P L D 1967 Dacca 614 (PLP)

Mr. Mozammel Haq has strenuously argued before me that section 38, subsection (b), quoted above, is not available to the plaintiff because, obviously, it keeps alive an order which could be passed under the Act of 1953, during a period when the said Act continued to remain in force. It is patent, from the enumeration of dates given above, that the permission given by the Rent Controller in respect of the present suit was not a permission which was given under the Act of 1953 because the said Act had ceased to exist at the time when the said permission was given. The permission obtained by plaintiff from the Rent Controller cannot be held to be a permission under the Act because it (the Act) did not exist when such permission was given although the application was made at the time when the Act was in force. The question is, whether the permission can be treated as one which will fulfill the requirement of the Ordinance, having regard to the fact the proceedings in respect of the granting of such permission was commenced during the pendency of the Act. Why not ? The application for such permission would come within the purview of the Ordinance because it commenced proceedings which, even after the period of vacuum was 'kept alive by section 38 of the Ordinance, as quoted above. It is true that the permission itself was given at a time when there was a legislative vacuum, but the permission obtained by plaintiff is one which comes within the express terms of the subsequent legislation' namely, Ordinance XXV of 1961. Section 18 of the Ordinance, in express terms, is the same as section 18 of the expired Act. The formalities required by law for granting such permission was observed and the tenant in occupation, namely, the defendant was given an opportunity to show cause against the granting of the said permission. There is no requirement that the permission must be awarded within a given time. The order as passed now comes within the provisions of section 18 of the Ordinance. However, it is unnecessary to give a final opinion on the point because of the following circumstances: My attention has, however, been drawn to another Ordinance, namely, Ordinance XX of 1963 under which it is no longer necessary for the plaintiff to obtain permission from the Rent Controller in order to sue the defendant in eviction. The Second Appeal, which I am hearing today, is a continuation of the original suit of the plaintiff. The provisions of the Act of 1953 as well as those of Ordinance XXV of 1961 did not bar the right of the plaintiff to evict the defendant. . The Act of 1953 and Ordinance XXV of 1961 had only barred the remedy by way of suit for eviction without permission from the Rent Controller. Today no such permission is necessary. Therefore, there can be no manner of doubt that I can hear this appeal and dispose of the suit unfettered by restrictions which no longer exist under the law. Mr. Mozammel Huq has, however, argued that the decree passed by each of the Courts below in favour of the plaintiff is a nullity. He submitted that an appeal or second appeal from a decree, which was void ab initio, was incompetent. He has further submitted that if it is now held that there is no bar to plaintiff's suit at the present moment, it must be sent back for a retrial in the original Court. Obviously, such a course would enable defendant to continue in his possession of enjoyment of the said premises. It would be seen that none of these submissions would bear the test of scrutiny. The decree has been described as a nullity on the footing that plaintiff's suit could not be entertained in the absence of a valid permission by the Rent Controller. We have seen how the permission that was obtained by plaintiff has been attacked by appellant. It is correct to say that at the time when the decree was amended by trial Court such permission was the requirement of law as it prevailed then. I have noted above that permission obtained by plaintiff can be treated as a permission under Ordinance XXV of 1961. But even if the permission is held to be invalid, the order passed by the learned Munsif amounts to a decree. In any event, a decree was passed by the trial Court, Thereupon the defendant himself filed an appeal. Any order which disposes of a suit operates as a decree, even if it subsequently transpires that the suit was incompetent. The decree in such a case would be nullity in the sense that it cannot create rights and obligations between the parties inter se. Nonetheless, it has to be adjudged a nullity after deciding the vital question, whether the permission obtained by plaintiff was valid in law. It does automatically cease to be a decree. An investigation as to the competency of the suit is called for. Even if the trial Court and the Appellate Court below had held that the suit was incompetent in the absence of a valid permission from the appropriate Rent Controller, such an order would amount to a decree. It would amount to a rejection of the plaint. It would be a decree within the meaning of section 2, subsection (2) of the Code of Civil Procedure. Even a void order disposing of a suit operates as a "decree". Subsection (2) defines "decree" as follows: ‑ "decree' means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within section 47 or section 144 . . . . " There can be no manner of doubt that the plaintiff's suit was disposed of (even if it is now held that it was erroneously disposed of) by an order passed by the trial Court. The order amounts to passing a decree, although the order might be adjudged a nullity, in which case it would not create any jural obligations between the parties. The defendant filed an appeal challenging the validity of the decree itself, which when found to be invalid, would nonetheless be tentamount to a decree. Even if it is found that when the suit was filed, it was not maintainable, because Ordinance XXV of 1961 prohibited such a suit without prior permission of an appropriate Rent Controller the disposal of the suit by the trial Court, however, would amount to a decree in the suit wherein the issue, namely, the competency of the suit on the aforesaid ground, was mooted and decided. It is appealable. Coming back to the main point, I hold that no permission of the Rent Controller is necessary under the law at the present moment. Therefore, plaintiff is now competent to maintain the suit without permission of the Rent Controller of Chittagong. This disposes of the first point urged on behalf of the appellant. I now turn to the next point, that the notice served on the defendant under section 106 of the Transfer of Property Act is not valid in the eye of law. It is necessary to state that in this particular case the tenancy of the defendant was alleged to have been terminated by a notice which was served upon the defendant by registered post Two such notices were served by registered post and the envelopes in connection with the aforesaid notices by registered post have been produced in Court by one of plaintiff's witnesses and proved by him. They have been admitted into evidence and marked Exhs. 4 and 4(a). Plaintiff's witness (P. W. 1, the husband of the plaintiff) when he gave evidence in Court, was cross- examined as to whether she herself had signed the notices. His positive evidence is that she did sign the notices. P. W. 1, husband of the plaintiff, vas not cross‑examined by defendant to show that the said letters were never posted. Furthermore, he was not cross‑examined to the effect that the envelopes did not contain the alleged notices, P. W. 1 has also proved that the notices signed by the plaintiff (his wife) were sent to the defendant at his notified address and there was no cross examination, as stated above. Defendant's contention, however, is that the notices contained in Exhs. 4 and 4 (a), bear the official address of the defendant who claims that he never received them. The Courts below have fully discussed the oral and documentary evidence on this point and have concurrently arrived at the conclusion that the plaintiff did sign the notice of termination of the tenancy as alleged by her and that the same was sent to the defendant by registered post and, furthermore, that the envelopes produced on behalf of the plaintiff contained the said notices which defendant deliberately tried to evade. This is now a concluded finding of fact, but, since I have also independently assessed the evidence for myself, I record my finding thus: On behalf of defendant‑appellant it has been contended that there is no formal proof of service of notices on him and my attention was drawn to the following provisions of section 106 of the Transfer of Property Act, which are as follows; " . . . . . . . . . . and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable; on the part of either lessor or lessee, by fifteen days' notice expiring with the end of a month of the tenancy. Every notice under this section must be in writing signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) axed to a conspicuous part of the property." Mr. Mozammel Huq has urged that plaintiff must show that she had signed the notices ; that she had, in fact, addressed the same by post ; that she had sent the same to the residence o the defendant before it can be presumed that the notices were served. He has contended that Exhs. 4 and 4(a) are inadmissible in evidence. I bad asked the learned Advocate for the defendant- appellant whether there was any objection against the reception of Exhs. 4 and 4(a). It transpires that there was no such objection. Therefore, defendant‑appellant cannot be allowed to urge that the aforesaid documents were inadmissible because of the non‑compliance with the formalities necessary for such reception. It should be borne in mind that the evidence is not per se inadmissible. Therefore, I hold that they were validly admitted into evidence. Having regard to the fact that I have found that Exhs. 4 and 4(a) had been validly received into evidence and also having regard to the evidence given by P. W. 1, whose evidence I have no hesitation to accept, I am entitled to presume the existence of facts which are likely to have happened having regard to the common course of human conduct and public or private business. This is a well‑settled principle of law and has been embodied in the Evidence Act which has codified the same in section 114 thereof, which reads thus: "The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case." The illustrations to section 114 prove how wide the nature of such presumption is and that it is not confined merely to the illustrations themselves. Thus, if it is held, as I do hold that Exhs. 4 and 4(a) have been properly received into evidence, and if the evidence of P. W. 1 on this point is believed, as I do believe it, then I can and do hold that the notices had been duly served upon the defendant. The letters were sent to defendant's official address which he himself indicated as his postal address. As they were sent to a place indicated by the defendant, he is estopped from saying that the address given by him is not his residential address. Defendant‑appellant, therefore, fails on the two points that have been mooted before me. The result, therefore, is, that this appeal is dismissed with costs. The judgments and decrees of the Courts below, decreeing the plaintiff's suit, are hereby affirmed with the following modification, namely, that the defendant‑appellant do vacate the premises forthwith. Mr. Mozammel Huq has urged that the defendant is ready and willing to vacate the premises, but he prays that three months' time may be allowed to him to enable him to do so. In view of the definite undertaking given by the appellant, he is allowed two months' time from to day to vacate the premises. S. Q. Appeal dismissed.