P L D 1954 Dacca 168 (PLP)

The defendant appeared to contest the suit. His defence is as follows : The disputed house remained vacant for a long time and plaintiff asked his agent Anukul Babu to find a tenant for the house. The defendant engaged the house for manufacturing purpose from Anukul Babu at annual rent of Rs.

215. It was done with the consent and knowledge of the plaintiff. It was settled between him and Anukul Babu, the agent of the plaintiff, that he would spend money in setting up electric machine in the house for manufacturing purpose and for making petty repairs and white washing and all the expenses would be adjusted with rent. It was further agreed that as the defendant would have to spend a lot for setting the machine and electric fittings in the house he would be allowed to occupy the house at least for ten years. It was further settled that the rooms were to be inspected by an engineer and a machine to be placed inside the room temporarily to be shifted to a new tin‑shed to be constructed in the courtyard. Accordingly‑ when the defendant was erecting a tin‑shed in the courtyard it was put to stop temporarily when the plaintiff's Officer complained maliciously to the Municipality. The construction was subsequently completed with the sanction of the Municipality. The defendant denied the liability for arrears of rent as the sum of Rs. 350‑1‑3 pies was still to be adjusted with rent. The trial Court decreed the suit for the ejectment and also for a sum of Rs. 32‑11‑3 as compensation for use and occupation of the house for the month of Sravan and Bhadra, 1350 B.S., holding that the defendant occupied the house as monthly tenant and the tenancy was terminated by valid notice, that as the defendant failed to pay rent and acted in contravention of the terms of the lease he was not entitled to protection under the House Rent Control Order and that the defendant was entitled to adjust the amount spent for electric wiring and repairing of the house with the rent payable by him to the plaintiff. On appeal the learned Subordinate Judge reversed that judgment and decree of the trial Court holding that though the tenancy was a monthly tenancy it was not terminated by valid notice and there was an estoppel under section 115 of the Evidence Act against the plaintiff inasmuch as the defendant was led to believe that he would be allowed to occupy the same for at least ten years and on that under‑standing, he set electric machine in the house and spent a lot of money for repairs and electric installation in the house. The lower appellate Court also reduced the amount of com pensation of Rs. 32‑11‑3 to Rs. 9‑14‑9 only. There was a cross‑objection filed by the plaintiff against the decree of the trial Court disallowing some portion of his claim on account of arrears of rent. That cross‑objection was also dismissed by the learned Subordinate Judge. The points raised in this appeal by Mr. B. C. Das, the learned Advocate for the plaintiff appellant are (1) that the lower appellate Court is wrong in holding that the notice was not duly served ; (2) that the lower appellate Court is wrong in holding that there is an estoppel under section 115 of the Evidence Act against the plaintiff. I think the points raised by Mr. Das are of substance. As regards the notice the learned Subordinate Judge relying on the case reported in 48 I C 904 held that where a defendant denied the receipt of notice alleged to have been sent to him through registered post it was incumbent upon the plaintiff to call upon the postal peon to prove that the registered postcard was tendered to the defendant and was refused by him. In the present case the postal peon was examined. He definitely stated that he tendered the registered envelope containing the notice to the defendant and on his refusal to accept it wrote the endorsement "refused". But when he was asked to identify the defendant in Court, he after hesitation, first pointed one Parimal to be the defendant, then one Satyendra Nath Dutta and at last he was able to identify the defendant. This the trial Court took to be quite natural and observed The peon delivers innumerable letters in a week and three years have elapsed since he offered this letter to the defendant. Furthermore there is a strong presumption of due service in the case of a letter registered and posted . But the learned Subordinate judge is of opinion that the peon who cut a sorry figure in the witness‑box cannot be relied on. I may point out that in his deposition, the postal peon stated definitely "though I delivered the registered letter, now I do not exactly remember the feature of the defendant", still he was asked to identify the defendant in the Court. To my mind if he failed in his first attempt to identify the defendant it is due to his failure of recollection of the exact feature of the defendant to whom the registered letter was tendered. On that ground he should not have been disbelieved by the lower appellate Court when he was believed by the trial Court. The reason given by the lower appellate Court is not sufficient to reverse the finding of the trial Court. Not a single question was put to the peon by the defendant as to the actual tender of the registered letter or the address given in the registered letter. There is a strong presumption of due service in case of letter registered and posted as pointed out by the trial Court. In this case the letter was not only registered and posted but also it has come back with a postal endorsement `refused'. In the circumstances it is on the defendant to prove that the letter was not properly addressed to him or it was never tendered to him. The plaintiff need not prove actual service of the registered letter duly addressed which has come back with endorsement, 'refused'. He can rely on the presumption that arises under section 114, illustration (f) of the Evidence Ac that a common course of business has been followed in a particular case. Of course there are cases where it has bee] held that though it is open to the Court to raise the presump tion it cannot hold that posting proves delivery or service by post is effected in time as it is a matter of common knowledge that postal servants are not always diligent and if service or tender is denied by the defendant it is incumbent upon the plaintiff to call upon the postal peon to prove that the registered letter was tendered to him and was refused by the defendant. But preponderance of authority is on the other side. In the case of Hari Pada Dutta v. Jay Gopal Mukherjee (39 C. W. N. 934.) their Lordships Rankin C. J. and Pearson J, have held that a summon sent by registered post and returned with the endorsement 'refused' is prima facie evidence that the addressee had an opportunity to accept it and the service thus effected, is, therefore, a good and valid service and that to invalidate such a service the defendant must expressly prove, to the satisfaction of the Court, that what would happen in the ordinary course did not happen and that he did not get an opportunity to accept it, and for that purpose it is open to him to prove that he never refused it and that it was never tendered to him, and that a mere denial that it was never delivered to him is not sufficient. It is a case of service of summons under the Original Side Rules of the High Court of Calcutta but the principle is equally applicable in all cases of service by registered post. This case has been followed in the case of Nirmalabala Debi v. Provat Kumar Bask (52 C. W. N. 659.), where Justice Chakravarti held Where a notice addressed to a person and sent by registered post is returned to the sender with an endorsement `refused' made by the postman, the notice would be presumed to have been duly served upon the addressee without the examination of the postman or other evidence regarding tender and refusal. In the case of Harihar v. Ramsashi and others (45

1. A. 222‑46 C, W. N. 458.), their Lordships of the Privy Council held that if a letter properly directed containing a notice to quit was proved to have been put into the post office it was presumed that the letter reached its destination at the proper time according to the regular course of business of the post office and was received by the person to whom it was addressed, and that presumption would apply with greater force to registered letter. In view of these decisions I think the learned Subordinate Judge is not right to say that if the peon told that he had no independent recollection that he made the delivery in due course of his business there could have been a presumption in favour of due delivery but when he makes a confusion between the three persons to whom he tendered the registered letter there is absolutely no justification for accepting his testimony to be true on the ground of presumption. Inde pendently of the examination of the postal peon, there is a presumption of the service and in this case, peon was examined not by the defendant but by the plaintiff though he need not examine him and he deposed that he tendered the letter to the defendant and on his refusal the registered letter was sent back with endorsement 'refused' He also stated that he did not recollect the exact feature of the defendant to whom the letter was delivered three years back. Therefore in this case, in the absence of any evidence on the side of the defendant that the postal endorsement is false and the letter was not delivered to him, it can be taken that the notice was duly served on the defendant and the lower appellate Court is not right to observe that it was not unlikely that the postal peon was gained over to give collusive endorsement of refusal in the absence of any evidence or suggestion on the side. of the defendant. I hold, therefore, that the tenancy which was found to be a monthly tenancy by both the Courts below is validity terminated by the notice Exhibit

2. As to the second point of Mr. Das‑the learned Sub ordinate judge relied on Exh. 1, a letter written by the defendant to the plaintiff, to hold that the defendant was assured that he would be allowed to occupy the disputed premises for at least ten years. The letter, Exh. 1, does not support the finding of the lower appellate Court. The material portion of the letter runs as follows : ..........................................................."God willing, most probably, I hope, you will get me as your permanent tenant." It is a pious wish expressed not by the plaintiff but by the defendant to the plaintiff that he intends to continue to occupy the house as monthly tenant for some years. It does not support the finding of the lower appellate Court that there was a representation on the side of the plaintiff to the defendant that he would be allowed to possess the house at least for ten years. The lower appellate Court also relied on the evidence of grandson of Babu Anukul Chandra Das who stated that there was an assurance that the lease would be for ten years. If that was so, there is no reason why the defendant was writing to the plaintiff as a sort of allurement that God willing he would get him most probably as his permanent tanant. That letter totally belies the grandson of Babu Anukul Chandra Das. Nor can I understand how this grandson can be taken to be a truthful witness when the defendant nowhere stated that the negotia tion for monthly tenancy was made in the presence of this grandson of Babu Anukul Chandra Das. This grandson who produced all the letters, Exh. A series, written by the plaintiff to Anukul Babu in Court to support the case of the defendant, was cited to prove those letters and he in course of his deposition stated that he was present when the negotiation was going with his grandfather Anukul Babu. However, his evidence, in view of the letters Exh. 1 cannot be accepted and the lower appellate Court's finding though based on Exh. 1 is not supported by that letter. The lower appellate Court also observed that a man setting up machine in a house would not expect that he would be turned out at the sweet will of the landlord and that the defendant spent a lot of money for repair and electric installation in the house. If he is duped by his own expectation nobody is to be blamed. Further this observation of the lower appellate Court is not also correct. The defendant himself stated in his deposition that he took the house for residential purpose as a monthly tenant. Exh. G to G3, chalans filed by the defendant show that the defendant described himself to the Rent Controller as a monthly tenant alleging that arrear due was at the rate of Rs. 18 per month. Exh. A a letter written by the plaintiff to Anukul Babu, produced in this Court by his grandson shows that the plaintiff was agreeable to electric wiring and the repair of the house if the prospective bharatia, that is, the defendant agreed to pay the cost which he would allow to be deducted from the rent at the rate of Rs. 20 per month. This clearly indicates that the plaintiff was agreeable to the electric wiring and not installation of electric machine for the purpose of manufacturing ganjis and ink tablets and the lower appellate Court is not right in saying that the defendant was not a monthly tenant because a man setting up machine in a house would not expect that he would be turned out at the sweet will of the landlord and the defendant was asked to spend a lot of money for the repair and electric installation in the house, on the understanding that he would be allowed to continue for a longer period. In my opinion, there was no representation on which the defendant relied on for installation of the electric machine, to operate as an estoppel against the plaintiff. It appears from the record that he is doing a lot of unauthorized acts such as installation of electric machine, construction of a house in the courtyard and he submitted inflated bill for some of the repairs and costs for electric wiring which he tried to explain in his letter written to the plaintiff, by saying that on account of increase in the price of materials and other things, the costs of repairs and the costs of electric wiring had increased. As regards the reduction of the amount of damages by the lower appellate Court, Mr. Das did not press it. The result, therefore, is that this appeal is allowed judgment and decree of the lower appellate Court are set aside and those of the trial Court restored but with this modification that the plaintiff would be entitled to get Rs. 9‑14‑9 pies only as found by the lower appellate Court on account of use and occupation of the premises for the month of Sravan and Bhadra, 1350 B. S. As the time allowed by the trial Court to the defendant to vacate the house with all its belonging and to remove his structure and installation there from has already been expired, the defendant is allowed further two months time to vacate it and to remove his structure there from failing which the plaintiff shall be at liberty to recover khas possession of the premises after removing the same at the costs of the defendant. A. H. Appeal allowed.