SANTOSH KUMAR GUPTA Vs. CHINMOYEE SEN

JUDGEMENT

(1.) This is a tenant defendant's appeal against the decree of the Court of appeal below affirming the decree of the Trial Court, passed against him, in a suit for ejectment from a house premises. The tenancy was according to the English Calendar month. The defendant was stated to be a habitual defaulter in payment of rent. The tenancy of the defendant was determined by a combined notice to quit and that of a suit, expiring with the end of March 1958. The suit was contested: firstly, on the ground of non-service of notice and secondly, there was no default in payment of rent. The learned Munsif decreed the suit which was affirmed in appeal by the learned Subordinate Judge, Alipore. The instant appeal is against the said decree.

(2.) Mr. Nani Coomar Chakravarti, the learned Advocate in support of the appeal, raised various points. To get the real bone of contention viz., as to whether the tenant defendant is entitled to relief against forfeiture under the provisions of Section 114 of the Transfer of Property Act it would be convenient to refer first to the other points in order to get them out of the

(3.) Mr. Chakravarti contends firstly that Section 13(6) of the West Bengal Premises Tenancy Act, 1956, (hereinafter called the Act) provides that the notice is to be 'given'. According to Mr. Chakravarti, the giving of the notice means only personal service, i.e., service, not by post not even by registered post. If no personal service is effected, it is contended, there would be no service according to law. The Special Bench decision of this Court in the case of Surya Properties Private Ltd. v. B.N. Sarkar,(SB) held inter alia that a combined notice, both under Section 13(6) of the Act as also under Section 106 of the Transfer of Property Act, providing for service by post, would be sufficient. If in a combined notice the service by post is legal, I fail to understand the principle as to why the separate service of the notice Under Section 13(6) of the Act by post would not be valid and sufficient. Moreover, both Sinha, J. (as his Lordship then was) and G.K. Mitter, J. held in the said Special Bench decision that oral notice under Section 13(6) of the Act would be sufficient. It is better also to take note of the fact that there is no mode of service prescribed in Section 13(6) of the Act. Rules 4, 9, 12 and 25 of the West Bengal Premises Tenancy Rules provide for service by registered post but do not speak about service of notice under Section 13(6) of the Act. The first contention that personal service of the notice under Section 13(6) is mandatory, is therefore without substance.