Mookerjee, J.:-

(1) The defendant appellant was a monthly tenant under the predecessor - in - interest under the plaintiff respondents at a rent of rs. 90| - per month according to. English calendar in respect of the entire outer portion of premises no. 33, taltala library road, calcutta - 13. The learned judge, 3rd bench, city civil court calcutta decreed the suit brought by the predecessor in interest of the respondent for ejectment of the defendant appellant on the ground of plaintiff landlord's reasonable requirement and also on the ground that the defendant caused damages to the said property by constructing two rooms on the' roof without the consent of the plaintiff landlords. Hence this appeal;

(2) We have perused the pleadings and the' evidence and have also heard the learned advocates for both parties. We uphold the finding of the learned trial judge that the plaintiff landlords were entitled, of recover possession under clauses (ff) and (d) of sub - section (1) of section 13 of the west bengal premises tenancy act, 1956, the existence of two rooms in the roof of the suit premises was found by the commissioner appointed by the court below and the defendant failed to prove that these two room; were in existence at the time of the inception of his tenancy. The evidence on record establish that without the land - lord's knowledge and consent, the defendant himself had constructed the said two rooms. Therefore, he had violated clauses (m) , (o) and (p) of section 108 of the transfer of property act and he was liable to be ejected under clause (d) of section 13 (1) of the west bengal premises tenancy act, 1956.

(3) The plaintiff's case of reasonable requirement for use and occupation of the members of their family has been satisfactorily proved. The plaintiff lived in a tenanted house at premises no. 188|1, acharya prafulla chandra road, calcutta - 4. The learned advocate for the appellant has not disputed before us that the said accommodation at their tenanted premises was totally inadequate for the family of the plaintiffs and that the same was not reasonable suitable. The court below has discussed in detail the requirements of the plaintiffs and since these findings have not been seriously disputed before us, it is unnecessary to re - state the said facts. Thus, the plaintiffs have been rightly found to be entitled to obtain ejectment decree under section 13 (1) (f) of the west bengal premises tenancy act.

(4) The plaintiffs' case was that they had. Served upon the defendant notices of suit,under section 13 (6) of the west bengal premises tenancy act in three modes - by registered post, under certificate of posting and also by affixation on the outer door of the tenancy after the defendant had refused to accept the personal tender. The learned judge of the court below has held that the evidence on record was not sufficient to prove service of the said notices upon the defendant by rejected post and under the certificate^^bhandmg but the learned trial judge held that the said notice had been duly served by personal tender to the defendant and upon his refusal by affixation.

(5) Mr. Ranjit kumar ghosh, learned advocate appearing on behalf of the appellant, has submitted that the court below erred in law in finding that the notice under section 13 (6) of the west bengal premises tenancy act, 1956 was duly served by personal tender to the defendant. According to mr. Ghosh, the plaintiff no. 2, promod ranjan, who allegedly effected the personal service, was not examined as a witness and the court below misread the evidenace given by p, w. 1 and erred in holding that in the presence of subodh, - p. W. 1, the said personal tender was made by the plaintiff no. 2, promod ranjan.

(6) In our view, the learned judge of the court below correctly appraised the evidence of subodh chandra guha. Plaintiff no. 1, p. W. 1, by holding that during his cross - examination hp had testified that in his presence his brother, promod ranjan, had made personal fen - der of the notice of the suit to the defendant. No doubt, during his examination - in - chief, p. W. I, subodh did not state the said facts. His signature did no* also appear in the return (ext. 4a) of personal service prepared by pro mod. In course of cross - examination of p, w. 1 on behalf of the defendant, the following question was put to him : "then you have no direct knowledge about the service of the notice" p. W. - 1 replied ''yes. ' 1 went with my brother. " the defendant did not further cross - examine p. W. 1 with reference to his assertion that he had accompanied his brother. Mr. Gh*"fc no* ri^1'" in contending that p. W by his said reply had really meant that he went with his brother to their lawyer for drawing up of the service return of notice. The said reply of p. W. 1 was given clearly with reference to the suggestion on defendant's behalf that he had no direct knowledge about the service of the notice. It is curious that after p. W. 1 made the said statement that he - went with his brother who effected personal service, on behalf of the defendant, no further question was put to him. In the above view, we uphold the trial court's. Finding that the notice of suit under section 13 (6) of the west bengal premises tenancy act was duly served upon the defendant by personal tender, thereof and upon refusal by affixation on the outer door of his tenancy.

(7) In view of the above finding of service of notice of the suit by personal tender to the defendant, it is strictly unnecessary to decide the correctness or otherwise of the trial court's finding that the service of the said notice also by registered post and under certificate of posting had not been 'satisfactorily proved. At the same time, we may observe that the trial court was wrong in finding - that the proof of service by registered post was not satisfactory. The plaintiff had produced the postal receipt shewing that the registered cover correctly addressed to the defendant had been sent under registered post. The more fact that the plaintiff failed to produce the postal acknowledgement card was not sufficient to rebut the statutory presumption that the said registered letter had been delivered to the addressee, the defendant. The' plaintiff also examined jayanarayan ghosh p. W. 3 postal public relations inspector, who proved the certificate issued by the senior superintendent of post offices, north calcutta ' division (ext. 8) stating that the articles in question was found on enquiry to have been delivered to the addressee on 11th june, 1975. Merely because the defendant and his son during their evidence denied that the registered cover containing the notice of suit had been. Delivered, the court was not justified in finding that the same had not been delivered. At least so far as this court is concerned, the preponderance of the judicial view is that in such a case even when the postman is not examined, there would be a presumption that the letter which was correctly addressed had been delivered to the addressee. The supreme court in their decision in the case of puwada venkateswara rao v. Chidamana venkata ramana air 1976 s. C. 869 had noticed the divergence between the said view of this court and the views expressed by the bombay and andhra pradesh high courts, had observed :

"it is not always necessary in such cases to produce the postman who tried to effect service. The denial of service by a party may be found to be incorrect from its own ' admissions or conduct. We do not think it necessary to come into the question any further."

thus, mr. Ghosh fairly conceded that it would depend upon to the facts of each particular case whether or not the presumption of service in such cases had been rebutted by the evidence of the defendant on oath that he did not receive the notice. Mr. Chatterjee, learned advocate on behalf of the respondent has; relied upon the observations of the judicial committee in the case harihar v. Ramsashi 23 c. W. N. - 77 which clearly support the view we have taken in this case. We also respectfully agree with the observations made in paragraph (14) of the recent division bench judgment in the case of tide wafer oil co (p) ltd. V. K - d. Banerjee alias kalidas banerjee 86 c. W. N. 456.

(8) Both the defendant and his son. Were interested witnesses. When they did not allege that the defendant had] any enmity with the postal peon or did not even suggest to the p. Ws. 1 and 2 that the plaintiffs had colluded with the postal peon, we are unable to accept the evidence of the defendant and his son, that the registered coyer was not delivered to the addressee. Really there was no contradiction between the plaintiff's; claim that the registered notice was received by the defendant's son, tapan. And the certificate (ext. 8) by the postal authorities that the registered, letter was delivered to the addressee because the certificate (ext. 8) did not rule out the possibility of tapan receiving the same on behalf of his father, who was the addressee. The plaintiff had caused another copy of the notice to be sent to the defendant under certificate of posting. It may be that the presumption arising from the said certificate of posting was somewhat weak but in any case the same raised a presumption that the plaintiffs had posted a cover duly addressed to the defendant. For the foregoing reasons, we hold that in addition to personal tender the notice of suit was also served under registered post; upon the defendant.

(9) We are unable to uphold the submission of mr. Ghosh learned advocate on behalf of the appellant, that after amendment of rule 22 of order 41 by civil procedure code (amendment) act 104 of 1976, it is no longer open to the respondent who did not file any cross - objection to challenge the aforesaid adverse finding of the trial court that the notice under section 13 (6) was not served under registered post in our view, the amended rule 22 of order 41 of the code has not brought any substantial change in the settled principles of law that even without filing a cross - objection the respondent in an appeal could support the decree on any of the grounds decided against him in the court below. The said amendments in rule 22 of order 41 of the code were made not to curtail the said rights of the respondent to support the decree on any of the grounds on which the court below had decided against him but in order to make the legal position more clear.

(10) The law commission of india in their 54th report or the code of civil procedure, 1908, february, 1973, had inter' alia recommended that order 41 rule 22 should be revised in the manner later on substantially enacted by section 87 of the act 104 of 1976. Law commission at page 295 of their said report had observed, inter - alia, that order 41 rule 22 gives two distinct rights to the respondent in the appeal. The first in right of upholding the decree of the court of first instance on any of the grounds on which that court decided against him and in that case no notice or memorandum required by the provisions of rule 22 is necessary. The second right of the respondent is that of taking a cross objection to the decree which he might have taken by,way of appeal. The second requires that a formal document and court fees may have to be paid. For the rationale behind the said two remedies, the law commission had quo led from the decision of the madras high court in the case of gaddem chinna venkata rao and others - v. Karalla saiyanarayanamurthy and another air 1043 madras '698, which had incidentally overruled an earlier single bench decision of the same high court in the case of sri ranga thathachariar v. Srinivas tha - thachariar air 1927 madras 801. A learned single judge of the madras high court in the said earlier decision had held that it was not open to the respondent to have adjudicated by the appellate court rights or causes of action which had been decided against him in the court below and. In respect of which he had filed no appeal or memorandum of cross - objection. The supreme court in the case of the management of liakhoolie tea estate v. Its workmen air 1960 s. C. 1349, having noticed both the said single bench decision and the division bench decision of the madras. High court had left open the question as to which of these views was correct. The law commission in their 54th report had recommended revision of the language of order 41 rule 22 to make it clear that when the respondent does not seek alteration giving him a further advantage he has a limited right of sustaining the decree of the court of first instance by relying on any of the grounds decided against him. The commission had also approvingly quoted from the decision of bijayesh mukherji, j. In the case of nri singha prosad rakshit v. - the commissioners of bhadreswar municipality 73 c. W. N. 88 (90) , holding inter alia that a cross - objection was wholly unnecessary in case the defendant respondent supported the decree of the court below on the ground that the issue on negligence should have been decided in its favour.

(11) The law commission after referring to the privy council decision in the case of lala gourisankar lal v, janki par sad (1890) i. L. R. 17 cal. 809 (which was decided under section 561 of 1882 made corresponding to order. 41 rule 22 of the code of civil procedure) only suggested a small verbal change regarding the first of the two remedies under order 41 rule 22. The law commission observed that the words "support the decree. " appear to be strange and "what is meant is that he may support it by asserting that the ground decided against him should have been decided in his favour it is desirable to make this clear".

(12) We may note that the following object and reason for revising the language of order 41 rule 22 of the code by act 104 of 1976 appear to have substantially incorporated the recommendations of the law commission in paragraph 41. 70 at page 295 :

"rule 22 gives two distinct rights to the respondent in appeal the first is the right of upholding the decree of the court of first instance on any of the grounds on which that court decided against him; and the second right is that of taking any cross - objection to the decree which the respondent might have taken by way of appeal. In the first case the respondent supports the decree and in the second case he attacks the decree. The language of the rule, however, requires some modification because a person cannot support a decree on a ground decided against him. What is meant is that he may support the decree by asserting that the matters decided against him should have been decided in his favour. The rule is being amended to make it clear. An explanation is also being added to rule 22 empowering the respondent to file cross - objection in respect to a finding adverse to him notwithstanding that the ultimate decision is wholly or partly in his favour"

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(13) It would be incorrect to hold that the explanation now inserted by act 104 of 1976 has made it obligatory to file a cross - objection even when the respondent supports the decree by stating that the findings against him in the court below in respect of any issue ought to have been in his favour. While recommending insertion of the said explanation, the law commission in their 54th report at page 298 had given the following reasons : "there is also another point relevant to order' 41 rule 22. We are separately recommending that a court must decide all issues, even if the case can be disposed of on a preliminary point, except where a question of jurisdiction or bar to suit is involved. This renders desirable a change in the provisions as. To cross objection. Where a decision of the trial court on a preliminary issue is favourable to the respondent, and the other issues are decided against him, the respondent should, in view of the recommendation referred to be empowered to file cross - objection. Strictly speaking, this follows from the change proposed in the section relating to appeal read with the words "any cross - objection which he could have taken by way of appeal" which appear in order 41 rule 22. But an express provision would be desirable. " the law commission in their report had recommended insertion of section 96a in the code incorporating complementary provisions for filing appeal or cross - objection in case decision by the trial court on a preliminary issue was favourable to the respondent: and the other issues were decided against him. The select committee however felt that in view of the amendment made in order 41 rule 22 the said insertion in section 96 of the code was not necessary. Thus, the explanation under order 41 rule 22 of the code applies in case the decree of the trial court is favourable to the respondent but he is aggrieved by the finding on another issue which is incorporated in the said decree. In such a case a memorandum of cross - objection or appeal might be taken.

(14) Ordinarily an explanation is appended to stress upon a particular thing which may not appear clearly from the. Provisions of the section' (vide stale of bihar v. Ismail air 1966 patna 1). Thus, the function of the explanation is to make plain or elucidate what is enacted and not to add or subs - tract from it (see also bihta co - operative development and cane marketing union ,ltd. Vs. Bank of bihar and others air 1967 s. C. 389).

(15) Mr. Ghosh has drawn our attention to (he recent decision of b. C. Ray and s. K. Mookerjee, jj. In the case of ban - galore swamy venugopal vs. State of west bengal and others 83 c. W. N. 723 (729). Their lordships, however, did not refer to the binding precedence regarding the scope of order 41 rule 22 of the code. Banerjee and b. N. Maitra j j. In the case of tide water oil co. (p) lid. Vs. K. D. Banerjee (supra) , in an appeal filed after rule 22 order 41 was amended by act 104 of 1976, have taken a contrary view and have laid down that without filing a cross - objection the respondent may support the judgment of the ground found against him. As we have upheld that other finding of the trial court about the validity of the service of the notice of suit by personal tender, it is not necessary to refer to a larger bench the question whether or not the views expressed in paragraph 13 and 14 of the judgment of ray and s. K. Mookerjee, j j. In the case of bangalore swamy venugopal v. State of west bengal (supra) were correct.

(16) For the forgoing reasons, we hold that the court below has rightly decreed the suit in favour of the plaintiff landlords and there is no merit in this appeal. We accordingly dismiss this appeal without any order as to costs.

(17) On the prayer of the appellants, we grant at the first instance three months time to him to vacate the suit premises but in case within one month he files an undertaking to this court to deliver up peaceful and vacant possession, he would be granted time till last day of september, 1986 subject to his going on depositing in the court below or remitting to the respondent current damages at the rate last paid within the 15th day of each succeeding months. In case of default for any two months the decree for ejectment shall become executable. Acceptance of the remittance or withdrawal of the deposit by the respondents would be without prejudice and without conferring any right upon the appellants to remain in possession beyond 30th september, 1986.