PRAVABATI DEVI Vs. SAMBHU NATH GHOSE

JUDGEMENT

(1.) In Re. CAN 4663 of 2003 Mr. Chatterjee had contended that when the judgment was delivered the learned Counsel engaged by the respondent did not appear. The respondent had cogent reason to support his contention that despite his best effort, he could not be represented through his Counsel. We find that there were sufficient grounds for recalling the order. According, the judgment and decree dated 16th of August, 2002, is hereby recalled and the appeal is restored to its original file and number. The application, being CAN No. 4663 of 2003 stands allowed. F.A. No. 117 of 1998 After the above order is passed, both the learned Counsel for the parties were ready to argue the matter on merit. Accordingly, by consent of the parties the appeal is treated as on day's list and is taken up for hearing. After hearing the learned Counsel for the parties, we dispose of the appeal in the following manner. Whether service of notice of eviction was proved ? :

(2.) Mr. Chatterjee had raised two contentions; first that no notice was served upon the respondent and second that the reasonable requirement of the landlord could not be proved by the appellant. In paragraph 3 of the written statement, he had challenged the validity of service of notice and contended that it was incumbent upon the plaintiff to prove the service of notice. The plaintiff did not adduce any evidence to prove the service. Admittedly, the postal peon had endorsed "refused" on the acknowledgement card. But in the evidence, he stated that the notice was never tendered to him. According to Mr. Chatterjee, on the materials placed before this Court, the initial burden that lay upon the defendant stood discharged and the onus shifted upon the plaintiff. Having regard to the facts and circumstances of this case, according to Mr. Chatterjee, the plaintiff was not been able to prove the service of notice. Therefore, on account of non- service of notice, the suit should fail. On this question, Mr. Chatterjee had relied on the decision in Reena Das vs. Air Construction and Consultants Pvt. Ltd., AIR 2003 NOC 121 (Cal): 2002 AIHC 3427. 2.1. The learned Counsel for the appellant on the other hand points out that P.W. 2 had proved the notice and the endorsement. He also pointed out that the defendant had never lodged any complaint that no notice was ever tendered to him. 2.2. We have heard the learned Counsel for the parties on this point. The materials that were placed before us were sufficient to hold that the notice was correctly addressed and proper postage was paid. The envelope was produced and admitted into evidence where the refusal was endorsed. Admittedly, the plaintiff did not use any affidavit affirmed by the postal peon. Neither he examined the postal peon. It is an admitted proposition of law that the initial burden would lie upon the defendant to prove that the notice was not served upon him but such burden would stand discharged as soon as he would deny it on oath. Here the defendant had denied service of notice. The question of denial is to be decided on the basis of the credibility of the evidence given by the defendant. Whether the burden is properly discharged or not is a question of fact to be ascertained on the basis of the credibility of the evidence adduced by the defendant. Credibility of the evidence of the defendant: 2.3. In this case there was a report of the Commissioner from which it appears that the house was a four storied one and there were one room each on the first, second and third floor and one room on the ground floor. The defendant, on the other hand, stated that there were ten rooms in the house without pleading so in the written statement. He contended that there were four rooms in the ground floor. The Commissioner was supposed to give and has given measurement of the rooms, which is also apparent from the Commissioner's report. From the facts, as disclosed, we are in agreement with the finding arrived at by the learned Court below having regard to the evidence already on record that there were four rooms in the house, one in each floor. Therefore, it appears that when the defendant as DW-1 stated that there were four rooms in the ground floor, it clearly appears that he was not telling the truth. A person who can make incorrect statement on oath cannot be believed. P.W.-1 had pointed out that the measurement of the land on which the building was standing was about twelve chittaks. When confronted with this question, the defendant had pleaded ignorance. It appears that he had avoided the truth. Thus it appears that his evidence could not be believed. Therefore, the denial of service would not amount to discharge of the burden if the credibility of the witness is doubtful. The Courts, when are Courts of fact, are entitled to weigh the evidence and is also empowered to believe or disbelieve the evidence of one or other witnesses. In the present case, having regard to the totality of the evidence, we do not find that the defendant No. 1 could be said to have discharged his burden simply by adducing oral evidence that the notice was never tendered/offered to him when it was on fact that the notice was correctly addressed and properly stamped. In the circumstances, the presumption was still available even without the affidavits or otherwise from the peon, and the service could be accepted since there was no effective denial on the part of the defendant to shift the onus on the plaintiff when the plaintiff was able to prove the notice by reason of presumption on correctness of service as well as the presumption of an official action to have been correctly performed. Therefore, on this ground, we are unable to agree with Mr. Chatterjee that the service of notice was invalid. We agree with the finding of the learned Trial Court with regard to the validity of the service of notice. Reasonable requirement: Whether proved :

(3.) So far as the question of reasonable requirement is concerned, Mr. Chatterjee had led us through the entire evidence adduced by both the parties including the Commissioner's report. He had pointed out that the Commissioner's report was cryptic. But from the report, which was given by the Commissioner clearly indicated that there are one room in each floor. He has also given the measurements. We do not find anything on record to show that the defendant had taken any objection to the report of the Commissioner. In the circumstances, we may examine the question of reasonable requirement, having regard to the facts and circumstances of the case and the materials placed before us. From a perusal of the materials on record, as pointed out by Mr. Saha, the learned Counsel for the appellant, the learned Judge had placed his findings on the basis of the oral evidence tendered by the defendant-tenant that there were ten rooms and the plaintiff is in occupation of six rooms which, however, have not been pleaded in the written statement by the defendant. On the other hand, the Commissioner's report goes to show that there is one room in each floor. However, at the same time, the plaintiff herself had admitted that there is one room in each floor and there were altogether four rooms in the house. This question was confronted in cross-examination to the defendant- tenant. The defendant-tenant, on being confronted, had pleaded his ignorance and did not confirm his stand. However, the defendant had admitted that there were only one privy in the ground floor. He had also admitted that the other children of the plaintiff were found to visit the mother. It was an admitted position that two of the sons were living with the plaintiff. It was also admitted that there was one tenant in the first floor, namely, one Ajit Babu. Thus from the materials on record it appears that the plaintiff was in possession of two rooms only; one of which was used as godown in day time and bedroom at night. In the judgment the learned Judge had found that the plaintiff was not a heart patient though she had been suffering from cardiac problem. The reasons given in the judgment appear to be preposterous since he had based his finding only on the oral testimony of the defence witness, which had no foundation in the pleadings. He had not given any reason why he had differed from the report of the Commissioner, which had also not been challenged by the defendant except in his oral testimony as defective one when there were overwhelming materials on record to decree the suit in favour of the plaintiff. 3.1. Be that as it may, during the pendency of the appeal, the plaintiff/ appellant died. Mr. Saha in his usual fairness had drawn this fact to the notice of the Court and pointed out that the requirement of the two sons would in turn necessitate the passing of the decree for eviction. Inasmuch as, according to him, two sons of the plaintiff would be left with only two rooms, one of which was being used as a godown in the day time and bedroom at night. So they would be requiring at least three rooms. Therefore, there was no ground for resisting the eviction of the defendant. Though, however, Mr. Saha had contended that the other brothers and sisters very often come and visit the plaintiff for whom another room might be needed, but that was for the plaintiff appellant to find out. It is not necessary for us to go into the said question. 3.2. Having regard to the materials placed before us, it appears that the house consisted of four rooms; one in each floor and the bathroom was situated only on the ground floor, as admitted by DW-1. Therefore, having regard to the requirement of the two sons of the original plaintiff, in our view, they would require three rooms in the minimum, one room for each of the sons and one kitchen at the present. Though they might ask for one more room, but that question cannot be gone into within the scope and ambit of this suit though ordinarily a common room or a room for other brothers and sisters may also be required. Order: