Khwaja Mohammad Yusuf, J. - (1.) The petitioner has challenged the judgment and order dated 18th August, 1988 passed by the learned Judge, Second Bench, the Court of Small Causes of Calcutta, in Suit No. 1213 of 1970. The fact, in short, is stated as under : The petitioner and the Opposite Party Nos. 8 to 12 entered into an agreement with the predecessor-in-interest of the Opposite Party Nos. 1 to 4 by way of a registered deed of lease dated 15th August, 1953 for 16 years in respect of Suit No. 13 of Premises No. 16, Chadni Chawk Street, Calcutta-13, which expired on 14th August, 1969. After the expiry of the lease the petitioner and the Opposite Party Nos. 8 to 12 instituted a suit against the predecessor-in-interest of the Opposite Party Nos. 1 to 4 for eviction being Suit No. 1213 of 1970 in the Small Causes Court at Calcutta on the ground of expiry of lease by efflux of time Twice the summons were sent to the Opposite Party Nos. 1 to 4 on 27th May, 1970 and 12th-June, 1970, respectively, and on both the occasions the summons were returned back with the postal remarks 'unwilling to take delivery, hence refused and "refused", respectively. The suit was taken for ex-parte hearing on 23rd June, 1970 and was decreed. Thereafter with the help of police the plaintiffs took delivery of possession of the suit premises on 31st July, 1970 and one of the plaintiffs, the Opposite Party No. 8, inducted two tenants in the said suit premises by converting the said suit into two separate flats. The defendant filed an application on 4th August, 1970 under Order 9, Rule 13 of the Code of Civil Procedure before the learned Judge of the Small Causes Court at Calcutta for setting aside the decree on the ground of non-service of summons. The plaintiffs filed written objection. But with the intervention of some common friends, the defendant entered into an agreement with the plaintiffs and on the basis of that agreement he (the predecessor-in-interest of Opposite Party Nos. 1 to 4) surrendered the said suit premises in favour of the plaintiffs after taking some money from the plaintiffs for giving possession for which receipt was granted. The plaintiffs filed an application in the proceeding under Order 9, Rule 13 of C. P. C. praying to file the agreement arrived at between them and the predecessor-in-interest of Opposite Party Nos. 1 to 4 for the disposal of the said proceeding and also an application to cross-examine the said predecessor-in-interest on the point stated in the objection in the proceeding. But the learned judge disallowed the prayer. Being aggrieved the petitioner and the Opposite Party Nos. 8 to 12 moved the Honble High Court and obtained a rule being C. R. No. 3233 of 1971 which was made absolute on 23rd June, 1972 and the plaintiffs were allowed to cross-examine the said predecessor-in-interest on the agreement in question for the purpose of dismissal of the proceeding under Order 9, Rule 13 of C. P. C. By order dated 20th March, 1973 the learned Judge rejected the application under Order 9, Rule 13 of C. P. C. by holding that the summons were duly served. Against this order the predecessor-in-interest of the Opposite Party Nos. 1 to 4 moved the Honble High Court and obtained a rule being C. R. No. 2169 of 1973 and the High Court sent back the case to the Trial Court for disposal with observation. This time the Honble High Court did not consider the previous order in C. R. No. 3233 of 1971 and this judgment was wholly reverse to the previous judgment. The result was that the learned Judge of the Small Causes Court at Calcutta allowed the application on the basis of the Honble High Courts observation in the second revisional application. Against this order of the learned Judge the petitioner moved yet another revisional application and obtained a rule being C. R. No. 607 of 198 and on 9th June, 1983 this Honble Court discharged the said rule. Being aggrieved by this order the petitioner preferred a S. L. P. being Civil Appeal No. 1316 of 1986 to the Honble Supreme Court and by order dated 7th April, 1986 the Hooble Supreme Court allowed the appeal holding that the learned Trial Judge would take into account the alleged relinquishment deed and the effect thereof. When the matter came back to the trial Court the petitioner examined Mr. P. Ahmed as O. P. W. 2 who was a learned Advocate of the opposite parties at that point of time and in whose presence the relinquishment paper was signed By the impugned order dated 18th August, 1988 the learned Judge all. wed the said application setting aside the ex-parte decree holding that the relinquishment document was not executed voluntarily and there was some sort of pressure upon the executant and, as such, this document is hit by section 28 of the Indian Contract Act. Hence the instant application.
(2.) Mr. Mukherjee, the learned Advocate appearing for the petitioner, submitted that mere denial of refusal to accept the notice by registered post would not be taken as rebuttal under section 114 of Indian Evidence Act. The Court ought to have considered whether the two notices, in fact, were tendered and under which the circumstances those notices were not accepted. The presumption of rebuttal must be based on cogent evidence and must satisfy ingredients of section 114 of the Evidence Act upon which the Court may presume the existence of certain facts. The D. W. 2 whose evidence is accepted in support of the presumption of rebuttal of the notice which returned with the postal remark "unwilling to take delivery, hence refused" as proper service of notice on the defendant is a minor daughter of the deceased defendant and she had a quarrel with the postal peon which is on record. In this connection Mr Mukherjee has cited an unreported decision dated 22nd September, 1978 in F. A. No. 39 of 1975 and F. A. No. 35 of 1973 by A.N. Sen and B. C. Ray, JJ. Mr. Mukherjee submitted that the Court below did not go into the evidence properly and did not consider all the facts and evidence in its entirety and thus came to a wrong finding. Mr. Mukherjee submitted that the Court came to the conclusion without taking into consideration all the subsequent facts according to the direction of the Honble Supreme Court which was that the learned Judge of the Small Causes Court should "take into account the alleged relinquishment deed and the effect thereof". Mr. Mukherjee has cited a number of cases in support of his contention which are noted as under. In Puwada Venkateswara Rao v. Chidamana Venkata Ramana reported in (1976) 2 SCC 409 ; in Sanjay Investment Ltd. v. Nepal Chandra Dutta reported in AIR 1981 Cal 237 ; in Shambhu Dayal & Ors. v. Pt. Basdeo Sahai reported in AIR 1970 All 525 (F.B.); in Sridhar Shukla v. Babu Lal reported in 1961 ALJ 631 ; and lastly in State of Madhya Pradesh & Ors. v. Champalal & Ors. reported in AIR 1965 SC 124.
(3.) Mr. Mitra, the learned Advocate appearing for the contesting defendants-Opposite Party Nos. 1 to 4, drew my attention first to Order 43, Rule 1(d) of the Code of Civil Procedure which says that an appeal lies from an order under Order 9, Rule 13 rejecting an application (in a case open to appeal) for an order to set aside a decree passed ex-parte was allowed on contest. I could not under stand why this provision is shown to me because here an application under Order 9, Rule 13 of C.P.C. was allowed and not set aside. He further submitted that the Court should not as a matter of rule interfere if an application under Order 9, Rule 13 of C.P.C. is allowed. He further submitted that the learned Judge has fully complied with the direction of the Honble Supreme Court and considered the alleged relinquishment deed and the effect thereof and thereafter came to a decision rightly allowing the application under Order 9, Rule 13 of C. P. C. In support of hi3 contention he cited the case of Pandurang Dhoni Chougule v. Maruti Harigue Yadav reported in (1966) 1 SCR 102 and of R. Cambray and Co. (P) Ltd. v. Bishnu Banerjee reported in 1988(1) Cal LJ 160.;