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HIGH COURT OF CALCUTTA
C. N. Laik, D. Basu
SANTOSH KUMAR GUPTA - Appellant
Versus
CHINMOYEE SEN - Respondent
A. F. A. D. 1802 Of 1962
Decided On : MAY 20, 1966
TENANCY - Ejectment - Notice to quit - Service - Combined notice under Section 13 (6) of the West Bengal Premises Tenancy Act, 1956 and Section 106 of the Transfer of Property Act - Sufficiency - Statement of date of commencement of tenancy - Necessity - Relief against forfeiture under Section 114 of the Transfer of Property Act - Availability to tenant under the West Bengal Premises Tenancy Act, 1956.
Fact of the Case:
The tenant-defendant appealed against the decree of the Court of Appeal below affirming the decree of the Trial Court, passed against him, in a suit for ejectment from a house premises. The tenancy was according to the English Calendar month. The defendant was stated to be a habitual defaulter in payment of rent. The tenancy of the defendant was determined by a combined notice to quit and that of a suit, expiring with the end of March 1958. The suit was contested on the ground of non-service of notice and no default in payment of rent.
Finding of the Court:
1. Service of notice under Section 13 (6) of the West Bengal Premises Tenancy Act, 1956 by post is valid and sufficient. 2. Statement of the date of commencement of tenancy is not necessary in the notice and plaint. 3. Notice under Section 13 (6) of the Act can be given after the tenancy is determined under Section 106 of the Transfer of Property Act. 4. Specific reference to the Section or Sections in the notice is not a necessity. 5. A tenant under the West Bengal Premises Tenancy Act, 1956 is not entitled to avail of the further relief under the provisions of Section 114 of the Transfer of Property Act.
Issues: 1. Whether service of notice under Section 13 (6) of the West Bengal Premises Tenancy Act, 1956 by post is valid and sufficient? 2. Whether statement of the date of commencement of tenancy is necessary in the notice and plaint? 3. Whether notice under Section 13 (6) of the Act can be given after the tenancy is determined under Section 106 of the Transfer of Property Act? 4. Whether specific reference to the Section or Sections in the notice is a necessity? 5. Whether a tenant under the West Bengal Premises Tenancy Act, 1956 is entitled to avail of the further relief under the provisions of Section 114 of the Transfer of Property Act?
Ratio Decidendi: 1. Section 13 (6) of the West Bengal Premises Tenancy Act, 1956 does not prescribe any mode of service. Rules 4, 9, 12 and 25 of the West Bengal Premises Tenancy Rules provide for service by registered post but do not speak about service of notice under Section 13 (6) of the Act. 2. The date of commencement of tenancy need not be stated in the notice and plaint as the tenancy in the instant case was according to the English Calendar month and there was no denial of this in the written statement. 3. Section 13 (6) of the Act can be given after the tenancy is determined under Section 106 of the Transfer of Property Act as held by the Special Bench of this Court in Surya Properties Private Ltd. v. B. N. Sarkar, (SB). 4. Specific reference to the Section or Sections in the notice is not a necessity as it would be sufficient if the notice fulfils the requirements of the said Sections of the said two Acts. 5. The provisions of Section 114 of the Transfer of Property Act are not attracted to the facts of the instant case as the tenancy was determined under Clause (h) of Section 111 and not under Clause (g) of that section. Further, there was no lease having an "express condition which provides that, on breach thereof the lessor may re-enter". Moreover, the landlord has not instituted the instant suit on the ground that the tenant's lease "has determined by forfeiture for non payment of rent" but on the ground laid down in Section 13 (1) (i) of the W. B. Premises Act.
Final Decision: The appeal was dismissed with no order for costs.
( 1 ) THIS is a tenant defendant's appeal against the decree of the Court of appeal below affirming the decree of the Trial Court, passed against him, in a suit for ejectment from a house premises. The tenancy was according to the English Calendar month. The defendant was stated to be a habitual defaulter in payment of rent. The tenancy of the defendant was determined by a combined notice to quit and that of a suit, expiring with the end of March 1958. The suit was contested: firstly, on the ground of non-service of notice and secondly, there was no default in payment of rent. The learned Munsif decreed the suit which was affirmed in appeal by the learned Subordinate Judge, Alipore. The instant appeal is against the said decree.
( 2 ) MR. Nani Coomar Chakravarti, the learned Advocate in support of the appeal, raised various points. To get the real bone of contention viz. , as to whether the tenant defendant is entitled to relief against forfeiture under the provisions of Section 114 of the Transfer of Property Act it would be convenient to refer first to the other points in order to get them out of the
( 3 ) MR. Chakravarti contends firstly that Section 13 (6) of the West Bengal Premises Tenancy Act, 1956, (hereinafter called the Act) provides that the notice is to be 'given'. According to Mr. Chakravarti, the giving of the notice means only personal service, i. e. , service, not by post not even by registered post. If no personal service is effected, it is contended, there would be no service according to law. The Special Bench decision of this Court in the case of Surya Properties Private Ltd. v. B. N. Sarkar, (SB) held inter alia that a combined notice, both under Section 13 (6) of the Act as also under Section 106 of the Transfer of Property Act, providing for service by post, would be sufficient. If in a combined notice the service by post is legal, I fail to understand the principle as to why the separate service of the notice Under Section 13 (6) of the Act by post would not be valid and sufficient. Moreover, both Sinha, J. (as his Lordship then was) and G. K. Mitter, J. held in the said Special Bench decision that oral notice under Section 13 (6) of the Act would be sufficient. It is better also to take note of the fact that there is no mode of service prescribed in Section 13 (6) of the Act. Rules 4, 9, 12 and 25 of the West Bengal Premises Tenancy Rules provide for service by registered post but do not speak about service of notice under Section 13 (6) of the Act. The first contention that personal service of the notice under Section 13 (6) is mandatory, is therefore without substance.
( 4 ) THE second contention is that the instant suit should fail in the absence of a statement as to the date of commencement of the tenancy, which statement again according to Mr. Chakravarti, must appear both in the notice and in the plaint. In the instant case, the statement made in paragraph 2 of the plaint makes it clear that the tenancy is according to the English Calendar month ^^baxzt ekl vuq'kkjsthere is no denial of this in paragraph 5 in the written statement. P. W. 1's verbal evidence in chief, is that the defendant is a tenant according to the English Calendar month. To this again, there is no cross-examination. The Division Bench decision (Akram and Pal, JJ.) in the case of Mozam Shaikh v. Annada Prasad, 46 Cal WN 366: (AIR 1942 Cal 341), Mr. Chakravarti cannot rely on, because no evidence had been adduced by the plaintiff in that case to show when the tenancy did really commence. The exact vernacular words used in the said reported decision is ^^frfjls ps= e/;** and nothing more. In our opinion the said expression is not sufficient to prove the date of commencement of the tenancy. The principle laid down by Lahiri, J. sitting singly, in the case of Jagat Mohan Dutta v. Basiran Bibi, (1957) 61 Cal WN 127, we approve of, though the tenancy in the said reported decision was governed by the Bengali Calendar month
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