A. M. Bhattacharjee, J.
1. We dismiss this secpnd appeal as we find nothing to warrant our interference with the finding of the first Appellate Court that the suit for ejectment, giving rise to this appeal, is bad for non-service of notice under Section 13(6) of the West Bengal Premises Tenancy Act, 1956.
2. It would be trite to say that a notice of suit by the landlord to the tenant under Section 13(6) of the West Bengal Premises Tenancy Act is a condition precedent to the institution of a suit by the landlord for ejectment of his tenant on any of the grounds mentioned in Section 13(1), except a suit based on the tenant's agreement or notice to quit as provided in Clauses (j) and (k) of Section 13(1). Such a notice in this case was sought to be served by the appellant-landlord to the respondent-tenant by registered post by addressing one copy of such notice to the tenanted premises and another copy to the tenant's alleged place of business and in para 10 of the plaint, the plaintiff-landlord has averred that while the 'notice sent by registered post with acknowledgement due to the said premises was refused by the defendant and the registered cover had been sent back', 'the other registered notice addressed to his office, even though he was carrying on business there, was returned with the false and collusive endorsement 'the door of the office was always closed.' The plaintiff landlord has based his suit on the first notice sent by registered post to the tenanted premises which has come back with the postal endorsement 'refused' and the trial court has accepted the same as valid and effective service. The first appellate Court has, however, held that since the defendant pledged his oath categorically denying service of notice on him and since the postal peon has not also been examined to prove the alleged tender by him and refusal by the tenant, the notice cannot be deemed to have been properly served upon the defendant.
3. This finding has been seriously assailed by Mr. Saktinath Mukherjee, the learned counsel appearing for the landlord-appellant and it has been very strongly urged that the presumption of due service arising from a despatch of a notice by registered post would operate with all its force even without the postal peon's testimony in its support and cannot be out-weighed by a mere denial on the part of the addressee. It has been urged that if the evidence of the postal peon would still be necessary to prove tender and refusal then the presumption of due service arising out of a despatch by registered post under Section 28 of the Bengal General Clauses Act (corresponding to Section 27 of the Central General Clauses Act) and under Section 114(e) of the Evidence Act would become almost otiose.
4. It is true that there is the high authority of Sir Ashuthosh, speaking for the Division Bench of this Court in Gobinda Chandra v. DwarkaNath, 19 Cal WN 489 at p. 496 : (AIR 1915 Cal 313 at Pp. 317-318), to the effect that a postal endorsement without the evidence of the postman may not go in as a legal piece of evidence unless foundation for its entry is made out under Section 32 of the Evidence Act on the ground of the peon being dead or being not otherwise available or easily available for evidence. But notwithstanding such pronouncement entry of such postal endorsements in judicial records has all along received judicial imprimature even without any such foundation and without the testomony of the postman, so much so, that Chakravarty, J. (as his Lordship then was) has had to observe in Nirmalabala v. Provat Kumar, (1948) 52 Cal WN 659 at p. 663 that the preponderance and weight of authority is against this view in Gobinda Chandra (supra). And the decision of the Supreme Court in Puwada Venkateshwara Rao v. Chidamana Venkata Ramana, : [1976]3SCR551 has now approved this view in the Nirmalabala (supra) and has ruled that 'it is not always necessary, in such cases, to produce the postman who tried to effect service' and, therefore, according to the Supreme Court, the postal endorsement may go in without the postman.
5. But accepting that the postal endorsement goes in without the postman on the witness-dock, we do not think that the despatch of a notice under Section 13(6) of the West Bengal Premises Tenancy Act, even by registered post, would carry with it the obligatory presumption of due service under Section 28 of the Bengal General Clauses Act, 1899. As one of us had occasion to point out, while speaking for a Division Bench of this Court, in Md. Shahariyar Baiq v. R. P, Bhal, (1987) 91 Cal WN 197 at p. 208, the obligatory presumption of due service under Section 28 of the Bengal General Clauses Act would operate, as would appear from the opening words in that Section, only 'where any Bengal Act or West Bengal Act.....authorises or requires any document to be served by registered post.' But Section 13(6) of the West Bengal Premises Tenancy Act, nor any other provision in that Act, authorises or requires any notice there under to be served by post It is true both in Radharani v. Angur Bala, (1961) 65 Cal WN 1119 and in Satya v. Suresh, (1961) 65 Cal WN 1239, it has been held by two Division Benches of this Court that service of notice under Section 13(6) of the West Bengal Premises Tenancy Act may also be effected in any of the modes prescribed for the service of notice under Section 106 of the T.P. Act But even though the modes of service under Section 106 of the Transfer of Property Act, including service by post, have thus been made available to the service of a notice under Section 13(6) of the West Bengal Premises Tenancy Act, the judicial dicta to that effect in those decisions cannot amount to legislation making statutory incorporation of the provisions relating to service under Section 106, T.P. Act in Section 13(6) of, or anywhere else in, the West Bengal Premises Tenancy Act. And, therefore, it cannot be said that the West Bengal Premises Tenancy Act, or for the matter of that, any Bengal or West Bengal Act authorises or requires a notice under Section 13(6) to be served by post or registered post. And if that is so, them the obligatory presumption of due service in; respect of a notice under Section 13(6) of the West Bengal Premises Tenancy Act cannot operate under Section 28 of the Bengal General Clauses Act.
6. It should be noted that Gobinda Chandra v. Dwarka Nath, 19 Cal WN 489 : (AIR 1915 Cal 313) (supra) was decided in 1914 before Section 106 of the T.P. Act was amended by the Amendment Act of 1929 providing for sending of notice by post and that is why no presumption of due service of notice sent by registered post arising under Section 27 of the General Clauses Act, 1897 (corresponding to Section 28 of the Bengal General Clauses Act) was at all referred to and all that was taken into consideration was only the permissive presumption of service by post under Section 114 of the Evidence Act at p. 498 (of Cal WN) : at P, 319 of AIR) (supra). In Nirmalabala (1948) CWN 659, (supra) however, the presumption under Section 28 of the Bengal General Clauses Act was taken into consideration (at p. 664) as in that case Section 163(3}(c) of the Bengal Tenancy Act required sending of the concise statement by registered post thereby squarely attracting Section 28. In the Division Bench decision in Hari Pada v. Joy Gopal, (1935) 39 Cal WN 934, it was no doubt ruled that postal endorsement of refusal in respect of a writ of summons sent by registered post is 'prima facie good enough evidence of service'. But there also, it must be noted, the relevant provisions of Chap. VIII, Rule 11 of the Original Side Rules of this Court authorised service, by registered post.
7. It is true that an optional presumption of due service may still be available under the provisions of Section 114 of the Evidence Act in respect of notices sent by post in view of Illustrations (e) and (f) of that Section. But the presumption being optional, the Court in a given case may think it fit not to raise any such presumption in the facts and circumstances of that case. As already noted, it is the plaintiffs own case in para 10 of the plaint that the other copy of the notice also sent by registered post to the defendant's place of business has come back with a false postal endorsement to the effect that 'the door of the office was always closed' and such assertion by the plaintiff as to the falsity of the postal endorsement may be taken, to have gone a long way to put the court on guard against the raising of a presumption of due service in respect of the other copy of the notice which has come back with the postal endorsement 'refused'. If in that context, and in view of the categorical testimony of the defendant that such a notice was never tendered to him and the non-examination of the postal peon to prove such tender, the first appellate court has declined to raise a presumption of due service and has been inclined to hold that such a presumption stood rebutted, the court has committed no error of law, far less any substantial error and, at its most, can be said to have made an erroneous appreciation of the materials on record, even if we think that some other view was reasonably possible on a closer scrutiny of the evidence.
8. In the Division Bench decision in Gobinda Chandra, (AIR 1915 Cal 313) at p. 498 (of Cal WN): (at p. 319 of AIR) (supra), it was ruled that 'the presumption mentioned in Section 114 is not a presumption of law but a presumption of fact and where, as in this case, the defendant pledges his oath that the cover was never tendered to him,' the presumption would stand rebutted. That has also been accepted to be the position in law in Nirmalabala, (1948-52 Cal WN 659 at p. 665) (supra). The decision of a much later Division Bench in Amal Kumar Banerjee v. Santi Devi, (1979) 83 Cal WN 753 is also to that effect. And the decision of the three Judge Bench of the Supreme Court in Puwada Venkateswara Rao v. Chidmane Venkata Ramana, : [1976]3SCR551 (supra) appears to have endorsed this view while approving the decision of the Bombay High Court in Meghji Kanji v. Kundanmai, : AIR1968Bom387 to the effect that presumption of due service has been repelled by the defendant's statement on oath that he has never refused the notice as it was never brought to him. It is true that in that decision, the Supreme Court has also approved the decision of this Court in Nirmalabala, (1948) 52 Cal WN 659 (supra) to the effect that there may be presumption of due service under Section 114 of the Evidence Act in respect of a document sent by post even without the evidence of the postman. But, as pointed out by the Supreme Court, both the views are reconcilable and the position in law is that while the Court may presume due service without the postman as a witness, the Court may also decline to raise such a presumption if in view of the sworn assertion of the addressee to the contrary it is satisfied that such assertion is otherwise reliable and, therefore, good enough to repel such presumption. It should be noted that in the Supreme Court decision in Puwada Venkateswara Rao (supra), the notice required to be served was under Section 106 of the T.P. Act which expressly authorises sending of a notice by post and, therefore, a Central Act having thus authorised such service by post, the provisions of Section 27 of the General Clauses Act providing for an obligatory presumption of due service were attracted and the case was not one where only an optional presumption under Section 114 of the Evidence Act was to be raised. Reference may also be made to a later decision of the Supreme Court in Har Charan v. Siva Rani, AIR 1981 SC 1284 where also the presumptions operating under Section 27 of the General Clauses Act and also Section 114 of the Evidence Act were taken into consideration in respect of a notice under Section 106 of T.P. Act sent by registered post; it may, however, be noted that in that case the postman was also examined to prove tender and refusal.
9. The upshot, therefore, appears to be that where a notice is required or authorised to be served by post under any Central or State enactment and a notice is accordingly despatched by registered post, an obligatory presumption of due service would arise under the relevant provisions of the Central or the State General Clauses Act Where any such notice is not required or authorised to be served by post, but a notice is nevertheless served by post, registered or ordinary, a court may, not that it must, in a given case raise a presumption of due service under the provisions of Section 114 of the Evidence Act But in either case, the Court may, in view of the sworn assertion of the addressee to the contrary, or some other reliable evidence on record, hold any such presumption, whether obligatory or optional, to have been rebutted.
10. Be that as it may, if in view of the defendant's pledging his oath in denial of tender and refusal and the absence of any direct evidence as to such tender and refusal of the notice from the postman or any other witness on behalf of the plaintiff, and the plaintiffs own assertion in the plaint that the other copy of the notice, also sent by registered post, has come back with false postal endorsement, the first appellate court has declined to hold in favour of due service, it has only made a finding of fact on assessment of evidence which would be beyond challenge in second appeal, even if we are inclined to think that some other finding was also possible on a closer scrutiny of the evidence on record. As already noted, Section 13(6) of the West Bengal Premises Tenancy Act not having required or authorised service of notice by post, the presumption of due service which would operate is not the obligatory one under Section 28 of the Bengal General Clauses Act, but the optional one under Section 114-- Illustrations (e) and (f). But such a presumption may very often be outweighed by a contrary or counter presumption operating under that very Section 114, and as is well known, one of the presumptions operating under Illustration (g) of that Section is that evidence which could be, but is not, produced, would, if produced, be unfavourable to the person who could produce it. And if under the facts and circumstances of this case, as noted above, the first appellate court has also taken into consideration the fact that the postal peon could be, but has not been examined by the plaintiff to clinch the issue as to tender and refusal, it has only assessed and appreciated the evidence on record in its own way, but cannot be said to have committed any error, far less any substantial error, of law to warrant our intervention in second appeal
11. Mr. Mukherjee has, however, drawn our attention to para 15 of the written statement where the tenant has averred that in view of two earlier notices issued by the landlord, the present suit-notice could not legally be issued and was therefore 'invalid' and 'out of context' as the tenant 'has not waived and/or consented to the waiver of the earlier notices' and the learned counsel has urged that the tenant has accordingly waived his right to any further notice and therefore non-service of this notice would not be fatal Such a plea was, however, never raised at any stage in the two courts below; but we are satisfied that this contention, even if allowed to be raised at this stage, has no substance. Assuming, though not deciding, that the right to a notice under Section 13(6) can be waived notwithstanding the non obstante clause governing that sub-section, we do not think that a person entitled to a notice can be said to have waived his right to any such notice simply by contending that in view of an earlier notice, the later notice is ineffective or inoperative. A person entitled to a notice cannot waive any notice, but can only waive his right to such notice. Once a notice is served, it can only be waived by the person giving the same, though, as pointed out in Section 113 of the T.P. Act, 'with the express or implied consent of the person to whom it is given.' According to the principle enacted in that section, a notice by a landlord to a tenant would stand waived by a second and similar notice, provided that the tenant has consented, at least impliedly, to such waiver. Assuming, therefore, that the two earlier notices were served on the tenant as alleged, those have been waived by the issuance of a third and much later notice by the landlord and the tenant not having complied with the earlier notices by acting or offering to act thereon, has obviously demonstrated his implied consent to such waiver. The landlord having thus waived the earlier notices, if any, can only succeed on proof of service of the later notice on the strength of which the present suit has been filed As we have already indicated, we have found nothing to interfere with the finding of the first appellate Court that the service of such a notice has not been proved and, therefore, the judgment of the first appellate Court in allowing the appeal and dismissing the suit on such finding would stand.
12. Both the courts below have, however, found that the tenant-respondent used the premises let out for residential purposes, or at least a part thereof, for some other purpose within the meaning of Section 13(1)(h) of the West Bengal Premises Tenancy Act and also within the meaning of Section 108(o) of the T.P. Act read with Section 13(1)(b) of the West Bengal Premises Tenancy Act and was liable to be evicted on that ground, but for the finding of the first appellate Court as to the non-service of notice under Section 13(6). Section 13(1)(b) provides inter alia that a tenant shall be liable to be evicted if he has done any act contrary to the provisions of Section 108(o) of the T.P. Act which mandates that the tenant 'must not use' the lease-hold 'for a purpose other than for which it was leased', while Section 13(1)(h) provides that the tenant shall be liable to be evicted 'where premises let out for residential purpose have been used for any other purpose for more than four months without the consent in writing of the landlord'. We are inclined to think that since Section 13(1)(b) of the Act read with Section 108(o) of the T.R Act provides generally for all cases of change of user, whatever might be the original purpose, and Section 13(1)(h) specifically provides for cases of change of user of premises originally let out or residential purpose only, the said provision in Section 13(1)(h) would supersede the general provisions of Section 13(1)(b) read with Section 108(o) of the T.P. Act in respect of premises let out for residential purpose. In other words, a landlord seeking to evict a tenant from premises let out for residential purpose on the ground of change of user must bring the case squarely within the provisions of Section 13(1)(h) by proving change of user by the tenant at least for four months without the landlord's written consent and cannot fall back on the general provisions of Section 13(1)(b) read with Section 108(o) of the T.R Act.
13. Be that as it may, the first appellate court has, however, found that 'the plaintiff succeeded in proving the non-residential user of a part of the disputed premises and Mr. S.R Roy Chowdhury, the learned Counsel for the tenant-respondent has urged that in order to invoke Section 13(1)(h), the non-residential user must relate to the entire premises and not merely to a part thereof. The learned counsel has pointed out that while Section 13( l)(a) providing for eviction on the ground of unauthorised transfer of sub-letting of the premises and Section 13(1)(c) providing for eviction on the ground of user of the premises by the tenant for immoral or illegal purposes have used the expression 'in whole or in part the premises' or 'the premises or any part thereof, Section 13(1)(h) has used the expression 'premises' only and the learned counsel has accordingly urged that while transfer or subletting, or immoral or illegal user, of even any part of the premises would bring the case within the mischief of Clause (a) or Clause (c) of Section 13(1), Section 13(1)(h) would not be attracted unless the whole of the premises in entirety have been subjected to changed user. It appears that such a contention was raised before a Division Bench of this court in Kalachand v. Panchanan, ILR (1976) 1 Cal 411 at p. 421 and the Division Bench was inclined to hold that the contention that wrongful diversion of any part, even if minor, would attract the provisions of Section 13(1)(h), was an 'extreme proposition' and the Division Bench in effect held that if a substantial part of the tenancy is substantially used for a non-residential purpose, that, would amount to change of user of the premises within the meaning of Section 13(1)(h). To the same effect is the decision of a later Division Bench of this Court in Girdharilal Soni v. Maya Roy, (1985) 89 Cal WN973 which has followed Kalachand v. Panchanan (supra) and has also relied on another unreported Division Bench decision of this Court in Bimal Chandra v, Srish Krishna (L.P. Appeal No. 231 of 1974), decided on 19th Sept 1975), which, however, held that change of user should relate to major or substantial portion of the premises. A later Division Bench in Ana Ghosh v. R. D. Anklesaria, (1985) 89 Cal WN 675 has, however, struck a different note and has observed that a change of user, in order to attract S, 13(1)(h), need not necessarily cover a major or substantial portion of the premises and according to that Division Bench, a reference to a larger Bench would have been made if the determination of that question was necessary for the disposal of the appeal before it We are, however, inclined to think that a reasonable synthesis can and should be made of these two apparently conflicting views thereby obviating the necessity of any larger Bench reference and that synthesized view should be as hereunder. The word 'premises' in Section 13( l)(h), otherwise unqualified, may not ordinarily mean a mere part or portion thereof. But where the changed user covers a major portion of the premises, or when the changed user, though quantitatively not covering a major portion, is qualitatively such that it has become the major or the dominant purpose of the tenancy, so much, so, that the original purpose has paled into relative insignificance, the 'premises' are to be regarded to have been subjected to such changed user for the purpose of Section 13(1)(h).
14. Our view would find support from the two decisions of the Supreme Court in Premchand v. District Judge, : [1977]2SCR170 and Sant Ram v. Rajinder Lal, : [1979]1SCR900 . In Premchand at p. 366 of AIR 1977 SC (supra), the Supreme Court has held that the fact that in a portion of the tenanted premises the tenant runs a tailoring shop would not convert a residential tenancy to a non-residential one if 'to all intents and purposes' it otherwise continues to be a residential one, that is, if the major or dominant purpose of the tenancy continues to be residential. In Sant Ram (supra), it has been held that it is impossible to hold that if a tenant taking out a premises for carrying on small trade also stays in the rear portion, cooks and eats, he disastrously perverts the purpose of the lease and that 'a different purpose in the context is not minor variations, but majuscule in mode of enjoyment.' The prominent or the dominant purpose must change to effect a change or diversion of purpose to attract the mischief of the law.
15. As already noted, the first appellate Court has found that the plaintiff has succeeded in proving 'non-residential user of a part of the disputed premises', but has not made any finding that such part is the major part, or that at any rate, the non-residential user, though not covering the major portion, has become the major, substantial, dominant or prominent purpose of the tenancy. Mr. Mukherjee, the learned counsel for the landlord-appellant has urged that there is overwhelming evidence on record to warrant a finding that not only the major purpose of the tennacy has become non-residential but that a major portion of the premises is also covered by such user and has invited us to determine that issue in exercise of our powers under Section 103 read with Section 107 of the Civil P.C. We might have thought of having that issue re-determined by ourselves or by the first appellate Court, but since we are affirming the finding of the first appellate Court as to the non-maintainability of the suit for non-service of notice under Section 13(6) of the West Bengal Premises Tenancy Act, such a course, in our view, would have been an exercise in futility.
16. The trial court decreed ejectment also on the ground that the plaintiff reasonably required the tenanted premises for his own occupation, but the appellate court has overturned this finding. Such a finding, to the extent it is based on assessment and appreciation of facts, cannot call for our intervention in second appeal. But it appears that the first appellate court has also based its finding on two propositions of law and we are afraid that in doing so, the court has gone wrong. The trial court held the age of the plaintiff-landlord to be 54 on the date of his deposition on 23-11-1981 and held further that as the plaintiff would be attaining the age of super annuation within a few years and would have then to vacate the premises allotted to him by his employer, he would be reasonably requiring the tenanted premises for his own occupation on such retirement The first appellate Court has, however, held that the evidence as to the age of the plaintiff appears only at the heading of his deposition and the same cannot in law be admissible as evidence. The first appellate Court has further held that Clause (ff) of Section 13(1) providing for ejectment of the tenant on the ground of the landlord's reasonable requirement for own occupation can be invoked only for a requirement existing 'at the time of trial' and not for one that may arise at a future date 'on the contingency of the plaintiffs attaining a particular age.'
17. As to the first proposition, it is truethat an impression has gained ground thatstatement of age of witness at the heading ofdeposition is no evidence and the decision ofPrivy Council in Musammat Maqboolan v.Ahmad Husain, (1904) 31 Ind App 38 andthat of this Court in Lakshan Chandra v.Takim Dhali, 28 Cal WN 1033 : (AIR 1924Cal 558) are treated to be authorities for theproposition. We do not think that thesedecisions can be treated to be sealingauthorities for the blanket proposition thatstatement as to the age of a witness at theheading of deposition can never be treated asevidence. It should be noted that in the PrivyCouncil decision in Musammat Maqboolan(supra), the heading of the deposition was asfollows:
'Musammat Ghafooran, wife of Eda, Caste Sheikh, age forty years, of Dewa on solemn affirmation.'
18. It was, therefore, apparent that all that the heading showed was that a certain witness of certain description, i.e., of certain age, caste etc., was administered solemn affirmation and the evidence of that witness followed after those descriptions. The heading only described the witness with reference to her caste, place of residence, age etc. and only showed that such a witness of those descriptions was put on solemn affirmation and that she deposed as was recorded thereafter. Under these circumstances, it was held by the, Privy Council (at p. 45 of 31 Ind App) that 'the description of the witness in the heading of the deposition,........ is no pan of the deposition proper -- that is, no part of the evidence given by the witness on solemn affirmation'. But in this case before us, the heading of the deposition is quite different and is as hereunder :
'Deposition of witness No. 4 for the plaintiff taken on oath/solemn affirmation on the 23rd day of Nov. 1981'.
and then the following statements have been recorded: --
'My name is Manoranjan Dasgupta, son of late Jyotish Chandra Das. My age is 54 years. I reside at Flat 21, Alipore Estate, 8/6/1, Alipore Road..........'
19. This would at once demonstrate that the statement as to the age was made by the witness after the witness was already put on oath/affirmation and then proceeded to make his deposition and was, therefore, not a mere description of the witness, as it was in the Privy Council case in Musammat Maqboolan (1904-31 Ind App 38) (supra), but was very much a statement by the witness and that too on oath/solemn affirmation. This was, to borrow from the aforesaid Privy Council decision a 'part of the evidence given by the witness on solemn affirmation' and was, therefore, 'evidence proper' and accordingly the ratio in the Privy Council decision cannot apply to warrant its exclusion from evidence. The decision of this Court in Lakshan Chandia, (AIR 1924 Cal 558) (supra) merely relied on the aforesaid Privy Council decision without any discussion whatsoever and since in our view the Privy Council decision is clearly distinguishable, the decision of this Court merely following the same would also stand distinguished. We are fortified in our view by a Division Bench decision of the Patna High Cour in Chotan Singh v. Emperor, AIR 1928 Pat 420 where the Privy Council decision was distinguished and it was pointed out that though the Privy Council held that heading of the deposition was not part of the evidence on solemn affirmation, 'the position is different now' and 'the name, parentage, age, residence and profession of a witness form part of the deposition on solemn affirmation and not part of the heading'. For the reasons stated by us in some details hereinbefore, we respectfully agree with this view and we accordingly hold that the first appellate court was wrong in holding that the age of the plaintiff stated at the heading of his deposition was not a part of his evidence.
20. As to the second proposition, we are afraid that the first appellate Court in holding that for the invocation of Section 13(l)(ff), the requirement must be currently existing at the date of the trial and can never be one to arise in future, has stated the law too rigidly. We are inclined to think that a requirement, even though not immediately existing, may still be good enough for the purpose of Section 13(l)(ff) if it is certain to arise in a reasonably foreseeable future. If the requirement is otherwise reasonable, it would be good enough to sustain a decree for ejectment even though it has not come into immediate existence at the date of, the trial, but is certain to arise in reasonable time in the near future. As was pointed out by Krishna Iyer, J. (as his Lordship then was in the Kerala High Court) in A.P. Madhaban v. M.P. Ramachandran, 1970 Rent CJ 479, 'knowing that between the institution of the petition and the ultimate order from the apex court years pass, it will be as good as repealing the provision for eviction for bona fide need, if Courts insist in landlords proving a present need as against the prospective but certain need', as otherwise 'when the need confronts him the building will be years away from him' and the 'proceeding in court should not become tantalising trick'. To the same effect is the Division Bench decision of the Punjab and Haryana High Court in J. G. Kohli v. Financial Commissioner, , where this Kerala decision has been relied on and it has been held that it is not the law that the requirement of the landlord must be immediate and existing one but that the landlord is entitled to anticipate his requirement in reasonably foreseeable future. This Punjab decision has been fully endorsed by R.S. Pathak, C.I, (as his Lordship then was in the Himachal Pradesh High Court) in Ram Singh v. Sagar Chand, . As already indicated, we are also inclined to accept this view and are in respectful agreement with these decisions.
21. Affidavit has been filed in this court by the appellant-landlord to prove that he has already retired from service during the pendency of this appeal in this Court and we have been invited to take note of this subsequent event by way of additional evidence. We would have thought of doing so and then to have the question of reasonable requirement determined afresh either by us in exercise of our powers under Section 103 read with Section 107 of the Civil P.C. or by remanding the issue for such determination by the first appellate Court But we have not done so as, in view of our affirming the finding of the first appellate Court as to the non-maintainability of the suit for non-service of the notice under Section 13(6) of the West Bengal Premises Tenancy Act, that would have been a futile exercise.
22. We accordingly dismiss the second appeal, but do not propose to make any order as to costs.
Ajit Kumar Nayak, J.
23. I agree.