defendant tenant filed a second appeal which was allowed by setting aside the judgment dated 11.04.1975 passed by learned Lower Appellate Court. The case was remanded vide judgment dated 20th of March, 1984.

After said order of remand there was further hearing before learned Lower Appellate Court. Learned Lower Appellate Court again allowed the appeal by the impugned judgment dated 26.03.1985. The defendant tenant being aggrieved with the impugned judgement has filed this second appeal.

At the time of admission of this second appeal no specific substantial question of law was formulated. However, before hearing of this appeal the following substantial questions of law were formulated:

(1) Whether learned Lower Appellate Court substantially erred in law by confirming the order of striking out defence against the delivery of possession of the defendant tenant on the ground of default u/s 17(3) of the Act of 1956 without applying correct legal test.

(2) Whether learned Lower Appellate Court substantially erred in law by accepting the endorsement of the postal peon "not claimed" as proper service in view of evidence on record and thereby his observations in this regard were perverse.

Mr. Kashinath De, learned counsel for the appellant defendant tenant, submits that learned Trial Court allowed the application u/s 17(3) of the Act of 1956 by striking out the defence of delivery of possession of the defendant tenant on the ground of default vide order No. 28 dated 08.01.1974 without passing any order on the petition for condonation of delay filed by the defendant tenant. He next submits that in this case the rent for June, 1972 was deposited on 18th July, 1972 and the rent for the month of July, 1972 was deposited on 21st of August, 1972 and that there were delays of only three days and six days respectively on those counts. According to him, those delays were mere technical in nature and learned Trial Court should have condoned those delays keeping in mind that the rent legislation was a beneficial legislation and was enacted to give protection to the tenants. He further submits that the provisions of Section 17(3) of the Act of 1956 are not mandatory and are rather directory. According to him, said order being No. 28 dated 08.01.1974 passed by learned Trial Court by striking out the defence of the defendant tenant for said technical defaults in delayed payment of rent on two counts, should not have been sustained by the learned Lower Appellate Court in view of the case law reported in B.P. Khemka Pvt. Ltd. Vs. Birendra Kumar Bhowmick and Another,

Mr. Ashish Chandra Bagchi, learned counsel for the respondent landlord, on the other hand, submits that the order of striking out defence u/s 17(3) of the Act of 1956 was passed by the learned Trial Court after rejecting the application for condonation of delay filed by the defendant tenant by the same order being No. 28 dated 08.01.1974 and hence it cannot be said that the application praying for condonation of delay was kept pending at the time of disposal of the application u/s 17(3) of the Act of 1956.

Mr. Bagchi next submits that at the time of hearing of the first appeal at the first instance the order of striking out defence was not challenged. According to him, there was neither any cross appeal nor any cross-objection from the side of the defendant tenant on that score. According to him, even if the defendant tenant preferred a second appeal before the Hon''ble Court on the earlier occasion even at that point also there was no argument challenging the order of striking out defence u/s 17(3) of the Act of 1956. According to him, at this stage when the matter again came up before this Court from the impugned judgment passed in terms of order of remand of this Court, there is no scope of reopening that issue.

The allegation of the appellant tenant that the application u/s 17(3) of the Act of 1956 was allowed keeping pending his application praying for condonation of delay in depositing rents has no basis as it appears from said order 28 dated 08.01.1974 that learned Trial Court disposed of both the applications by the same order.

It is true that Hon''ble Apex Court in the case of Birendra Kumar Bhowmick (supra) has held that the Court''s power u/s 17(3) of the Act of 1956 is directory and that Court should usually condone the technical defaults namely delayed deposits of rents for few occasions. However, said proposition of law cannot be applied in this case. At the time of hearing of the appeal in the Lower Appellate Court in the first instance the order of striking out defence u/s 17(3) of the Act of 1956 was not challenged. Again for not challenging said order of striking out defence before the learned Lower Appellate Court in the first instance, it was not also challenged before this Court at the time of hearing of the earlier second appeal. It appears from earlier order of remand dated 28th of March, 1984 passed by this Court that there was argument only on the ground of propriety of the service of notice. Accordingly, this Court, at the time of passing of said order of remand, directed the Lower Appellate Court to reconsider the appeal after taking into consideration the evidence on record and reasons of the learned Trial Court on the point of sufficiency/insufficiency of service of notice. It appears from the impugned judgment that learned Lower Appellate Court also refused to entertain any submission regarding striking out of defence of the defendant tenant. In terms of the order of remand he was not also permitted to reopen that issue.

In view of the above discussions I am of opinion that at this stage there is hardly any scope of reopening the issue as to the justifiability of the passing of the order of striking out defence of the defendant tenant u/s 17(3) of the Act of 1956. As such, concurrent findings of fact of learned Courts below that the defendant tenant was a defaulter in payment of rent do not call for any interference by this Court.

In this case admittedly the notice sent u/s 13(6) of the Act of 1956 returned with the endorsement of the postal peon "not claimed" preceded by six consecutive dates showing the dates of his visit of the house of the defendant tenant. The postal peon was examined in the case as P.W. 1. According to him, he visited the house of the defendant tenant for seven consecutive dates and that on earlier six dates the defendant was not present in his house but on the 7th day the defendant who was known to him was found to be present in the house as he replied to the call of the postal peon but later on his wife came out and informed that the defendant was not present in the house and accordingly he made endorsement "not claimed" and returned the envelope. The learned Trial Court, however, disbelieved said evidence of postal peon (P.W. 1) on the ground that the statement of the postal peon that the defendant was present in his house on the 7th day and he responded to the call were purely statement from memory without any basis on record and that a disinterested postal peon in the absence of any special reason can hardly be expected to retain in his memory after a long period of three years such a common place incident which he comes across so frequently in course of his duties.

Learned Lower Appellate Court, however, believed the aforesaid statement of postal peon (P.W. 1) and observed that it amounted to refusal to accept said notice on the part of the defendant tenant and that it was a good service, according to him. He further observed that as said notice was sent under registered post and returned with the endorsement "not claimed" preceded by several endorsements showing attempt on the part of the postal peon to tender said notice to the addressee then there can be presumption of service of notice.

Mr. Kashinath De, learned counsel for the appellant tenant submits that no presumption can be claimed in the case of sending of said notice u/s 13(6) of the Act of 1956 as it was not prescribed in said Act of 1956 that the notice was required to be sent under registered post with A/D. In support of his contention he has referred a case law reported in (2007) 14 SCC 81 (Ranju alias Gautam Ghosh vs. Rekha Ghosh and others).

Mr. Ashish Chandra Bagchi, learned senior counsel for the respondent landlord, on the other hand, submits that the above referred case law has no bearing in this case and that learned Lower Appellate Court on scrutiny of the evidence of the postal peon (P.W. 1) came to a finding of fact that there were attempts on the part of the postal peon to serve said notice upon the addressee tenant and that the addressee refused to come out to accept said notice in spite of being present in the house and that it amounted to good service.

Ranju''s case (supra) it was only observed that sending of notice u/s 13(6) of the Act of 1956 was not required to be under registered post with A/D and accordingly if the notice is sent by any other mode showing service it cannot be said that there was no proper service. As such, said referred case law has no application in the facts and circumstances of the present case.

It appears from the impugned judgment of learned Lower Appellate Court that he made elaborate discussions as to why he was putting reliance on said evidence of postal peon (P.W. 1). Admittedly, there is no evidence that there was enmity or quarrel in between the postal peon and the defendant tenant. In view of the evidence on record that on the relevant date the defendant responded to the call of the postal peon but ultimately did not come forward to accept the notice and on the other hand, his wife came out to report alleged absence of the defendant tenant from the house amounted to show that the endorsement of the postal peon "not claimed" was a good service. The aforesaid findings of fact by learned Lower Appellate Court cannot be said to be based on no evidence or based on extraneous matters or not according to correct legal test. Accordingly, I find and hold that the aforesaid findings of fact of learned Lower Appellate Court that there was proper service of notice upon defendant tenant does not call for any interference.

During hearing Mr. Bagchi, learned counsel for the respondent plaintiff, submits that by this time the suit house has been demolished and that the defendant tenant is presently residing elsewhere and that even if the suit for eviction is dismissed still the defendant tenant cannot get possession of the suit premises being non-existent as on date.

Mr. Kashinath De, learned counsel for the appellant tenant, on the other hand, submits that the suit property has been demolished not by the Act of god but by the omission on the part of the plaintiff landlord for making repair of the same in time. According to him, even if the suit house is non-existent as on date if the suit for eviction is dismissed then the defendant tenant can always claim and assert his tenancy right as soon as any building is erected by the landlord thereupon.

It is palpable from the submissions of learned counsels of the parties that the suit house has been demolished on the ground of latches on the part of the landlord for not giving proper maintenance to the same in time. As such, it cannot be said by any stretch of imagination that said demolition of the house was caused due to the Act of god. As such if suit for eviction is found liable to be dismissed then the defendant tenant will be entitled to claim and assert his right of tenancy relating to the area used to be occupied by him as a tenant in any house to be constructed thereupon by the plaintiff landlord.

However, it has already been held that the impugned judgment of eviction passed by the learned Lower Appellate Court does not call for any interference by this Court on the grounds as discussed above.

As a result, the appeal is hereby dismissed on contest.

However, I pass no order as to costs.

Send down Lower Court records along with a copy of this judgment to the Lower Court at the earliest. Urgent photostat certified copy of this judgment be supplied to the learned counsels of the parties, if applied for.