Presumption of service of ejectment notice by any mode available to the sender when no particular mode is prescribed in the Act.

JUDGMENT :

JYOTIRMAY BHATTACHARYA, J.

1. This Second Appeal is directed against the judgment and decree dated 11th September, 2017 passed by the learned Judge, IInd Bench, City Civil Court at Calcutta in Title Appeal No. 27 of 2013 affirming the judgment and decree dated 21st March 2013 passed by the Learned Judge, 2nd Bench, Small Causes Court at Calcutta in Ejectment Suit No. 103 of 2005 at the instance of the defendant/appellant.

2. Let us now consider as to whether the appeal deserves any merit for admission under the provision of Order 41 Rule 11 of the Code of Civil Procedure.

3. Here is the case where we find that the plaintiff/respondent (landlord) filed a suit for eviction against the defendant/appellant (tenant) on several grounds available under the West Bengal Premises Tenancy Act, 1997. Apart from the ground of default in payment of rent, the plaintiff prayed for eviction of the tenant on the ground of reasonable requirement and also for causing nuisance and annoyance to the plaintiff and his neighbours.

4. The defendant/appellant contested the said suit by filing written statement denying the allegations made out by the plaintiff in the plaint. Service of notice under Section 6(4) of the West Bengal Premises Tenancy Act, 1997 was denied by the defendant/appellant. Both the parties adduced evidence in support of their respective claims.

5. After examining the pleadings of the parties and the evidence led by them, the learned trial court held that the plaintiff/respondent is entitled to get a decree for eviction on the ground of reasonable requirement in fact a decree for eviction on the ground of reasonable requirement was passed by the learned trial judge after drawing presumption of service of eviction notice upon the defendant/appellant.

6. Being aggrieved by and dissatisfied with the judgment and decree passed by the learned trial judge, the defendant/appellant preferred an appeal before the learned First Appellate Court. The learned First Appellate Court also dismissed the said appeal by affirming the judgment and decree of the learned trial court. The learned First Appellate Court also found that the plaintiff/respondent reasonably required the suit premises for his own occupation and for the occupation of the members of his family. The appeal court also held that the plaintiff succeeded in proving service of eviction notice upon the defendant/appellant.

7. The legality and/or correctness of the said decree passed by the learned First Appellate Court is under challenge in the Second Appeal before us.

8. Mr. Ghosh, learned advocate appearing for the appellant submits that both the courts below erred in drawing presumption in favour of service. In this particular case, as according to Mr. Ghosh, presumption of service following provision contained in Section 28 of the General Clauses Act cannot be drawn in a case where service of notice by Registered Post is not prescribed in the Act itself. In support of his submission, he has relied upon a Division Bench of this Court in the case of-Mano Ranjan Dasgupta –vs- Suchitra Ganguly & Ors., reported in 1988(1) CLJ 250.

9. Let us now examine the acceptability of such submission of Mr. Ghosh in the facts of the instant case. It is no doubt true that unlike Section 106 of the Transfer of Property Act, Section 6(4) of the West Bengal Premises Tenancy Act, 1997 has not prescribed the mode of service of ejectment notice upon the tenant. Section 106 of the Transfer of Property Act prescribes the mode of service of notice. Service by Registered Post is one of the modes prescribed under Section 106 of the Transfer of Property Act. However, Section 6(4) of the West Bengal Premises Tenancy Act is silent about the mode of service of notice. In our view when any particular mode is not prescribed for service of ejectment notice upon the tenant under any act, the landlord can choose any of the modes of service he likes. Here in the instant case, we find that the landlord accepted the servic