HARENDRA NATH CHATTERJEE Vs. SAILENDRA KRISHNA SAHA

JUDGEMENT

(1.) By this rule, obtained on March 21, 1961, under section 115 of the Civil Procedure Code 5 of 1908, the tenant defendant seeks reversal of an order dated February 7, 1961, of a learned Judge, City Civil Court, striking out his defence against delivery of possession under Section 17. Sub-section (3), of the W. B. Premises Tenancy Act 12 of 1956 (hereafter shortened into "the Act") in the following circumstances: The petitioner was a tenant, under the opposite party, of 4 Pashupati Bose Lane in the town or Calcutta, on a rent of Rs. 80 a month, payable according to the Bengali calendar. A contractual tenancy as this was put an end, to on the expiry of the last moment of the last day of Bhadra 1366 B.S. (corresponding to September 17, 1959) by the requisite notice to quit. And only eight days later, to wit, on September 25, 1959, the opposite party raised the action in ejectment (out of which this rule arises), on the ground of reasonable requirement of the premises for their own occupation: just the ground Section 13, Sub-section 1, Clause (f), of the Act, specifies. The writ of summons was served on the petitioner qua defendant on November 11, 1959, corresponding to Kartick 24, 1366 B.S. He entered appearance in the suit on November 27, 1959, and filed his written statement on December 15, 1959. On the day following, that is to say, on December 16, 1959, corresponding to Agrahayan 29, 1366 B.S., he deposited the rent for Kartick in the forum of the rent controller with whom he was depositing the rent hitherto. Thus, the deposit was made of the rent for Kartick, not within one month of Kartick 24, 1366 B.S., the date of the service of the writ of summons, but on the 35th day therefrom; nor again by the 15th day of Agrahayan, the month succeeding Kartick, but fourteen days later. Such are the facts upon which the learned advocates appearing for both the parties make two concessions before the learned trial Judge. One, the first part of Section 17, Sub-section (1), of the Act, requiring the deposit of the amount in default with the statutory interest etc. is not attracted. Two, is attracted instead the second part thereof, requiring deposit of a sum equivalent to the rent, month by month, by the 15th day of each succeeding month. And upon these concessions, the learned judge finds that the rent for Kartick 1366 B.S. was deposited not by the 15th day of Agrahayan, the month succeeding Kartick, but fourteen days later, namely, on Agrahayan 29, 1366 B.S. He, therefore, sees infraction of the second part of Section 17, Sub-section 1, of the Act, and strikes out the petitioner's defence against delivery of possession under Sub-section 3 thereof. Hence this rule.

(2.) Appearing for the petitioner, Mr. Das Gupta raisas two points. First: the writ of summons was served not on November 11, 1959, corresponding to Kartick 24, 1366 B.S., but on November 25, 1959, corresponding to Agrahayan 8, 1366 B. S. (If that is so the deposit of rent for Kartick with the controller on Agrahayan 29, 1366 B. C., would be within one month of the service of the writ of summons. By implication, therefore, the protection of the first part of Section 17, Sub-section (1), of the Act is being sought.) Second: the facts in hand are not caught by Section 17, Sub-section (1), in any manner. Mr. Sen appearing for the opposite party, contends just the other way about. First: that the writ of summons was served on November 11, 1959 (Kartick 24, 1366 B. S.) is a finding of fact come to by the court of facts, and it is not for me in exercise of my revisional jurisdiction to lay my hands on it. Second: whichever way you analyse and construct Section 17, Subsection 1, of the Act, the petitioner is "caught in the meshes of both its parts", and, in particular, with no way for an escape from the second part thereof.

(3.) On the first point, namely, the date of service of the writ of summons, the return of the bailiff reveals that on November 11, 1959, at 6-30 a.m. or thereabouts he went to 4 Pashupati Bose Lane, met the petitioner, posted him with the contents of the summons, and, on his refusal to accept it, and what accompanied it, upon proper receipt, served the copy thereof and other papers by affixing them on the outer door of the premises. Such service was witnessed by persons who refused to disclose their indentity. The return then records the location of the premises "near the meeting place of" Pashupati Bose Lane and another. To go through such return is to see compliance with the provisions of order 5, Rules 10, 12, 16, 17 and 18, of the Civil Procedure Code. There is a little more yet. A return as this is verified by the declaration pf the bailiff and the original returned to the court. So, Order 5, Rule 19, as amended by this court by virtue of its rule-making powers under Section 122, is complied with too. It therefore becomes optional with the court to examine the bailiff on oath, or to cause him to be so examined, touching the proceedings of the service of the summons. The court does not do so, but declares instead, that the summons has been duly served: vide order No. 2 in the order-sheet dated November 27, 1959, the very day the petitioner entered his appearance in the suit. Order 5, Rule 19, apart, the court does what it is entitled to do. by virtue also of Rule 19A, another rule made by this court under Section 122, which bears: "19 A. A declaration made and subscribed by a serving officer shall be received as evidence Of the facts as to the service or attempted service of the summons." The trial court has done no more. Not that such return is sacrosanct. It is not. It is just a piece of evidence which, like any other evidence, is liable to be rebutted. The petitioner did seek to rebut it by his affidavit dated February 25, I960, in answer to the opposite party s application dated January 25 previous, under Section 17. Sub-section 8, of the Act. The fist of such affidavit, in so far as it is material 6n this point, is no more than this: Service of summons on November 11, 1959, is denied. At the same time it is admitted that we summons was served on November 25, 1959: vide paragraphs 5 and 9. If a court of facts, after having weighed such return of the bailiff and affidavit of the petitioner, finds as a fact, as indeed it does, that the bailiffs return stands, the least that can be said is that it has the jurisdiction to do so. And so soon as that is said, I have no Jurisdiction even to interfere with such finding. I therefore find the first point against the petitioner.