Calcutta High Court
Gopal Das Baheti vs Sri Sailendra Chandra Dey & Ors. on 9 April, 1999
Equivalent citations: (1999)2CALLT377(HC), 1999(2)CHN167
Author: T. Chatterjee
Bench: Tarun Chatterjee
JUDGMENT T. Chatterjee, J.
1. By an order dated 9th April, 1999, the application for addition of parties was allowed by us and therefore the heirs and legal representatives of the deceased as mentioned in the said application for addition of parties be brought on record. The memorandum of appeal be amended accordingly.
2. This appeal is directed against the Judgment and decree passed by Sri M. Roy. Judge, 7th Bench of the City Civil Court at Calcutta on 14th July. 1992 in T.S. No. 210 of 1980. By the aforesaid judgment, and decree, the trial court decreed the suit of the plaintiffs/respondents for eviction of the appellant from Premises No. 18C, Mothur Sen Garden Lane. Calcutta 6 Police Station--Jora Bagan (herein after referred to as the "decretal premises") on the ground of expiry of lease. The facts leading to the filing of this appeal are stated in the following manner :--
3. In the year 1958, the defendants in the original suit were Inducted as lessees in respect of the decretal premises by a registered lease for a period of 21 years which was from July, 1958 to June 30, 1979 at a rental of Rs. 160 per month payable according to English Calendar Month. In or about the year 1960. a suit being suit No. 1673 of 1973 (Smt. Bidyut Lata Dey v. Sallendra Chandra Dey) was filed between the heirs and legal representatives of Brajendra Chandra Dey (deceased) in the Original Side of this court for partition and administration of the property left by the deceased Brajendra Chandra Dey. In the said suit, a final decree was passed in the month of April, 1979. In terms of the final decree the decretal premises had devolved upon the plaintiff of the present ejectment suit and he thereby became the absolute owner of the decretal premises. The rent of the premises remained unpaid for a considerable period and. In the year 1979 the said lease expired. Accordingly, the suit, was filed for eviction of the defendants inter alia on the ground of expiry of lease and for mesne profits from the date of expiry of lease till possession was delivered. The suit was decreed by Ihe trial court. It directed the defendats/appellants to deliver possession of the decretal premises in favour of the plaintiffs/ respondents by holding that on the expiry of lease, the defendants/ appellants were not entitled to remain in possession of the same.
4. Feeling aggrieved by this judgment of the trial court, the instant appeal has been preferred at the instance of Sri Gopal Das Baheu who was subsituted in place and stead of the deceased defendant during the pendency of the suit.
5. On behalf of the appellant, Mr. Abhijit Banerjee, a learned advocate of this court contended that in view of the notice to quit served on the defendants during the pendency of the suit under section 13(6) of the West Bengal Premises Tenancy Act, 1956 (herein after referred to as "the Act"), the suit filed for eviction on the ground of expiry of lease was no longer maintainable in law. He had also drawn our attention to Clause IX of the lease deed (Exhibit I) and relying on such a clause contended that proviso to section 3 would be applicable to the facts and circumstances of this case and accordingly, the suit was not maintainable for eviction against the defendents on the ground of expiry of lease as the provisions of the Act would be applicable in the present case.
6. These two submissions of Mr. Banerjee were hotly contested by Mr. S.P. Roychoudhury who appeared on behalf of the plaintiffs/respondents.
7. For the sake of convenience, let us first deal with the second submission of Mr. Banerjee. In order to decide the said submission, it is necessary to refer to Clauses IX of the lease deed--(Exhibit I) which runs as follows :--
"Clause IX :--Lessees may vacate the demised premises at any time after giving the lessor's one month's clear notice ending with the month of tenancy."
At this stage it is also necessary to reproduce section 3 of the Act which runs as follows :-
3. Certain provisions of the Act not to apply to certain leases.-
(1) The provisions relating to rent and the provisions of sections 31 and 36 shall apply to any premises held under a lease for residential purpose of lessee himself and registered under the Indian Registration Act, 1908, where-
(a) such lease has been entered into on or after the 1st December. 1948, and
(b) such lease is for a period of not more than 20 years, and save as aforesaid nothing in this Act shall apply to any premises held under a lease for a period of not less than 15 years.
(2) Notwithstanding anything to the contrary contained in sub-section (I) but subject to sub-section (3) of section 1, this act shall apply to all premises held under a lease which has been entered into after the commencement of the West Bengal Premises Tenancy (Amendment) Ordinance, 1965 :
Provided that if any such lease is for a period of not less than 20 years and the period limited by such lease is not expressed to be terminable before its expiration at the option either of the landlord or of the tenant, nothing in this Act, other than the provisions relating to rent and the provisions of sections 31 and 36, shall apply to any premises held under such lease.
8. As noted herein earlier, relying on proviso to section 3 of the Act which says that if any such lease is for a period of not less than 20 years and the period limited by such lease is not expressed to be terminable before its expiration at the option either of the landlord or the tenant, nothing in this Act other than the provisions relating to rent and the provisions of sections 31 and 36 shall apply to any premises held under such lease. Mr. Bancrjee in this connection had drawn our attention to the words used in proviso to section 3 of the Act only to the extent that in a case where a lease was executed for a period of not less than 20 year and'the period limited by such lease is not expressed to be terminable before its expiration at the option either of the landlord or of the tenant only in that case the provisions of Ihe Act shall not be applicable excepting the provisions relating to rent and the provisions of sections 31 and 36 of the Act. Drawing our attention to Clause IX of the said deed which says that the lessees may vacate the demise premise at any time after giving lessors one month's clear notice ending with the month of tenancy, Mr. Banerjee contended that in view of such clause in the said deed, proviso to section 3(2) of the Act would be squarely attracted in the present case and accordingly, the suit for eviction on the ground of expiry of lease could not be held to be maintainalbe under the provision of the Transfer of Property Act.
9. This submission of Mr. Banerjee at the first glance looked attractive.
10. But considering the entire provision made under section 3 of the Act, it appears to us that the question of accepting such submission cannot arise at all. It is true that Clause-I of the said lease deed provides for termination of lease before its expiration after giving the lessors one month's notice ending with the month of tenancy. It is also true that the lease was for 21 years. But in our view, after considering the entire section 3 of the Act including the proviso it is evident that the proviso to section 3 would only be applicable in a case where such lease was entered Into after Ihe commencement of the West Bengal Premises Tenancy (Amendment) Oridnance, 1965. On a plain reading of section 3 of the Act, it is evident that this section has made different provisions regarding long term lease according to the date of execution of the lease. Such leases have been broadly divided into two clauses.
(1) Those executed after first of December, 1948 and up to 24th August, 1965.
(2) Those executed after 24.8.1965.
11. In this case, it is not in dispute that the lease was executed in the year 1958 that is before the West Bengal Premises Tenancy (Amendment) Ordinance, 1965. section 3(2) of the Act clearly says that notwithstanding anything to the contrary contained in the said sub-section (1) but subject to sub-section (3) of section 1, this Act shall apply to all premises held under a lease which has been entered into after the commencement of the West Bengal Premises Tenancy (Amendment) Ordinance, 1965. From a plaint reading of sub-section (2) of section 3, it is clear that sub-section (2) of section 3 operates notwithstanding the provisions of sub section (1) of section 3, but however, subject to sub section (3) of section 1. Sub-section (2) of section 3 declares that the provisions of the West Bengal Premises Tenancy Act shall apply to all premises held under a lease which has been entered into after the the commencement of the West Bengal Premises Tenancy (Amendment) Ordinance, 1965 that is all the leases that are entered into after 24th August, 1965. Therefore, in our view, section 3 subsection (2) is clear that all leases entered into after 24th August, 1965, the provisions of the Act shall be applicable to all premises held under such lease that is to say only the leases executed after 24th August, 1965 would be governed by the provlsons of the West Bengal Premises Tenancy Act. However the proviso to section 3(2) saves those leases from the operation of the Act which are for a period of not less than 20 years and period limited by such lease is not expressed to be terminable before its expiration at the option either of the landlord or tenant and then only the provisions relating to rent and the provisions of sections 31 and 36 shall apply to premises held under such lease.
12. From the above, we have no hesitation in our mind that the leases which would govern in the ordinary case by the provisions of the West Bengal Premises Tenancy Act, after the commencement of the West Bengal Premises Tenancy (Amendment) Ordinance, 1965 shall not be governed by the same if after the commencement of West Bengal Premises Tenancy (Ame ndment) Ordinance, 1965 such lease was executed for not less than 20 years and in such a lease, there is not express provision for termination of the lease before Its expiration at the option either of the landlord or of the tenant.
13. In that case only the provisions of the Act shall not apply excepting the provisions relating to rent and the provisions of sections 31 and 36 of the Act. Therefore, in our view, if we read section 3(2) and the proviso to such section conjointly, we have no regret to say that proviso would be applicable in a case where the leases were entered into after the commencement of the West Bengal Premises Tenancy (Amendment) Ordinance, 1965. In the present case, there is no dispute that the lease was executed long before the commencement of West Bengal Premises Tenancy (Amendment) Ordinance and, therefore, proviso to section 3(2) of the Act cannot be held to be applicable to the present case. We are therefore not in agreement, with the submission of Mr. Banerjee that in view of the proviso to section 3(2) of the Act and in view of Clause IX of the lease deed-Exhibit I the provisions of the West Bengal Premises Tenancy Act must apply in the present case and accordingly, the suit was not maintainable in law. In any view of the matter, we are of the view that section 3(2) of the Act has not Introduced any change in the law in respect of the teases entered into before 24.8.65 which are still governed by section as it stood and section 3(2) as it now stands. The view that we have expressed on this question finds support from a decision of the Division Bench of this court in the case or Mahendra & Mahendra v. Smt. Kohinoor Devi, 1989(1) Calcutta Law Journal, 360.
14. Let us now deal with the first submission of Mr. Banerjee. He contended that tn view of the admitted fact that during the pendency of that suit the notice to quit under section 13(6} of the Act was served on the appellant, the suit could not be said to be maintainable in law under the general law that is on the ground of expiry of lease entered Into by the parties for 21 years as the appellant had become a direct tenant under the plaintiffs/respondents under the West Bengal Premises Tenancy Act. We are unable to agree with Mr. Banerjee on this question. It is not in dispute that a lease was executed by the lessors in favour of the original lessee in the year 1958 which had expired by efflux of time in the month of June, 1979. It is also not in dispute that a notice to quit was served on the lessee on 16th November; 1979. It is well settled now that in a suit for eviction on the ground of expiry of lease, no such notice to quit would be required to be served on the lessees (See AIR 1979 SC V. Dhanpal Chettiar v. Yesodat Ammal) Therefore, for filing a suit for eviction on the ground of expiry of lease for more than 21 years, where the West Bengal Premises Tenancy Act is not applicable, it is not necessary to serve a notice to quit on the lessee. The suit continued from 1980 to 1990. But during this period of 10 years some events had occurred. After the service of summons from some of the defendants. It appears from the record that some of them had filed Joint written statement and some other had filed separate written statement. During the pendency of the suit, the defendant No. 1 Smt. Suganl Devi died and her heirs were substituted and thereafter one of the substituted heirs namely defendant No. (1e) died and her heirs were substituted. One written statement was filed by the defendent No. le. Wherein they simply denied the allegations made in the plaint, but he also made out a case that the defendant were the monthly tenants of the suit premises at a rental of 167.07 which was payable according to Engllh Calendar Month. Defendant No. (1b) filed a separate written statement wherein the execution of the lease tn favour of the defendant was admitted and also he admitted that the defendant had violated several terms of the lease and also admitted the creation of subtenancy by the lessee in the premises. One Kamala Baheti who was substituted as defendant No. le(1) also filed a written statement in which the entire case of the plaintiff was denied and contended that the defendants were tenants in respect of the suit premises. This written statement was filed by her in the year 1990 whereas the suit for eviction was filed in the year 1980. The specific case of that defendant was that during the pendency of the suit in the month of January, 1990, the plaintiff approached her for granting a new tenancy of the premises in favour of her son Gopal Das Bahetl. That defendant had to pay a lump sum amount for creating such new tenancy, but no receipt was granted though the tenancy was created with effect from January, 1990 and the rent was paid up to March, 1990. Accordingly, the said defendant prayed for dismissal of the suit in view of the aforesaid subsequent event that had happened in the year 1990. Let us first consider whether the case made out by the said defendant in the written statement can be accepted or not. As noted herein earlier, the case made out in the written statement which was filed in the year 1990 after filing of the suit in the year 1980, a new tenancy has been created by the by the plaintiffs in favour of the son of that defendant after the plaintiff had accepted a lump sum money and after accepting the arrears rent from them. In our view, the learned trial Judge was parfeclly Justified in disbelieving such a case. It is unimaginable that a new tenancy will be created by the landlord when the suit for evlctiion was filed 10 years back. Secondly, from the materials on record, it appears to us that the said defendant could not produce any material before the court to Justify his claim that the said tenancy was created in favour of the son of the said defendant after accepting a huge sum of money and the arrears of rent by the landlord/respondent. It has been rightly pointed out by the learned trial Judge in his judgment that it is unimaginable that the arrears of rent and the huge sum of money could be paid by the said defendant to the plaintiff without asking for a receipt for the same. The learned trial Judge was fully Justified in holding that the evidence produced by that defendant in order to prove such creation of new tenancy was very scanty and unreliable. The learned Judge was also justified in drawing an adverse Inference against such claims of that defendant that not a single scrap of paper was filed to establish such fact. Apart from that the written statements filed by the other defendant also did not show that such tenancy was created in favour of the son of that defendant and the plaintiff accepted the son of that defendant as tenant after receiving huge sum of money and also after receiving arrears of rent payable in respect of the lease-hold property. It is not in dispute that the rate of rent was Rs. 160/- per month. In the written statement filed in the year 1990, the rate of rent alleged by that defendant was Rs. 166.07. It is unbelieveable that when the rate of rent in the year 1958 was Rs. 160/- it would be 167.07 per month after about 32 years. Only one receipt which was sought to be produced on behalf of the appellant is the receipt granted by the receiver of the premises in question in the year 1979 which was Exhibit B. It was rlghlly held by the learned trial Judge that the genuineness of the said document on the face of it was doubtful as the final decree between the lessors in respect of the Joint family property which included the decretal premises was passed on 12th April, 1979 and the receiver appointed in the said suit also in respect of the suit premises was discharged with the passing of the said decree. The learned trial Judge has also questioned the genuineness of the said receipt as it appeared to him that receiver signed the said receipt on 2nd May, 1979 whereas the said receipt was dated 17th May, 1979. The deposit of rents after the filing of the suit and after filing the written statement with the rent controller being Exhibit A(1) cannot be said to be a ground for holding that the tenancy was created in the year 1990 in favour of that defendant. Therefore, in our view, the learned trial Judge was fully Justified in holding that the case of creation of new tenancy could not be proved by that defendant/appellant before us. At this stage the first submission of Mr. Banerjee to the effect that the notice to quit having been served during the pendency of the suit by the learned advocates for the plaintiffs, that defendants had become a direct tenant under the plaintiffs/respondents may be considered. In our view, this contention cannot also be accepted. It is true that a notice to quit was served by the learned advocate for the plalntiffs/respondents to the defendant/appellant. Only because the notice to quit was served by the lawyer of the plaintiffs/respondents, it cannot be concluded that the case of creation of new tenancy in the year 1990 when the suit was pending would invite the court to hold that such a tenancy was created. In any view of the matter, only because the notice to quit was served and in the absence of any material to show that tenancy was in fact created, it cannot be held that the defendant/appellant became a premises tenant from 1990 under the plaintiff/respondent. In view of our observations made herein above and in view of the findings of fact arrived at by the trial court to the extent that creation of tenancy could not be proved by the defendant, we are unable to agree with Mr. Banerjee on this question. That apart the finding of the trial court that the lawyer for the plaintiff/respondent did not act properly and in the interest and benefit of his client, in our view, was fully justified in the facts and circumstances and on the materials on record of this case. Accordingly, the first submission of Mr. Banerjee cannot be accepted and is, therefore, overruled.
No other submission was advanced on behalf of the appellant.
Accordingly, there is no merit in this appeal.
The appeal Is, therefore, dismissed.
There will be no order as to costs.
There shall be an unconditional stay of execution for a period of one month from this date if within this period, the appellants files an undertaking to this court stating that he shall vacate the decretal premises peacefully and deliver possession in favour of the plaintiffs/respondents, on the expiry of 31st December, 1999, proceedings in execution shall remain stayed for the aforesaid period subject to the condition that the appellant shall deposit all arears of occupational charges and the current occupational charges in terms of the earlier order passed by the Division Bench at the time of disposal of the stay application and on the basis of the further order made in connection with the prayer for stay of execution and in default, this Interim order shall stand vacated and the plaintiffs, respondents shall be entitled to proceed with the execution case in accordance with law.
S.K. Tiwari, J.
15. I agree.
16. Appeal dismissed