JUDGMENT
Dilip Kumar Seth, J.
1. This appeal was admitted only on the ground that whether the suit for eviction can succeed on the basis of the second notice after service of the first notice since admitted to have been received by the tenant and replied to.
Appellant’s submission:
2. Mr. Chatterjee, the learned counsel for the appellant, in support of his contention divides this point into two limbs. The first one is that the second notice was addressed to the tenant in the suit premises. This notice returned with the postal endorsement “not claimed”. The learned Courts below concurrently found that this was a valid service. According to Mr. Chatterjee, the endorsement “not claimed” can be accepted as valid service only in certain cases. One such instance is that where the tenant is residing in the premises and the notice was tendered several times and then it was returned with the endorsement “not claimed”, in such a case it can be treated to be a valid service. In this case, as pointed out by Mr. Chatterjee, the tenant was admittedly residing at a premises other than the suit premises and this fact was known to the plaintiff. The plaintiff had addressed the first notice at the said address at Ballygunge to which the tenant had replied. Therefore, having known the address of the tenant when admittedly it was within the knowledge of the plaintiff that the tenant was not residing in the suit premises and that he had sublet the premises and using the same for the purposes other than for which it was let out, it cannot or could not be presumed that the tenant was living in the suit premises and as such, the endorsement “not claimed” in this case cannot be treated to be a refusal when the tenant is residing elsewhere which pre-supposes absence of the tenant in the suit premises.
2.1. The second limb of his argument is that the suit is founded on the second notice. In view of Section 13(6) of the West Bengal Premises Tenancy Act, no suit can be brought for eviction by the landlord against the tenant without the notice. Therefore, according to Mr. Chatterjee, if the notice is invalid then the cause of action fails and the suit cannot be maintained. According to him, admittedly, there was a first notice by which the tenancy was terminated. Once tenancy is terminated, unless a fresh tenancy is created or the first notice is expressly waived with the consent of the tenant, the second notice cannot be a valid one on the basis of which the suit can be founded.
2.2. In support of his contention, Mr. Chatterjee had relied on the decisions in Calcutta Credit Corporation Ltd. v. Happy Home (Pvt.) Ltd., , Ganesh C. Nandy v. J.N. Chatterjee & Bros., 70 CWN 676 and Satya Chorone Requitte v. Suresh Chandra Pal and Ors., 65 CWN 1239.
Respondent’s submission;
3. Mr. Rabin Dutta, the learned counsel for the respondent, on the other hand, pointed out that the notice was tendered several times at the address of the tenant, which was the recorded address of the tenant with the landlord. Therefore, the endorsement “not claimed” should be treated as good service. He has also referred to the notice, which is Ext. 3 and points out that it was tendered several times and then only the endorsement “not claimed” was endorsed. According to Mr. Dutt, when the recorded address of the tenant was the suit premises let out for the purpose of residence, even if he sublets or uses the premises for purposes other than for which it was let out even then the tenant cannot dispute the validity of the notice addressed at the suit premises when it is not established by cogent evidence that this notice was never tendered to him or that he had no occasion to be present in the suit premises during the period when these notices were repeatedly tendered by the postal peon. When a tender of a notice is denied, it is for the tenant himself to prove the same that it was not tendered to him since the action of the postal authority, being official action, has a presumption of correctness.
3.1. In order to meet the second limb of the argument of Mr. Chatterjee, Mr. Dutta contends that the decision in Calcutta Credit Corporation Ltd., (supra) is distinguishable in facts inasmuch as there the tenant had given notice under Section 13(k) which was accepted by the landlord and without the consent of the landlord, the notice could not be withdrawn unilaterally by the tenant which is a distinctive feature which is absent in this case. According to him, unless the tenant proves that the notice was accepted and acted upon by him, by reason of the second notice, the first notice is impliedly waived by the landlord. In support of his contention, he relied on the decisions in Chandra Kisore Sukla v. Renuka Ballav, 84 CWN 324 by a learned single Judge; Arjun Prasad Sharma v. Brojendra Nath Dhar, 85 CWN 635 by a Division Bench; Tayabali Jaffarbhai Tankiwala v. Asha & Co., and Sudhir Kumar Paul v. Sun. Indu Prova Chose and Ors., to substantiate his points.
Whether the service of the second notice is valid:
4. So far as the first limb of argument of Mr. Chatterjee is concerned, as rightly pointed out by Mr. Dutta, it appears from the Ext. 3 that the notice was tendered on several occasions. It is not mentioned that the tenant was absent or had the left the premises. No such endorsement is appearing from Ext. 3. This position could not be disputed by Mr. Chatterjee. Admittedly, the notice was issued in the suit premises. Mr. Dutta had pointed out and contended that it was the address recorded with the landlord. That this was also an address of the tenant is also not denied by the tenant. It is not a case made out by the tenant that he had left the premises altogether and was residing elsewhere and that he did not come to or visit the suit premises. He had neither established nor contended that during the period when the notice was tendered, he had never been to the suit premises nor he had proved that he was absent or had left the suit premises when the notice was tendered successively. The fact that the landlord had addressed the earlier notice at different place will not invalidate the second notice addressed to the suit premises when the notice addressed to some other place was not the address recorded with the landlord. The Tenant was connected with the tenancy and it could not be presumed that he had never visited the suit premises when admittedly he was running a Boarding house in the suit premises, as was pleaded in the written statement and in the reply to the first notice and as well as in the evidence of the DW-1, given by his son. Therefore, the action of the postal authority, which is done in the usual course of business, is to be accepted as correct unless it is otherwise proved by the tenant to show that he had no occasion to be in the premises during that period or that he had left the suit premises altogether. When it is not recorded on the postal endorsement by the postal authority that the tenant was absent or has left, we cannot presume that the tenant was absent from the suit premises during the period when the notice was tendered or had left the same. Therefore, we do not find any perversity in the concurrent finding of the Courts below that the service was good. Therefore, we are not inclined to interfere with the finding with regard to the validity of the service of notice on the basis of the endorsement “not claimed” by the postal authority.
Whether the second notice is valid and legal:
5. With regard to the second limb of the argument of Mr. Chatterjee, it is not in dispute that the notice is the foundation of the suit for eviction in view of Section 13(6) of the West Bengal Premises Tenancy Act. It is also an admitted proposition of law that once a notice is issued and the same is accepted even though it may not have been acted upon, the notice cannot be waived unilaterally by the landlord without the consent of the tenant. The decision in Calcutta Credit Corporation Ltd., (supra) is distinguishable on facts so far as this case is concerned. There the tenant had given notice under Section 13(k). It was accepted by the landlord. It was so found on facts. As such, subsequent withdrawal of the notice unilaterally by the tenant was held to be unsustainable. Whereas in the present case, there is no material before us to hold that the tenant had accepted the notice and had acted upon it . On the other hand, in his reply to the first notice, the tenant had contended that he was merely a name lender. In his written statement also he had made out a case that the tenant was a name lender and the tenancy was in someoneelse’s name. DW 1, the son of the defendant/tenant, in his evidence in examination-in-chief as well as in his cross-examination had deposed that his father was never a tenant. Thus it appears that the tenant had disputed even the relationship. Thus, there is no question of acceptance of the notice or acting thereupon by the tenant in this case.
5.1. In Chandra Kisore Sukla, 84 CWN 324 (supra), relied upon by Mr. Dutta, the learned single Judge had held that where the landlord gives a notice to quit and the tenant disputes its validity and thereafter the landlord issues a second notice, there is an implied waiver of the first notice when the tenant continues in possession after the issuance of the first notice. We do not find any reason to differ with the view taken. This view finds support in the decision of the Division Bench in Arjun Prasad Sharma, 85 CWN 635 (supra), where it was held that a notice cannot be waived when it is accepted. The tenant cannot take a plea in the absence of any material to indicate that the earlier notice was accepted and acted upon by the tenant. In the said decision, there being no such material, the contention was held to fail. We are also further supported by the decision in Sudhir Kumar Paul (supra), where the Division Bench of this Court had taken the same view. The Supreme Court has also taken the same view in the case of Tayabali Jaferbhai Tankiwala, (supra).
5.2. Thus on facts and having regard to the principles of law, we find that the first notice was never accepted or acted upon by the plaintiff and as such the principle, sought to be advanced by Mr. Chatterjee, cannot be acceded to.
Citations : Distinguished:
6. Reliance on the decision of Ganesh C. Nandi, 70 CWN 676 (supra) by Mr. Chatterjee is of no assistance to him in the facts and circumstances of the case as discussed above. Similarly, the decision of Satya Chorone Raquitte, 65 CWN 1239 (supra) also does not come to any help of Mr. Chatterjee in view of the distinguishing features, as noted by us in respect of his first limb of the argument with regard to validity of the service.
Conclusion:
7. In that view of the matter, we are not inclined to interfere with the concurrent findings of the learned Courts below. The substantial question of law, which was raised, in the facts and circumstances of this case is answered in negative against the appellant and in favour of the respondent and we hold that the notice was legal and valid and the suit was maintainable on that basis. Mr. Chatterjee had confined his submission only on this ground and he did not agitate any other ground. However, we also do not find any other ground involving substantial question of law, which can be raised in this appeal.
8. In the result, the appeal fails and is hereby dismissed. There will be no order as to costs.
Urgent xerox certified copy, if applied for, be supplied to the learned counsel for the parties on priority basis.
Asit Kumar Bisi, J.
I agree.