Calcutta High Court (Appellete Side)
Pg (Pradip Chatterjee vs Anup Kumar Samanta & Ors.) on 26 July, 2018
1
01 26.07.2018 S.A.T. 54 of 2018
pg (Pradip Chatterjee vs. Anup Kumar Samanta & Ors.)
Mr. Hiranmoy Bhattacharya
Mr. Saunak Bhattacharya........for the appellant
Mr. Amal Krishna Saha............for the respondent
This second appeal is directed against the judgment and decree dated December 22, 2017 of the first appellate court affirming the judgment and decree dated April 25, 2014 passed by the trial court in an eviction suit.
The landlords, being the plaintiffs, had instituted the suit for eviction of their tenant, M/s. S. Roy and Company represented by the sole proprietor Mr. B.K. Chatterjee on, inter alia, the grounds of default in payment of rent and additions/alterations effected to the suit property. When the suit was instituted in the year 1993, it was the West Bengal Premises Tenancy Act, 1956 (hereafter the 'Act of 1956'), which was in operation and the tenant could have claimed protection in terms of the provisions contained therein.
Prior to institution of the suit, from which this appeal arises, the predecessor-in-interest of the plaintiffs-respondents had instituted Title Suit No. 85 of 1974 in the 4th Court of Munsif at Alipore. The defendant in that suit was M/s. S. Roy and Company, a proprietorship business of one Kamala Prosad Roy. The 1974 suit was instituted for eviction of the defendant from the self-same property, which was the subject matter of the 1993 suit. A compromise petition was filed in the 1974 suit wherein the defendant admitted to be a 2 defaulter in the matter of payment of rent. The parties to the 1974 suit agreed to payment of current and future rent as well as the rent in arrears. Clause 5 of the compromise petition, however, reveals that the defendant agreed to forfeit whatever protection could be availed of under section 17(4) of the Act of 1956 in case of future defaults. The 1974 suit was decreed on the terms of the compromise entered into by and between the parties and such petition was directed to form part of the decree.
In due course of time, Mr. B.K. Chatterjee gained control of M/s. S. Roy and Company, the tenant, referred to above. There was a default in payment of monthly rent once again apart from additions/alterations, which Mr. B.K. Chatterjee appears to have effected on the basis of alleged verbal permission given to him by the plaintiff in the 1974 suit. The present plaintiffs- respondents, who are the successors-in-interest of the plaintiff of the 1974 suit, thus, approached the Civil Judge, Junior Division, 2nd Additional Court at Alipore with the 1993 suit, which as noted above, was decreed on the twin grounds of default as well as additions/alterations effected to the suit property by the defendant M/s. S. Roy and Company represented by Mr. B.K. Chatterjee.
During the pendency of the 1993 suit, Mr. B.K. Chatterjee passed away and in his place, his son Mr. Pradip Chatterjee was brought on record. The learned Judge of the trial court recorded that during his life time, Mr. B.K. Chatterjee had filed a written statement wherein there were admissions to the effect that Mr. B.K. 3 Chatterjee was well and truly aware of the compromise decree in the 1974 suit and also that M/s. S. Roy and Company was the tenant. Despite such admissions, after the demise of Mr. B.K. Chatterjee, Mr. Pradip Chatterjee filed a further written objection. He denied that M/s. S. Roy and Company was the tenant; on the contrary, it was his case that Mr. B.K. Chatterjee in his personal capacity was a tenant and upon his death, Mr. Pradip Chatterjee stepped into his late father's shoes as the tenant.
We found from the learned trial Judge's discussions on issues 4, 5 and 6 that the ground of default in payment of rent as well as additions/alterations effected by Mr. B.K. Chatterjee were found to have been proved on the basis of the materials placed before such court, and that the first appellate court also recorded concurrent findings of fact to the effect that the learned Judge of the trial court was justified in decreeing the suit on the basis of the aforesaid grounds of default and additions/alterations.
Mr. Bhattacharya, learned advocate appearing for Mr. Pradip Chatterjee, the appellant in this second appeal has sought to contend that there was no second default committed by the tenant and, therefore, the tenant was entitled to protection of section 17(2) of the Act of 1956. According to him, the learned Judges of the court below committed gross error in holding that there was a second default for which the tenant was not entitled to protection under section 17 of the Act of 1956. This, according to him, is a substantial question of law arising for decision in the appeal, for which the same ought to be 4 admitted.
We are afraid, we cannot agree with Mr. Bhattacharya. It was M/s. S. Roy and Company that was the tenant under the plaintiff of the 1974 suit and it having committed a default and having specifically agreed not to claim the benefit of protection envisaged under section 17 of the Act of 1956 in case of a future default, the learned Judges of the court below were right in concluding that there had indeed been a second default for which the protection envisaged by section 17 of the Act of 1956 would not be extended to the tenant in course of the 1993 suit. The learned Judge of the trial court disbelieved the version of Mr. Pradip Chatterjee that his late father was the tenant and not M/s. S. Roy and Company or that after the death of Mr. B.K. Chatterjee, the tenancy devolved on him.
In view of the aforesaid findings with which we concur, we see no reason to entertain the second appeal. The same stands dismissed, without any order as to costs.
In view of our aforesaid findings, we have not examined the other ground on which the suit was decreed viz. additions/alterations to the suit property.
We grant the appellant three months time to deliver vacant and peaceful possession of the decretal property to the respondents in this appeal, failing which execution proceedings may be initiated and concluded in accordance with law.
Urgent photostat certified copy of this order, if applied for, be furnished to the parties expeditiously. 5
(ASHA ARORA, J.) (DIPANKAR DATTA, J.)