Calcutta High Court
Vithalbhai Pvt. Ltd. vs Union Bank Of India on 12 February, 1992
Equivalent citations: AIR1992CAL283, (1992)2CALLT96(HC), AIR 1992 CALCUTTA 283, (1996) 3 BANKLJ 312, (1992) 2 BANKCLR 268, (1992) 2 CALLT 96, (1992) 2 RENCR 462
JUDGMENT
1. In this suit the plaintiff has claimed for possession of certain demised premises from the defendant. The facts of the case are not much in dispute and the principal question is one of law.
2. By a lease dated 25th June, 1963 the plaintiffs became lessees of the demised premises under one Wachel Molla & Sons. The lease was to expire after a period of 21 years.
3. The defendants in the instant suit became sub-tenants under the plaintiffs under another subsequent lease dated 17th July, 1964, for a period commencing from 1st April, 1964 and to expire with expiry of 24th June, 1984. The parties have not disputed before me that in so far as these long leases are concerned, they are outside the purview of the provisions of the West Bengal Premises Tenancy Act, 1956.
4. The instant suit was filed on the 16th April, 1984. The period of the defendants' leasehold had not run out by then. It is also not in dispute that so far as the lease as between the Wachel Molla and Vithalbhai is concerned, the same has run out, as apparent. from the face of that lease, with the expiry of 25th June, 1984.
5. The point in this suit is whether a subtenant like the defendant in this suit can resist the claim for possession made by its immediate landlord against it on the basis that this landlord has lost title or right to possession under the lease by way of which the (immediate landlord) was originally holding the property.
6. The point, to my mind, is well settled by authorities and hardened principles oflaw. A tenant, in so far as he claims as a tenant, is not permitted to dispute the tijle of the landlord from whom his tenancy attd possession have been derived. This is a rule of estoppel expressly enacted in the Evidence Act itself. On that basis, even a: trespasser landlord can maintain a suit for eviction as against his tenant and it would not be open to the tenant to challenge the title of the landlord in any manner whatsoever. The reason for this long standing rule is simple to understand. The tenant comes into possession from and by reason of the landlord. As such, he shall hand over possession to that person from whom he originally came to acquire it and shall not raise pleas or obstacles in that regard.
7. It little matters whether the lease of Vithalbhai with Wachel Molla expired on 25th June, 1984 or 24th June, 1984, was one day prior, or subsequent, to the date of expiry of the lease of the defendant, i.e. Union Bank of India. The defendant is not entitled to enquire about the original title of the admitted landlord Vithalbhai Private Limited and a claim for possession cannot be resisted on the ground.
8. It may appear at first flush that a person who is apparently not entitled to retain possession with himself is obtaining a decree for possession as against another person. It might be a matter of surprise to the lay mind but to the legal mind, it does not present any contradiction. The law is well aware of relative rights arising as amongst different parties based on relationships amongst the parties themselves. As between the plaintiff and the defendant in this suit, the defendant cannot resist a claim for possession. That does not in the least mean that the right of Vithalbhai to obtain possesion as against the Union Bank of India is a right that can be enforced by Vithalbhai in rem in respect of the demised property. The decree as against Union Bank binds only Union Bank of and the same could be put into execution against the Union Bank or others claiming through it. On this basis, the question of Vithalbhai's original title clearly appears to be a matter of complete irrelevance.
9. Mr. Kapoor appearing with Mr. Sinha on behalf of the plaintiff relied, in the above regard, upon two cases being the case of Bhaiganta Bewa and Krishna Rao, reported respectively in (1916) 24 Cal LJ page 103 : (AIR 1917 Cal 498) and AIR 1932 Mad 298. In my opinion, it was rightly contended on the basis of the aforesaid two authorities that the true proposition of law is that an estoppel against a tenant preventing him from disputing the title of the landlord continues, so long as the tenant continues in factual possession of the demised premises. Such estopel does not cease with the running out of even the head lease of the immediate landlord in question. Mr. Kapoor submitted that on the basis of the Madras authority it could be demostrated that a landlord can maintain an action for possession against his tenant even if the landlord himself at that time was already a judgment-debtor in respect of a decree for possesison obtained as against the immediate landlord by his superior landlord.
10. In our case, we do not have to travel that far. The superior landlord Wachel Molla has instituted another suit for the demised premises and both the parties in the present suit are parties in that suit which is Suit No. 493 of 1984 pending in this Court. What the result of that suit will be is not important in the matter of decision in the instant suit. It is logically quite conceivable, though the matter need not, and indeed cannot, be pronounced upon immediately, that the plaintiff in this suit obtains possession from the defendant in this suit, only for the purpose of handing over possession in its turn to Wachel Molla in case they succeed in their suit mentioned above and successfully put decree into execution.
11. In defending the suit, during arguments, it was not disputed about the above position of law regarding the tenant's inability to challenge the title of its landlord; it was conceded to be the true position at law. It was also not dispute that the defendant came into possesion of the entirety of the demised premises as a tenant of the plaintiff and by reason of the agreement of tenancy as between the plaintiff and the defendant.
12. The claim of the plaintiff was sought to be resisted upon two points. At first it was said that the suit in April, 1984 was premature and that a suit for eviction could not have been filed properly until after expiry of the lease in favour of the defendant, i.e. the suit could not have been filed properly before 25th June, 1984. With due respect to counsel, it is a matter of such extreme technicality as is not easily comprehensible to me. Even before institution of the suit, learned Advocates on behalf of the defendant had written by a letter dated 8th November, 1983 that the defendants had been advised not to vacate the premises. Under these circumstances the claim for possesison made in the suit as claim (c) of the plaint was appropriately inserted even in the month of April, 1984 on the not unreasonable assumption that the defendant would not vacate on or immediately after the 25th June, 1984.
13. If the suit could theoretically be disposed of even before the expiry of 3 or 4 months i.e., before the expiry of 24th June, 1984, it would still be open to Court to pass a decree for eviction and made that decree executible only after expiry of 24th June, 1984. Under these circumstances, it is impossible to see how the suit was premature. It could only be that a different and unusual type of decree might have been called for, if he suit had come up for hearing immediately afterits filing. It is not perhaps inappropriate to mention that the same could have happened under the provisions of Chapter XIIIA of the Rule on Original Side of this Court.
14. The case was relied upon in the above regard. A learned single Judge decided in that case of Rangayya Naidu that if a suit was premature then the only way for the plaintiff was to have that suit dismissed and institute a fresh suit. The decision was given in the context of a mortgatgor not being allowed to redeem a mortgate before the contractually fixed term therefor. The case to my mind cannot be applied to the facts of the present case in any manner whatsoever. The technical rules relating to acontract contained in a mortgage do not apply to a case of lease. Moreover, the law of amendment of pleadings has undergone a radical change since 1926 and subsequent relevant facts are permitted to be pleaded in the plaint with a great flexibility and freedom in the present day. The cases in this regard are so numerous and so recent that no specific reference to them should be necessary.
15. With regard to amendment, one Supreme Court case was relied upon, i.e., the case of Ganesh Trading and reliance was placed upon paragraph 5 of the report. Nothing appears from a whole reading of the case to throw any doubt upon the validity of the amendments that were permitted to be incorporated in the plaint. These amendments were incorporated when the defendant, true to its representation, did not vacate the premises upon the arrival of 25th June, 1984. The claim for possession was already there. Accordingly the expiry of lease was put on record and astatement and a claim were inserted for the purpose of claiming mesne profits. I am of the opinion that such introduction of subsequent facts and subsequent claims has already been pronounced upon in the grant of permission of amendment given by Justice C.K. Banerjee in His Lordship's order dated 27th February 1985. Such amendment clearly did not introduced any new cause of action or change the suit in any manner whatsoever but merely was consequent upon the apprehension of the plaintiffs turning out to be right, that the defendant would not vacate upon expiry of lease.
16. The second point taken on behalf of the defendant was that the demised premises are for a floor area of 2975 Square Feet. It was shown that the demised premises as between Wachel Molla and the plaintiff herein was for only 2500 Square Feet. It was demonstrated from the recital portion of the leases as well as the written statement in the Wachel Molla's suit that the plaintiff came to possess the extra area of nearly 500 Square Feet on and from the time of possesion obtained by the plaintiff through the Sheriff of Calcutta. It was said that for this extra portion, the plaintiff has claimed itself to be a monthly tenant at least in the alternative case made in the written statement in Wachell Molla's suit. It was also sought to be contended that the defendants accordingly can have a separate defence with regard to this portion of the premises.
17. I again express my inability to see what that defence might be. It little matters to the defendant whether the plaintiff was a trespasser or a monthly tenant or a tenant continuing in possesison after expiry of lease. The estoppel against the lessee would operte equally well and with equal strength in each of the above three cases. A monthly tenant might, vis-a-vis his landlord, have no right to give a sub-lease of 21 years of 22 years but if that sub-lease is granted then after the expiry of that term of 21 years or 22 years the sublessee cannot turn back and plead in defence the original monthly tenancy of his immediate landlord. That is prevented by the rule of estopel mentioned above.
18. In view of the above, the first six of the seven issues raised on the part of the defendant must be answered in favour of the plaintiff. The issue raised were as follows:
"1. Is the plaintiff entitled to a declaration that the plaintiff is entitled to vacant and peaceful possession of the suit premises to be delivered by the defendant to the plaintiff on expiry of June 24, 1984?
2. Is the plaintiff entitled to any perpetual injunction restraining the defendant, its agents, and servants from giving possession of the suit premises or any part thereof to any person other than the plaintiff on the expiry of June 24, 1984?
3. Is the plaintiff entitled to a decree for vacant possession of the suit premises?
4. (a) Is the plaintiff entitled to any mesne profit in respoect of the suit premises as alleged in para 11C of the plaint?
(b) If so, at what rate and for what period?
5. (a) Is the plaintiff entitled to a decree for damages as alleged in para 11 of the plaint?
(b) If so, for what amount?
6. (a) Was the suit premature when instituted?
(b) Is the suit devoid of cause of action by reason of subsequent events?
7. To what reliefs, If any, the plaintiff is entitled?
19. In so far as the claim for damages or mesne profits is concerned, it would be possible today even without any further evidence to pass a decree for mesne profits at the rate of I Rupee per square feet per month for the area demised to the defendant. That was the sub-lease rate. However, the defendant wishes to prove a larger rate on the basis of further evidence to be adduced at an enquiry.
20. Mr. Sinha in his regard has pointed out the provisions of 0.20 R. 12 of the Civil P.C. and has prayed for an enquiry and an opportunity to prove a larger rate of obtainable rent per square feet. In view of the plaintiffs success in obtaining a decree for eviction as against the defendant as well as the declaration that the defendant's possession as against the plaintiff became wrongful on and from 25th June, 1984, it would be unfair to the plaintiffs to deprive them of the opportunity of proving a higher rate of mesne profits if the same can be established on the basis of reliable evidence before a Commissioner.
21. There shall be a decree in terms of claims (a) and (b) of the plaint. There shall also be a decree for vacant possession of the premises in suit. There shall be a decree declaring the plaintiff to be entitled to mesne profits on and from 25th June, 1984 until delivery of possession.There shall be a preliminary decree appointingMr.Girish Gupta as Commissioner for the purpose of conducting the enquiry and ascertaining the mesne profits to be awarded to the plaintiff per square feet per month for the demised premises measuring 2975 square feet be it a little more or less as mentioned in the deed of sub-lease being part of Exhibit-A in this suit Upon conclusion of such enquiry the plaintiff shall be entitled to apply in this suit for obtaining a final decree for the amount found due.Mr.Gupta shall be paidaninitial remueration of 200 Gms.; further remuneration to be fixed at the time of confirmation of report. The plaintiff shall be entitled to the costs of this suit and all the costs, charges and expenses of the proceedings before the learned Commissioner, certified for two counsel. Let the learned Commissioner's report be made and published within a period of six months from date hereof.
22. All parties the learned Commissioner and the Department will act upon a signed copy of the minuted portion of this judgment and decree upon the undertaking of the plaintiffs Advocate-on-Record to have a decree completed in the usual course of business.
23. Stay of operation of the judgment and decree is prayed for but refused.
24. Order accordingly.