P.N Mookerjee, J.:— This is the plaintiffs' appeal, arising out of a suit for ejectment. The suit was in respect of premises No. 107A, Durga Charan Mitra ‘Street, Calcutta. The plaint alleged service of the requisite notice to quit and, further, that the suit premises was required by the plaintiffs reasonably for their own occupation and that the defendant was also guilty of unauthorised subletting, for which she was disentitled to any protection under the relevant Rent Control Law.
2. The plaintiffs claim to have purchased the suit premises from the previous owner Mohan Lal Johuree alias Dey some time in September 1957. The defendant was the tenant in respect of the suit premises at a monthly rental of Rs. 200/-, per month according to the Bengali calendar. She was the lessee of the entire premises and it was part of the plaintiffs' case that the defendant was residing only in a email or minor portion of the suit premises and had let out the remaining portion to sub-tenants without the plaintiffs' consent or the consent of the previous owner, for which subletting also,— apart from the plaintiffs' reasonable requirements,— she (the defendant) was liable to forfeit the protection, if any, under the relevant Rent Control Law. The suit was filed in or about January 1958, that is, after the coming into operation of the West Bengal Premises Tenancy Act, 1956. It was clearly, then, a case, governed by the said Act.
3. The defence was a denial of the service of the notice to quit and of the sufficiency and validity of such service, if any, and also of the validity and sufficiency of the notice itself. The defence, further, was that the plaintiffs did not require the suit premises for their reasonable requirement nor was there any sub-letting by the defendant which would bring her within the mischief of the above Act, that is, of section 13(1)(a) of the same.
4. The learned trial Judge, on a consideration of the evidence before him found in favour of the plaintiffs on the question of the notice to quit, but, as he did not believe or accept the plaintiffs' case of reasonable requirement and as, in his opinion, there was no sub-letting of the suit premises after the above Act, the plaintiffs' suit was dismisesd, the trial Judge being of the opinion that section 13(1)(a) of the aforesaid 1956 Act was applicable only to post-Act sub-tenancies.
5. The plaintiffs have now preferred this appeal and, on their behalf, Mr. Banerjee has contended first that, of the evidence before the court, the learned trial Judge ought to have accepted the plaintiffs' case of reasonable requirement. We are not impressed by this argument. Of the two plaintiffs, who claim to be sisters, only plaintiff No. 1 was examined and her evidence, in our opinion, is not even sufficient for proving any reasonable requirement of the suit premises on her part, far less on the part of the other plaintiff, who was her sister. The only thing that appears from her evidence is that the two plaintiffs were residing in separate rented premises and that, so far as plaintiff No. 1 was concerned, she was finding it inconvenient and she did not desire to reside with her co-tenants in the said rented premises. In the circumstances of this case and having regard to the status or position in life of the parties, as disclosed in the evidence, we do not think that the above evidence would be sufficient to make out a case of reasonable requirement of the suit premises either by the plaintiff No. 1 or by plaintiff No. 2 or by the two of them. We may also add that the plaintiffs in their plaint,— and plaintiff No. 1 in her deposition in court,— tried also to make out a case of reasonable requirement for their nephew and mother, but the evidence on this point is miserably insufficient and incredible. In such circumstances, we are clearly of the opinion that the learned trial Judge was fully justified in rejecting the plaintiffs' case of reasonable requirement of the suit premises and his said finding is hereby affirmed by us.
6. Coming now to the question of sub-letting, it appears to us, on a reading of the entire evidence and the pleadings of the parties, that the true aspect under the law in regard to this matter was not realised by either party. That the relevant section of the West Bengal Premises Tenancy Act, 1956, namely, section 13(1)(a), applies only to post-Act sub-tenancies appears to have been lost sight of by the parties and, necessarily, the approach on this point was vitiated by misconception on either side. Taking into consideration the circumstances of this case in the above context, we are inclined to remit the said question for further consideration by the trial court on the evidence, already on the record and on such further evidence as the parties might choose to adduce in that behalf.
7. Before, however, we make any order of remand in the light of our above finding, it is necessary to dispose of one submission of Mr. Dutta on the question of notice, which has been pressed before us,— and pressed with some vigour,— relying on section 13(6) of the 1956 Act and also upon the evidence of service on the present record. The finding on this question of notice was, as we have said above, against Mr. Dutta's client in the trial court, but he has contended before us that the notice to quit in the instant case ought to have been held to be invalid and insufficient under the law and the service thereof also ought not to have been accepted as valid or sufficient. Mr. Dutta has contended that section 13(6) of the above Act, when it speaks of giving of notice by the landlord, obviously contemplates and incorporates a change from the preceding law, namely, section 106 of the Transfer of Property Act, which was in force for more than three quarters of a century and which expressly recognized and permitted [Vide 1 second part of the section] service (giving) of notice not only by the landlord but also on his behalf, that is, by his agent, duly authorised for the purpose. Mr. Dutta contends that in the context of the non-obstante clause in its opening part, section 13(6) of the West Bengal Premises Tenancy Act, 1956, is to be read as permitting the giving of notice only by the landlord and as precluding the giving of notice by the landlord's agent, howsoever much he may be authorised in that behalf. We are not prepared to accept this submission. Ordinarily, an act which can be done by a party, can also be done by his authorised agent. The express provision in the Transfer of Property Act about the giving of notice on behalf of the landlord, that is, by his duly authorised agent, appears to have been redundant from that point of view or a provision inserted ex abundante cau-tela and, accordingly, the non-repetition of the same in section 13(6) of the West Bengal Premises Tenancy Act, 1956, does not really have any effect of changing the law in that behalf. It may also be quite reasonably contended that the phrase “unless he (the landlord) has given to the tenant one month's notice expiring with a month of the tenancy” refers to the giving of notice (including the service thereof) in the then recognised manner, namely, as under or as prescribed in section 106 of the Transfer of Property Act. This is more or less patent as it is nobody's case that the mode of service of the notice to quit would be otherwise than under the paid section 106, even though there is no express mention or reference of it in the aforesaid new section 13(6) and, if so, the phrase quoted would include the whole of the second part of section 106, including the giving of notice on behalf of the landlord, that is, by his agent too. Indeed, it may well be contended that the only change, if any, intended by the section [section 13(6) of the West Bengal Premises Tenancy Act, 1956]-if and to the extent it refers to the notice to quit—was in respect of the period of the said notice and upon that view, the only effect of the non-obstante clause would be as to or upon the same alone. We would, accordingly, hold that, under section 13(6) also, the giving of notice by the landlord's duly authorised agent on his behalf, would be sufficient as it was under the Transfer of Property Act. The only change, if any, so far as the notice to quit is concerned, which might have been intended to be made by the section [section 13(6)], was, as we have sufficiently said above, as regards the period of the said notice which, under section 13(6), could not be less than a month, expiring with the month of the tenancy, while, under the Transfer of Property Act, it could have been, in some cases at least, much shorter. The contention of Mr. Dutta on the validity or sufficiency of the notice to quit must, therefore, fail and it is rejected.
8. We come now to the question of service. It appears from the records that the notice to quit was sent by registered post to the defendant and the acknowledgment, which was returned by the postal authorities, appears or purports to have been signed by a person for the defendant. That acknowledgment has been filed in court. The learned trial Judge has, of course, refused to accept the said service on the basis of the aforesaid acknowledgment, but this was probably due to some misapprehension of the law on the point. It is well settled that, in the absence of very strong evidence to the contrary,— and there is none in the instant case—when, in the matter of service by registered post, an acknowledgment comes back, signed or purporting to be signed by some person on behalf of the addressee, it is good service under the law. If authority has to be cited for the purpose, we need refer only to the well-known decision of the Judicial Committee in Harihar Banerjee v. Ramsashi Roy (1) 45 I.A 222, at page 231-2, and to the more recent decision of this Court, reported in Nirmalabala Debi… v. Provat Kumar Basu….*, (2) 52 C.W.N 650 at pp. 664-5. Moreover, in the present case, there was also the evidence of personal service. That evidence has been accepted by the learned trial Judge and we see no reason to differ from him on the point. Mr. Dutta contends that this personal service will be insufficient and ineffectual, as the hanging up of the notice, which, in the circumstances, was necessary to complete the said service according to Mr. Dutta, was premature and so invalid on that ground. Mr. Dutta submits that affixing or hanging up of the notice was necessary for completing the service but that could not be done until or unless or before all the earlier-mentioned modes of service, namely, by registered post and/or by personal service, had been exhausted and, at the time the relevant notice to quit was hung up, the notice by registered post had not yet reached the addressee.
9. The service by hanging, so contends Mr. Dutta, was thus premature and so invalid in law. We do not think that this contention can be accepted. Indeed, it may well be said that, when there was a personal tender to the addressee and it was refused, that, by itself, would be good service. But, even if it is otherwise, the last or residuary mode of service by hanging would at once be attracted and become available as the tender or delivery for personal service under statute [Vide section 106 of the Transfer of Property Act] would be sufficiently impracticable within the meaning of the said section. The case, cited by Mr. Dutta, namely, Biseswar Roy v. Pitambar Nath (3) 51 I.C 44, is clearly distinguishable and it does not support the proposition that, in the instant case, service by hanging would not have been available until failure of service by registered post, even though personal tender was refused by the party concerned. In the said case cited, the facts were clear enough to show that there was no personal tender at all to either the tenant or to any member of his or her family or to any of his or her servants, although such servants were present on the spot. It was thus not a case, where the tender or delivery, spoken of in the section was not practicable, and, accordingly, the last mode of service by hanging could not be resorted to and the occasion for it did not arise in law. Indeed, as we read the relevant second part of section 106 of the Transfer of Property Act, it prescribes four modes of service of notice, the first by registered post, the second by personal tender and delivery, the third by service at residence by tender and delivery to a family member or servant and the fourth or the last by affixing or hanging in case the above second and third modes of personal service by tender and delivery be not practicable. This, however, has no necessary reference to the first mode and is not and does not become irrelevant unless and until the first mode of service by registered post is also exhausted,— at any rate, it is not necessarily postponed to failure or impracticability of service by that mode also, although, in judging the impracticability of the necessary tender and refusal and the propriety and sufficiency of service in a particular case, the court may possibly take into consideration the question or possibility of attempt to serve by registered post, that is, by the first mode. This much, however, is clear from the language of the statute itself that affixing or hanging up of the notice cannot refer to the said first mode of service by registered post but has referred only to the second and the third mode, namely, personal service and service at residence.
10. In the above view, we would reject Mr. Dutta's submission on the question of notice and affirm the sufficiency and validity of the same and also the sufficiency and validity of its service in the present case. As we have said, however, on the question of sub-letting and its effect, under the law, on the rights of the parties in the facts and circumstances of this case the matter has to go back to the trial court for further consideration.
11. We would, accordingly, while affirming the other finding of the learned trial Judge in this case, set aside his decree of dismissal of the plaintiffs' suit and remit the case to the court below for further consideration in the light of the observations, made hereinbefore.
12. The appeal is allowed as above, the trial court's decree is set aside and the case is sent back for further consideration, as indicated hereinbefore and subject to the trial court's findings, as affirmed above by us.
13. Costs of this appeal will abide the final result of the suit.
Bhattacharya, J.:— I agree.
S.K.B