PRAFULLA KUMAR DUTTA Vs. GANESH CHANDRA BOSE

JUDGEMENT

(1.) In this case the plaintiffs filed ejectment suit No. 1691 of 1963 in the City Civil Court. Calcutta for recovery of posses-sion of premises No. 43. Serpentine Lane, Calcutta. The plaintiffs purchased the premises by a conveyance dated 11th September. 1962. The defendant attorned the tenancy and paid rent to the plaintiffs upto the month of October, 1962. According to the plaintiffs they reasonably required the entire premises for their own occupation. The plaintiffs further contended that the deposits of the rent from the months of December. 1962 to June, 1963 were invalid and the defendant was not entitled to protection against eviction. The plaintiffs further alleged that they had determined the tenancy by serving upon the defendant by registered post a combined notice of ejectment and notice of suit dated 22nd August, 1963 requiring the defendant to quit, vacate and deliver vacant possession of the premises on the expiry of the last day of September, 1963. The defendant filed his written statement, The defendant contended that the plaintiffs should be required to prove strictly that both of them reasonably required the premises in question for their own use and occupation. The defendant further contended that the notice was illei gal and insufficient and did not determine the tenancy. Issues were framed at the trial. One of the issues was "Has the notice of ejectment been duly serv- ed. Is the same valid and sufficient." Evidence was given. The learned trial Judge recorded that the learned lawyer for the plaintiff did not press the case of reasonable requirement and as such the suit was contested on the solitary question of default. The next question that was considered was the validity and sufficiency of the notice under Section 13 (6) of the West Bengal Premises Tenancy Act. 1956. It appears that there was a notice dated 20th October. 1962 by which the defendant was asked to quit, vacate and deliver up vacant possession of the premises on the expiry of the last day of November. 1962 on the ground that the premises in question was reasonably required by the plaintiffs. There was a second notice dated 22nd August, 1963 which recited that the portion at the back of the premises No. 43, Serpentine Lane was reasonably required by the plaintiffs for their use and occupation and the defendant was a defaulter in payment of the rent and called upon him to quit, vacate and deliver vacant possession on the expiry of the last day of September. 1963. The notice concluded by stating that in case of failure to com-ply with the notice a suit for recovery of possession would be brought against the defendant. The learned trial Judge held that the defendant in the written statement did not challenge the service of the notice and the trial Court further held that the notice had been duly served and it was valid and sufficient in law. The trial court was of the opinion that whatever might be said about the first notice, the second notice did not suffer from any kind of infirmity. Accordingly, the trial Court decreed the suit and gave the plaintiffs possession after evict-Ing the defendant. In view of the difficulties of fixing up an alternative accommodation the trial court allowed the defendant six months' time from the date of the decree on condition of his paving to the plaintiffs, month by month an amount equivalent to the rent and in default of such payment, the decree which was to remain suspended for six months would become executable forthwith. The defendant preferred an appeal from the decree passed by the City Civil Court. Some of the grounds taken, inter alia, were that the trial court was wrong in holding that the notice marked as exhibit 2 was legal, valid and sufficient to determine the defendant's tenancy, that the court below took an erroneous view of legal presumption as to service of notice, the Court below was wrong in presuming the service of notice and that the court below erred in law in holding that the service of notice was effective because the acknowledgment. Exhibit 3, bore the signature of the defendant. Exhibit 2 was the notice dated 22nd August, 1963. By the said notice the defendant was called upon to vacate and deliver vacant possession of the portion at the back of the premises No, 43, Serpentine Lane on the expiry of last day of September, 1963 as that portion was reasonably required by the plaintiffs for their own occupation and as the defendant was a defaulter in payment of rent for the month of November. 1962. Exhibit D was the notice dated 20th October, 1962. By the said notice the defendant was called upon to quit, vacate and deliver the possession of the portion at the back of the premises No. 43, Serpentine Lane. Calcutta, on the expiry of the last day of November, 1962. as the portion was reasonably required by the plaintiffs for their own occupation.

(2.) The appeal came up for hearing before a Division Bench of this Court consisting of P. N. Mookerjee. J. and A. K. Dutt, J. The aforesaid Division Bench held that in disposing of the said appeal two fundamental questions arose, namely :--

(3.) The reference has, thereafter, come before us for disposal. At the hearing of the reference counsel for the respondent stated before us that the matter had been amicably settled between the parties and as such he was not in a position to make any submissions as to the questions referred. He further submitted that the appeal had become infructuous.