Kameswar Singh vs Sahadeb Singh

Amitabha Dutta, J.—This is an appeal by the tenant defendant from the decision of the learned District Judge, Hooghly affirming the decision of the learned Munsif, Additional Court Serampore by which he has decreed the suit for ejectment and mesne profits. The plaintiff''s case is that the: defendant was a monthly tenant in the suit premises comprising two sheds used for carrying on business in- selling meat in Sheoraphuli Hat at a monthly rent of Rs. 15|- payable according to Bengali calendar month, that the defendant defaulted in payment of rent sines Falgon 1376 B. S. and is not entitled to protection against eviction, that the plaintiff has decided to carry of! business in the suit premises and for that purpose to build and rebuild such premises, that the plaintiff through his lawyer sent notice of ejectment to the defendant by registered post with acknowledgement due to his normal address and it was redirected to his Wazirgunge address where the defendant had gone and where the defendant refused to receive the notice and so it came back with the remark "refused" and that the defendant was asked to vacate the suit premises by the said notice on the expiry of Kartic 1373 B.S., but he has not complied with the notice.

The defendant in his writtei statement has alleged that the notice of ejectment was nor redirected to his correct address, that he did not refuse to accept the notice and that the postal re mark of refusal on the cover is false. He has denied the alleged default and the bonafides of the alleged decision of the plaintiff to run business in the suit premises as well as the alleged requirement of the suit premises for building,and rebuilding.

The learned Munsif has decreed the suit only on the ground of reasonable requirement of the plaintiff in respect of the suit premises for his own use and occupation to run meat business, The first appellate court has- agreed write that finding and affirmed the decree of the trial court.

Mr. Dhruba Kumar Mukherji, the learned advocate for the appellant has raised several points assailing, the undings of the courts below. He has submitted that the evidence does not justify the finding that the notice sent by registered post was redirected to the correct address of the defendant where he was, at the relevant time and that as the defendant has stated on oath that - he never lived under the postal Jurisdicton of Wazirgunge and that no registered notice was tendered to him before the suit, the courts below have erred in finding without examination of the postal peon that the notice of ejectment returned with the endorsement "refused" was duly served on the defendant. In support of this submission reliance has been placed on several decisions which will be presently discussed. It appears from the record that the registered letter containing the notice was sent by the plaintiff''s lawyer to the defendant at the address of Sheoraphuli and it was redirected to the address of village Malti P. O. Dariapur, District quota. Below the address the word "Wazirgunge" appears in handwriting and penned through condition. The endorsement of refusal bears no date. The plaint allegation is that the notice was redirected to Wazirgunge as the defendant had gone there and that the defendant refused to accept the notice after it was tendered there. D. W. 2 the defendant has stated on oath that no registered notice was tendered to him and that he never lived under the postal Jurisdicton of Wazirgunge. The postal peon ha.;, not been examined to prove the alleged tender and refusal of the notice. Moreover, it is not at all clear from the postal cover itself that the nonce was redirected to Wazirgunge as allegea in the plaint, in this state of pleading and evidence it is difficult to hold that the notice was redirected to the correct address of the defendant, Moreover it has been held in the case of Govinda Chandra Slialia v. Dwarka Nath fatita 19 CWN 1989 by Sir Ashutosh. Mookerjee that the presumption u/s 114 of the Evidence Act is a presumption of fact and where the defendant pledges his oath that the cover was never tendered to him the court could not treat the presumption of regularity of official business as conclusive against him. The Supreme Court has held in the case of Puwada Venkateswara Rao Vs. Chidamana Venkata Ramana, that if the addressee states on oath that he had not refused the letter sent by registered post as it was not brought to him, the sender cannot succeed without further evidence. Where on a close examination of the evidence he had full knowledge of the notice and had actually refused it knowingly, it is not always necessary in such cases to produce the postman who tried to effect service, D. W. 2 the defendant has stated in cross-examination as follows :

When I stayed at my native place at village Malti the letters coming in my shop room address are redirected to my native place address, I cannot say when I was away from my shop room and went to my native place

From such evidence of the defendant no inference of his knowledge of the notice of ejectment and refusal to accept it, can be reasonably drawn In the facts and circumstances of the present case 1 hold that the courts below have erred in raising the presumption of service of the nonce of the dependant as such presumption has been reputed by the denial on oath by the defendant of tender of any such notice. in the absence of further evidence of. the side of the plaintiff, it must be held that there is no proof of service of the notice of ejectment on the defendant,

Regarding the (ground mentioned in Section 13(1) (ft), of the West Bengal Premises Tenancy Act, 1956 on which the impugned decree is based, the learned advocate for the appellant has submitted that the suit cannot succeed, in the absence of any definite averment in the plaint that the plaintiff requires the suit premises for running business and the mere statement that he has decided to run business there, is not sufficient, and secondly because it has not been pleaded that the plaintiff is not in possession of any reasonably suitable accommodation and thus the ground mentioned in Section 13 (1) (ff) of the Act has not been fully covered to make out the cause of action. In this connection-reference has been made to the decision in.the case of Abdul Hamid v. Nur Md. AIR 1976 Del 328 and Hari Mohan v Rameswar Dayal AIR 1980 Del 291. relating to Section 14(1) (e) of the Delhi Rent Control Act, 1956 the relevant provisions of which are similar to Section 13(1) (ff) of the West Bengal Act and these decisions support the appellant''s contention in this case. It is clear from the provision of Section 13(1) (ff) of the Act that it is not sufficient for the landlord to merely plead that he requires the suit premises for his own use and occupation. He has further to secure that he is not in possession of any reasonably suitable accommodation thus the project of the enactment is to protect, treatment against arbitrary anaunjus, eviction, the conditions precedent have to be strictly complied with before the can exercise its. Jurisdicton to order eviction. The court cannot pass u decree "tor eviction on a ground which has not been pleaded. In my opinion, the contention raised on behalf of the appellant is, well founded and should prevail.

It is further submitted on behalf of the appellant that in view of the evidence in this case that the plaintiff and his son run a meat shop tenanted in the name of the plaintiff''s wife within the same Sheoraphuli Hat at a distance of 50)60 cubits from the meat shop in suit and the trade licence for that shop stands in the name of the plaintiff, the courts below should have held that the plaintiff does not require the suit premises for his own meat business as he is already in possession of reasonably suitable accommodation. In this connection, /it is contended that as the concept of the requirement of the landlord has been enlarged by the courts to include the requirement of the landlords wife, children dependant parents arid such other members of his family, in considering whether the landlord is in possession of any reasonably suitable accommodation, the accommodation available to the members of his family should also be taken into account. It is argued that the word "landlord" used in the second part of Section 13(1) (ff) of the Act should have the same interpretation as the word "landlord" appearing in the first part thereof. In the connection, reference has been made to the observation of this court in Sm. Nandarani Dassi Vs. Satyanarayan Harit, at page 592 (second column) that the war as in me Kent Control Act, 1950 must be construed so far as they reasonably admit so as to secure that the relief contemplated by the statute shall not be denied to the tenants and the similar observation in the case of West Bengal Engineering Co. etc. Vs. Manindra Land and Building Corporation, .

The learned advocate, Mr. Mukherjee has also referred to the following sentence in Maxwell on the Interpretation of Statutes 12th Edition at page 92 "They (Judges) will not, of course, supply ommissions, but where they are faced with a choice between wide meaning which carries out what appears to have been the object of the legislature more fully, and a narrow meaning which carries it out less fully or not at all, they will often choose the former". He has also referred to the following sentence appearing in Craies on Statute Law, 7th Edition at p. p. 168-9 "It is sound rule of construction" said Clear by B. in Court auld vs. Legh (1869) L. R. 4 Ex. 126, 130, "to give the same meaning to the same words occurring in different parts of an Act of Parliament". The presumption that the same words are used in the same meaning is, however, very slight and it is proper, if sufficient reason can be assigned to construe a word in one part of an Act in a different since from that which appears in another part of an Act".

In my view, in considering whether the landlord is in possession of. reasonably suitable accommodation the accommodation in possession of any member of his family living, with him should be taken into account to judge availability) of suitable. accommodation for sausiying the total requirements of the landlord and the members of his family, naving regard to the nature of the requirement and other relevant Factors, and the decision of the question win append on the facts and circumstances of each case. Considering the context, collocation and object of the word it appears to me that the word landlord used in two parts of Section 13(1) (if) should have the same meaning both in relation to his requirement and possession of accommodation so far as it reasonably admits in aid of bioethical construction of the Statute enacted for the purpose of protection of the tenants. Where a member of landlord''s family is in possession of any accommodation and the landlord has control over it, such accommodation should be taken into account in order to determine whether the landlord is in possession of reasonably suitable accommodation to meet the total requirement of the landlord and his family. But in the present case the plaintiff is the owner of the suit premises whereas the other shop room is a tenanted one and the finding of the first appellate court that the plaintiff can very well set up his adult son in meat business in the tenanted shop and run a meat business of his own in the suit premises does not appear to be unreasonable, having regard to the joint requirements of the plaintiff and his adult son who is married and has a family. However that may be, the present suit cannot succeed in view of my findings that the notice of ejectment was not served on the defendant and that the necessary averments covering the entire ground u/s 13 (1) (ff) of the Act have not been made in the plaint to constitute the cause of action for ejectment of the defendant from the suit premises. In the result, the appeal is allowed. The judgment and decree of the trial court as affirmed by the first appellate court are set aside. The suit is dismissed. No order is made as to costs.