The presumption of due service arising from a postal endorsement under Section 28 of the Bengal General Clauses Act, 1899, would not operate in respect of a notice under Section 13(6) of the West Bengal Premises Tenancy Act, 1956, as the Act did not authorize or require such service by post.

( 1 ) WE dismiss this second appeal as we find nothing to warrant our interference with the finding of the first Appellate Court that the suit for ejectment, giving rise to this appeal, is bad fir non-service of notice under S. 13 (6) of the West Bengal Premises Tenancy Act, 1956.

( 2 ) IT would be trite to say that a notice of suit by the landlord to the tenant under S. 13 ( 6) of the West Bengal Premises Tenancy Act is a condition precedent to the institution of a suit by the landlord for ejectment of his tenant on any of the grounds mentioned in S. 13 (1), except a suit based on the tenant's agreement or notice to quit as provided in Cls. (j) and (k) of S. 13 (1 ). Such a notice in this case was sought to be served by the appellant-landlord to the respondent-tenant by registered post by addressing one copy of such notice to the tenanted premises and another copy to the tenant's alleged place of business and in para 10 of the plaint, the plaintiff-landlord has averred that while the "notice sent by registered post with acknowledgement due to the said premises was refused by the defendant and the registered cover had been sent back"', "the other registered notice addressed to his office, even though he was carrying on business there, was returned with the false and collusive endorsement 'the door of the office was always closed. " The plaintiffl and lord has based his suit on the first notice sent by registered post to the tenanted premises which has come back with the postal endorsement "refused" and the trial court has accepted the same as valid and effective service. The first appellate Court has, however, held that since the defendant pledged his oath categorically denying service of notice on him and since the postal peon has not also been examined to prove the alleged tender by him and refusal by the tenant, the notice cannot be deemed to have been properly served upon the defendant.

( 3 ) THIS finding has been seriously assailed by Mr. Saktinath Mukherjee, the learned counsel appearing for the landlord-appellant and it has been very strongly urged that the presumption of due service arising from a despatch of a notice by registered post would operate with all its force even without the postal peon's testimony in its support and cannot be out-weighed by a mere denial on the part of the addressee. It has been urged that if the evidence of the postal peon would still be necessary to prove tender and refusal then the presumption of due service arising out of a despatch by registered post under S. 28 of the Bengal General Clauses. Act (corresponding to S. 27 of the Central General Clauses Act) and under S. 114 (e) of the Evidence Act would become almost otiose.

( 4 ) IT is true that there is the high authority of Sir Ashuthosh, speaking for the Division Bench of this Court in Gobinda Chandra v. Dwarka Nath, 19 Cat WN 489 at p. 496, to the effect that a postal endorsement without the evidence of the postman may not go in as a legal piece of evidence unless foundation for its entry is made out under S. 32 of the Evidence Act on the ground of the peon being dead or being not otherwise available or easily available for evidence. But notwithstanding such pronouncement entry of such postal endorsements in judicial records has all along received judicial imprimature even without any such foundation and without the testimony of the postman, so much so, that Chakravarty, J. (as his Lordship then was) has had to observe in Nirmalabala v. Provat Kumar, (1948) 52 Cal WN 659 at p. 663 that the preponderance and weight of authority is against this view in Gobinda Chandra (supra ). And the decision of the Supreme Court in Puwada Venkateshwara Rao v. Chidamanaenkata Ramana, AIR 1976 SC 869 has now approved this view in the Nirmalabala (supra) and has ruled that "it is not always necessary, in such cases, to produce the postman who tried to effect service" and, therefore, according to the Supreme Court, the posta