Ridkaran Sharma & Anr vs Pradip Kumar Jana
2023 Latest Caselaw 5967 Cal

                 IN THE HIGH COURT AT CALCUTTA
                 CIVIL APPELLATE JURISDICTION
                        APPELLATE SIDE

Present:
The Hon'ble Justice Ajoy Kumar Mukherjee

                         S.A. 85 of 2015
                    Ridkaran Sharma & Anr.
                            -Versus-
     Pradip Kumar Jana, Since deceased, his heirs and legal
           representatives Mrs. Mantra Jana & others.


For the Appellants            :     Mr. Srijib Chakraborty
                                    Mr. Aditya Mondal

Heard on                      :     22.08.2023

Judgment on                   :     06.09.2023


Ajoy Kumar Mukherjee, J.:

1.    In this Second Appeal the appellants herein as plaintiffs filed    Title

Suit No. 265 of 1993 seeking eviction against predecessor of respondents /

defendant / tenant from the suit shop room at 170, J.N. Mukherjee, P.O.

Salkia, P.S. Malipanchghora, District - Howrah. The said suit came up for

hearing exparte on 5th September, 2007 when the Trial Court was pleased to

dismiss the said suit on the ground that the eviction notice has not been

served upon the defendant / tenants.

2. Being aggrieved by the said order the plaintiffs / landlord / appellants

preferred First Appeal and learned Appellate Court by the impugned

judgment dated 28th September, 2012 pleased to dismiss the appeal and

affirmed the judgment of the Trial Court passed on 5th September, 2007.

3. In the said suit the plaintiffs alleged that the defendant / tenant is

defaulter in payment of rent since April, 1993 and on that ground he is liable

to be evicted. Predecessor of Respondents/ defendant entered appearance

and filed written statement and applications under section 17(2) and 17(2A)

of the West Bengal Premises Tenancy Act, 1956.

4. Appellants contended that in his written statement defendant had

challenged the legality and validity of the notice but no challenge has been

made about service of notice. However, by an order dated 6.9.2003 the

application under Section 17(2) and 17(2A) were allowed holding that the

defendant had accepted the plaintiff as landlord and the defendant is

defaulter in payment of rent since April 1993 and the Trial Court directed

the defendant to deposit a sum of Rs.46,877/- towards arrear rent.

Defendant did not comply the said order and as such the defence of the

defendant against delivery of possession was struck off and the suit was

posted for ex parte hearing vide order dated 8th January, 2004. However, as

stated above, by a judgment dated 1st July, 2004, the aforesaid suit was

dismissed ex parte as Trial Court held that notice to quit was not duly served

upon the tenant/defendant.

5. Learned Counsel appearing on behalf of the appellants submits that in

the said suit the plaintiff filed postal receipt, A/D Card, a copy of the notice

sent Under Certificate of Posting, and receipt of Certificate of Posting before

the Court below and adduced evidence pertaining to service of ejectment

notice. However, learned Trial Court and the First Appellate Court did not

accept the plaintiffs' contention about service of notice and held that notice

of eviction has not been duly served upon the defendant. So both the Court

below dismissed the plaintiffs' prayer.

6. While admitting the appeal under Order XLI, Rule 11 of the Code of

Civil Procedure, the Division Bench of this Court vide order dated 15th

December, 2014 framed following substantial question of law for

determination:-

"Whether the learned Courts below committed an error of law in holding that the ejectment notice was not duly served?".

7. It is submitted that since the defendant / respondents' defence against

delivery of possession was struck off by the order of the learned Trial Court

for non-compliance of the order dated 6th September, 2003 passed under

Section 17(3) of the Act of 1956, the issue that came up for consideration is

whether the notice to quit was properly served upon the defendant or not

and whether the ground of eviction is proved or not.

8. In the plaint in paragraph 1, plaintiff has categorically stated that

defendant is defaulter in payment of rent from April, 1993 and the Court

below while passed order in connection with the defendant's application

under Section 17(2) and 17(2A) of the Act, was pleased to held that the

defendant is defaulter in payment of rent from April, 1993 to August, 2003.

Since the defendant had not paid the aforesaid arrear amount, therefore his

defence against delivery of possession has been struck off and he is not

entitled to get protection under Section 17(4) of the Act of 1956. Accordingly

the ground of eviction for non- payment of rent has been proved

before the Court below and there was no challenge on that point.

9. Now with regard to service of notice of eviction it is submitted that the

said notice of eviction, was sent through registered post with A/D as well as

Under Certificate of Posting. The appellants submitted that since address of

the defendant was correctly given in the notice to quit sent under Certificate

of Posting, it should be presumed under Section 114(f) of the Evidence Act,

1872 that such notice was served upon the defendant. It is further

submitted that since notice for eviction was sent Under Certificate of Posting

by putting correct address of the defendant and the certificate having been

given by the Postal Authorities, in the ordinary course of business, it must

be presumed to be genuine unless the presumption is rebutted by cogent

proof. In other words the contents of the certificate must be presumed to be

true unless they are proved to be false.

10. He further contended, in the instant case the defendant did not rebut

such presumption by cogent proof, hence it should be presumed that the

notice of eviction was duly served upon the defendant. It is also submitted

that the learned Trial Court did not take into consideration the aspect of

presumption of service of notice upon the defendant under Certificate of

Posting at all. The First Appellate Court though took into consideration the

receipt of Certificate of Posting being Exhibit '7(a)' but had refused to accept

such Certificate of Posting since the same does not bear the name of the

Police Station in the address of the defendant.

11. It is submitted on behalf of the appellants that such findings of the

Court below are perverse in as much as the plaintiff has mentioned correct

address of the defendant in the Certificate of Posting i.e. 170, J.N.

Mukherjee Road, P.O. Salkai, District - Howrah. Thus, it should be

presumed that the notice of eviction was duly served upon the defendant.

In fact the Court below had erroneously refused to keep credence to the

receipt of Certificate of Posting on the alleged ground that the name of the

Police Station was not mentioned in such receipt of Certificate of Posting,

whereas it will appear on perusal of such Certificate of Posting that the

plaintiff had mentioned the correct premises number, correct name of road,

correct name of Post Office and correct name of the District in the said

receipt of such Certificate of Posting. Thus, non-mentioning of the name of

police Station cannot render the said Certificate of Posting as null and void,

specially when the postal article are normally sent by giving reference to the

premises number, name of road and the name of Post Office and name of

the district. Had it been a case that the plaintiff had failed to mention the

correct name of the Post Office where suit premises is situated, then

certainly that receipt of certificate of Posting could have been declared as

insufficient. Accordingly, appellants have submitted that on the basis of

presumption as laid down under Section 114(f) of the Evidence Act, 1872 to

the effect that the Certificate of Posting bears correct address and it is duly

prepaid and as such presumption always be in favour of the service.

DECISION

12. On perusal of the cause title of Title Suit No. 265 of 1993 it appears

that the address of the defendant/tenant has been described as "Sri Pradip

Kumar Jana, 170, J.N. Mukherjee Road, Post Office . Salkia, Police Station -

Malipanchghora, District - Howrah". In paragraph 1 of the plaint the suit

property has also been described as 'one shop room' being used for sale of

electrical goods at "170, J.N. Mukherjee Road, Post Office Salkia, Police

Station - Malipanchghora, District - Howrah". In the schedule of plaint the

suit property has been described as 'one shop room' being used for sell of

electrical goods at 170, J.N. Mukherjee Road, Police Station -

Malipanchghora, District - Howrah". Accordingly, there is no dispute that

the suit shop room situates at 170, J.N. Mukherjee Road, which is within the

Post Office - Salkia, Police Station - Malipanchghora, District - Howrah. On

perusal of the Certificate of Posting, I find that the addressee has been

described as "Sri Pradip Kumar Jana of 170, J.N. Mukherjee Road, P.O.

Salkia, District - Howrah." When said letter was sent through postal agency,

what is important is mentioning the name of Post Office of the addressee, so

that Postal Authority can deliver the article through addressee's Post Office.

Here plaintiff/landlord has correctly stated the postal address of the

defendant/tenant including the Post Office and the District as well as the

name of the street.

13. In such view of the matter, it is immaterial whether the

defendant/tenant had mentioned the name of concerned Police Station in

the address given in the Certificate of Posting or not. In fact, the Trial Court

totally ignored that the notice was also sent through Certificate of Posting

but he confined himself only with the mistake that occurred in the notice

which was sent through registered post with A/D wherein the Police Station

was wrongly mentioned as 'Salkia' and not 'Malipanchghora'. Even if it is

presumed that the notice which was sent through registered post with AD,

bears name of wrong Police Station and for which it may not have been

served upon the defendant/tenant but the notice which was sent through

Certificate of Posting absolutely bears correct postal address of the

defendant/tenant and as such the Trial Court should have presumed due

service of notice, unless and until such presumption is rebutted by the

addressee/defendant.

14. On the other hand, the First Appellate Court curiously observed, as

Police Station has not been mentioned in the address given in the Certificate

of Posting, so it cannot be presumed that the notice sent under Certificate of

Posting was duly served upon the defendant / tenant.

15. Such finding in my opinion is absolutely perverse and is liable to be

set aside. In a decision of Santosh Kumar Gupta Vs. Smt. Chinmoyee Sen

reported in AIR 1966 Cal 615 this Court was of the view that notice to quit

need not necessarily be posted by registered post, it can also be posted

under Certificate of Posting as well. In the decision of Shibnath Bhadra Vs.

Mrinalini Ghosh reported in 90 CWN 413 it has been clearly held that a

notice issued under Certificate of Posting also carries with it presumption of

due service unless rebutted. There can be no scope for the presumption that

plaintiff would simply obtain a certificate from Post Office for displaying it to

the Court, without actually posting, the envelope containing the notice,

because there would absolutely be no motive for such suppression. In such a

situation, direct evidence regarding the fact of the actual posting of the letter

may be dispensed with because the strongest presumption would be in

favour of the actual posting and there can be no presumption in favour of

suppression, which would not be in the plaintiff's interest.

16. It is also well settled that , if a letter is properly directed containing

notice to quit and is proved to have been put into the post office, the

presumption would be that the letter reached it's destination at the proper

time according to regular course of business of post office and was received

by the person to whom it was addressed. Such presumption under section

114(f) of the evidence Act would also extend to certificate of posting though

such presumption is certainly rebuttable. In the case before me there is no

allegation that postal certificate was procured.

17. On perusal of section 13 (6) of the Act of 1956, it is clear that no

particular mode of giving notice by the landlord to the tenant has been

provided for, meaning thereby that the same could be given orally or in

writing and if in writing, it is not necessary that it should be sent only by

registered post. What is required is that "one month's notice expiring with a

month of the tenancy". Accordingly Act provides for notice, without providing

the manner in which it is to be given. In such view of the case, service of

notice, sent under certificate of posting is sufficient in the present context,

where materials go to show that notices were sent and the addressee did not

make any attempt to rebut the statutory presumption. A mere denial even if

made by defendant in written statement is not potent enough to rebut the

presumption.

18. In such view of the matter and on the basis of aforesaid discussion,

the order impugned as well as the order dated 5th September 2007 passed in

Title Suit No. 265 of 1995 are hereby set aside.

19. The suit be and the same is decreed against the

respondents/defendants/tenants. The respondents/defendants/tenants are

hereby directed to quit and vacate the suit premises within a period of 60

(sixty) days from the date of communication of this order, failing which the

plaintiffs/appellants will be at liberty to execute the decree in accordance

with law before the appropriate Executing Court.

20. The Second Appeal is thus allowed.

21. Department is directed to draw up decree accordingly.

22. The Registry is directed to send down the record of Courts below.

Urgent photostat certified copy of this judgment, if applied for, be supplied to

the parties, on priority basis on compliance of all usual formalities.

(AJOY KUMAR MUKHERJEE, J.)