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HIGH COURT OF CALCUTTA
Amaresh Roy
SUKUMAR GUHA - Appellant
Versus
NARESH CHANDRA GHOSH - Respondent
A. F. A. D. 1530 Of 1966
Decided On : FEBRUARY 28, 1967
TENANCY - Eviction - Notice to quit - Service - Modes of service - Sending by post - Correct address - Residence - Reasonable requirement - Family members - Building and rebuilding - Additions and alterations - Time for vacating premises.
Fact of the Case:
The plaintiffs, the owners of three contiguous premises, instituted a suit for ejectment of the defendant, the tenant of one of the premises, on the ground of reasonable requirement both for their own use and occupation and also for purposes of building and rebuilding including substantial additions and alterations under Section 13 (1) (f) of the West Bengal Premises Tenancy Act, 1956.
Finding of the Court:
Both the courts held that the notice terminating the tenancy had been properly served, that the plaintiffs required the accommodation in suit premises for their own use and occupation, and that the plaintiffs had the financial capacity to undertake the construction sanctioned by the Corporation of Calcutta.
Issues: 1. Whether the notice to quit was properly served? 2. Whether the plaintiffs reasonably required the premises for their own use and occupation? 3. Whether the plaintiffs had the financial capacity to undertake the construction sanctioned by the Corporation of Calcutta?
Ratio Decidendi: 1. The court held that Section 106 of the Transfer of Property Act provides for four modes of service of notice: (1) Sending by Post to the Party (2) Tender or delivery to the party personally (3) Tender or delivery to the servant or relation at the residence of the party (4) Affixing the notice to a conspicuous part of the property. The court further held that the 4th mode is an alternative only to 2nd and 3rd mode and is available only when those two modes are 'not practicable'. 2. The court held that the plaintiffs reasonably required the premises for their own use and occupation, considering the number of persons in their family and the extent of accommodation available to them in the other premises. 3. The court held that the plaintiffs had the financial capacity to undertake the construction sanctioned by the Corporation of Calcutta, as evidenced by the production of a Plan sanctioned by the Corporation of Calcutta and evidence adduced to show that the construction works necessary for those purposes cannot be carried out without evicting the tenant-defendant from the whole of premises No. 28/10-C.
Final Decision: The appeal was dismissed with the modification of the decree as mentioned above. There will be no order as to costs.
( 1 ) THIS second appeal is by the tenant - defendant and arises out of a suit for ejectment from the premises in which the defendant is a tenant. Eviction was prayed for by the plaintiffs on the ground of reasonable requirement both for their own use and occupation and also for purposes of building and rebuilding including substantial additions and alterations under Section 13 (1) (f) of the West Bengal Premises Tenancy Act, 1956. The suit was instituted by the two plaintiffs, the two brothers, who are the owners of the premises. The sole defendant contested the suit not only on the merits but also by contending that the notice terminating the tenancy had not been properly served. Both the courts have held in favour of the plaintiffs and a decree for eviction has been passed against the defendant. Against the judgment and decree passed in the appellate court the present second appeal has been preferred by the defendant.
( 2 ) THE suit premises No. 28/10c Nakuleswar Bhattacharjee Lane is contiguous to and situate within the same boundary wall which includes two other premises bearing Nos. 28/10-A and 28/10-B Nakuleswar Bhattacharjee Lane. The plaintiffs are the owners of all the three premises. The ground floor of Premises No. 28/10-A Nakuleswar Bhattacharjee Lane is occupied by a tenant. The first floor of that premises and also both the ground and first floors of Premises No. 28/10b are occupied by the plaintiffs and their relations who are members of their family. The premises No. 28/10c which is the suit premises is also two-storied and whole of that premises is within the tenancy of the defendant.
( 3 ) IT may be mentioned that the plaintiffs made a case that the notice terminating the tenancy under Section 106 of the T. P. Act was first sent by their lawyer, Mr. D. N. Lahiri by registered post to an address at Kanpur where the defendant resides for the purpose of his business. The Postal Registration receipt, Ext. 9, showed that a registered cover was sent from Calcutta on 5th of November, 1962. The registered cover, Ext. 7 was returned to the sender with the endorsement to the effect "not found". That cover was addressed to "sukumar Guha, 111a/218, Asoknagar, Kanpur (U. P.)". The defendant Sukumar Guha who deposed as D. W. 1 stated that his proper address was 111a/318, Asoknagar, Kanpur.
( 4 ) IT is also the plaintiffs' case that after the registered cover, which according to his evidence contained the notice that has been proved as Ext. 8 in the case, was returned to his lawyer Mr. D. N. Lahiri, another letter containing a copy of that notice was sent by ordinary post under Certificate of Posting on 13-11-62 to the defendant Sukumar Guha addressed at 28/10-C Nakuleswar Bhattacharjee Lane, Calcutta which is the suit premises.
( 5 ) THE plaintiffs' further case was that on 15th November, 1962, the plaintiff who has deposed as P. W. 6 tendered a copy of the notice to the mother of the defendant at the premises No. 28/10-C, Nakuleswar Bhattacharjee Lane. But the lady refused to accept the same and thereafter he affixed a copy of the said notice on the southern door of the suit premises. At that time Asit Kumar Halder, P. W. 7 and another person Tarak Nath Ghosh did happen to be present there and the signatures of those persons signifying the fact of tender of the notice to the lady and of affixing a copy thereof on the door of the premises has been deposed to by Asir Kumar Halder who has been examined as P. W. 7 and he has fully supported the plaintiffs.
( 6 ) BOTH the courts held that the letter containing the notice that was sent by registered post was not correctly addressed and therefore, there was no service of notice by that registered letter. But both the Courts held that the notice of ejectment was effectively served by sending it by Post under Certificate of Posting and also by affixing a copy of the said notice on the door of the suit premises.
( 7 ) REGARDING the ground for ejectment for u
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