Mrityunjoy Sett(D) By Lrs vs Jadunath Basak (D) By Lrs

REPORTABLE

THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3617 of 2011

[Arising out of S.L.P. (C) No.16921 of 2006]

Mritunjoy Sett (D) By LRs. ......Appellants

Versus

Jadunath Basak (D) By LRs. ..Respondents

J U D G M E N T

Deepak Verma, J.

1. Leave granted.

2. In this appeal, the question that arises for our

consideration is whether the Notice of eviction served

by the appellant-landlord upon the respondent-tenant

under Section 13 (6) of the West Bengal Premises

Tenancy Act, 1956 (hereinafter shall be referred to

as the "Act"), thereby determining his tenancy, was

valid, legal and in accordance with law or not?

3. Factual matrix giving rise to the present appeal,

bereft of unnecessary details are mentioned

hereinbelow:-

Original Appellant was the owner and landlord of the

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premises bearing Municipal Corporation No. 43F Nilmoni

Mitra Street, Kolkata - 700 006. The original Respondent

was tenant in respect of two rooms on the ground floor

at a monthly rent of Rs. 75/-. Before filing the

present Ejectment suit, the Appellant had served a

notice upon the Respondent determining his tenancy, as

contemplated under Section 13 (6) of the Act. The said

Notice was sent to the Respondent on 28.8.1991 by

registered Post with A/D, directing him to vacate the

premises on or before the expiry of the last day of

October, 1991. The said Notice was duly served on the

Respondent. In the said Notice, it was further averred

by the Appellant that he reasonably required the said

two rooms under occupation of the Respondent, for his

own use and occupation. It is to be noted that the said

Notice categorically mentioned that the respondent's

tenancy was in accordance with English Calendar. The

said Notice also mentioned that for all purposes, apart

from being a notice under the provisions of the Act, it

would also be deemed to be one given under Section 106

of the Transfer of Property Act. It is not clear from

the record, if any reply was sent to the said notice by

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the Respondent but obviously as he failed to comply with

the said Notice, the Appellant was constrained to file

Ejectment Suit No. 124 of 1992 (later renumbered as 1612

of 2000) before the 6th Bench, Court of Small Causes,

Calcutta for his ejectment on the ground mentioned in

the aforementioned Notice.

4. On service of the summons from Court on the

Respondent, he appeared and denied the averments as made

by the Appellant. Respondent herein contended that

there was absolutely no reasonable requirement of the

premises by the Appellant and furthermore, he took a

specific plea that the suit was not maintainable

inasmuch as it was in contravention of Section 13 (6) of

the Act, which provides a clear one month's Notice for

determining the tenancy, as the tenancy was in

accordance with Bengali Calendar month and not as per

the English Calendar month as averred and pleaded by

the Appellant. To buttress this contention further,

Respondent placed heavy reliance on the rent receipts

issued by Smt. Kamala Bala Sett, the erstwhile owner of

the property in question, who was accepting rent earlier

for and on behalf of the Appellant, wherein a

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categorical endorsement was made that tenancy was

according to Bengali calendar month.

5. On the averments of the respective parties, the

Trial Court was pleased to frame issues. Issue No. 1

and 2 dealt with the question of maintainability of the

suit by the Appellant and whether the Notice of

ejectment served by Appellant on the Respondent was

valid, legal and in accordance with law.

6. However, learned Trial Court after recording the

evidence and after perusal of the records available,

came to the conclusion that the Notice was not served in

accordance with the provisions of section 13 (6) of the

Act as one month's clear time was not given to the

Respondent for vacating the premises. Thus, it was

found that the very genesis of the suit was defective,

and hence the suit was dismissed on this ground alone,

even though the ground of ejectment with regard to bona

fide need of the Appellant was found to be in his

favour.

7. Feeling aggrieved by the judgment and decree of

the trial court, Appellant was constrained to file an

appeal before the appellate court. The appellate court

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considered the matter in full detail, and in particular,

the single point therein, namely, with regard to

satisfaction of Section 13 (6) of the Act. On

consideration of the material on record, as also the

certified copy of the written statement filed by

Respondent herein in Title Suit No. 203/88, the

Appellate Court came to the conclusion that tenancy

right in favour of the Respondent was regulated

according to English Calendar. Accordingly, there was

full and complete compliance of the provisions of

Section 13 (6) of the Act. In this view of the

matter, judgment and decree of the Trial Court was set

aside and the Appellant's Suit for Respondent's ejection

from the Suit premises was decreed in his favour.

8. Then came the turn of the Respondent-defendant to

challenge the same in the High Court by filing a Second

Appeal No. 110 of 2005 under Section 100 of the Code of

Civil Procedure, 1908 (referred to as "CPC"

hereinafter). From the impugned judgment, it appears

that in the Appeal Memo even though several questions of

law were formulated but additional substantial

questions of law Nos. XIII and XVII were later

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formulated for consideration, reproduced hereinbelow:

"XIII. For that the learned Judge of the First

Appellate Court ought to have held that the Notice

of Ejectment (Exh-4) is bad in law and no decree

can be passed thereon in as much as the said

Notice was served on the basis that tenancy month

is according to English Calendar while the Rent

Receipts (Exhibit B Series and C) clearly indicates

that the tenancy month is according to Bengali

Calendar month.

XVII.For that the appellate court on the materials

before it should have considered that partial

eviction of the premises would meet plaintiff's

reasonable requirement."

9. It is pertinent to mention herein that while

considering the appeal, the learned Single Judge found

that no substantial question of law was involved in the

appeal, yet proceeded to decide the same and that too

against the Appellant. The following observations made

by Learned Single Judge in this regard, are necessary

to be mentioned :

"On the reflection as aforesaid, this Court is

of the view that there is no substantial question

of law involved in this case as it is simply a

legal question involved, namely, giving weightage

to the evidentiary value of the rent receipts vis-

a-vis written statement of another Suit wherein it

was alleged that the defendant admitted the mode of

tenancy. That cannot be a substantial question of

law involved."

10. In fact, in the light of the said categorical

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finding having been recorded by the learned Single

Judge, the necessary consequence would have been to

dismiss the Respondent's Second Appeal but instead, the

same has been allowed answering the aforesaid questions

of law in favour of the Respondent. Hence this appeal,

at the instance of landlord.

11. We have accordingly heard Mr. Dhruv Mehta, learned

Senior Advocate ably assisted by Mr. Sriram Krishna,

for the Appellant. Despite service of notice on the

Respondent by various modes, including publication in

the newspaper, he failed to appear.

12. It may be mentioned that during the pendency of

Appeal in this Court, both original Appellant and

Respondent have died and are being represented through

their legal representatives but for the sake of

convenience the parties shall still be referred to as

Appellant and Respondent.

13. Even though in the impugned judgment and order,

learned Single Judge failed to point out any perversity

in the judgment and decree of the lower appellate court,

yet wrongly placed reliance on a judgment of this Court

reported in (2006) 1 SCC 163 titled Ramlal & Anr. Vs.

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Phagua & Anr. and proceeded to allow the same.

14. We have carefully gone through the said judgment and

find that in any case, it does not favour the Respondent

nor its ratio could be taken advantage of by the

Respondent. Basically, and mainly it dealt with the

proposition as to how and when concurrent findings of

fact recorded by two courts can be interfered with by

the High Court in a Second Appeal filed under Section

100 of the CPC. It was held in the said judgment that

if any material piece of evidence that goes to the root

of the matter, has not been appropriately considered by

both the subordinate courts then and only then High

Court would be justified in upsetting the judgment and

decree of the two courts and not otherwise. In the

aforesaid judgment, the question was with regard to a

disputed sale deed as is manifest from reading of paras

12 and 14 thereof. Thus, in our considered opinion,

reliance on the aforesaid judgment was highly misplaced

by the learned Single Judge.

15. Even though, it is not necessary to explore the

matter on merits at this stage, nevertheless we find

that the Learned Single Judge was also wrong in his

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approach in giving undue weightage to the rent receipts

issued by Smt. Kamla Bala Sett to the Respondent, as

compared to categorical and unequivocal admission made

by the same Respondent in his Written statement filed in

title Suit No. 203/88. His unequivocal admission

relevant to this case in para 6 of the said written

statement is reproduced herein below:

"This defendant has been paying rent at the rate of

Rs.6/- to the landlady Smt. Kamala Sett for

occupying and using the northern outer wall of the

tenancy of the defendant situated at 43/F, Nilmoni

Mitra Street, Calcutta-6. This defendant also is a

tenant comprising of two rooms at 43/F, Nilmoni

Mitra Street, Calcutta - 6 under Smt. Kamala Sett

and the rent is Rs. 75/- per English Calendar

month."

(Underlining supplied by us)

16. In the light of Respondent's own admission, it

leaves no doubt in our mind that it will hold good as

long as it was not withdrawn or clarified by him. It

is too well settled that an admission made in a court of

law is a valid and relevant piece of evidence to be

used in other legal proceedings. Since an admission

originates (either orally or in written form) from the

person against whom it is sought to be produced, it is

the best possible form of evidence. In the factual

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context of this case, it may also be noted here that the

'rent receipts' issued by Smt. Kamala Sett, the

predecessor-in-interest of the Appellant herein, being

the documentary evidence adduced by the Respondent to

prove his contention that the tenancy was as per the

Bengali Calendar, was never substantiated by the

witness' testimony of the abovenamed Smt. Sett in the

course of hearings.

17. Curiously enough, it was a fit case where both

parties would have been greatly benefited if they had

examined Smt. Kamala Sett as a witness. If she had

deposed in favour of the Respondent then his contention

that his tenancy was as per Bengali Calendar, would have

been greatly strengthened. On the other hand, a Clause

in the Deed of Conveyance executed between the Appellant

and Smt. Kamala Sett, reveals that the tenanacy in

favour of the Respondent was based upon the English

Calendar - so if she had affirmed this fact during her

examination, then the Appellant would have had an upper

hand.

18. There is no particular reason given by either party

as to why Smt. Kamala Sett was not produced as a witness

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before the Trial Court or the lower Appellate Court.

Ordinarily therefore, without her testimony, both the

copies of the rent receipts produced by the Respondent

and the Lease Deed produced by the Appellant, have

little evidentiary value vis-a-vis the factual question

of whether the tenancy was as per the Bengali or the

English Calendar. Even otherwise, assuming that

legitimate circumstances existed for non-appearance of

Smt. Kamala Sett as a witness in this case, in which

case her alleged affirmations in the Rent Receipt (that

the tenancy was as per the Bengali Calendar) and the

Lease Deed (that the tenancy was as per the English

Calendar) would be governed under the special provision

contained in S. 32 (2) of the Indian Evidence Act, by no

stretch can any of these affirmations be said to carry

greater weight than the admission in the written stat

ement made by the Respondent himself in the earlier

suit. Thus, clearly, the admission of the Respondent

would carry greater weight than the uncorroborated

documentary evidence by way of rent receipts. This is

what has been contemplated under Sections 17 which

defines "admission" of a party and 21 prescribes the

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procedure of proving such an admission in the Indian

Evidence Act, 1872.

19. Now, to understand whether the Notice purported to

have been served under Section 13 (6) of the Act was in

conformity with the aforesaid provision or not, we

reproduce hereinbelow the relevant portion of Section 13

(6) :

" S.13. Protection of tenant against eviction -

(1) Notwithstanding anything to the contrary in any

other law, no order or decree for the recovery of

possession of any premises shall be made by any

Court in favour of the landlord against a tenant

except on one or more of the following grounds

namely.....

(6)Notwithstanding anything in any other law for

the time being in force, no suit of proceeding

for the recovery of possession of any premises on

any of the grounds mentioned in sub-section (1)

except the grounds mentioned in clauses (j) and

(k) of that sub-section shall be filed by the

landlord unless he has given to the tenant one

month's notice expiring with a month of the

tenancy."

20.The aforesaid provision requires giving of one

month's notice to the tenant. From perusal of the

Notice, dated 27.8.1991 sent by Appellant on

28.8.1991, it is clear that one month's clear Notice

was given to the Respondent seeking upon him to vacate

the premises. Thus, there has been compliance of

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Section 13(6) of the Act and once the Respondent's

tenancy was determined on his failure in compliance

thereof, suit was maintainable.

21. Learned Single Judge of the High Court had not been

able to point out any perversity in the Judgment and

decree of the appellate Court, yet, committed a grave

error of law in allowing the Respondent's Second

Appeal on absolutely flimsy and cursory ground. The

same cannot be sustained in law and in our opinion is

against the well settled principles of law.

22.In this view of the matter, judgment and decree of

the learned Single Judge do not appear to be in

conformity with law. Other ground of bona fide

requirement was already held in favour of the

Appellant. In our considered opinion appellant's suit

was rightly decreed by the lower Appellate Court and

the same could not have been set aside by the learned

Single Judge, moreso when he had noticed that there

was no substantial question of law involved in the

second Appeal.

23. Thus, looking to the matter from all angles, we are

of the considered opinion that the impugned judgment and

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decree of the learned Single Judge cannot be sustained

in law. The same are hereby set aside and quashed. The

judgment and decree of the lower appellate Court are

hereby restored and Appellant's suit for eviction is

decreed. Appeal is thus allowed.

24. In the facts and circumstances of the case, parties

to bear their respective costs.

......................J.

[DALVEER BHANDARI]

......................J.

[DEEPAK VERMA]

New Delhi

April 26,2011