Calcutta High Court (Appellete Side)
Ranjit Das Gupta vs Shanti Shaw @ Devi & Ors on 3 February, 2022
6 SA 25 of 2021
03-02-2022
sg
CAN 1 of 2019 (old CAN 9540 of 2019)
(Already disposed of on 19.2.2021)
Ct. 8 CAN 2 of 2019 (old CAN 9541 of 2019)
Ranjit Das Gupta
Versus
Shanti Shaw @ Devi & Ors.
(Through Video Conference)
Mr. Sauradipta Banerjee, Adv.
Ms. Fatima Bassan, Adv.
Ms. Damayanti Kundu, Adv.
...for the appellant
Mr. Sayantan Bose, Adv.
Ms. Anyapurba Banerjee, Adv.
Ms. Madhurima Das, Adv.
...for the respondents
This second appeal has come up for admission against a decree
of affirmation passed by the learned Judge, 9th Bench, City Civil Court
at Calcutta in Title Appeal No. 41 of 2017 affirming the judgment and
decree dated 28th February, 2017 passed by the learned Judge, 4th
Bench, Presidency Small Causes Court at Calcutta in connection with
Ejectment Suit No. 80 of 2011.
This matter was heard earlier and attempts were made to settle
the dispute through mediation. However, the mediation failed.
The second appeal can be admitted only on a substantial
question of law. We need to find out the relevant grounds of appeal
from the judgment whether any substantial question of law has been
raised for admitting the second appeal.
The learned Counsel appearing on behalf of the appellant
submits that the appeal is required to be admitted on the ground that
the ejectment notice dated 23rd November, 2010 was invalid in law and
both the Courts below have clearly erred in holding that the said notice
is valid. The learned Counsel has also argued before us that the
learned Appellate Court has not considered the possibility of partial
eviction. During the pendency of the appeal, the appellant had
surrendered seven rooms leaving two rooms for their present
occupation. The said arrangement was purely temporary.
While dealing with the first issue, the learned Trial Judge has
taken into consideration the following relevant facts. The notice dated
23rd November, 2010 was marked as Exhibit-13. In the said notice the
plaintiff had determined the tenancy of the defendants with the expiry
of December 2010, or at the end of the month which would expire next
after one month from the service of the notice. The A/D card was
marked as Exhibit 13/2 which would show that Ranjit Dasgupta
received the A/D card on 29th November, 2010. The envelope
addressed to other defendant had returned after serving intimation on
25th November, 2010 and 26th November, 2010. Curiously, Amit
Dasgupta did not prefer any appeal against the decree passed by the
learned Trial Court.
The defendant before the learned Trial Court has raised an
issue that the date of the receipt by Ranjit Dasgupta is alleged to be
29th November, 2010 but the same is forged and manipulated. The
defendant argued before the learned Trial Court that the notice was
received on or after 6th December, 2010 (wrongly mentioned as 6th
December, 2016) and as such, the notice did not give clear one
calendar month to the defendants/tenants.
The learned Trial Court refused to accept the said submission
for a very cogent reason with which we are completely agree. The
reasons are stated below:
The purpose of notice is to give adequate opportunity to
the defendant to comply with the same. The question of
prejudice for want of sufficient notice is an important question
but the date of filing of the suit and the termination of the
tenancy is also relevant consideration during deciding on the
validity of the notice. In all the given circumstances, the dates of
termination of tenancy and the filing of suit are more relevant
than the dates of termination of tenancy standing in comparison
with the date of case of action as pleaded. Moreover, cause of
action is a bundle of facts. The situation would have been
different if the suit was filed before the expiry of the notice
period. As the notice period has already been over, before filing
of the suit, the contention of the inadequacy of the notice period
is not tenable.
The ejectment notice (Ext.13) clearly gives one month time
stating that the tenancy will be treated as expired, after one
month of receipts of the letter or on the expiry of December,
2010. This suit has been filed on 17/02/11. Even if the notice
was received on 06.12.2010, the tenancy was definitely
terminated lawfully before 17/02/2011.
The allegation of tampering with the date in the AD card
is now dealt with. As per the signature on the AD card, the
notice was received on 29.11.2010 on one of the defendants.
The AD card has been received back by the plaintiffs.
There is no denial of service of the notice. Rule of prudence
leads this Court to conclude that the AD card shall not come
back without the signature or mark of the recipient. There is no
overwriting or apparent tampering in the date of the AD card.
The date 8th of December is the postal department's date and
there is no rule that the postal department will affix its seal on
the AD card on the date on which the addressee receives the
same. Since there is no denial of the signature by the defendant
at any stage of the suit, or nothing in this respect is pleaded in
the Written Statement, I am of the view that the notice was
received on 29.11.2010, and the suit has been filed well after
expiry of the notice period. It also appears that there is a valid
cause of action pleaded in the suit."
It is important to mention here that the defence of the
defendants were struck off as they failed to comply with the order
passed under Section 7(2) of the West Bengal Premises Tenancy Act,
1997. Before the learned Appellate Court an application was filed by
the defendants for consideration of partial eviction. The learned
Appellate Court having arrived at a finding that the defence would
struck off and admittedly the appellant/defendant is defaulter,
dismissed the appeal without considering the other issues.
The only defence that was available to the appellant was the
notice for eviction. The said notice for eviction, in our view, has been
conclusively and correctly dealt with by the learned Trial Court as
well as the learned Appellate Court. The findings with regard to the
adequacy of the notice to quit and its service have been properly
arrived at by both the Courts below.
We do not find any substantial question of law to admit the
second appeal. The second appeal, accordingly, dismissed.
In view of the dismissal of the second appeal, the connected
application being CAN 2 of 2019 (old CAN 9541 of 2019) is also
dismissed. There shall be no order as to costs.
Interim order, if any, shall stand vacated.
Urgent photostat certified copy of this order, if applied for, be
supplied to the parties upon compliance of all requisite formalities.
(Saugata Bhattacharyya, J.) (Soumen Sen, J.)
