Pitamber Lal Budwani vs Sunit Kumar Mukherjee

Bhaskar Bhattacharya, J.—This first miscellaneous appeal is at the instance of a tenant/Defendant in a suit for eviction and is directed against the judgment and decree dated December 21, 1992 passed by the learned Additional District Judge, 2nd Court, Alipore in Title Appeal No. 338 of 1998 thereby reversing those dated August 3, 1990 passed by the learned Additional Munsif, 1st Court, Alipore in Title Suit No. 10 of 1988 and remanding the matter back to the learned trial Judge for decision.

The Respondent herein filed the aforesaid Title suit No. 10 of 1988 for eviction of the Appellant on various grounds under the provision of West Bengal premises Tenancy Act.

The Appellant contested the aforesaid suit by filing written statement thereby denying the material allegations made in the plaint and the specific defence of the Appellant was that the notice given u/s 13(6) of the West Bengal Premises Tenancy Act was invalid and as such the suit was liable to be dismissed.

The learned trial Judge at the time of hearing of the suit found that the notice given u/s 13(6) of the West Bengal Premises Tenancy Act was invalid and thus dismissed the suit without discussing any other issue involved in the suit.

Being dissatisfied, the Respondent preferred an appeal being Title Appeal No. 338 of 1990 and by the order of remand impugned in this first miscellaneous appeal, the learned first appellate Court-below held that the notice sent by the Respondent was valid, legal and sufficient and thus set aside the judgment and decree passed by the learned trial Judge and directed the learned trial Judge to hear out the suit on other issues.

Mr. Roychowdhury, the learned senior advocate appearing on behalf of the Appellant has contended that the finding of the learned first appellate Court below on the question of legality of the notice u/s 13(6) of the aforesaid Act thereby reversing the finding of the learned trial Judge was wrong. According to Mr. Roychowdhury, the learned trial Judge rightly held that the notice was not a valid one.

In order to appreciate the contention of Mr. Roychowdhury, the relevant portion of the notice is quoted hereunder:

I have accordingly been instructed by my said client to serve upon you, this notice to quit which is I hereby do, determining you said monthly tenancy in respect of the said premises in your occupation with the expiry of the month of March, 1986, or with the expiry of the month of your tenancy, which would expire next ending with the month of your tenancy, after one month from the date of service of this notice to quit, and to call upon you to quit, vacate and deliver up vacant and peaceful possession of this said premises in your occupation accordingly falling which all relationship of landlord and tenant between yourself and my said client shall cease and determine, and you will be liable to pay damages till evicted in due course of law.

Please treat this notice as a combined notice u/s 13(6) of the West Bengal Premises Tenancy Act, 1956, read with Section 106 of the Transfer of property Act.

There is no dispute that the aforesaid notice is dated March 10, 1986.

Subsequently, another letter dated April 14, 1986 was given to the Appellant which was received by the Appellant on April 19, 1986. The relevant portion of the said letter is quoted hereunder:

I regret that through inadvertance and bonafide mistake a typhographical error crept into the said notice issued by me on behalf of my said client. In the third paragraph, fourth line the letter ''March'' should be read as ''April'' by you and accordingly your monthly tenancy in respect of the premises in your occupation under my said client is to expire after determination of the said tenancy; with the expiry of the month of April 1986, or with the expiry of the month of your tenancy which expire next ending with the month of your tenancy after one month from the date of receipt of the said notice.

According to Mr. Roychowdhury, by a notice dated March 10, 1986, a tenant cannot be directed to vacate with expiry of month of March, 1986 and as such they said notice was patently illegal. Mr. Roychowdhury contends that once a notice is held to be illegal, by subsequent letter, the invalid notice cannot be amended. According to him, in the second letter, the landlord directed the Appellant to vacate with the expiry of April, 1986 but they said letter having been received by his client on April 19, 1986, even the second letter cannot be treated as a valid notice to quit.

Mr. Dasgupta, the learned Counsel appearing on behalf of the Respondent has on the other hand contended that in the first notice dated March 10, 1986, an alternative mode of determination also having been adopted, even though the first part of the notice was invalid, by virtue of the alternative mode mentioned in the notice thereby directing the Appellant to vacate with the expiry of the month of the tenancy which would expire next ending with the month of tenancy after one month from the date of service of the said notice was quite valid. Mr. Dasgupta in support of such contention relies upon a decision of this Court in the case of Jatindra Nath Vs. Malai Ram Show,

In the aforesaid decision, a notice u/s 106 of the Transfer of Property Act was given to a tenant on July 19, 1945 thereby asking him to vacate and deliver possession by July 31, 1945 or at the end of a month of the tenancy which would expire next after 15 days from the receipt of the said notice.

Under the aforesaid circumstances, this Court held that the notice in the aforesaid form was quite good and sufficient and that demand for possession in the alternative form was perfectly valid and recognised in law.

Therefore, I find substance in the contention of Mr. Dasgupta that in view of alternative mode of termination and demand of possession given in the disputed notice, the said notice was quite valid.

Therefore, the learned first appellate Court below was quite justified in holding that the notice dated March 10, 1985 was legal, valid and sufficient. Therefore, there is no merit in the instant first miscellaneous appeal and the same is liable to be dismissed.

In the facts and circumstances there will be, however, no order as to costs.

Re: C.O.T. No. 1646 of 1994.

The Respondent has filed the instant cross-objection against the aforesaid order of remand thereby contending that the learned first appellate Court below ought to have instead remanding the matter back to the learned trial Judge disposed of all other issues on merit since evidence was already on record. Mr. Dasgupta appearing in support of the aforesaid cross-objection has strongly relied upon a decision of this Court in the case of Promothonath v. Nagendra Nath 33 C.W.N. 1211 thereby contending that it was the duty of the learned first appellate Court below to dispose of all other issues also.

There is no dispute with the proposition of law that in view of Order 41 Rule 24 of the Code; an appellate Court is entitled to decide other issues which have not been decided by the learned trial Judge, if evidence is already on record. But the said provision is only an enabling provisaion. In this case, the learned first appellate Court has decided not to come to any finding on other issues because the learned trial Judge did not at all consider other issues involved in the suit. In my view, there being no finding at all on the other issues and the learned trial Judge having disposed of the suit on the basis of issue of notice, the learned first appellate Court rightly decided not to decide the other issues himself thereby not deprieving the parties of a right of first appeal.

Thus, I do not find any reason to interfere with the discretion exercised by the learned first appellate Court below.

In the facts and circumstances, I, however, direct the learned trial Judge to positively dispose of the suit itself within one month from the date of communication of this order without granting any unnecessary adjournment to either on the parties. The aforesaid time limit is mandatory. The cross-objection is thus dismissed.

No costs.