SUBHAS CHANDRA MITRA Vs. NETAI CHAND DEY

JUDGEMENT

(1.) This appeal was admitted only on the ground that whether the suit for eviction can succeed on the basis of the second notice after service of the first notice since admitted to have been received by the tenant and replied to. Appellant's submission:

(2.) Mr. Chatterjee, the learned counsel for the appellant, in support of his contention divides this point into two limbs. The first one is that the second notice was addressed to the tenant in the suit premises. This notice returned with the postal endorsement ?not claimed?. The learned Courts below concurrently found that this was a valid service. According to Mr. Chatterjee, the endorsement ?not claimed? can be accepted as valid service only in certain cases. One such instance is that where the tenant is residing in the premises and the notice was tendered several times and then it was returned with the endorsement ?not claimed?, in such a case it can be treated to be a valid service. In this case, as pointed out by Mr. Chatterjee, the tenant was admittedly residing at a premises other than the suit premises and this fact was known to the plaintiff. The plaintiff had addressed the first notice at the said address at Ballygunge to which the tenant had replied. Therefore, having known the address of the tenant when admittedly it was within the knowledge of the plaintiff that the tenant was not residing in the suit premises and that he had sublet the premises and using the same for the purposes other than for which it was let out, it cannot or could not be presumed that the tenant was living in the suit premises and as such, the endorsement ?not claimed? in this case cannot be treated to be a refusal when the tenant is residing elsewhere which pre-supposes absence of the tenant in the suit premises. 2.1. The second limb of his argument is that the suit is founded on the second notice. In view of section 13(6) of the West Bengal Premises Tenancy Act, no suit can be brought for eviction by the landlord against the tenant without the notice. Therefore, according to Mr. Chatterjee, if the notice is invalid then the cause of action fails and the suit cannot be maintained. According to him, admittedly, there was a first notice by which the tenancy was terminated. Once tenancy is terminated, unless a fresh tenancy is created or the first notice is expressly waived with the consent of the tenant, the second notice cannot be a valid one on the basis of which the suit can be founded. 2.2. In support of his contention, Mr. Chatterjee had relied on the decisions in Calcutta Credit Corporation Ltd. v. Happy Home (Pvt.) Ltd., AIR 1968 SC 471, Ganesh C. Nandy v. M/s. J.N. Chatterjee & Bros., 70 CalWN 676 and Satya Chorone Requitte v. Suresh Chandra Pal & Ors., 65 CalWN 1239. Respondent's submission:

(3.) Mr. Rabin Dutta, the learned counsel for the respondent, on the other hand, pointed out that the notice was tendered several times at the address of the tenant, which was the recorded address of the tenant with the landlord. Therefore, the endorsement ?not claimed? should be treated as good service. He has also referred to the notice, which is Ext. 3 and points out that it was tendered several times and then only the endorsement ?not claimed? was endorsed. According to Mr. Dutt, when the recorded address of the tenant was the suit premises let out for the purpose of residence, even if he sublets or uses the premises for purposes other than for which it was let out even then the tenant cannot dispute the validity of the notice addressed at the suit premises when it is not established by cogent evidence that this notice was never tendered to him or that he had no occasion to be present in the suit premises during the period when these notices were repeatedly tendered by the postal peon. When a tender of a notice is denied, it is for the tenant himself to prove the same that it was not tendered to him since the action of the postal authority, being official action, has a presumption of correctness. 3.1. In order to meet the second limb of the argument of Mr. Chatterjee, Mr. Dutta contends that the decision in Calcutta Credit Corporation Ltd., AIR 1968 SC 471 (supra) is distinguishable in facts inasmuch as there the tenant had given notice under section 13(k) which was accepted by the landlord and without the consent of the landlord, the notice could not be withdrawn unilaterally by the tenant which is a distinctive feature which is absent in this case. According to him, unless the tenant proves that the notice was accepted and acted upon by him, by reason of the second notice, the first notice is impliedly waived by the landlord. In support of his contention, he relied on the decisions in Chandra Kisore Sukla v. Renuka Ballav, 84 CalWN 324 by a learned single Judge; Arjun Prasad Sharma v. Brojendra Nath Dhar, 85 CWN 635 by a Division Bench; Tayabali Jaferbhai Tankiwala v. Ahsan & Co., AIR 1971 SC 102 and Sudhir Kumar Paul v. Sm. Indu Prova Ghose & Ors., AIR 1976 Cal 274 to substantiate his points. Whether the service of the second notice is valid: