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Judgment
The plaintiff has instituted the suit on the allegation that he is the owner of the property in question. The defendant, Messrs. Tide Water Oil Company, was the tenant regarding the premises in question in the front portion of that building under him at a monthly rental of Rs. 650/- payable according to English calendar. Previously, he was posted in Bombay. At that time, one Mr. K.L. Gupta, defendant''s officer, was transferred to Calcutta. The latter persuaded the plaintiff to let out the front portion of the ground floor of the house including the front lawn, the garden and the garage. He had been assured by Mr. Gupta that the demised portion would be vacated after he was transferred from Calcutta or on his retirement from service, whichever was earlier. That proposal was accepted. The plaintiff has retired from service and has been residing in Calcutta. He and his wife have been suffering from various ailments and it is extremely difficult for them to go upstairs. The only passage leading to that house is a very filthy and slippery one because the courtyard is used by the defendant''s employees for cleansing utensils and storing garbage. The accommodation available to the plaintiff is not sufficient and reasonably suitable. He reasonably requires the disputed premises for his own use and occupation and for the occupation by the members of his family. He submitted a plan to the Corporation of Calcutta for building and rebuilding of the house for properly utilizing the vacant space in the building for its economic user. The plan has been sanctioned. Unless the defendant is evicted, it is not possible for the plaintiff to make such building and rebuilding. That tenancy was duly determined by a notice to quit. The suit is for ejectment and for recovery of damages.
The defendant-company has filed a written statement denying the plaintiff''s allegations. It has been alleged, inter alia, that no such assurance had been given by Mr. K.L. Gupta. The plaintiff''s case is a false one. The accommodation available to the plaintiff is sufficient. The notice to quit is not valid in law and it was not properly served.
The learned Subordinate Judge accepted the defendant''s version and dismissed the suit. The plaintiff went up on appeal.
The learned Appellate Court held that no undertaking had been given on behalf of the defendant to the plaintiff within the meaning of the provisions of S. 13(1)(k) of the West Bengal Premises Tenancy Act. He found that the plaintiff''s case of reasonable requirement for his own use and occupation and the case of illness of his wife and of himself could not be accepted. The further finding was that a valid notice was duly sent by the plaintiff and received by the defendant-company. The further finding was that the plaintiff''s case regarding the provisions of S.13(1)(f) required further considerations. So, the suit was sent back on remand with some observations along with a direction to consider whether the plaintiff could make the proposed construction without evicting the defendant from the disputed premises and if total or partial eviction would be necessary. Against that decision, the present appeal has been filed by the defendant as first miscellaneous appeal.
The plaintiff-respondent filed a cross-objection beyond time, i.e., only on the 24th November, 1981, with a prayer under S. 5 of the Limitation Act to condone the delay and to accept the same.
It has been argued on behalf of the appellant that the learned Additional District Judge arrived at a right finding regarding the provisions of S.13(1)(k) and 13(1)(ff) of the West Bengal Act XII of 1956. The plaintiff''s case of reasonable requirement is false. No undertaking was given by or on behalf of the defendant to vacate the premises. The notice to quit, Ext.3, was sent by registered post. It came back with an endorsement that it had been received by M/s. Andrew Yule & Co. Ltd., Ext.5. According to the amended provisions of S. 324A of the Companies Act, which was inserted with effect from 3-4-1969, the post of Managing Agents, Secretaries and Treasurers has been abolished with effect from 3-4-1970. Previously, Messrs. Andrew Yule & Co. could act as the defendant''s agent. But after such mandatory provisions of the Companies Act came into force, the company could no longer act as the defendant''s agent. Even if the alleged notice to quit had been received by Messrs. Andrew Yule & Co. Ltd. that company had no authority to receive the same on behalf of the defendant. So, it was an unauthorized action. The provisions of S. 106 of the Transfer of Property Act have been referred to. The notice to quit was not properly received and the same is invalid in law. The plea of building and rebuilding, as envisaged by the clause (f) of sub-section (1) of S.13 of the Act does not come into the picture because the evidence on the record shows that an alteration of only a few inches can serve the plaintiff''s purpose. It is not necessary to evict the defendant even if the plaintiff has the luxury of making a new construction on the vacant space in front of the building by spending a huge sum of two lakhs of rupees. The plaintiff''s requirement in that respect is not a bona fide one. The case in Neta Ram Vs. Jiwan Lal, has been cited to show that the landlord must have bona fide and honest intention in this respect. The case in Metalware and Co. etc. Vs. Bansilal Sarma and Co. etc., has also been referred to.
The learned Advocate appearing on behalf of the plaintiff-respondent has contended that he will not press the belated cross-objection. Nevertheless, according to the provisions of law, he can urge all the points mentioned in the cross-objection because the appeal was allowed.
There is an observation by the learned Additional District Judge that the point regarding the provisions of S. 13(1)(k) of the Act was not argued before him. But an admission by a lawyer on a wrong point of law or on a misapprehension of the position of law cannot bind the client. The cases in 3 CWN 222, 4 CWN 274, Ramsaran Singh Vs. Khakhan Sing and others & Motilal Chimanram Vs. Sarupchand Prithiraj, have been cited. The learned courts below did not properly consider the letters, Ext. 6 series, by which a clear undertaking was given on behalf of the defendant to vacate the disputed premises by 30th June, 1974. So, the Court will hold that since the defendant gave an undertaking in writing to vacate the disputed premises within 30th June, 1974, a decree for eviction can be passed. There is no difficulty in this respect because S 13(6) of the West Bengal Premises Tenancy Act says that notwithstanding anything in any other law for the time being in force, no suit for ejectment on any of the grounds mentioned in sub-s. (1), except the grounds mentioned in clauses (j) and (k) shall be filed by the landlord unless he has been given by the tenant one month''s notice expiring with a month of the tenancy. Since the case is squarely covered by the provisions of S 3(l)(k), no notice to quit is necessary. The defendant did not state in the written statement that the notice to quit was not received by them. The plaintiff is partially paralytic and his wife is also seriously ill. The two rooms in the ground floor were used as a godown and so, a man of the plaintiff''s status cannot be expected to live in those rooms in the ground floor. The notice to quit was properly addressed and registered. It was received by M/s. Andrew Yule & Co. Ltd. The defendant did not produce its Register of letters received and issued to show that, in fact, no such notice to quit was actually received by it.
It has already been indicated that the cross-objection has not been pressed at present. Nevertheless, law is well-settled on this because of the provisions of Order 41 Rule 22(1) of the Code of Civil Procedure. The decision of the Privy Council in the case of Lata Gourisankar v. Janki in ILR 17 Cal 809 PC, the cases in State of West Bengal Vs. B.K. Mondal and Sons, and AIR 1964 SC 1424 (Virdha Chalam Pillai v. Chaldean Bank) at page 1438 may be referred to show that the Respondent can challenge an adverse finding without filing an appeal or a cross-objection.
The first question is, whether the plaintiff can succeed according to the provisions of S. 13(1)(k) of the Act. This clause read with Sub-s. (6) thereof will show that a decree for ejectment can be passed without serving any notice of subsequent to the creation of the tenancy, the tenant agreed in writing with the landlord to deliver vacant possession of the premises to the landlord and he had failed to do so. Ext. 6(d) is the letter by which the premises in question was let out by the plaintiff to the defendant-company. The agreement was that the defendant-company was prepared to take lease of the premises for a period of two years and thereafter "on the basis of one month''s notice". It is, therefore, clear that in that letter, there was no undertaking to vacate the premises by 30th June, 1974. The letter, Ext. 6(a) dated 13th February, 1974, shows that the Chairman of the defendant-company wrote to the plaintiff that the feasibility of vacating the disputed premises by the company was only being examined. No written undertaking was given by the defendant in this respect. The last letter addressed by the defendant-company is dated 23rd May, 1974; vide Ext. 6(c). It shows that while the defendant-company was eager to co-operate with the plaintiff, the latter was required to appreciate that unless Mr. Gupta was in a position to find out an alternative accommodation, no question of vacating the premises would arise. The last sentence shows that Mr. Gupta was out of Calcutta. He would return on the 10th June, 1974, or so and then the defendant-company would discuss the matter with the plaintiff and advice him on the same. There was no further correspondence by the defendant on this.
The aforesaid discussion clearly shows that no definite date was given by the defendant-company to vacate the premises in question. Hence it is of no consequence if this point was not argued in the court of appeal. No written undertaking was given by the defendant, as alleged. We, therefore, hold that the plaintiff cannot avail of the provisions of S. 13(1)(k) of the Act.
Then about the question of reasonable requirement, within the meaning of the provisions of S. 13(1)(k)(ff) of the Act. In this respect, there is concurrent finding of fact by the courts below against the plaintiff. The trial court did not state anything about the plaintiff''s physical condition when he was in the dock. Of course, according to the latest amendment, the present appeal cannot be treated as a second appeal and it has to be considered only as a first misc. appeal. Nonetheless, there is concurrent finding of fact on this against the plaintiff.
It has been contended on behalf of the plaintiff that he is partially paralytic and he has been suffering from heart trouble. This has been stated by P.W. 2, Kalidas Banerjee, (plaintiff). He examined Dr. Bata Krishna Ghosh, P.W. 3, to support his version. But the evidence of this last witness shows that he is a pathologist and not a cardiologist. In such circumstances, the courts below rightly refused to place any reliance on the plaintiff''s evidence in this respect. The submissions advanced on behalf of the appellant on this cannot be accepted. We, therefore, find that the plaintiff''s case of reasonable requirement for the purpose of his own use and occupation and for the occupation by the members of his family cannot be accepted, within the meaning of the provisions of S. 13(1)(ff) of the Act.
Then about the question of notice. In the plaint, it has been clearly stated that the notice to quit was properly addressed, registered and sent to the defendant. It was received by M/s. Andrew Yule & Co. Ltd., Ext. 5. The learned Advocate appearing on behalf of the Respondent has pointed out that the notice of the suit, which was instituted in 1976, i.e., long after the amendment of the aforesaid S. 324A of the Companies Act, was received by Messrs Andrew Yule & Co. Ltd. The postal acknowledgement receipt, Ext. 5, of the notice to quit was received by Messrs Andrew Yule & Co. Ltd. So, the question has to be considered whether the receipt of the notice to quit by Messrs Andrew Yule & Co. Ltd. and not by the defendant-company itself would make the same invalid in law and if the presumption of proper service has been rebutted.
Two bench decisions of this Court may be referred to. The first case is of Radharani v. Angurbala reported in 65 CWN 1119 at pages 1123 and 1124. Following the famous Privy Council case of Harihar v. Ramsashi in 23 CWN 77 PC., it has been stated that in absence of very strong evidence to the contrary, when in the matter of service by registered post an acknowledgement comes back, signed or purported to be singed by some persons on behalf of the addressee, it is good service under the law. The next case is of Srimati Seuli Choudhury Vs. Srimati Maydha Rajnath and Others, . There also a Bench of our Court has stated that the notice had been properly directed and posted under registered post with acknowledgement due and it was addressed to the defendant No. 3 being at Titagarh, where the cinema house was located. The acknowledgement due with regard to three notices came back to the sender. It was held that the notice had been properly directed and posted per registered post because they were presumed to have reached defendant No. 3. It has been further held that even if the signatures in the acknowledgement receipt have been subscribed on behalf of the defendant No. 3 by somebody who was not proved to have any authority from defendant No. 3 to receive the same, still the service would be a good one. In the case of V. Dhanapal Chettiar Vs. Yesodai Ammal, , the Special Bench case in Abdul Samad Bepari Vs. Manasha Charan Bakshi, was overruled, it was held that a present no notice to quit under S. 106 of the transfer of Property Act was required. So now only the provisions of S. 27 of the General Clauses Act, and not of S. 106 of the Transfer of Property Act, have to be considered, in the latest case Hari Charan v. Shivarani reported in 1981(2) SC 535 at page 542, it has been stated that S. 27 of the General Clauses Act deals with the topic "meaning of service by post" and says that where any Central Act or regulation authorizes or requires any document to be served by post, then unless a different intention appears the service shall be deemed to be effected by properly addressing, prepaying and posting by registered post to the addressee and such presumption is raised irrespective of whether any acknowledgement due is received from the addressee or not.
The notice was duly sent by registered post, Ext. 4. There is no in the written statement that the notice to quit was not received by the defendant.
The evidence of D.W. 1, Bejoy Kumar Tandon; employee of the defendant-company, shows that he looks after the suit on the defendant''s behalf. He has stated in his cross-examination that prior to 1971, M/s. Andrew Yule & Co. Ltd., were the Treasurer and Secretary of the defendant-company. The office of Andrew Yule & Co. is at 8, Clive Row. He also says that he has not filed any paper to show that Andrew Yule & Co. has ceased to be the Treasurer and Secretary of the defendant-company.
The address of appellant-company (defendant) is 8, Clive row, D.W. 1. Bejoy Kumar Tandon, has made a very significant statement that Mr. R. Lall is the Chairman of the Board of Directors of Andrew Yule & Co. He has further admitted that in their office, they maintain a Register of letters received and letters issued. That Register has not been produced.
It has been contended on behalf of the appellant that the Register for letters received and issued was not called for by the plaintiff and hence the defendant was not bound to produce the same. But in the case of T. Pillai v. Manicka Vasaka Desika Gnana Sambanda in 21 CWN 761 PC, Lord Shaw has stated that regarding the parties to the suit those desiring to rely on a certain state of facts are not justified in withholding written evidence in their possession which would throw light upon the proposition, merely because the onus of proof may be on the other side. When it is so withheld, the Court is free to conclude that if the same had been produced, they would have supported the case of the opponent. In the case of Gopal Krishnaji Ketkar Vs. Mahomed Haji Latif and Others, at page 1415, it has been stated if a party to a suit is in possession of best evidence which will throw light on the issue in controversy and withholds it, the court should draw an adverse inference against him though the onus of proof does not lie on him. It has been further stated that court cannot rely on mere onus of proof and say that there is no onus on him or he was not called upon to produce the document. Thus, there will be an adverse inference against the defendant-company for not producing its Register of letters received and issued. The submissions made on behalf of the appellant cannot be accepted. We, therefore, hold that the notice to quit, Ext. 3, was properly addressed and registered and it was duly received by the defendant-company and it is valid in law. We further find that the presumption of proper service has not been rebutted by the defendant appellant.
Lastly about the provisions of S. 13(1)(f) of the Act. The learned court of appeal has pointed out that in the case reported in S.M. Gopalakrishna Chetty Vs. Ganeshan and Others, , it has been stated that the landlord has a right to demolish his property to build a new one with a view to improving his business or for getting better return on his investment. But he has made an observation that the facts of the instant case are entirely different from those of the aforesaid Supreme Court case. After considering the submission made by both the sides, we are of opinion that the mater must be remitted to the learned appellate court for considering whether the plaintiff''s case under S. 13(1)(f) has been proved and whether the proposed construction can be carried out without evicting the defendant from the premises. If that Court finds that the plaintiff''s case in this respect has been established, then he will consider the provisions of S. 18A of the West Bengal Premises Tenancy Act and pass necessary orders. We make it clear that the unwarranted observations made by the learned appellate court on this are set aside. All the points on this are left open.
The appeal is allowed to the extent indicated above. The judgment and decree of the appellate court be set aside. The matter is remitted to the learned Additional District Judge for disposal according to law in the light of the observations made in the body of the judgment.
There will be no order as to costs. The cross-objection is rejected without costs.
Preparation of formal decree is dispensed with.
Banerjee, J.
I agree.