Back
1981 Supreme(Cal) 14
High Court Of Calcutta
Bimalendra Nath Maitra
ADHIR KUMAR DAS - Appellant
Versus
JUTHIKA SEN - Respondent
A. F. A. D. 411 Of 1973
Decided On : 01/12/1981
BANKIM CHANDRA DUTT, JNANENDRA NATH BAKSHI, PRADIPTA ROY, Sudhis Das Gupta
The court can take notice of subsequent events to shorten litigation and do justice between the parties, and can accept additional evidence to enable it to pronounce the judgment in a more satisfactory manner, but only if the evidence has a direct and important bearing on the main issue in the case and if the court is unable to pronounce the judgment satisfactorily on the materials before it.
Headnote:
WEST BENGAL PREMISES TENANCY ACT, 1956 - SECTION 13(6) - NOTICE TO QUIT - VALIDITY - TENANCY COMMENCING FROM 19TH OF ENGLISH MONTH - RENT PAID AND ACCEPTED ACCORDING TO ENGLISH CALENDAR - SUFFICIENCY - SECTION 13(1)(FF) - AMENDMENT - REQUIREMENT TO PLEAD AND PROVE NON-POSSESSION OF REASONABLY SUITABLE ACCOMMODATION ELSEWHERE - SUBSEQUENT EVENTS - CONSIDERATION TO SHORTEN LITIGATION AND DO JUSTICE - SECTION 21(1) - PROVISO - DEEMING PROVISION - POSTAL MONEY ORDER - DATE OF ISSUE - DATE OF TENDER OF RENT - SECONDARY EVIDENCE - CONTENTS OF LOST DOCUMENT - SECTION 63(5) AND 65(C) OF EVIDENCE ACT - DEFAULT OR NEGLECT OF PARTY - ADDITIONAL EVIDENCE - RULE 27(1)(B) OF ORDER 41, CODE OF CIVIL PROCEDURE - LACUNA OR DEFECT IN EVIDENCE - POWER OF APPELLATE COURT TO ACCEPT ADDITIONAL EVIDENCE - NON-EXAMINATION OF PARTY - STRONGEST POSSIBLE CIRCUMSTANCE TO DISCREDIT TRUTH OF CASE.
Fact of the Case:
Plaintiff filed a suit for ejectment of the defendant from the disputed premises, alleging that the defendant is her tenant at a rental of Rs. 35/- payable according to the English calendar, that he has been using an electric motor with high horse-power for running a printing press in the premises, causing noise and vibrations, that her heart disease has aggravated, that she has no drawing room in her house for the use of her husband and son, that she reasonably requires the disputed premises for using the same as her drawing room, and that the defendant is a defaulter whose tenancy was properly determined by a notice to quit. The defendant denied the plaintiff's allegations and contended that the notice is not valid in law, that he sent rent by money order, but the plaintiff refused to accept the same, and that he has been regularly depositing the rent with the Rent Controller.
Finding of the Court:
The trial court granted a decree in favor of the plaintiff, which was affirmed by the first appellate court. The second appellate court held that the tenancy is according to the English calendar and the notice to quit is valid in law, but that there is a defect due to the non-amendment of the plaint according to the provisions of the amended Clause (ff) of Sub-section (1) of Section 13 of the Act. The court further held that the defendant's negligence in not producing the postal acknowledgment refusal receipt in the trial court prevents him from giving secondary evidence regarding its contents, but that the original postal receipt No. 134 produced in the second appellate court can be accepted as additional evidence to determine if the rent of September 1965 was sent in time and refused by the plaintiff.
Issues: 1. Whether the notice to quit is valid in law? 2. Whether there is a defect due to the non-amendment of the plaint according to the provisions of the amended Clause (ff) of Sub-section (1) of Section 13 of the Act? 3. Whether the defendant can give secondary evidence regarding the contents of the postal acknowledgment refusal receipt? 4. Whether the original postal receipt No. 134 can be accepted as additional evidence?
Ratio Decidendi: 1. The tenancy is according to the English calendar and the notice to quit is valid in law. 2. There is a defect due to the non-amendment of the plaint according to the provisions of the amended Clause (ff) of Sub-section (1) of Section 13 of the Act, but the plaintiff will be given an opportunity to amend the plaint. 3. The defendant's negligence in not producing the postal acknowledgment refusal receipt in the trial court prevents him from giving secondary evidence regarding its contents. 4. The original postal receipt No. 134 produced in the second appellate court can be accepted as additional evidence to determine if the rent of September 1965 was sent in time and refused by the plaintiff.
Final Decision: The appeal is allowed. The judgment and decree appealed against are set aside and the case is remitted to the trial court for disposal according to law in light of the observations made in the judgment. There will be no order as to costs.
( 1 ) APPEAL against the decree of Shri R. C. Ghosh, Subordinate Judge of Zillah Murshidabad in Title Appeal No. 34 of 1969 dated the 24th of June, 1972, affirming the decree of Shri G. Halder, Munsif, 2nd Court Berhampore District Murshidabad dated the 10th of December, 1968.
( 2 ) THE plaintiff's case is that the defendant is her tenant regarding the disputed premises at a rental of Rs. 35/- payable ac-cording to English calendar. He has been running a printing press in that premises. From January, 1964, he has been using an electric motor with high horse-power for running the press. The result is that due to the noise and vibrations, the walk and floor of the first floor have been cracked and her heart disease has aggravated. She has no drawing room in her house for the use of her husband and son. She reasonably requires the disputed premises for using the same as her drawing room. The defendant is a defaulter. His tenancy was properly determined by a notice to quit. The suit is for ejectment.
( 3 ) THE defence is a denial of the plaintiff's allegations, it has been alleged inter alia that the notice is not valid in law. He sent rent by money-order, but the plaintiff refused to accept the same. Thereafter he has been regularly depositing the rent with the Rent Controller. The tenancy is not according to English calendar, but it commenced from the 19th day of the English month.
( 4 ) THE learned Munsif rejected the defendant's contention and granted a decree. The defendant preferred an appeal. The learned Subordinate Judge disagreed with the learned Munsif only on one point, that the story of creating noise and of nuisance was not true. The rest of the findings of the learned Munsif were accepted and the appeal dismissed. Hence this second appeal.
( 5 ) THREE-FOLD submissions have been made on behalf of the appellant. It has been argued that according to the provisions of Section 13 (6) of the West Bengal Premises Tenancy Act, 1956, one month's notice expiring with the month of the tenancy has to be given. The tenancy commenced from the 19th of the English month. So the tenancy is from the 19th to the 18th of the following month according to the English calendar. The rent was paid and accepted according to the English calendar. But thai alone is not sufficient. The Bench cases of C. M. and T. Company v. Charu in and Baidya Nath v. Nirmala Bala in have been cited. The suit was filed in 1966, when the amended provisions of Section 13 (1) (ff) of the Act were not introduced by the amendment Act of 1969. But after that amendment, the plaintiff did not make any amendment of the plaint stating that she was not in possession of any reasonably suitable accommodation elsewhere, within the meaning of that Clause (ff ). The case of B. Banerjee v. Anita Pan in has been cited. An application supported by an affidavit has also been put in. It has been staled that the plaintiff's husband is since dead. Subsequently one of her rooms fell vacant in the ground, floor and it was let out by her to G. B. Pharmacy. The Court should take notice of the subsequent events to do complete justice between the parties. All the deposits were made with the Rent Controller in time. Of course according to the provisions of the Act the first deposit with the Rent Controller is to be preceded by a valid tender by the defendant. His clear case is that such a valid tender was made because the rent for the first month of September, 1965. was sent by money order within that month. It was refused on 1-10-1965. He filed the postal acknowledgement receipt to show refusal by the landlord in the office of the Rent Controller along with an affidavit for depositing the rent of Sep. , 1965, regarding the premises in question. Then he took back those documents from the office of the Rent Controller for filing the same in the present suit. He also filed an application before the Rent Controller for preserving the records of the Rent Control c
