DEOKARAN NEVATIA Vs. RENUKA SARKAR

JUDGEMENT

(1.) This appeal at the instance of the tenant arises out of a suit for ejectment in respect of the premises No. 93/3/2, Hari Ghosh Street, Calcutta. The plaintiff's case is that the defendant was a defaulter in payment of rent since the month of Dec. 1962. The defendant has sub-let a part of the premises from Nov. 1962 and the defendant caused annoyance by erecting permanent brick wall and structure etc. The defendant filed written statements denying the allegations made in the plaint and further stated that the notice under Sec. 106 read with section 13(6) of the Act was invalid. The Court below having held against the tenant, the tenant preferred the present appeal.

(2.) Mr. B.C. Dutt on behalf of the tenant-appellant contended that the notice is insufficient. In so far as the notice is concerned it appears that the notice was despatched by registered cover being Ext. 1 addressed to the original defendant. The cover came back un-delivered with several postal remarks on 6th June, 1963, 7th June, 1963, 8th June, 1963 and 10th June, 1963. There was endorsement of Postal Peon and the defendant was "not met". On 11th June, 1963 there was an endorsement of Postal Peon as "not claimed". Even thereafter on 12th June, 1963 and 15th June, 1963 there was endorsement of "not met". The last endorsement dated 17th June, 1963 is "not claimed". The Postal Peon, it appears from the endorsement, went to the defendant's place on several occasions. It is evidenced by the defendant's son that the defendant was ailing and was at the residence on the dates when the Postal Peon went to serve the service. In the facts of this case, it appears to us that "not claimed" must be said to be a good service. Even "not met", in the facts of this case must be said to be a good service when it is evidenced by the defendant's son that the father who was the original defendant was ailing at the time when the Postal Peon went to serve the registered cover. It is urged by Mr. Dutt that "not claimed" is not a good service.

(3.) Mr. Chatterjee on behalf of the Respondent relied upon the cases reported in, 65 C.W.N. 1239 (Satya Vs. Suresh), 70 C.W.N. 676 : 81 C.W.N. 739 and contended that they are good services. In all these cases, in our opinion, it has been specifically made clear that when the endorsement of the Peon is "not claimed" it may amount to refusal or it may also be that there was nobody to claim the registered letter. The finding is that the defendant was absent and nobody was there on his behalf to accept the letter. It has been made clear that all these matters must depend on the facts of each case. It appears to us that the defendant was ailing and nobody was in the house who can accept the service on behalf of the defendant. In that view of the matter, it appears that "not claimed" will amount to refusal. In the case reported in, 65 C.W.N. 1239 (Satya Vs. Suresh) it has been held that "not claimed" is not good service on the finding that the house was under lock and key. Mr. B. C. Dutt however contended that as the defendant denied that the registered post letter was ever presented for acceptance by the postal peon, it was the duty of the plaintiff to examine the postal peon in order to prove the service.