PHANI BHUSAN CHOWDHURI Vs. GOPAL CHANDRA DUTTA

JUDGEMENT

(1.) THIS is a Second Appeal arising out of affirmative concurrent finding of facts as regards reasonable requirement. In the process of coming to conclusion, a further question arose as regards service of notice upon the appellant/tenant before the institution of the suit.

(2.) SO far the notice point is concerned, the appellant has made various submissions for the purpose of coming to conclusion that statutory notice was not properly served upon the tenant. However, the plinth (pith ?) of submission of the learned counsel appearing for the appellant is that when no mode of service is fixed under the statute, in that case, the Court will come to an appropriate conclusion as to whether the service of notice was properly made upon the tenant or not. The onus is lying upon the plaintiff to prove the service of notice. Presumption, if any, made, the same will be said to be rebuttable presumption. Onus cannot be discharged, unless the service is proved by the landlord. According to the appellant, 'not claimed' cannot be equated with a refusal. It is needless to say that refusal is a good service. According to me, whether 'not claimed' can be compared with 'refusal' or not, is a matter of analysis of evidence by the fact-finding Court as well as the first Appellate Court. It has been held by the Court of first instance that as per the Judgment reported in P.B.M.C.M.U v. Commr. of Police, (1961) 65 Cal WN 239 when the registered letter is endorsed as 'not claimed', it may show that nobody was found at the relevant address to claim the letter. The defendant may be away or absent from the place. Upon analysis the Court held that the defendant and his father, after retirement from the service was staying at home. Therefore, they were not away during the material point of time. In M/s. Madan and Co. v. Wazir Jaivir Chand, 1988(2) RCR(Rent) 654 (SC) : AIR 1989 SC 630, it was held that when the registered notice is correctly addressed to the defendant and sent through the post office under registered post, the sender has no control over the same, and it is then presumed, that have been delivered to the addressee under Section 27 of the General Clauses Act. The Court held that there is presumption of service being good service. The learned counsel appearing on behalf of the appellant contended that there is no mode of service prescribed under the statute i.e. the West Bengal Premises Tenancy Act, the application under Section 27 of the General Clauses Act cannot help because presumption as regards General Clauses Act is applicable only where the mode of service is prescribed in the statute itself. However, I do not find that such submission as defended by the learned counsel appearing on behalf of the appellant, is acceptable.

(3.) SO far the question of reasonable requirement is concerned, the appellant/tenant contended that there was no Commission in respect of the suit premises. But the Commission, if any, was made only in respect of the alternative suitable accommodation elsewhere of the plaintiff/landlord. Therefore, the concurrent findings of fact on that score cannot be accepted. I find that although the Commissioner's report was filed before the Court of first instance, but for the best reason known to such Court, the same was not accepted. However, by consent of the parties, such Commissioner's report was accepted before the first Appellate Court. The first Appellate Court held that the respondent/landlord lost his residential accommodation due to acquisition of the property by the Howrah Improvement Trust and provided with a two-room flat which is about 482 sq. ft. The landlord and his wife and growing daughter was residing in such premises. The landlord is the licensee of such premises. However, they purchased this property consisting of three bedrooms, kitchen, separate privy and bath with joint user of the common passage at 17/5, Kashinath Chatterjee Lane, District Howrah, for a valuable consideration. Due to scarcity of place and due to suitability of school going daughter, they wanted to get the accommodation in the suit premises. Both the Courts concurrently held that the possession of the flat given by the Howrah Improvement Trust, be it as a licensee or a lease for a long term, is not good enough for the purpose of appropriate accommodation, and as a result whereof, the plaintiff/respondent is entitled to get a decree on account of reasonable requirement about the premises in question.