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Appeal from Appellate Decree No. 629 of 1963, decided on 7th June 1965.
Decree" Suit disposed of by an order passed by trial Court‑Such order, although it might be adjudged a nullity, amounts to passing a decree and is appealable.
‑Notice Letter sent by post to official address indicated by tenant himself to be his postal address‑Tenant estopped from saying that such address was not his residential address‑Notice, held, duly served, in circumstances of case.
Mozammel Huq for Appellant.
S. M. Abbas for Respondent.
This appeal raises various interesting points which arise out of the following circumstances : Plaintiff is admittedly the owner of certain premises in the town of Chittagong. She purchased the same upon migration to Pakistan. Except the aforesaid premises purchased by her, she does not have any place of her own for her residence in Chittagong. Defendant is tenant in occupation of the said premises. She resides, along with her husband, in an accommodation which has been provided by a friend of her husband. She, therefore, applied to the Rent Controller for permission to sue the defendant who, admittedly, is her monthly tenant, for his eviction, on the ground that she required the suit premises for her bona fide use and occupation. Upon receiving such permission, she instituted the suit on the 30th of September 1961.
Defendant filed a written statement in which he admitted plaintiff's ownership of the premises. He further admitted that he had taken lease of the promises in question on the basis of a monthly tenancy. He contested the suit on technicalities of law, namely, that the permission obtained by the plaintiff from the Rent Controller is not legally valid ; secondly, he denied that plaintiff required the premises for her bona fide use and occupation ; and thirdly, he urged that the purported notice, alleged to have been served on him by registered post, was not a valid notice under section 105 of the Transfer of Property Act. These point: of law were strenuously urged on behalf of the defendant in the various Courts which had heard the suit in all its stages.
The suit was originally heard by a Munsif at Chittagong and was marked as Other Suit No. 58 of 1961. The aforesaid points were vigorously pressed on behalf of the defendant and the learned Munsif, on a full consideration of the evidence in this case, came to findings adverse to the defendant with regard to all the aforesaid points. He, therefore, decreed the suit. Inasmuch as defendant did not pay monthly rent to plaintiff, the learned Munsif further decreed a sum of Rs. 520 as arrears of rents and Its. 80 as compensation. Defendant was allowed one month's time to vacate the premises. He was further allowed to pay the decretal amount in equal monthly instalments of Rs. 100.
Having obtained the aforesaid indulgence from the trial Court, defendant proceeded to challenge the decree that was passed by the learned Munsif by preferring an appeal which was heard and disposed of by a Subordinate Judge. The trial Court passed the decree on the 31st of May 1962 but defendant did not vacate the premises in accordance with the decree. The appeal was heard and disposed of by the learned Subordinate Judge on the 13th of May 1963. Before the learned Subordinate Judge the self same points were urged by the defendant‑appellant. Learned Subordinate Judge, on a full discussion of all the points that were urged on behalf of the defendant‑appellant and the evidence adduced by the parties, arrived at findings which were in complete agreement with the conclusions reached by learned Munsif. He thus, dismissed the appeal and affirmed the judgment and decree passed by the learned Munsif. Hence this appeal by the defendant.
When this appeal was admitted for hearing, defendant- appellant again obtained an interim stay of the execution of the decree for eviction and, subsequently, the interim order was made absolute.
Defendant‑appellant has thus successfully kept the plaintiff out of the premises, of which she is undoubtedly the owner and as to which she had received a decree for eviction of the defendant, uptil today.
At the hearing of this appeal I was taken through the judgments pronounced by the Courts below as well as the evidence adduced by parties to the suit, both oral and documentary. The points urged before me are, (a) that the permission to sue the defendant in eviction obtained by the plaintiff from the Rent Controller of Chittagong was not valid in law and, furthermore, (b) that the notice, purported to be served by the plaintiff upon the defendant, under section 106 of the Transfer of Property Act, was also legally invalid. The bona fide requirement by the plaintiff of the said premises, for her use and occupation, was not contested before me.
On behalf of the defendant‑appellant, Mr. Mozammel Huq, if I may say so, ably argued the aforesaid points before me.
With regard to the point that the permission obtained by plaintiff from the Rent Controller does not amount to a valid permission under the law, my attention was drawn to the provisions of sections 17 and 18 of the East Bengal Premises Rent Control Act, 1953 (Act XVI of 1953) (hereinafter called the Act). Subsection (1) of section 18 of the Act requires the permission of the Rent Controller in order to maintain a suit for eviction of a tenant on the ground, inter alia, that the landlord requires the premises for his bona fide use and occupation.
It transpires that the life of the Act was continued by the Act itself, up to the 31st of December, 1955, by section 1 of the Act. Subsequently its life was continued from time to time up to the 31st of December, 1960. The Act expired on the 1st of January, 1961. There followed a period of vacuum in the interregnum between the 1st of January 1961 to July 1961, when an ordinance came into existence (Ordinance No. XXV of 1961), which re‑enacted the provisions of the said Act.
It so happens that in this particular case, an application was made on the 22nd of May 1960, for permission to sue the defendant in eviction on the ground of plaintiff's bona fide use and occupation of the premises. Such permission was granted by the Controller on the 5th of June 1961. The application to obtain such permission from the Rent Controller was made at a time when such application was necessary under the Act which continued to remain in force uptil the end of December 1960. What happened, in the interval, was, that there was an interregnum of six months before the new Ordinance (Ordinance, XXV of 1961), came into operation in July, 1961. Thus, the permission given by the Rent Controller of Chittagong appertained to a date when such permission did not have a legal basis which specifically conferred upon him power to give such permission. It can, however, be said that such permission was unnecessary at that time. No question of such permission could have arisen if this suit had been instituted at a time when there was a vacuum in law for a few months on the expiry of the Act.
We have seen above that the aforesaid Ordinance XXV of 1961 came into operation in July that year. The suit was, however, filed, as seen above, on the 30th of September, 1961. Therefore, at the time when the present suit was filed, under the law, the permission of an appropriate Rent Controller again became necessary in order to enable plaintiff to prosecute the suit for eviction of the defendant on the aforesaid ground. It was submitted that the prior permission given by the Rent Controller, at a time when he had no legal authority (the Act having expired at the relevant time) to give such permission, does not amount to a permission which was required by the Ordinance at the time when the suit was filed, notwithstanding the fact the said post‑permission Ordinance authorised such permission as was given to plaintiff.
The question is : would the aforesaid permission obtained by the plaintiff from the Rent Controller be deemed to be legally a sufficient permission to enable her to prosecute the suit
The Appellate Court below has pointed to section 38, subsection (b), of the Ordinance XXV of 1961 which reads thus:
"38. Notwithstanding the expiry of the East Bengal Premises Rent Control Act, 1953‑
(a) . . . . . . . . . .
(b) any order passed or appointments made or anything done or, any action taken or any proceedings commenced, or deemed to have been passed, made, done, taken or commenced under any of the provisions of the Act shall continue in force so far as they are not inconsistent with the provisions of this Ordinance and shall be deemed to have been passed, made, done, taken or commenced, as the case may be, under the corresponding provisions of this Ordinance."
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.
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