AMAL KUMAR BANERJEE Vs. SANTI DEVI

JUDGEMENT

(1.) This is an appeal against the judgment and decree dated the 25th November, 1976 passed Shri B. N. Chowdhury, Additional District Judge, 2nd Court, Birbhum on Title Appeal No. 102 of 1974 affirming those of Shri D. K. Roy, Subordinate Judge, Birbhum, dated 24th April, 1974 in Title Suit No. 37 of 1970. The defendant is the appellant in this Court.

(2.) The plaintiff brought a suit for ejectment of the defendant and for recovery of arrears of rent. The plaintiff's case may, briefly, be stated as follows: The plaintiff is the owner of the Cinema hall named Santi House together with other building at Sainthia. By a registered indenture dated 19th march, 1956 it was agreed that the defendant would be a tenant under the plaintiff in respect of the suit premises for 4 years at a monthly rent of Rs. 400/- if the defendant procures at his own cost the necessary cinema licence for exhibiting the cinema at the hall by 30th April, 1956 and in that case the date of commencement of the lease would be the date on which the defendant could procure the licence. It was further agreed that on expiry of the aforesaid period of 4 years the defendant would have an option to renew the lease for a further period of 3 years at a monthly rent of Rs. 450/- and for the second optional fresh term of 3 years at a rent of Rs. 500/- per month. The defendant failed to procure licence for running cinema show at the hall be the stipulated period in spite of the fact that several extensions were given by the plaintiff at defendant's request. The defendant could not fulfill the condition and it is alleged that grant made by the indenture did not and could not take effect. Possession of the cinema house was delivered to the defendant in anticipation of his success to bring the cinema licence for exhibiting cinema show at the hall and at that time the defendant deposited a sum of Rs. 1200/- with the plaintiff. The defendant occupied the cinema house in expectation of getting any rent but on depositing a sum of Rs. 1200/-. As the defendant failed to procure cinema licence the plaintiff asked the defendant to quit. But the defendant wanted to remain in possession of the cinema house at a monthly rent of Rs. 400/- according to English Calendar months with effect from 1st April, 1958 irrespective of the fact of the licence getting or not getting. It is alleged that the defendant obtained licence in January, 1960 which could not and did not effect the lease from month to month which commenced on and from 1st April, 1958. The plaintiff respected almost all the terms of the indenture except the old provision of the date of commencement of the lease and as such, the defendant was allowed to possess the hall upto December, 1969 when the terms of 4 years plus 3 years plus 3 years came to an end. The plaintiff further asked the defendant to vacate the suit premises on the expiry of December, 1969 after adjustment of a sum of Rs. 1200/- deposited with the plaintiff as security. The defendant paid no heed to the request of the plaintiff. Accordingly, the plaintiff sent a notice of ejectment by registered post with A.D. to the defendant both at his Calcutta address and at his Sainthia address determining the tenancy of the defendant with the expiry of the moth of April, 1970. The postal acknowledgements were not received by the plaintiff. Accordingly, the plaintiff affixed on 15.4.70 a copy of the notice at a conspicuous part of the cinema house. On the expiry of the statutory period the plaintiff brought the suit for a decree of ejectment against the defendant as he failed to give up vacant possession in respect of the suit premises in favour of the plaintiff. The suit was contested by the defendant by filing written statement. The legality, validity as well as the service of the notice were seriously challenged. The defendant claims non-ejectable tenancy right in respect of the premises under the plaintiff at affixed monthly rent of Rs. 400/- payable with effect form 1st April, 1958 according to English calendar. It is also asserted that the premises is used for manufacturing and for industrial purposes all though since it was let out to the defendant and the same was to the knowledge of the plaintiff. It is further alleged that the tenancy was not determined in accordance with law. The further case of the defendant is that for renovation, remodeling and development of the structure of the suit property the defendant had to incur an expenditure of Rs. 1,00,000/-. Both the courts below negatived all the contentions of the defendant and decreed the suit. Hence, the present appeal.

(3.) Mr. Ranadeb Chowdhury learned Advocate with Mr. Benoy Krishna Rej. Learned Advocate, for the appellant, raises only one point in this appeal. Namely, that the notice has not been served upon the defendant. It is contended by Mr. Chowdhury that in this case the plaintiff has failed to prove that the notices which were sent by registered post were served on the defendant. The defendant strongly denies the service of notice. Admittedly, the acknowledgement slips were not received by the plaintiff. The plaintiff wrote a letter to the postal authority and got some reply. That reply of the postal authority, together with the enclosures, according to Mr. Chowdhury, do not prove that the registered letters were served on the defendant. Mr. Chowdhury concedes that there is no doubt a presumption that the letters which were sent by registered post and which did not come back to the sender were duly served on the defendant. But, Mr. Chowdhury contends that such a presumption is rebuttable. In this particular case, the defendant has asserted that no registered letter was received by him. That being so, it was necessary for the plaintiff to prove by satisfactory evidence that the registered letters were served on the defendant. But the plaintiff has failed to produce any satisfactory evidence to that effect. When the plaintiff did not get back the acknowledgement slips she wrote a letter on 21.4.70 to the Superintendent of Post Offices. That letter was replied to on 22.5.70. In that letter, it is stated, that the registered letters were delivered to the addressee on 6.4.70 and 9.4.70. In that letter, there is a reference to Sainthia R. L. Nos. 116 and 117 - both dated 3.4.70 (Exts. 5 and 5a). The registration receipts 116 and 117 and thy bear the date 3.4.70. Neither the Superintendent or Post-master nor any one from his post office has come to prove this letter (Ext. 1a). Together with Ext. 1a two attested copies of acknowledgement slips were also sent. Above the words 'signature of addressee' it is written Sd/- Illegible on both the copies. It appears, therefore, that it cannot be said that the signature was that of the defendant. No record of the postal department could be produced as the Sub-Postmaster of Kasba Post Office sent a letter in response to the summons issued by the court that in respect of the relevant records in respect of delivery of Sainthia registered letters Nos. 116 and 117 dated 3.4.70 are not available. It was further stated that as per rules of the department records of registration etc. are destroyed beyond the period of 1? years. P. W. 1 has provided this letter which is Ext. 1. He also proves the signature of the Postmaster. This letter shows that the records are not available as those have been destroyed. We are, thus, left with the registration receipts and the letter of the Superintendent of Post Offices (Ext. 1a) together with the enclosers, namely, the attested copies of the acknowledgment slips which are Exts. 6 and 6a. Mr. Chowdhury contends that considering the circumstances of this case and in view of the specific denial of the defendant, it cannot be said that the notices were duly served on the defendant. In support of his contention, Mr. Chowdhury first refers to a decision reported in 1976 (2) Supreme Court Cases 409 (Puwada Venkateswara Rao v. Chidamana Venkata Raman). Their Lordships were considering a case of Bombay High Court reported in AIR 1968 Bombay 367 where it was held that the presumption of service had been repelled by the defendant's statement on oath that he had not refused the letter as it was never brought to him. It was further held that in this state of evidence unless the postman was produced, the statement of the defendant on oath must prevail. Their Lordships also considered a Calcutta Case reported in 52 C.W.N. 659 where it was held that a letter sent by registered post with endorsement 'refuse on the cover, could be presumed to have been duly served upon the addressee without examining the postman who had tried to effect service. What was held there was that the mere fact that the letter had come back with the endorsement 'refused' could not raise a presumption of failure to serve. On the other hand, the presumption under section 114 of the Evidence Act would be, that in the ordinary course of business, it was received by the addressee and actually refused by him. Their Lordships of the Supreme Court observed "this is also a correct statement of the law. The two decisions are reconcilable. The Calcutta High Court applied a rebuttable presumption which had not been repelled by any evidence. In the Bombay case, the presumption had been held to be rebutted by the evidence of the defendant on oath so that it meant that the plaintiff could not succeed without further evidence." Mr. Chowdhury next relies on a decision reported in 19 C.W.N. 489 (Gobinda Chandra Shaha and another vs. Dwarka Nath Palita). It was held in that case "the presumption mentioned in section 114 of the Evidence Act is not presumption of law, but a presumption of fact and where as in the present case, the defendant pledges his oath that the cover was never tendered to him, the court could not treat the presumption of irregularity of official business as conclusive against him".