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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