D.K. Seth, J. - (1.) The relief claimed : The plaintiffs had prayed for declaration that they are entitled to get back possession. of 1,500 Sq. ft. covered area on the reconstructed third floor at Premises No. 12, B.B.D. Bag, Calcutta-700 001 from the defendant and for restoration of possession in respect of the said 1,500 Sq. ft. covered area on the reconstructed third floor of the said premises at 12, B.B.D. Bag, Calcutta-700 001. Whether the suit is barred by limitation :
(2.) In the present case, admittedly, the third floor of the said premises was gutted by fire. It is the defendant/appellant's case that due to act of God, the tenancy ceased and was frustrated. However, the learned Counsel for the plaintiffs/respondents/tenants points out that it was a case of suspended tenancy subject to revival on reconstruction of the said premises. He pointed out that right from 1976 he had been addressing letters to the appellant/defendants for delivery of possession of the said premises after its reconstruction. Various documents have been produced which have been marked exhibits. We find that Ext. 2 was sent by registered post on 8th January, 1979. However, the acknowledgement card is not available. Even though we presume service since it was sent under registered post, still this will not help the plaintiffs. Inasmuch as, it was in January, 1979 this letter was sent and might have been received by the defendant/appellant. All the subsequent letters from Ext. 4, Ext. 6 and Ext. 8 were alleged to have been sent under Certificate of Posting. We cannot accept service under Certificate of Posting as proof of service without any further material. Therefore, in between 1979 and 1987, there was no material to show that any such letters were ever served on the defendant. The next letter was dated 2nd February, 1988 which was acknowledged by the defendant through a reply denying the plaintiffs' claim.
(3.) 1 A writ petition was moved, which is Ext. 17 This writ petition was disposed of on 27th September, 1988. Therefore, even we take the aid of Section 14 of the Limitation Act, as pointed out by the learned Counsel for the respondents, we can only exclude the time period, namely, 2nd February, 1988 till 27th September, 1988. Even then by very liberal approach we can exclude this period between 2nd February, 1988 till the date of filing of the suit. But still then there is no such exception to limitation unless it is pleaded specifically and proved that reconstruction was made within three years from 2nd February, 1988.;