Deokaran Nevatia vs Renuka Sarkar

P.K. Banerjee, J.—This appeal at the instance of the tenant arises out of a suit for ejectment in respect of the premises No. 93/3/2, Hari Ghosh Street, Calcutta. The plaintiff''s case is that the defendant was a defaulter in payment of rent since the month of December 1962. The defendant has sub-let a part of the premises from November 1962 and the defendant caused annoyance by erecting permanent brick wall and structure etc. The defendant filed written statements denying the allegations made in the plaint and further stated that the notice u/s 106 read with section 13(6) of the Act was invalid. The Court below having held against the tenant, the tenant preferred the present appeal. Mr. B. C. Dutt on behalf of the tenant-appellant contended that the notice is insufficient. In so far as the notice is concerned it appears that the notice was despatched by registered cover being Ext. 1 addressed to the original defendant. The cover came back un-delivered with several postal remarks on 6th June, 1963, 7th June, 1963, 8th June, 1963 and 10th June, 1963. There was endorsement of Postal Peon and the defendant was "not met". On 11th June, 1963 there was an endorsement of Postal Peon as "not claimed". Even thereafter on 12th June, 1963 and 15th June, 1963 there was endorsement of "not met". The last endorsement dated 17th June, 1963 is "not claimed". The Postal Peon, it appears from the endorsement, went to the defendant''s place on several occasions. It is evidenced by the defendant''s son that the defendant was ailing and was at the residence on the dates when the Postal Peon went to serve the service. In the facts of this case, it appears to us that "not claimed" must be said to be a good service. Even "not met", in the facts of this case must be said to be a good service when it is evidenced by the defendant''s son that the father who was the original defendant was ailing at the time when the Postal Peon went to serve the registered cover. It is urged by Mr. Dutt that "not claimed" is not a good service.

Mr. Chatterjee on behalf of the Respondent relied upon the cases reported in Satya Chorone Roquittee Vs. Suresh Chandra Pal and Others, , Sachindra Nath Seal Vs. Sudam Chandra Pal and Another, and contended that they are good services. In all these cases, in our opinion, it has been specifically made clear that when the endorsement of the Peon is "not claimed" it may amount to refusal or it may also be that there was nobody to claim the registered letter. The finding is that the defendant was absent and nobody was there on his behalf to accept the letter. It has been made clear that all these matters must depend on the facts of each case. It appears to us that the defendant was ailing and nobody was in the house who can accept the service on behalf of the defendant. In that view of the matter, it appears that "not claimed" will amount to refusal. In the case reported in Satya Chorone Roquittee Vs. Suresh Chandra Pal and Others, it has been held that "not claimed" is not good service on the finding that the house was under lock and key. Mr. B. C. Dutt however contended that as the defendant denied that the registered post letter was ever presented for acceptance by the postal peon, it was the duty of the plaintiff to examine the postal peon in order to prove the service.

Mr. Chatterjee however contended that as the registered letter was sent by the registered post, u/s 27 of the General Clauses Act read with section 114 of the Evidence Act there was a presumption attached to the service. Mr. Chatterjee relied upon the cases reported in 71 C.W.N. 282 (Munni Devi v. Puspalata Mondal), 70 C.W.N. 676 (Ganesh v. I. N. Chatterjee) Kamalabala Devi Vs. Durgacharan Dutta and Another, , 81 C.W.N. 735 (Ekbaljan v. Tarabai) and AIR 1975 Guj 54 (Menon v. Bhaja) in support of his contention. In 71 C.W.N. 282 it has been held in paragraph 4 that the case reported in 65 C.W.N. 690 does not lay down that the examination of the postal peon or formal proof of the postal endorsement is necessary in every case to raise the above presumption or prove such postal service but only points out that there may be cases, where such examination or proof may be required. In the case reported in Kamalabala Devi Vs. Durgacharan Dutta and Another, it has been held that "where it is not found that the addressee was away or absent from the address or there was nobody to accept the letter on behalf of the addressee, the notice contained in the letter would be deemed to be good services of notice on the addressee". In the present case it was not found that the addressee was absent. On the other hand the evidence of the defendant''s son is that the defendant was always there and it is not the evidence that there was nobody in the house to accept the service on behalf of the father. In the case reported in Sachindra Nath Seal Vs. Sudam Chandra Pal and Another, which is also a Division Bench judgment it has been held that such notice is valid notice. In our view, therefore, in the facts of the present case the service of notice must be said to be a valid and a good service.

The next question as mooted by Mr. Dutt is that there was no proof by the plaintiff or that the plaintiff has failed to prove that the sub-letting was post Act sub-letting. On the other hand the proof is that the tenant was always there even before 1956 Act came into force. Therefore, the only point for our consideration is when this sub-letting occurred. It must be made clear that if the sub-letting is post Act sub-letting the tenant is liable to be evicted. The Court below found that the sub-letting was post Act sub-letting. Mr. Dutt contended that this finding is perverse, inasmuch as, even in 1955 P. C. Murarka was tenant in the premises in question. By letter Ext. 4 dated 23rd October, 1962 the plaintiff was requested to recognise P. C. Agarwal also as direct tenant at Rs. 50/- per month but it is in evidence that the plaintiff''s husband refused to recognise the tenant. The Court below believed that the defendant was all along realising rent up to October 1963 from P. C. Murarka and wanted that P. C. Murarka would be recognised as direct tenant. In our opinion this finding of fact arrived at the Court below can neither be said to be perverse nor without a basis in our opinion, therefore, the sub-letting to Mr. Muraka was a post Act sub-letting and as such the tenant is liable to be evicted on the ground of unauthorised subletting after the Act came into force. On the ground of default it is argued by Mr. Dutt that the cheque is a valid tender and the learned Judge''s finding is wrong. In view of the case reported Damadilal and Others Vs. Parashram and Others, it must be said that the payment of rent by cheque was a valid one. But the facts remain that the defendant not having produced the counter-foils in favour of the plaintiff on certain dates it cannot be said conclusiverly that the cheques were sent to the plaintiff. The plaintiff further failed to prove that the rent for the month of March 1963 was sent by Money Order. If the deposits were made without a valid tender all the deposits are invalid deposits. In our opinion, the Court below rightly held that if the deposits are invalid deposits; after the suit was filed the defendant ought to have re-deposited the same u/s 17(1) of the West Bengal Premises Tenancy Act. The deposits with the Rent Controller was invalid deposits; The defendant must be said to be defaulter within the meaning of section 13 of the West Bengal Premises Tenancy Act. We are, therefore, of the opinion that the appeal must stand dismissed. There will be no order as to costs.

G.N. Ray, J.

I agree.