Back
IN THE HIGH COURT OF CALCUTTA
SANJIB BANERJEE, J.
SUSANTA SEN
VERSUS
KUNAL SHUKLA AND ANOTHER
CO No. 3121 of 2012
Decided on : 6.12.2012
EVICTION SUIT - WRONGFUL SUB-LETTING - SERVICE OF SUMMONS - SUBSTITUTED SERVICE - INTERPRETATION OF ORDER I RULE 8, ORDER V RULE 20 AND ORDER VIII RULE 1 OF CODE OF CIVIL PROCEDURE, 1908 - TENANCY LAWS - PROTECTION OF TENANTS AND LANDLORDS' RIGHTS - BALANCING OF SCALES IN EVICTION SUITS - COURT'S DISCRETION TO IMPOSE CONDITIONS FOR ACCEPTANCE OF WRITTEN STATEMENT.
Fact of the Case:
Plaintiff filed an eviction suit against the first defendant for wrongful sub-letting of residential premises and default in payment of rent. The first defendant, residing in Singapore, did not appear in the suit initially. The trial court allowed the first defendant's application to file a written statement after four years, considering that the writ of summons was not served on him and that he came to know of the suit only recently. The plaintiff challenged this order, arguing that the first defendant was aware of the suit and was delaying the proceedings.
Finding of the Court:
The court held that service of a notice to quit or a writ of summons on a tenant at the tenanted premises should generally be regarded as good service, even if the tenant is temporarily away. The court noted that the first defendant was not in possession of the property and had left it in the hands of his uncle or sister while he was in Singapore. The court found that the first defendant's written statement was accepted unconditionally without assessing his bonafides or imposing any conditions.
Issues: 1. Whether the service of the writ of summons by affixation at the tenanted premises was valid and sufficient to bring the first defendant on record. 2. Whether the trial court erred in accepting the first defendant's written statement without imposing any conditions, considering the inordinate delay in filing the same.
Ratio Decidendi: 1. The court held that service of a writ of summons on a tenant at the tenanted premises is generally considered good service, even if the tenant is temporarily away. The court relied on the principle of natural justice that a person against whom a claim is made should be served the statement of claim and afforded a reasonable opportunity to deal with the same. However, the court emphasized that the substance of Order VIII Rule 1 of the Code of Civil Procedure, 1908 should be appreciated rather than being overwhelmed by technical compliance therewith. 2. The court observed that the trial court should have been more discerning in accepting the first defendant's written statement, considering the suspicious circumstances of the case. The court noted that the first defendant was not in possession of the property and had left it in the hands of his uncle or sister while he was in Singapore. The court held that the trial court should have assessed the bonafides of the first defendant as to his inability to present his written statement earlier or imposed conditions for its acceptance.
Final Decision: The court modified the impugned order and directed that the first defendant's written statement would remain on record if he deposited Rs. 2 lakhs in the trial court within a fortnight. The deposit was to be invested in a fixed deposit and the proceeds would be held to the credit of the suit or paid to the plaintiff as costs, depending on the outcome of the suit. In default of the deposit, the first defendant's written statement would be taken off the file and the suit would proceed ex parte against him.
SANJIB BANERJEE, J.
The plaintiff in a suit for eviction on account of sub-letting and default in payment of rent complains of a recent order by the trial court accepting the first defendant’s written statement some four years after the institution of the suit without appreciating that no plausible explanation had been proffered by the first defendant for the inordinate delay.
2. The first defendant is represented after notice and submits that since the writ of summons was neither served nor deemed to have been served on him, it was magnanimous on the first defendant’s part to condescend to file the written statement without insisting on the service of the summons; and, rather than the first defendant having been undeservingly rewarded by the order impugned allowing him to contest the suit, the first defendant has allowed a glaring lacuna on the plaintiff’s part to be glossed over.
3. In the plaint relating to Title Suit No. 536 of 2008 filed in the Alipore Court, the plaintiff claims to be the owner of a second floor flat at premises No.32H, Sarat Bose Road, Calcutta-700 020 and says that the suit premises were let out to the first defendant at a monthly rent of Rs.1,100/-. The relationship between the plaintiff and the first defendant is governed by the West Bengal Premises Tenancy Act, 1997. The plaint claims that in March, 2006 the first defendant left for Singapore with his family and settled thereat; that the first defendant had illegally made over possession of the suit premises to the second defendant and his wife who came to be in possession thereof without the written consent of the plaintiff; and, such conduct entitled the plaintiff to possession of the premises. The plaintiff claims to have determined the tenancy of the first defendant by a notice dated September 27, 2007 which was issued to the first defendant by registered post. The plaintiff seeks eviction, arrears rent and mesne profits.
4. The plaintiff states that shortly after the service of the notice to quit addressed to the first defendant at the suit premises, the sister of the first defendant instituted Title Suit No. 1094 of 2007 before the Alipore Court seeking a declaration that such sister was a monthly tenant under the plaintiff herein at the suit premises and a consequential injunction restraining the present plaintiff from disturbing such person’s peaceful possession of the premises. A copy of the plaint relating to Title Suit No. 1094 of 2007 has been appended to the present petition wherein it has been stated that the mother of the plaintiff in the earlier suit was inducted as a tenant at the premises in question in 1964 and the quantum of monthly rent was periodically enhanced. The mother is said to have died in November, 2001 and the plaintiff in the present suit is alleged to have accepted the first defendant herein as the tenant after his mother’s demise. It is also averred in the plaint that early in 2006 the first defendant herein “temporarily left for Singapore with his family keeping the suit premises under the care and control of the plaintiff.” The sister of the first defendant herein claimed in her suit that she resided at the suit premises with her two daughters and her husband resided in Asansol where he had his business. The previous suit remains pending and the plaintiff herein harps on paragraph 10 of the plaint relating to the earlier suit where the first defendant’s sister has cited a letter of June 28, 2007 addressed by the plaintiff herein to the first defendant herein at the suit premises and a subsequent ejectment notice issued on behalf of the plaintiff herein.
5. The present suit was filed on February 26, 2008 and the writ of summons was attempted to be served by registered post on the first defendant which returned with the postal endorsement “not claimed”. The plaintiff refers to an order dated November 20, 2008 directing substituted service of the writ of summons to be effected and insists that the first defend
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
