NEMAI HAZRA Vs. PRAMATHA RANJAN SHEE

JUDGEMENT

(1.) THE appeal is directed against a judgment and decree passed by Shri P. K. Ganguly, Additional District Judge, 3rd Court, Howrah in Title Appeal No. 120 of 1992 whereby and whereunder the said learned Court affirmed the judgement and decree passed by 7th Court of Munsiff, Howrah in Title Suit No. 89 of 1988 decreeing the suit for eviction filed by the plaintiff-respondent. The plaintiff filed the afore-mentioned suit on the ground of default and bona fide requirement. The suit has been decreed only on the ground of bona fide requirement. Mr. Haradhan Banerjee, learned counsel appearing or behalf of the appellant has raised three contentions in support of this appeal. The learned counsel for the appellant firstly submitted that the plaintiff in his cross-examination admitted that he possessed one room covered with verandah in the first floor and two rooms in the ground floor, and, thus, the learned Court of appeal below committed an illegality in refusing to consider the same on the ground that the same was a slip of tongue. It was next contended that there is no evidence to show that the plaintiff did not have adequate accommodation as is required under the second part of section 13(1)(ff) of the West Bengal Premises Tenancy Act. It was lastly contended that in view of the fact that the notice terminating the tenancy was allegedly refused to be accepted by the defendant-appellant, it was obligatory on the part of the plaintiff to examine the postal peon and as he failed to do so, it must be held that the purported refusal of notice terminating the tenancy had not been proved and on that ground too the learned Courts below ought to have dismissed the plaintiff's suit.

(2.) SO far as the first contention raised by the learned counsel is concerned it does not appear that the said point had been taken in the Memorandum of Appeal filed before the learned Court of appeal below. In any event keeping in view the fact that the plaintiff has filed a suit for reasonable requirement, inter alia, on the ground that he has five sons and having regard to the fact that a pleader Commissioner was appointed who had submitted a report, the correctness whereof was not questioned by the defendant appellant, the learned Courts below could come to the finding as regard to the bona fide requirement of the plaintiff in respect of the premises in question on the basis of materials on record. In our opinion, this Court in exercise of its jurisdiction under Section 100 of the Code of Civil Procedure will not interfere with the said finding of fact arrived at by both the Courts below.

(3.) AS regard the third contention it appears from deposition of the plaintiff that he stated he had served notice through his Post Office. He proved the typing of the notice and further stated that same was registered by a clerk Nemai Chandra Pal. He further proved that the same was signed by his Advocate in his presence and the A.D. card was written by the said clerk. The envelope was torn out in Court and he proved the original notice as also the postal receipt. The fact that in the 'acknowledgement due' the endorsement of postal peon "refused" was mentioned has not been disputed. The defendant in his evidence merely stated that he did not receive a notice. The defendant therefore in his evidence did not state that the aforementioned registered cover was not tendered to him. In terms of Section 114 of the Indian Evidence Act an official act would be deemed to have been done in usual course of business. Such a presumption having not been rebutted by the defendant by denying such tender of the registered cover to him, the onus did not shift to the plaintiff to prove the said fact by examining the postal peon. Had such objection been taken, the plaintiff could have examined the postal peon. Furthermore, it does not appear that the aforementioned point was raised before the learned Lower Appellate Court as no finding has been recorded by the said learned Judge in the judgment under appeal.