MRITUNJOY SETT (D) BY LRS.versusJADUNATH BASAK (D) BY LRS

                        [2011) 5 S.C.R. 884


A                 MRITUNJOY SETT (D) BY LRS.
                                 v.
                 JADUNATH BASAK (D) BY LRS.
                  (Civil Appeal No. 3617 of 2011)
                          APRIL 26, 2011
B
      [DALVEER BHANDARI AND DEEPAK VERMA, JJ.)

        WEST BENGAL PREMISES TENANCY ACT 1956:

c       s. 13(6j - Suit for eviction on ground of bona fide
  requirement - Notice - Tenant resisting the suit as not
  maintainable, as one month's clear notice according to
  Bengali Calendar was not given - Landlord claiming tenancy
  as per English Calendar - Trial court dismissed the suit
0 holding  that one month's clear time was not given to the tenant
  - First appellate court decreed the suit - High Court allowed
  the second appeal of the tenant - Held: There has been
  compliance of s. 13(6) and once tenant's tenancy was
  determined, on his failure in compliance thereof, suit was
E maintainable and rightly decreed by first appellate court -
  Ground of bona fide requirement had already been held by
  trial court in favour of landlord - Judgment of High Court
  cannot be sustained and is set aside - Evidence Act, 1872 -
  ss. 17, 21 and 32 (2) - Code of Civil Procedure, 1908 - s. 100.

F       EVIDENCE ACT, 1872:

       ss. 17,21 and 32(2) - 'Admission' - Suit for eviction of
  tenant - Tenant, on the basis of rent receipts claiming that
  notice for ejectment was bad as one month's clear notice
G according to Bengali Calendar was not given - Landlord on
  basis of lease deed claiming tenancy according to English
  Calendar - Neither of the two examining the predecessor-in-
  interest of landlord either to prove the rent receipts or the

                                884
MRITUNJOY SETT (D) BY LRS. v. JADUNATH BASAK 885
                 (D) BY LRS.
/ease deed ~ Tenant admitting in another suit the tenancy as     A
per English Calendar ..:.. Held:' In the ciroums"fances, the
'admission' of tenant is the best possible form of evidence -
West Bengal Premises Tenancy Act, 1956 - s.13(6).

     CODE OF CIVIL PROCEDURE, 1908
           ' ..
                                                                 B
     s.100 - Second appeal - Scope of - Single Judge of
 High Court setting aside judgment of lower appellate court -
.Held: Single Judge failed to point out any perversity in the
judgment of lower appellate court ""'" In the light of the
 categorical finding that no substantial question was involved   C
 having been recorded by the Single Judge, the necessary
 consequence would have been to dismiss the tenant's second
 appeal- West Bengal Premises Tenancy Act, 1956- s.13(6).

      The appellant-landlord sent a notice to the                o
respondent-tenant as contemplated u/s 13(6) of the West
Bengal Premises Tenancy Act, 1956, on 28.8.1991 by
registered post AID, determining his tenancy and asking
him to vacate the premises on or before the expiry of the
last day of October, 1991. Though the notice was served          E
on the tenant, he did not vacate the premises and the
landlord filed a suit for eviction on the ground of personal
use and occupation. The tenant besides resisting the
ground of reasonable requirement of the premises by the
landlord, took the specific plea that the tenancy being in
accordance with Bengali Calendar month, the notice was           F
in contravention of s. 13(6) of the Act, which provided a
clear one month's notice for determining the tenancy. The
trial court though found the ground of ejectment for bona
fide need of the landlord in his favour, but dismissed the
suit holding that the notice was not served in accordance        G
with the provisions of s. 13(6) of the Act. On appeal by
the landlord, the first appellate court decreed the suit
holding that the tenancy was regulated according to
English Calendar and there was full compliance. of the
provisions of s. 13(6) of the Act. However, the High Court       H
    886      SUPREME COURT REPORTS             [2011) 5 S.C.R.


A   in second appeal, set aside the judgment of the first
    appellate court.

          Allowing the appeal of the landlord, the Court

      HELD: 1.1 In the light of the categorical finding - that
B no substantial question of law was involved - having
  been recorded by the Single Judge of the High Court, the
  nec~ssary consequence would have been to dismiss the
  respondent's second appeal. [para 10] [892-A]

c      1.2 Even though in the impugned judgment and
  order, the Single Judge failed to point out any perversity
  in the judgment and decree of the lower appellate court,
  yet wrongly placed reliance on the judgment of this Court
  in Ramlal's case* and committed a grave error of law in
D allowing the respondent's second appeal on absolutely
  flimsy and cursory ground. [para 13] [892-E]

          *Ram/al & Anr. Vs. Phagua & Anr. (2006) 1 SCC 163 -
    held inapplicable.

E      2.1 The Single Judge was also wrong in his approach
  in giving undue weightage to the rent receipts issued as
  compared to the categorical and unequivocal admission
  made by the same respondent in his written statement
  filed in title Suit No. 203/88, that the rent was being paid
F per English Calendar month. 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 context of the
  case, it may also be noted that the 'rent receipts' issued
G by the predecessor-in-interest of the appellant, being the
  documentary evidence adduced by the respondent to
  prove his case that the tenancy was as per the Bengali
  Calendar, was never substantiated by the witness'
  testimony .. [para 15-16] [893-B-C, F-H)
H
       MRITUNJOY SETI (D) BY LRS . v. JADUNATH BASAK 887
                     . (D) BYLRS.
            2.2 There is no particular reason given by either party     A
       as to why the predecessor-in-interest of the appellant-
       landlord was not produced as a witness.before the trial
       court or the lower appellate court, eitheT-.,io prove the
       tenancy as per Bengali Calendar through rent receipts,
       as claimed by the tenant, or that the tenancy was based          B
       on English Calendar as claimed by the landlord as per
       lease deed. 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   c
       questio~ of whether the tenancy was as per the Bengali
       or the English Calendar. [para 18) [894-D·El
          2.3 ·.Even <)therwise,. ass~ming: that legitimate
     circumstances existed for non-appearance of· the·
     predecessor~in-interest of ,the appellant-landlord as a D
 · · witness, in which case her alleged affirmations in the rent··
.••e receipts and the lease would be governed under the
     special provision contained in s. 32 (2) of the Evidence
     Act, by no stretch can any of these affirmations be said
     to carry greater weight than the admission in the written E
     statement made by the respondent himself in the earlier
     suit. This is what has been contemplated u/s 17 of the
     Evidence Act which defines "admission" of a party and
     s.21 thereof prescribes the procedure of proving such an
     admission. [para 18) [894-E-H]                                F

            2.4 Section 13(6) of the West-Bengal Premises
       Control Act, 1956 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 G
       clear notice was given to the respondent seeking upon
       him to vacate the premises. Thus, there has been
       compliance of 5, 13(6) of the Act and once the ·
       respondent's tenancy was determined, on his failure in
       compliance thereof, the suit was maintainable. The
                                                                    H
    888       SUPREME COURT REPORTS                [2011) 5 S.C.R.


A ground of bona fide requirement was already held in
  favour of the appellant. The appellant's suit was rightly
  decreed by the lower appellate court and the decree
  could not have been set aside by the Single Judge,
  moreso when he had noticed that there was no
s substantial question of law involved in the second
  appeal. The impugned judgment and decree of the Single
  Judge cannot be sustained in law and are set aside. The
  judgment and decree of the lower appellate court are
  restored and appellant's suit for eviction is decreed.
c [paras 20,22 and 23) [895-D-F; 896-A-C) '
                                   t     .
                          Case Law Reference:
          (2006) 1 sec 163         held inapplicable     Para 13
D       CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    3617 of 2011.

        From the Judgment & Order dated 07.02.2006 of the High
    Court at Calcutta in S.A. No. 110 of 2005.

E       Dhruv Mehta, Sriram Krishna, Malashree Ghosh, 8.P.
    Yadav {for Sarla Chandra) for the Appellant.

          The Judgment of the Cou'rt was delivered by

          DEEPAK VERMA, J. 1. Leave granted.
F
       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
G (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:-
H
MRITUNJOY SETT (D) BY LRS. v. JADUNATH BASAK 889
       (D) BY LRS. [DEEPAK VERMA, J.)
       Original Appellant was the owner and landlord of the            A
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                B
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             c
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.          0
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 riotice by the Respondent but obviously as he failed
to comply with the said Notice, the Appellant was constrained
                                                                       E
 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.
                                                                       F
     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       G
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                   H
    890      SUPREME COURT REPORTS                  [2011) 5 S.C.R.

A   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 categorical endorsement was made
B   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
C   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
D 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
E 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 considered the matter
  in full detail, and in particular, the single point therein, namely,
F 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 RespJndent was regulated
G 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.
H
MRITUNJOY SETI (0) BY LRS. v. JADUNATH BASAK 891
       (0) BY LRS. [DEEPAK VERMA, J.]
     8. Then came the turn of the Respondent-defendant to             A
challenge the same in the High Court by filing a Second Appeal
No. 11 O 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        B
substantial questions of law Nos. XIII and XVII were later
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-       C
    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.                                                            D

    XVII. For that the appellate court on the materials before
    it should have considered that partial eviction of the
    premises would meet plaintiffs reasonable requirement."
                                                                      E
     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 :                               F

          "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          G
    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."
                                                                      H
    892      SUPREME COURT REPORTS                   [2011] 5 S.C.R.


A     10. In fact, in the light of the said categorical 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
B 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
C 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
D 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
E 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 Ram/a/ & Anr. Vs. Phagua & Anr. and
  proceeded to allow the same.

         14. We have carefully gone through the said judgment and
F 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
G 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
H and not otherwise. In the aforesaid judgment, the question was
MRITUNJOY SETT (D) BY LRS. v. JADUNATH BASAK 893
       (D) BY LRS. [DEE:PAK VERMA, J.]
with regard to a disputed sale deed as is manifest from reading       A
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
                                                                      8
on merits at this stage, nevertheless we find that the Learned
Single Judge was also wrong in his approach in giving undue
weightage to the rent receipts issued by Smt. Karnla 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     C
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       D
     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. 751- per English Calendar month."       E

                                    (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        F
 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 context of this case, it   G
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'         H
    894      SUPREME COURT REPORTS                   [2011) 5 S.C.R.


A 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.
B 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
C 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 before
D   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
E   or the English Calendar. Even otherwise, assuming that
    legitimate circumst~nces 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
F   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
    statement made by the Respondent himself in the earlier suit.
G   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
    pre·scribes the procedure of proving such an admission in the
    Indian Evidence Act, 1872.                         ·
H
MRITUNJOY SETT (D) BY LRS. v. JADUNATH BASAK 895
       (D) BY LRS. [DEEPAK VERMA, J.]
    19. Now, to understand whether the Notice purported to        A
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)
                                                                  B
    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 .....
                                                                  c
    (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 U) and (k) of that sub-section shall     D
    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
                                                                  E
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 Section 13(6) of the Act and once the
Respondent's tenancy was determined on his failure in
compliance thereof, suit was maintainable.                        F

     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      G
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
                                                                  H
    896        SUPREME COURT REPORTS                [2011] 5 S.C.R.


A   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
B   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 decree
    of the learned Single Judge cannot be sustained in law. The
C . 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.
D
    R.P.                                            Appeal allowed.