Calcutta High Court (Appellete Side)
Dina Nath Saha & Anr vs Ashok Kumar Bansal & Anr on 16 March, 2012
Author: Tapan Kumar Dutt
Bench: Tapan Kumar Dutt
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Present :
The Hon'ble Justice Tapan Kumar Dutt
S.M.A. 209 of 2006
DINA NATH SAHA & ANR.
VS.
ASHOK KUMAR BANSAL & ANR.
Mr. Debasish Roy
Mr. Pran Gopal Das ... For the Appellants.
Mr. Priyabrata Mukherjee
Mr. Sumit Kumar Roy
Mr. Murari Chakraborty
Mr. Nayeemuddin Munshi
... For the Respondent No.1.
Heard on : 15.03.2012, 16.03.2012
Judgment on : 16.03.2012
Tapan Kumar Dutt, J :
Today hearing has been concluded. This court has heard the learned Advocates for the respective parties.
The facts of the case, briefly are as follows:-
The plaintiffs/appellants filed a suit for eviction against the respondent No.2, Abhoy Singh Jain. The said suit was numbered as Title Suit No. 138 of 1991 in the Court of the Learned 3rd Munsif at Alipore which was ultimately placed before the Learned First Additional Civil Judge (Junior Division) at Alipore and was re- numbered as T.S. No. 179/94. The Learned Trial Court by Judgement and decree dated 22nd December, 2000 decreed the said suit granting a decree for recovery of khas possession of the suit premises in favour of the plaintiffs and directing the defendant in the said suit to quit and vacate the suit premises within a stipulated period of time. The said suit was decreed on the ground that the defendant was found to be guilty of subletting the suit premises in favour of one Ashok Kumar Bansal.
The respondent No.1, Ashok Kumar Bansal, filed an application under Order 21 Rule 99 read with Section 151 C.P.C. praying before the Learned Court to determine the questions of right, title and interest of the respondent No.1 in the suit property and also the question of executability of the decree which was allegedly fraudulently obtained by the decree holder, that is, the plaintiffs/appellants. However it may be stated here that the tenant- defendant/judgement-debtor did not prefer any appeal against the decree for eviction. Be that as it may, in the application under Order 21 Rule 99 read with Section 151 C.P.C. the respondent No. 1 (Ashok Kumar Bansal) claimed to be a tenant in the suit property being inducted by the plaintiffs/ appellants at a monthly rent of Rs.250/-
payable according to English Calendar. It was alleged in the said application that at the time of induction of the respondent No.1 in the suit premises the appellants had represented to the respondent No.1 that the original tenant, that is, the judgement-debtor had vacated the tenanted premises and had delivered vacant and peaceful possession of the same to the plaintiffs/appellants who had received rent from the respondent No.1 but did not issue rent receipts and ultimately declared that the original tenant had not surrendered peaceful possession to the landlords (plaintiffs/appellants). It was also alleged in the said application that there was a talk of execution of a formal agreement of tenancy between the respondent No.1 and the appellants but the said execution of the agreement was deliberately delayed by the appellants. The said application was contested by the plaintiffs/appellants by filing a written objection wherein the plaintiffs/appellants stated that the respondent No.1 was inducted illegally as a sub-tenant by the original tenant (Abhoy Singh Jain) without the knowledge and consent of the plaintiffs/appellants and the respondent No.1 is an unlawful sub-tenant in the suit property. The appellants further stated in the said written objection that they had no knowledge about the handing over of the possession of the suit property to the respondent No.1 by the said original tenant. According to the appellants, the respondent No.1 has no legal right, title and/or interest in the suit premises.
The said application under Order 21 Rule 99 read with Section 151 came up for hearing when the Learned First Additional Court of Civil Judge (Junior Division) at Alipore by order dated 25.11.2003 dismissed the said application under order 21 Rule 99 read with Section 151 CPC (registered as Misc. Case No. 11 of 2002) as not maintainable.
Challenging the said order dated 15.11.2003 the respondent No.1 filed Misc. Appeal No. 383 of 2003 which was placed before the Learned Additional District and Sessions Judge, 5th Court, Alipore, 24 Pgs. (South). The Learned Lower Appellate Court by its judgement dated 28.6.2005 allowed the said Misc. Appeal and set aside the order dated 15.11.2003 passed by the Learned Civil Judge, Junior Division, 1st Additional Court, Alipore in Misc. Case No. 11/2002.
Challenging the said judgement dated 28.6.2005 passed in Misc. Appeal No. 383 of 2003 the plaintiffs have filed the instant appeal being SMA 209 of 2006.
The Learned Advocate appearing on behalf of the plaintiffs/appellants submitted that the respondent No.1 could only produce one rent receipt allegedly issued by the mother of the plaintiffs/appellants wherefrom it appears that Rs.195/- was allegedly paid as rent even though the respondent No.1's case is that Rs.250/- was the rate of rent. The said Learned Advocate drew the attention of this court to the fact that only the signature of the plaintiffs' mother, Suprobha Sarkar, was marked as an exhibit. The said Learned Advocate submitted that even though the signature has not been disputed but the contents of the said alleged rent receipt was not written by either the plaintiffs or their mother and the respondent No.1 has manufactured the said document for the purpose of his case. There is another document on record being ext.1 which purportedly shows that an advance rent was received by one of the landlords from the respondent No.1 but in such document also only the signature of one of such landlords has been marked exhibit. With regard to the contents of such document the Learned advocate for the appellants submitted that the contents were not written either by the plaintiffs or their mother and the document being ext. 1 has been manufactured by respondent no.1 for the purpose of his case. The said Learned Advocate submitted that the respondent No.1 could not produce a single rent receipt which could be said to have been issued by the landlords. The two documents being ext.1 and ext. 3 are manufactured documents which the respondent No.1 has adduced as evidence in the instant case. The said Learned Advocate submitted that very likely the said ext.1 and ext. 3 were blank papers initially and might have been signed by the plaintiffs' mother and one of the plaintiffs and the original tenant was in possession of the same but those have been subsequently wrongfully utilised by the respondent No.1 for the purpose of his case. The said Learned Advocate submitted that if there was any genuine agreement of tenancy between the plaintiffs/appellants and the respondent No.1 and the plaintiffs/appellants had refused to issue rent receipts even after accepting rent, the respondent No.1 could take steps under Section 25 of the West Bengal Premises Tenancy Act, 1956 or even send the rent by money order to the landlords, but the respondent No.1 did not take any such step whatsoever. The said Learned Advocate referred to the evidence of one of the landlords to show that rent receipts were never granted by the landlords or their mother. The said Learned Advocate referred to Exts. 2 and 2A. Ext. 2A happens to be a letter written by the respondent No.1 to the plaintiffs/appellants wherein the respondent No.1 writes that he is residing at the suit premises since 1981 with his family being allowed by the original tenant but since 1981 the original tenant is not visiting the suit premises as the said original tenant is living at Agarpara, 24 pgs. (south) with his family. In the said letter the respondent No.1 requested the landlords to please treat the respondent No.1 as a direct tenant by granting tenancy in favour of the respondent No.1. The letter ends with the request that the landlords should look into the matter.
Exhibit 2 happens to be another letter dated 5.4.1988 written by the respondent no.1 to the landlords as a reminder to the earlier letter dated 12.9.1985. In this letter the respondent no.1 describes the earlier letter as an application regarding the tenancy and the same prayer has been repeated in this letter to the effect that the landlords should treat the respondent no.1 as a tenant by granting tenancy receipts.
The learned Advocate appearing on behalf of the appellants submitted that these two letters if read together will lead to the conclusion that the purported documents being Exbts. 1 and 3 were manufactured ones. He submitted that if at all, for the sake of argument, even if it is assumed that the landlords had taken any advance rent or the landlords' mother had accepted any rent from the respondent no.1, the question of writing the aforesaid two letters would not have arisen. He submitted that the aforesaid two letters would clearly show that the landlords never consented to the illegal sub-letting made by the original tenant in favour of the respondent no.1.
The said learned Advocate cited a decision reported at 1992(1) CLJ 174 in support of his contention that in order to claim a right of tenancy one has to produce a rent receipt and if one cannot produce such rent receipt, he has to show that he has taken recourse to the provisions of Section 25 of the West Bengal Premises Tenancy Act, 1956. He cited another judgment reported at 2011(3) C.L.J. (Cal) 404 which took into consideration the aforesaid reports (1992(1) C.L.J.
174). In paragraph 18 of the said reports the Hon'ble Division Bench of this Court was pleased to observe "The story of refusal to issue rent receipt is totally fabricated and the learned trial Judge has rightly refused to accept such story. Had it been true fact of refusal of rent receipt in normal course of event the appellant ought to have taken action under Sections 25(1) and 25(2) of the West Bengal Premises Tenancy Act, 1956 but no step was taken. Therefore, it is apparent that it was not a case of tenancy."
In paragraph 23 of the said reports, the Hon'ble Court was pleased to observe that Section 25 of the said Act of 1956 makes it clear that the tenant must obtain rent receipt as in case of refusal to issue, or non-issue of rent receipt by the landlord protective measure in the Act itself has been provided. It will appear that in the said reports argument was made at the Bar that mere length of possession of the property simpliciter is not good enough to hold that there exists tenancy right. It appears that in paragraph 22 of the said reports the Hon'ble Court was pleased to observe that the factum of possession of the appellant in the said case was hardly of any relevance and the relevancy is in what capacity the party has been in possession.
The said learned Advocate referred to another judgment reported in A.I.R. 1988 S.C. 145, in support of his contention that for the purpose of any lawful sub-letting written consent of the landlord must be obtained particularly when the act complained of is at a time much after the enactment of the said Act of 1956.
The Hon'ble Supreme Court was pleased to hold that it was necessary for the tenant to obtain the consent in writing for the purpose of sub-letting the premises and that mere permission or acquiescence will not do. The Hon'ble Supreme Court was further pleased to observe that consent must be to the specific sub-letting and must be in writing.
The learned Advocate cited another decision reported at 71 C.W.N. 282. In paragraph 6 of the said reports the Hon'ble Court was pleased to observe inter alia that "In the circumstances, it is clear that there was no consent in writing of the landlord to sub-letting by the tenant and, as the statute requires previous consent in writing of the landlord to such sub-letting for its protection under the statute, such implied consent, event if there was any, would not to relevant."
The said learned Advocate made another submission that the original tenant did not surrender the tenancy in favour of the landlords and the said original tenant could not have surrendered such tenancy in favour of any other person. He cited a judgment reported at A.I.R. 1994 Punjab & Haryana 60 in this regard and referred to paragraph 8 of the said reports. The said learned Advocate submitted that in any event it was not even pleaded in the application under Order 21 Rule 99 of the Code of Civil Procedure that rent receipt was granted by the plaintiffs' mother or any receipt was granted by the landlords in respect of any alleged advance rent and the said Exbts. 1 and 3 cannot be relied upon in the absence of any pleadings supporting such purported evidence. He cited a decision reported at A.I.R. 2003 S.C. 4319 and referred to paragraph 9 of the said reports, in support of his submission that in the absence of pleadings no evidence can be looked into and/or relied upon.
The learned Advocate for the appellants made another submission to the effect that the learned Lower Appellate Court made out a third case while coming to the finding that when Abhoy Singh Jain (original tenant) surrendered his tenancy, he inducted the respondent no.1 as a sub-tenant in the suit premises and the respondent no.1 was inducted by the original tenant and such act was subsequently ratified by the landlords by receiving rents from the respondent no.1 and the landlord had executed the said document after receiving the advance rent. The learned Advocate for the appellants submitted that such case was not made out in the application under Order 21 Rule 99 of the Code of Civil Procedure. In the said application the respondent no.1's specific case was that he was inducted by the plaintiffs/appellants at a rental of Rs.250 per month. But the learned Lower Appellate Court came to a finding which has resulted in making out a third case which is not permissible under law.
The learned Advocate appearing on behalf of the respondent no.1 has submitted that there was no need to prove the contents of the Exbts. 1 and 3 separately as the signatures appearing on such documents have been admitted. The said learned Advocate submitted that since 1981 the respondent no.1 has been in possession of the suit property and the landlords never objected to it nor the landlords took any steps against the respondent no.1. He submitted that the respondent no.1 obtained the aforesaid rent receipt of Rs.195/- only for the purpose of protecting his possession in the suit property and the advance-receipt of Rs.5000/- purportedly issued by the landlords is also a genuine one. The said learned Advocate submitted that the plaintiffs cannot describe the said Exbts. 1 and 3 as manufactured and/or forged ones as they did not call for any expert's opinion on the same. He has further submitted that there was a draft agreement of tenancy between the landlords and the respondent no.1 and such draft agreement was corrected by one of the landlords but such draft agreement was ultimately not singed by any of the parties. His further submission was that it is a case of acquiescence by the landlords i.e. with regard to the stay of the respondent no.1 in the suit property. The said learned Advocate cited a decision reported at A.I.R. 1972 S.C. 608, in support of his contention that once a document has been marked Exhibit without any objection it is not open for any party to object to their admissibility and once a document is properly admitted, the contents of the documents are also admitted in evidence though those contents may not be conclusive evidence.
He cited another decision reported at 1996(1) C.L.J. 372 in support of his contention that if the signatures to the documents have been admitted or proved the contents of the said documents automatically go into evidence when the documents have been admitted into evidence without objection. He further submitted that it may be that the landlord did not finally accept the respondent no.1 as a tenant but the said Exbts. 1 and 3 and also Exbt. 10 would go to show that the respondent no.1 has been a tenant in the property in dispute.
There is no dispute that the contents of the documents marked as Exbts. 1 and 3 were not written by either the landlords or the landlords' mother and the question in the instant case is as to whether or not one can come to the conclusion that the respondent no.1 has been acknowledged to be a tenant under the landlords by the landlords themselves. There is no dispute with regard to the fact that the original tenant was one Abhoy Singh Jain. The respondent no.1 has taken contradictory stands in the instant case. In the application under Order 21 Rule 99 of the Code of Civil Procedure the respondent no.1 stated that he was inducted in the suit property by the landlords themselves after Abhoy Singh Jain had surrendered the tenancy. Subsequently, it is found that there has been a shift in the stand taken by the respondent no.1. The respondent no.1 tried to contend that Abhoy Singh Jain had inducted him into the suit property which was subsequently ratified by the landlords. There is nothing to show on record that the landlords ever ratified the induction of the respondent no.1 in the suit property. The learned Lower Appellate Court had made out a third case which is inconsistent with the case made out in the application under Order 21, Rule 99 of the Code of Civil Procedure. This Court will have to decide this matter taking into consideration the materials on record as a whole and not simply rely upon some documents in isolation. If Exbts.1 and 3 are considered in the light of Exbts. 2 and 2A then the question would arise as to what prompted the respondent no.1 to write the aforesaid letters in 1985 and thereafter in 1988. Obviously, the respondent no.1 had not been acknowledged as a tenant in the suit property by the landlords and that is the reason why the respondent no.1 had to write a letter to the landlords requesting the landlords to accept the respondent no.1 as a tenant in the suit property. Obviously the landlord could not oblige the respondent no.1 at least for one reason which stands out and the said reason is that the original tenant had not surrendered the tenancy in favour of the landlords. Without such surrender of tenancy the landlords could not have inducted the respondent no.1 in the suit premises even if it is assumed for the sake of argument that the landlords were ever willing to induct the respondent no.1 in the suit premises as a tenant. Thus, the evidence on record would show that the landlords did not intend to induct the respondent no.1 in the suit premises as a tenant. The propositions of law laid down in the aforesaid reports as cited at the Bar cannot be disputed but the decisions which were cited on behalf of the respondent no.1 in this regard cannot be of any assistance to the respondent no.1 in the facts of the instant case.
The learned Advocate appearing on behalf of the respondent no.1 submitted that the respondent no.1 was not made a party in the eviction suit and therefore the eviction decree is not binding on the respondent no.1. It will appear from the records that no written consent was ever obtained from the landlords for the purpose of sub- letting the suit premises and the provisions of Section 16 of the West Bengal Premises Tenancy Act, 1956 was also not complied with. The time period of one month stipulated in Section 16(1) of the West Bengal Premises Tenancy Act, 1956 expired long ago even if it is assumed for the sake of argument that the respondent no.1 came into the suit property in 1981. The letter being Exbt. 2A was written in 1985 and that letter has only been described as an application. In the facts of the present case the plaintiffs/appellants were not under any legal obligation to implead the respondent no.1 as a party to the eviction suit. Neither the original tenant nor the respondent no.1 ever gave any notice within the stipulated period of time under Section 16(1) of the said Act of 1956. The learned Advocate for the respondent no. 1 cited a decision reported at 85 Calcutta Weekly Notes 594 in this regard but as already discussed above the facts of the present case are such that the said reports cannot be of any assistance to the respondent no.1.
Reference was also made by the said learned Advocate to the decision reported at 2002(1) C.H.N. 385 in support of his contention that apart from a rent receipt tenancy can be approved by other materials and/or documents. The said decision was also cited by the said learned Advocate in support of his contention that long possession in the suit property makes it a case in favour of the person who is possessing the suit property and/or claiming tenancy in the suit property. In the present case, the respondent no.1 has failed to bring on record any document or any other piece of evidence to show that he was lawfully inducted in the suit premises as a tenant. The purported agreement of tenancy which is said to be corrected by one of the landlords remains to be an unsigned document and thus neither of the parties are bound by such unsigned document. There is, thus, nothing on record to show that any tenancy was created in between the landlords/plaintiffs and the respondent no.1. In the present case it will appear that the suit for eviction was filed by the plaintiffs in the year 1991 and the respondent no.1 claims that he has been in possession of the suit property since 1981. The letters of the year 1985 and 1988 were written by the respondent no.1 after he had allegedly taken possession of the suit premises. It, thus, cannot be said that there has been an uninterrupted long possession on the part of the respondent no.1 as it is obvious the landlords/plaintiffs were contemplating filing a suit for eviction after the respondent no.1 came into possession of the suit property as would appear from the records. It may be noted that in such reports the Hon'ble Court in paragraph 22 was pleased to deprecate the acceptance of any new case and such acceptance of the new case, it appears, had vitiated the judgement which was under challenge before this Hon'ble Court. In the present case also it appears that the learned Lower Appellate Court had made out a new case, as already indicated above, which did not find any place in the application under Order 21 Rule 99 of the Code of Civil Procedure.
The learned Advocate for the appellants was right in his submissions that the learned Lower Appellate Court committed an error in making out a third case while passing the impugned judgement. The said learned Advocate also was right in his submission that the letters of the year 1985 and 1988 would show that the documents marked as Exbts.1 and 3 cannot be believed. The argument made by the learned Advocate for the respondent no.1 that no expert opinion has been called for is not a substantial argument. In view of the fact that the signatures appearing on such documents were not disputed by the plaintiffs/appellants but the contents of such documents were disputed, the question of calling for an expert opinion in this case did not arise. It cannot be said that the landlords who had filed the suit for eviction and for recovery of possession of the property in dispute were under any legal obligation to make the respondent no.1 as a party to the suit in the facts of the present case.
In view of the discussions made above, this Court is of the view that the impugned judgment/order cannot be sustained and it has to be set aside. It is true that the learned First Additional Court of Civil Judge (Junior Division) at Alipore dismissed the Misc. Case concerned as not maintainable and not on merits, but, since ultimately the learned Lower Appellate Court has gone into the matter on merits, this Court has also considered the matter on merits and has come to the conclusion that the impugned judgement and decree should be set aside and the Misc. Case concerned filed by the respondent no.1 should also stand dismissed on merits.
Accordingly, the present second miscellaneous appeal is disposed of by setting aside the impugned judgment/order of the learned Lower Appellate Court and also by dismissing the Misc. Case No.11 of 2002, as aforesaid, filed by the respondent no.1.
There will, however, be no order as to costs.
LATER After the aforesaid judgment is delivered, the learned Advocate for the respondent no.1 prays for stay of operation of this judgment for a period of eight weeks. The learned Advocate for the plaintiffs/appellants opposed such prayer.
Let there be a stay of operation of this judgment for a period of eight weeks.
Urgent certified xerox copy of this judgment, if applied for by the parties, shall be given to the parties as expeditiously as possible on compliance of necessary formalities.
(Tapan Kumar Dutt, J.)