Calcutta High Court
Abl International Ltd vs M.A.Mahood on 27 January, 2015
Author: Soumen Sen
Bench: Soumen Sen
ORDER SHEET
GA 3535/2011
CS 232/2011
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
ABL INTERNATIONAL LTD.
Versus
M.A.MAHOOD
BEFORE:
The Hon'ble JUSTICE SOUMEN SEN
Date : 27th January, 2015.
Mr. S.N. Mitra, Sr. Adv. with Mr. A. Mukherjee, Adv. appears for plaintiff.
The Court : This is an application under chapter XIIIA of the Original Side Rules for a final judgment for recovery of possession of the suit property and for various amounts claimed in paragraph 34 of the petition.
In the petition it is stated that the defendant is the husband of one Ms. Zulekha Ruksana (since deceased). Sometime prior to June 1, 1971 it was agreed between Sudera and the said Ruksana that Sudera will lease out to the said Ruksana and Ruksana shall take on lease from Sudera an office space measuring 210 sq.ft. on the first floor of the suit premises as Block 1/V for a consolidated monthly rent of Rs.200/- which included basic rent, air condition charges in addition to share of municipal tax for 21 years commencing from June 1, 1971.
It is stated that on the basis of the aforesaid agreement, Ruksana was given possession of the demised premises. However though agreed upon yet no 2 deed of lease was executed between Sudera and Ruksana recording the terms and conditions of the lease. It is stated that Ruksana continued to occupy the demised premises by paying consolidated rent as increased from time to time on the basis of the agreement as above.
Even after expiry of 21 years on May 3, 1992, the said Ruksana continued to occupy the premises and agreed to pay enhanced rent on the terms and conditions that were to be agreed between Sudera and Ruksana. On the basis of such representation, Ruksana was allowed to continue with occupation. A memorandum of understanding (MOU) was entered into on June 10, 1996 recording the terms and conditions of occupation of the demised premises on and from June 1, 1992. It is stated in the said MOU in clause 6(b) thereof that in the event the Calcutta Management Association vacated its present office at the premises at 1, Shakespeare Sarani, Calcutta, Ruksana would have no objection to her being shifted to any other portion of the building on mutually agreeable terms and conditions and should hand over the demised premises at block 1/V on the 1st floor to Sudera. In September 2006 Calcutta Management Association vacated the portion on the 1st floor of the premises and the same was handed over to the plaintiff. Immediately thereafter the plaintiff approached the defendant who was looking after the demised premises for and on behalf of Ruksana and requested the defendant to vacate the same and if so desire could shift to any other portion of the said premises which was then lying vacant, on the terms to be mutually agreed upon.
It is alleged that the defendant initially refused to vacate, but subsequently vacated the demised premises and shifted to 6th floor of the said premises. It is alleged that the defendant however expressed inability to immediately agree to the rate of rent to be payable for the said new accommodation. It is stated that at the time of delivering possession of the new accommodation on the 6th floor, the plaintiff insisted that the defendant should enter into a formal agreement and pay the rent at the prevailing market 3 rate subject to further negotiation. It is stated that in spite of such assurance, no formal agreement was entered into by the plaintiff and the defendant.
Under such circumstances, on March 25, 2010 a notice to quit was issued. Subsequent thereto in November 2010, the plaintiff for the first time came to know that the said Ruksana had expired on March 17, 2006. It is claimed in the plaint that the plaintiff never agreed to let out the suit property to the defendant. The question of the suit property being let out by the plaintiff to the defendant could not and did not arise. The possession of the defendant in the suit premises is that of a trespasser and the defendant as such is liable to be evicted from the suit property. The plaintiff has claimed rent payable in respect of the suit property at the then prevailing market rent being Rs.71/- per sq.ft. per month, being Rs.2700/- per month. Since 2007 the plaintiff did not receive any rent on account of the suit property. The plaintiff came to know of the death of Ruksana on November 19, 2010. The defendant being the husband of Ruksana at best was entitled under the West Bengal Premises Tenancy Act to continue with possession of the suit property for a period not exceeding five years from the death of Ruksana.
Despite the notice to quit dated November 19, 2010, the defendant failed to quit the property. The plaintiff has pleaded alternative facts in the plaint. It is stated that since the defendant was not dependent on Ruksana, in any event on expiry of five years from March 17, 2006 the defendant ceased to have any right to keep the suit property. The defendant is liable to quit the suit premises. On such facts as stated in the plant, the plaintiff has filed the suit for eviction of the defendant as a trespasser along with certain monetary claims.
Although the defendant is not represented, but Mr. Mitra, learned senior counsel, appearing on behalf of plaintiff has fairly submitted that an opposition has been filed on behalf of the defendant and has produced before 4 this court a copy of such affidavit. In the said affidavit the defendant has pleaded that the tenancy on the first floor was not surrendered but it was exchange with the tenancy on the 6th floor on the same terms and conditions as existing on the date of surrender. It is stated that the defendant however informed the Manager of the plaintiff regarding the death of Ruksana. Thereafter, sometime in September 2007 Mr. Surendra Kumar Rampuria, Chairman of the plaintiff personally stated to the defendant to shift from the 1st floor of covered space to the north eastern portion of the 6th floor. The defendant accordingly shifted from the 1st floor office space to the 6th floor in terms of the said MOU entered into between Sudera and Ruksara. The plaintiff accepted the defendant as a tenant in place of his deceased wife and the defendant was assured that there shall be no enhancement in rent and the terms and conditions will be the same as his wife was enjoying. It was assured to the defendant that the existing arrangements and facilities would continue. It is stated that the defendant paid the rent till October 2007 @Rs.1563.95 per month and thereafter as soon as the defendant was shifted to 6th floor the plaintiff stopped accepting the rent from the defendant. The defendant always tried to pay the rent but the Manager of the plaintiff avoided accepting the rent on some pretext or the other. It is categorically denied that the plaintiff was not aware of the death of Ruksana prior to November 2010. It is categorically stated that the defendant is under no obligation to pay the rent at the prevailing rate since it was mutually agreed between the plaintiff and the defendant that the rate of rent would be the same as in case of the 1st floor tenancy.
Mr. Mitra submits that on the basis of the pleadings this court can safely conclude that there is no defence to the claim of the plaintiff and a decree for summary eviction should follow. It is submitted that an application under Chapter XIIIA has to be decided on the basis of affidavit evidence and the court will be required to enquire and ascertain if the affidavit in opposition discloses a bona fide defence or a triable issue is raised. The defendant 5 having accepted that his wife is no more alive and a period of five years elapsed since her death, the defendant could not have continued to remain in possession of the premises after March 16, 2011. The defendant has failed to disclose any document to show that the plaintiff ever accepted the defendant's tenancy or any rent receipt had been issued in favour of the defendant. Though the defendant is not represented but the court is required to consider the affidavit in opposition filed in the proceeding. Even in the absence of affidavit in opposition, the court while deciding an application is required to be satisfied whether any ground is made out to exercise a discretionary and sweeping power under Chapter XIIIA of the Original Side rules. The court should be very cautious in deciding such application since any order passed in such proceeding allowing such application would cause serious and grave prejudice to the defendant as the suit is not being heard as a regular suit but the fate of the suit is decided in a summary manner.
The reading of the plaint in my view itself would show that the plaintiff made alternative pleadings in order to succeed to claim. On one hand it would appear that the cause of action is founded on the provisions of the West Bengal Premises Tenancy Act but on the other it is stated that the suit is for eviction of a trespasser. The success of the suit would largely depend on a finding being arrived at that after the death of the wife no agreement has been reached between the plaintiff and the defendant to continue occupation of the demised premsies. There is at least some evidence on record to show that even after the death of the wife, the plaintiff continued to accept the rent from the defendant and in fact the defendant was shifted to the 6th floor. The plaintiff possibly cannot claim ignorance of the death of Ruksana having regard to the fact that the shifting to 6th floor had taken place after the death of Ruksana. The tendering of rent and acceptance thereof constitutes a contract. Whether the defendant was accepted as a tenant by the plaintiff is an issue to be decided at the suit. The other question would arise whether the suit would be 6 maintainable. If it is established that the defendant is a tenant under the West Bengal Premises Tenancy Act, then having regard to the composition of the rent this court would not have the jurisdiction. These are the matters in my view require to be taken into consideration in deciding the present application. However, having regard to the fact that the defendant has stated that after October 2007 the defendant could not pay the rent as the plaintiff had stopped accepting the rent from the defendant, it is clear that the defendant is a defaulter and both under the provisions of the Premises Tenancy Act and the Transfer of Property Act a tenant and/or a lessee can be evicted on the ground of default in making payment of rent. Moreover, occupation of the premises in question without paying any rent or other charges would neither be just or equitable in the facts and circumstances of the case. The defendant is occupying the premises without paying any rent or discharging any liability. The defendant also does not produce any document to show that the defendant in fact has deposited such rent to the Rent Controller. Moreover, in the event ultimately it is found that there is no agreement between the parties, the occupation of the defendant is that of a trespasser and this makes the plaintiff to suffer and wait till the mesne profit is determined.
In such circumstances, the defendant shall be permitted to defend the suit on condition that the defendant shall deposit with the Registrar, Original Side a sum of Rs.4 lakhs within a period of four weeks from the date of communication of this order. In the event the said amount is paid, the defendant shall be permitted to file the written statement within two weeks thereafter. However, in default, the plaintiff shall be entitled to summary eviction in terms of prayer (a) of the summons. In the event the defendant deposits the amount with the Registrar, the Registrar shall keep the same in a suitable fixed deposit account yielding highest interest and shall keep the same renewed from time to time until further orders.
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This application is disposed of accordingly. However, there shall be no order as to costs.
(SOUMEN SEN, J.) tk