Mustak Ali vs Bela Rani Sarkar
2023 Latest Caselaw 52 Cal

03.01.2023
 SL No.3
Court No.8
   (gc)
                        SAT 3644 of 2000
             CAN 1 of 2002 (Old No: CAN 7390 of 2002)

                               Mustak Ali
                                  Vs.
                            Bela Rani Sarkar




                   This matter was appearing in the Warning List of

             29th November, 2022 and thereafter transferred to the

             Regular Cause List on 5th December, 2022.            On 14th

             December, 2022, Mr. Soumik Dey, learned Advocate

             appeared on behalf of the appellant and prayed for an

             adjournment. On such prayer, the matter was adjourned

             till 2nd January, 2023.      Today, when the matter was

             called, the appellant is not represented. This is an appeal

             of 2000 filed on November 3, 2000.

                   The appellate judgment and decree dated 28.4.2000

             and 5.5.2000 respectively, affirming the judgment and

             decree of the Trial Court dated 6.2.1999 and 15.2.1999 in

             a suit for eviction is a subject matter of challenge in this

             second appeal.       The appeal is defective.    The Stamp

             Reporter notified various defects in its report dated

             15.7.2003 and no attempt was made to remove the

             defects. In fact, a Coordinate Bench on 14th June, 2001

             passed an order directing removal of defects and in

             default the appeal would be dismissed.        The said order

             was   passed    in   presence   of   the   learned   Advocate

             representing the appellant. However, we have considered
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the judgment of the Appellate Court.              The appellant

challenged the order of the Trial Court on the ground that

the notice of eviction has not been duly served upon the

respondent.    The ownership of the plaintiff was not in

dispute. The contention of the plaintiff appears to be that

the appellant/defendant paid the rent of the suit premises

upto the month of Kartick 1402 B.S. and thereafter the

defendant defaulted himself in making payment of rent.

The plaintiff also made out a case for reasonable

requirement. The notice terminating the tenancy was

sent by a registered post with A.D. on 21.01.1997. The

defendant although had received a notice on 24.01.1997

but did not quit and vacate the suit premises for which

the suit for eviction was filed. It is an admitted position

that the tenancy is terminable upon service of notice

under Section 106 of the Transfer of Property Act. It was

contended before the Trial Court that in absence of the

plaintiff deposing to prove her case, the Trial Court could

not have passed a judgment. Section 118 of the Evidence

Act clearly states that all persons shall be competent as

witness unless the Court considers that they are

prevented from understanding the questions put to them

or from giving rational answers to those questions by

tender years, extreme old age, and disease whether of

body or mind or any other cause of the same kind. A

person who is conversant with the facts is competent to

depose on behalf of the plaintiff with regard to the facts

stated in the plaint. In the instant case, the son of the

plaintiff deposed to prove the service of notice and also the

reasonable requirement. The son of the plaintiff has

stated that he looks after all the matters concerning the

tenancy.

The learned Trial Judge as well as the First

Appellate Court has relied upon Section 27 of the General

Clauses Act and Section 114 of the Indian Evidence Act

and has taken into consideration that the notice was

correctly addressed, prepaid and registered, it, thus,

creates a presumption that the notice has been duly

served upon the defendant. The First Appellate Court

has relied upon the decision of the Hon'ble Supreme

Court in M/s. Madan & Co. Vs. Wazir Jaivir Chand

reported at AIR 1989 SC 630 in order to arrive at a

conclusion that a presumption arises when a letter is

handed over to the postal authorities with proper address

and the postal authorities act as an agent of the sender

and it has to be presumed in law that it has been

delivered to the addressee. In paragraphs 6 and 9 of M/s.

Madan & Co. (supra) it has clearly held that it is not

simply possible for a landlord to ensure that a registered

letter sent by him gets served on, or is received by, the

tenant.

In view of the aforesaid evidence, there was no

absolute requirement to examine the postal peon. (See

Sm. Munni Devi Vs. Sm. Puspalata Mondal & Anr.

reported at 71 CWN 282 Paragraph 4 and Bhusan

Chandra Pal & Ors. Vs. M/s. Bengal Coal Company

Ltd. reported at AIR 1966 Cal 63 Paragraph 12)

In the instant case, it appears from the evidence

that the defendant had received the notice by putting his

signature. Once the service of notice is proved and the

suit is filed after expiry of the notice period, the appellant

cannot have any case to resist the decree.

The findings of facts recorded by the Trial Court as

well as the First Appellate Court with regard to the service

of notice are based on cogent evidence. The concurrent

findings of facts in the instant case are not required to be

interfered with. In any event, the second appeal does not

involve any substantial questions of law.

The second appeal, accordingly, stands dismissed at

the admission stage.

In view of dismissal of the second appeal, the

application also stands dismissed.

However, there shall be no order as to costs.

(Uday Kumar, J.)                          (Soumen Sen, J.)