Calcutta High Court
Tarun Kumar Ghosh & Ors vs The Credit Union Cooperative ... on 14 August, 2018
Equivalent citations: AIRONLINE 2018 CAL 1035
Author: Soumen Sen
Bench: Soumen Sen
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IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
BEFORE:
The Hon'ble JUSTICE SOUMEN SEN
G.A.1074 of 2015
G.A. 3723 of 2015
G.A. 3725 of 2015
E.C. 346 of 2015
C.S.771 of 1981
TARUN KUMAR GHOSH & ORS.
VS.
THE CREDIT UNION COOPERATIVE ENTERPRISES LTD.
For the Applicants : Mr. Jishnu Saha, Sr. Adv.,
Mr. Arindam Banerjee, Adv.
Mr. Ashis Kumar Mukherjee, Adv.,
Mr. Sourojit Dasgupta, Adv.,
Mr. Zeeshan Haque, Adv.,
Mr. Srinanda Bose, Adv.,
Ms. Surabhi Banerjee, Adv.
For the Plaintiffs/Decree-holders : Mr. Surajit Nath Mitra, Sr. Adv.,
Mr. Aniruddha Roy, Adv.,
Mr. Sankarsan Sarkar, Adv.,
Ms. Arundhati Mukherjee, Adv.
Hearing concluded on : 24/07/2018
Judgment on : 14/08/2018
Soumen Sen, J.:- St. Mary's Nursing Home Private Limited is the
applicant.
The applicant has filed this application questioning the executability and
enforceability of a decree passed in C.S. No.771 of 1981. The instant application
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has been filed under Order 21 Rule 99 read with Section 47 of the Code of Civil
Procedure.
The plaintiffs are the owners of a very valuable property situated at Ho-
Chi-Minh Sarani formerly known as Harrington Street, Kolkata. Initially, one
Rabindra Chandra Ghose, since deceased, predecessor-in-interest of the present
plaintiffs executed a deed of lease dated 10th August, 1960 in favour of the
defendant for a period of 21 years commencing from 1st July, 1960 at a monthly
rent of Rs.2000/- per month. The said lease deed, inter alia, provided that the
defendant would use the said premises only as a Nursing Home, dispensary,
cooperative stores, cold storage and for manufacture, distribution and sale of
food products and restricts the said defendant to sublet, assign, transfer,
underlet or part with possession of the said premises without the previous
consent in writing of the lessors. The said lease expired by efflux of time. On the
expiry of 21 years, the defendant did not vacate the said premises and continued
to remain in possession with effect from 2nd July, 1981.
By reason of such wrongful occupation and failure on the part of the
defendant to hand over vacant possession of the property in question, the
plaintiff filed a suit on 25th September, 1981 in this Court being Suit No.771 of
1981, praying, inter alia, for a decree for delivery of vacant possession and mesne
profits. During the pendency of the suit, the plaintiffs and the defendants agreed
to settle their disputes and have filed a terms of settlement in the suit. Under the
terms of settlement the defendant had agreed upon the following things:-
(i) The defendant's claim for holding over was unmeritorious.
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(ii) On execution of the terms of settlement, the defendant would deliver the
vacant and peaceful possession of the suit premises and
(iii) If the defendant delivers such possession, the plaintiffs would waive
their claim with respect to the mesne profits amounting to Rs.1,54,92,67,000/-
and interest at the rate of 18% per annum.
Two important recitals in the terms of settlement as are relevant for the
present purpose are:
"And Whereas in the above suit the defendant has taken the usual
defence of creation of and/or existence of monthly tenancy in favour of the
defendant in respect of the said premises.
And Whereas when the suit had appeared in the list of Hon'ble Justice
Soumen Sen for final hearing, the Defendant approached the Plaintiff for
settlement of the suit in as much as the Defendant had been advised by its
Advocates that on the basis of documents and evidence available with the
Defendant, the Defendant would not be able to establish its claim of monthly
tenancy of the premises but on the contrary the Defendant and/or persons in
control and management of the Defendant will be liable for payment of huge
amount on account of mesne profits taking into account the long period
during which the Defendant continued to remain in occupation of the
premises and also the importance of the area in its occupation".
On September 3, 2013 on the basis of the agreed terms a compromised
decree was passed.
The main object of the terms of settlement appears to relieve the defendant
from the huge mesne profits that the defendant would be otherwise required to
pay in the event the plaintiff succeeds in the suit. The defendant felt that its
defence of holding over is not likely to succeed.
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The terms of settlement in the recital gives full particulars of sub-tenants
and the portions under their respective occupation in a schedule being Annexure
'A' to the said terms. The Court having regard to such disclosure allowed
compromise with the observation:
"...... there shall be a decree on the basis of the terms of settlement so far as
it relates to the parties to the suit."
Under the lease dated 10th August, 1960, the defendant was not entitled to
create any sub-tenancy. The defendant was running a Nursing Home from the
said premises. The defendant permitted to run the said nursing home for a
period of 21 years as mentioned above. However, the defendant was not
permitted to assign, transfer, sub-let or part with the possession of the premises
or any part thereof without the consent of the plaintiff. Sometimes in 1972 the
defendant appears to have closed down the nursing home and services of all the
staff were terminated. Since Dr. Deb appears to have proposed to the defendant
to start a nursing home an agreement was entered into on 1st December, 1972
between the defendant and Dr. Deb by which Dr. Deb was allowed to start a
nursing home and continued to run the said nursing home till last date of June,
1981 with the option of renewal provided the head lease agreement between the
plaintiff and the defendant which was going to expire on 1st July, 1981 is
renewed. The said agreement clearly states that Dr. Deb shall not at any time
claim to be a sub-tenant under the defendant. Dr. Deb was the sole proprietor of
St. Mary's Nursing Home. Thereafter it appears that St. Mary's Nursing Home
was converted into a partnership and subsequently St. Mary's Nursing Home
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Private Limited was incorporated on 24th September, 1974. However, the
agreement with the defendant continued to remain in the name of Dr. Deb in his
individual capacity as a sole proprietor of the said nursing home. The change of
character of the St. Mary's Nursing Home was never disclosed at any of the
earlier proceeding until 27th July, 2007 when the present applicant made an
attempt to implead itself as a defendant in the suit.
After expiry of the lease the defendant did not vacate the premises. In the
mean time R.C. Ghosh the original owner died intestate on 10th October, 1975
leaving Smt. Durgabati Ghosh, his wife as his only heir and legal representative.
The defendant duly attorned the said lease to Durgabati and became the lessee
under her. The lease expired on 1st July 1981. The defendant did not vacate the
premises and continued to remain in illegal and wrongful occupation since 2nd
July, 1981. In view thereof Durgabati, the original plaintiff filed a suit on 25th
September, 1981 for recovery of possession and mesne profits. During the
pendency of the suit Durgabati died and substituted by the present plaintiffs.
Prior to the filing of the suit on 2nd July, 1981 Dr. Deb filed a suit before
the City Civil Court being T.S. no. 1211 of 1981 against Durgabati, Vijoy Kumar
Thakkar and Credit Union praying, inter alia, for declaration that he being a
lawful monthly tenant of the suit premises is entitled to continue possession of
the suit premises without any hindrance from anybody including Durgabati or
Thakkar. The cause of action in the said suit appears to be that Durgabati had
entered into a lease agreement with Vijay Kumar Thakkar on 22nd May, 1981 for
a period of 99 years and under the said agreement Vijay was given the
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permission to demolish the said building and erect a new one in place of the
existing building. The said agreement was entered into in total disregard of the
consent and assurance given by Late R.C. Ghosh and Durgabati that even after
expiry of the lease between the plaintiff and the defendant Dr. Deb would be
allowed to run the nursing home from the suit premises. In view of his rendering
humanitarian service to sick and suffering citizens and a large number of
persons are gainfully employed by him which enures to their benefit and their
respective families. It is plaint it is alleged that Late R.C. Ghosh before his death
in writing informed the defendant no.3 regarding his consent to the induction of
the plaintiff and at the time of such consent the original plaintiff and their
Manager were present. However, Durgabati in total disregard of such assurance
has entered into lease agreement dated 22nd May, 1981 with Thakkar and they
are threatening and about to evict the plaintiff and a large number of his
employees from the suit premises contrary to the terms agreed upon. The said
suit was subsequently transferred to this Court and was renumbered as E.O.S.
15 of 1987. During the pendency of the said suit Dr. Deb died in October, 2007.
Credit union in its written statement filed in the suit on 22nd July, 1983 took the
defence of a tenant holding over after the expiration of the lease. Credit Union
during the pendency of the aforesaid suits in 1982 filed a suit against Dr. Deb in
the City Civil Court at Calcutta being M.S. No.883 of 1982 for recovery of money
amounting to Rs.75,000/- alleged to be due and payable by Dr. Deb in terms of
the agreement dated 20th November, 1972. In the said suit Credit Union alleged
that on the expiry of June, 1981 Dr. Deb did neither deliver possession of the
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nursing home nor paid the occupation charges from July 1981 to September,
1982 amounting to Rs.75,000/-. Dr. Deb filed a written statement denying the
allegations. In the written statement Dr. Deb appears to have specifically
contended that the nursing home was his proprietary concern and Credit Union
had no right, title, interest whatsoever in respect of said nursing home. Credit
Union has also no right, title and interest in the premises as its lease agreement
with the landlady had already expired. The learned Trial Court inter alia on
consideration of the agreement and the lease deed arrived at a finding that Dr.
Deb was monthly tenant of Credit Union had paid rent to the Credit Union on
and from 1st December, 1972 Dr. Deb started a new nursing home under the
name and style St. Mary's Nursing Home. Accordingly the defendant was not a
lessee as alleged by Credit Union but Dr. Deb was monthly tenant in the suit
premises where he had started his nursing home. The suit of Credit Union was
dismissed on 23rd November, 1982. This finding is certainly not binding upon
Durgabati and her successors inasmuch as it weakens the assertion of Dr. Deb
that he is a monthly tenant under Durgabati.
During the pendency of the two suits in the High Court in C.S. No. 771 of
1981 and E.O.S. 15 of 1987 two applications were filed being G.A. No. 2754 of
1998 in E.O.S. 15 of 1987 and G.A. no. 1079 of 1998 in suit no. 771 of 1981.
Justice Ansari as His Lordship then was by an order dated 15th October, 2001
disposed of the applications by giving certain directions with regard to payment
by Dr. Deb of the occupation charges and rents arrears, present and future.
While disposing of the said application it was stated that Dr. Deb was inducted
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by the Society on certain terms and condition as pleaded by him. Whether the
Society is a proforma defendant merely because no relief is claimed against it in
the suit is a matter which would require adjudication in the suit and in the light
of the defence that might be taken by the Society under Section 116 of the
Transfer of Property Act. With regard to the claim of the Society in G.A. no. 2754
of 1998 that Dr Deb shall pay to the Society occupation charges at the rate of
Rs.2300/- per month, hiring charges for furniture fixtures etc. of Rs.5000/- per
month and 2/3rd of the Corporation Tax from July, 1981 till date to the Society, it
was held that whether the Society or Ghosh or Dr. Deb would be entitled to the
said amount need to be adjudicated upon in the suit and depending upon the
result of the suit the said amount together with its accretions would be paid to
the party who would be found to be entitled to recover such amount in law
thereof. Dr. Deb having come into possession as tenant is however, required to
honour his part of the obligations until the suit is finally adjudicated upon. The
filing of T.S. no. 1211 of 1981 since renumbered as E.O.S. 15 of 1987 cannot
confer a right upon Dr. Deb not to pay the monthly rentals or the amounts,
which are otherwise payable by the tenant, being the declaration claimed by him,
in the suit and as per the averments in the plaint. Whether the tenancy of the
Society has been determined or it still has any right in the suit premises are
matters still to be adjudicated upon in the suit. Pending adjudication of the
same certain rights of the Society need to be protected. In so far as the
Corporation taxes are concerned admittedly Dr. Deb was in possession of the
premises in question and such taxes being a statutory levy, Dr. Deb is bound to
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pay the same. With the aforesaid observations directions were passed upon Dr.
Deb to pay Rs.5000, Rs.2000 and Rs.300 per month respectively to the joint
receivers from October, 2001 as also the Corporation tax.
Immediately prior to the death of Dr. Deb on 27th July, 2007 an application
was filed by St. Mary's Nursing Home Private Limited being G.A. No.2342 of 2007
pray, inter alia, for addition of the present applicant as defendant in the suit. In
the application it was alleged that the said company is a de facto tenant
wherefrom St. Mary's Nursing Home is presently functioning. With full
knowledge of the fact that the company is the de facto tenant of the substantial
portion of the said property and is running the said nursing home therefrom the
suit was filed by the plaintiff only against Credit Union without impleading the
company as party defendant. In the suit it has been deliberately suppressed that
long prior to the filing of the suit, a suit was instituted by Dr. Deb against
Durgabati, Vijay and Credit Union and it would be evident from the plaint filed in
the said suit that Dr. Deb was inducted as a sub-lessee of the defendant and had
agreed to run the St. Mary's Nursing Home only upon an assurance given by the
plaintiffs' predecessor in interest that the nursing home would be run from the
demise premises, even after the expiry of the lease granted in favour of the
defendant and it was on the basis of such representation Dr. Deb had made huge
investments. St. Mary's Nursing Home was initially started by Dr. Deb as the sole
proprietor thereof. The sub-lease of the demised premises was granted in his
name. To the knowledge of the defendant and of the plaintiffs and their
predecessor in interest in course of time St. Mary's Nursing home was converted
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into a partnership with Dr. Deb and his family members as the partners thereof,
which partnership was thereafter taken over by the petitioner company which
was incorporated on 1974 for the purpose thereof by Dr. Deb and his family
members. This will be evident from the Memorandum of Association of the
petitioner. Since the inception of the sub lease and at all material times
thereafter all rents corporation taxes and other charges and other statutory
outgoings in respect of the demised premises has been paid by St. Mary's
Nursing Home and/or the petitioner. Dr. Deb in terms of the order dated 15th
October, 2001 made payment of the outstanding and the current monthly rentals
and other charges as well as corporation taxes to the joint receivers appointed in
the suit. In terms of the order dated 15th October, 2001 the company as a de
facto tenant had made payment of all the outstanding and present monthly
rentals. Although in the suit the plaintiffs' predecessor in interest and thereafter
the plaintiffs have sought eviction of the defendant only on the ground of expiry
of the lease of 10th August, 1960 by efflux of time, the defendant has filed a
written statement in which it has been contended that having tendered rent for
at least five months after the expiry of the lease which payment was accepted and
cheques encashed by the plaintiffs and/or their predecessor in interest, the
defendant has become a tenant holding over the demised premises and as such
is not liable to be evicted therefrom.
In such circumstances the petitioner is entitled to continue in possession
and occupation of the portion of the premises No. 2/1 Ho Chi Minh Sarani,
Kolkata wherefrom it is running the St. Mary's Nursing Home either on the basis
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of the independent agreement entered into by Dr. Deb as a direct tenant under
the lessor or as a sub-lessee of the defendant as a tenant holding over after the
expiry of the original term of lease of 10th August, 1960. The aforesaid material
facts had been deliberately suppressed in the plaint. In the event the company is
not added as a party in the above suit its interest in the demised premises would
be irreparably jeopardized. The company has recently come to learn that the
plaintiffs have entered into an agreement with one Merlin Developers and
development of the said premises. The said Merlin developers is attempting to
compromise the matter with the defendant in which event there is every
likelihood that the parties to the above suit will attempt to compromise the same
with the malafide intent and object of attempting to obtain a de facto decree of
the applicant's eviction from the premises behind the back of the applicant and
without affording any opportunity to the applicant. In the application an interim
order was prayed for which was rejected by an order dated 31st August, 2007. In
an appeal against the said order the Hon'ble Division Bench by an order dated
12th September, 2007 disposed of the appeal without interfering with the order
passed by the Learned Single Judge. The order reiterates that the interest of the
applicant is amply protected by the provisions of the Code of Civil Procedure. If a
decree is passed against the defendant the applicant still would have the right
under the provisions of the Code of Civil Procedure to raise their objections if the
decree is sought to be implemented against them.
The said application was finally disposed of by an order dated 7th April,
2009 by stating that the lessor/landlord had got his own discretion to decide as
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to who should be impleaded as defendants and unless the presence of the third
party is found essential for proper adjudication of the dispute, the third party
making out its own independent right and title cannot be made a party to the
suit. It was recorded in the order that although the applicant claimed to be sub-
lessee on the basis of a separate agreement with the landlord but no such
document has been disclosed in the said petition wherefrom it would appear that
the landlord had recognised the applicant company as sub-lessee. There is
nothing on record to show that the landlord had entered into any settlement with
the applicant either. If the applicant has got its independent right and interest
over the property in question there are ways and means of protecting such right.
This order is not under challenge.
In the meantime, Dr. Deb died in October, 2007 and none of his legal heirs
or representatives took any steps for substitution in the suit filed by him. The
suit accordingly abated. The only significant development that had taken place
during this period is an application filed by Credit Union on September 13, 2011
for amendment of the written statement originally filed on April 6, 1989 and by
an order dated December 2, 2011 the amendment was allowed. By way of
amendment the defendant sought to bring on record correspondence alleged to
have been exchanged between the parties after expiry of the said parent lease.
The defendant wanted to incorporate certain events allegedly occurred prior to
April 1984. The defendant disclosed such correspondence to show that
notwithstanding the expiry of the lease the defendant continued to remain in
possession and the present plaintiffs have assented to such continuation thereby
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the defendant became a tenant holding over. This claim of holding over, however,
as noticed earlier was given a go bye in the terms of settlement filed in the suit.
In the additional written statement filed on 12th March, 2012 the plaintiffs
reiterated that after expiry of the lease by efflux of time no amount was received
or accepted by the original plaintiff from the defendant either by way of rent or
otherwise the defendant being aware of the bank details of Smt. Durgabati being
the original plaintiff had deposited money in such bank account without the
consent and concurrent of the original plaintiff for few months. In any event, the
conduct of the original plaintiff would clearly demonstrate that after expiry of
lease by efflux of time the original plaintiff did not want the continuance of the
landlord/tenant relationship. It was stated that in any event any payment
received after determination of lease by efflux of time was not with any intention
to create any fresh tenancy and the same would be evident from the conduct of
the original plaintiff instituted the suit for eviction. With regard to plethora of
documents sought to be introduced for the first time by amendment it was stated
in the additional written statement that by letter dated 11th November, 2011 the
Advocate on record of the plaintiff asked for inspection. However, no such
inspection was offered of the original document disclosed in the amended written
statement.
It appears that the legal heirs of Dr. Deb and not the applicants deposited
"rent" to the Rent Controller for the month of May to October 2009 and March,
2013 in the capacity as legal heirs of Dr. Deb and not on behalf of the applicant
company. Save and except these few challans, there is nothing on record to
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show that rents or occupation charges have been paid by the legal heirs of Dr.
Deb either to Credit Union or to the plaintiff after the death of Dr. Deb in
October, 2007. The deposits are not preceded by any valid tender is an inference
which could be safely drawn having regard to the documents disclosed in this
proceeding absence of any explanation for such deposit in the Rent Control
which is again not continuous and regular. In any event such deposits are invalid
as the legal heirs have not substituted them in E.O.S. No. 15 of 1987 and could
not have deposited such amount to the credit of the suit without substitution.
The observations made in the order dated April 7, 2009 that the present
applicant could not disclose any document to show that any consent was given
by the original owner or the subsequent owner of the property showing that they
have consented to the sub-lessee or continuation of occupation by the present
applicant in the premises still hold good as no document has been disclosed
and/or come forward in this proceeding. There is also nothing on record to show
that the rent in fact was paid by the company applicant and not Dr. Deb after
October, 2001 or any consent in writing was given by the original owner to Dr.
Deb or by the present owners to the present applicant agreeing to or asserting to
such continuation. Dr. Deb continued to hold himself as the proprietor of St.
Mary's Nursing Home till his death is evident from the various pleadings filed by
him in this court as well as City Civil Court. Dr. Deb had never asserted that the
present company is in fact the real tenant and not Dr. Deb or that all payments
were made by the company and not by him in the individual capacity. Although
the applicant appears to have contended in the G.A. no.2342 of 2007 as well as
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in the instant application that they are the ostensible tenant by contending that
all the expenses were paid by the applicant in terms of the orders of this Court
including rent but not a single scrap of paper is disclosed in this proceeding to
justify such statement.
The attempt of the applicant to establish privity of estate between the
lessor and the applicant must also fail as the lessor has never accepted rent from
the applicant or otherwise recognized the applicant as their tenant.
In view of the abatement of the suit the claim of Dr. Deb that Dr. Deb was
monthly tenant under the original plaintiff perishes. Significantly the legal heirs
of Dr. Deb did not file any application to revive the said suit. In any event the
claim of tenancy by the legal heirs cannot extend beyond a period of 5 years from
the death of Dr. Deb in terms of Section 2(h) of the West Bengal Premises
Tenancy Act, 1997. The applicant now seems to rely upon the averments made
in the amended written statement in which the defendant disclosed plethora of
documents to establish their defence of holding over. However, there are
contemporaneous documents to show that the present plaintiffs have denied the
existence and validity of such letters and have called for production and
inspection of all the original documents for inspection. The defendant did not
provide inspection of any of such letters and appears to have conceded that there
is no holding over.
The relevance of such letters would be discussed later.
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It is, first, needs to be assessed if the applicant could establish any
independent right, title and interest in the property or its claim is wholly
dependent upon Dr. Deb.
It is significant to mention that in the application filed by the Credit Union
in E.O.S. No.15 of 1987 being G.A. 2754 of 1998 the Credit Union in paragraph
10 has stated:
"10. After the expiry of lease made between the Defendant no.1 and
the Defendant no.3 herein in respect of Premises No. 2/1, Ho Chi Minn
Sarani, the defendant no.3 duly paid the monthly rent to the defendant no.1
herein and the same was duly accepted by the defendant no.1 herein and as
a result of which the defendant no.3 herein became the tenant under the
West Bengal Premises Tenancy Act, 1956."
The said assertion was denied by Dr. Deb in paragraph 10 of the affidavit
in reply by stating:
"10. With reference to paragraph 10 of the said petition, save and
except what are matters of record I deny each and every allegation made
contrary thereto. I specifically deny that upon expiry of the lease between
defendant no.1 and the petitioner herein the petitioner has become a tenant
under the West Bengal Premises Tenancy Act."
It is clear from the document available on record that Credit Union
recognised Dr. Deb alone as its tenant and Dr. Deb in the suit described himself
as a monthly tenant under the defendant no.1. Mr. Jishnu Saha the learned
Senior Counsel realising the difficulties likely to cause to the applicants in
establishing an independent right as made out an alternative case of ostensible
tenancy. Mr. Saha has extensively referred to the original written statement as
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well as amended written statement filed by the defendant Credit Union in the suit
and submits that in the event the defendant becomes a tenant holding over it
protects the under lessee and the applicant squarely fits into the description of a
under lessee . This argument proceeds on the premise that the lessor duly
assented to Dr. Deb as a sub lessee and the original plaintiffs and the present
plaintiffs had continued to treat Dr. Deb as validly inducted sub lessee into the
premises. The applicant proceeds on an assumption that the applicant is an alter
ego of Dr. Deb. Even if the assumptions held to be in favour of Dr. Deb, it does
not help the applicant. The applicant was never recognised as a sub lessee of the
property. Irrespective of the change and status of the nursing home Dr. Deb in
his individual capacity continued to remain in the property after expiry of lease of
Credit Union and whenever any occasion arises he has asserted his individual
right and not that of the applicant. There is a clear estopple operating against Dr.
Deb and carefully upon the appellant. In all the pleadings filed by Dr. Deb since
1981 till his death there is not even any whisper that the applicant was inducted
as a sub lessee of credit union and after expiry of the lease the original plaintiff
or the present plaintiffs have recognised the applicant as sub lessee and accented
to its continuation.
Mr. Saha has submitted that the subletting of premises, even without the
consent of the landlord, is not per se illegal or unlawful and creates a valid estate
as between the lessee and the sub-lessee. The same only affords the lessor a
ground for seeking eviction of the lessee. In this context reliance was placed on
the following decisions:-
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(i) Debabrata Mukherjee -Vs- Kalyan Kumar Roy reported at 1981
(1) CLJ 339 (DB)[paras 16, 17, 21, 22, 23];
(ii) Panchu Gopal Saha -Vs- Smt. Usha Rani Modak reported at
1987 (II) CHN 18 (DB) [para 13]
Mr. Saha submits that upon holding over as a tenant upon the expiration
of the period of lease, the character of the lessee, Credit Union changed from that
of a contractual tenant to a statutory tenant by virtue whereof, it became entitled
to the protection of the West Bengal Premises Tenancy Act. In view of Credit
Union holding over as a tenant of the suit premises, as a validly inducted sub-
lessee of the same, after the expiration of the lease, the petitioner also came to
assume the character of a statutory tenant and, as such, became entitled to the
protection afforded to such a tenant.
In this context Mr. Saha has referred to the following decisions:-
i) Biswabani Private Limited -Vs- Santosh Kumar Dutta & others
reported at (1980) 1 SCC 185 [paras 6, 7, 10, 11, 13]
ii) Indo Europa Trading Co. Private Limited -Vs- Anil Poddar and
others reported at 2007 (2) CHN 303 [para 20]
Mr. Saha tried to draw sustenance from paragraph 26 of the judgment of the
Hon'ble Supreme Court in the case of Mahabir Prasad Verma -Vs- Surinder
Kaur reported in AIR 1982 SC 1043 [para 26] where the Hon'ble Supreme
Court has held that:-
"26. As a tenant, in spite of the determination of his tenancy continues
the right to remain in possession as a statutory tenant and enjoys the
protection against eviction by virtue of the provisions contained in the
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statute, a sub-tenant who is lawfully inducted, is also recognised by the
statute to be a "tenant' within the meaning of the Act and he must
necessarily enjoy the protection against eviction afforded to a tenant by the
Act. A lawful sub-letting on the basis of the provisions of the Act does not
become unlawful merely because the contractual tenancy of the tenant
comes to an end. A tenant incurs the liability to be evicted, if the tenant after
the commencement of the Act sub-lets without the written consent of the
landlord; and the tenant who has lawfully sub-let with the written consent of
the landlord must necessarily enjoy immunity from the process of eviction on
that ground. Subletting lawfully done with the written consent of the
landlord does not become unlawful merely on the ground that the contractual
tenancy has come to an end. Sub-letting to constitute a valid ground for
eviction must be without the consent in writing of the landlord at the time
when the tenant sub-lets any portion to the sub-tenant". (emphasis supplied)
Mr. Saha has referred to Section 116 of the Transfer of Property Act and
submits that the key phrase in the said Section is "renewed from year to year or
from month to month according to the purpose for which the property leased as
specified in Section 116. It is submitted that in the instant case the rent payable
under the lease of 1960 clearly brings such tenancy from year to year month to
month within the purview of the West Bengal Premises Tenancy Act which was
thus required to be determined by service of notice under the provisions of such
Act which was never done. Mr. Saha submits that having regard to the nature of
controversy a trial is indispensible and imminent in view of the provisions of
Order 21 Rules 98 to 104 of the Code of Civil Procedure, which clearly provide
that the orders passed in applications under the said provisions have the effect of
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a decree of Court, and that in the course of deciding such applications the Court
must decide, inter-alia, all questions relating to the objector's right, title and
interest in the property.
The learned Senior Counsel in this context has referred to the following
Division Bench decisions of our court:-
(i) French Agency -Vs- Smt. Jiwani Kumari Parakh& another
reported at 1999 (2) CLJ 513;
(ii) Subhendu Gupta & another -Vs- Calcutta Vyapar Pratisthan
Limited &Ors. reported at 1995(1) Cal LT. (HC) 427.
Mr. Saha submits that in view surrender of tenancy by the tenant in favour
of the plaintiff a privity is automatically established by reasons of Section 115 of
the Transfer of Property Act 1882 between the plaintiff as lessor and the
applicant as sub lessee. It is submitted that Section 115 provides that the
surrender, express or implied, of a lease of immoveable property does not
prejudice an under-lease of the property or any part thereof previously granted
by the lessee and that unless the surrender is made for the purpose of obtaining
a new lease, the rent payable by, and the contracts binding on the under-lessee
shall be respectively payable to and enforceable by the lessor. In the instant case,
the clear assertion of Credit Union was that it had after the expiry of the period of
lease of 1960 become a contractual tenant holding over, amounting to a renewal
of the said lease from year to year or from month to month. Despite such
assertion and the fact that the claim of Credit Union never came to be
adjudicated in the course of almost 34 years since the filing of the suit, the
21
sudden clandestine and clearly fraudulent compromise of the suit by Credit
Union is clear surrender of the lease by the lessee, made with the object of
prejudicing the rights of the petitioner as the under-lessee. Notwithstanding such
surrender of the lease by Credit Union by clandestinely compromising the suit
with a clear fraudulent object and intent, the petitioner's right continued to be
protected in view of the provisions of Section 115 of the Act, 1882, as by virtue
thereof a direct privity has been established by and between the petitioner and
the plaintiffs in respect of the suit premises. In this context reference is made to
the decision of the Hon'ble Supreme Court in Tirath Ram Gupta vs.
Gurubachan Singh & Anr. reported in AIR 1987 SC 770 (para 10).
The purported compromise decree has been passed in terms of a terms of
settlement entered into by and between the plaintiffs and the defendant. It is
significant to note that the said consent terms clearly recognise that "after being
inducted into the suit premises as the lessee thereof, the defendant has from
time to time inducted different persons into the suit premises in respect of
diverse portions of the suit premises as sub-tenants and the said premises at
present is in possession of the defendant and its sub-tenants." The full
particulars of such sub-tenants which have been provided in Schedule "A" to the
consent terms record the name of Dr. A. K. Deb as a sub-tenant. This, in itself is
evidence of the fact that the sub-lease in favour of Dr. A. K. Deb was validly
granted.
That the compromise decree is manifestly fraudulent is evident from the
fact that despite the express assertion by Credit Union that it was a tenant
22
holding over the suit premises upon expiration of the lease, in the consent terms
executed about 34 years after filing of the suit without any adjudication of such
question, Credit Union has meekly agreed that it had in the suit taken the usual
defence of creation and/or existence of monthly tenancy and that it in fact
became liable to vacate the suit premises on the expiry of the term of the lease,
for which the plaintiffs became entitled to not only to claim eviction of the
defendant but also to damages for its wrongful occupation of the suit premises.
This, notwithstanding the fact that Credit Union had asserted that it was a
tenant holding over and that its continuance in possession of the suit premises
had been duly assented to by the lessor/s upon it having tendered rent in respect
of the suit premises by cheque and the lessor/s having accepted such rent by
encashing such cheques for at least five months after the expiration of the term
of the lease. Such fraud is also clearly apparent from the fact that despite its
assertion that it was not in wrongful possession and occupation of the suit
premises, even in the absence of any finding by any Court that its possession
and occupation of the same was wrongful, in the consent terms, Credit Union
agreed to suffer a decree for mesne profit for the sum of Rs.154,92,67,000/- with
interest @18% per annum, and agreed to deliver vacant and peaceful possession
of the suit premises in consideration for the plaintiffs' waiving their claim on
account of such mesne profit. In this context, it is significant to note that even
though under the said consent terms Credit Union agreed to suffer a decree for
eviction from the entirety of the suit premises, as a consideration for the plaintiffs
not enforcing their decretal claim for mesne profits against it, Credit Union
23
agreed to merely give up vacant and peaceful possession of the portions
described in Schedule "B" to the consent terms.
Mr. Saha submits that it is now well settled law that a sub-lessee will not
be bound by a decree against the lessee if he succeeds in showing that the
judgement was vitiated by fraud or that the lessee collusively suffered the decree.
The learned Senior Counsel in this regard has relied upon the decisions of this
Court in Sailendra Nath Bhattacharya vs. Bijan Lal Chakravarty & Ors.
reported in AIR 1945 Cal 283 (para. 14) and Jagat Enterprises vs. Anup
Kumar Daw reported in AIR 1977 Cal 209 (paras. 8 and 9).
It is submitted that the Second limb of Section 115 of the Act of 1882 also
provides that the forfeiture of a lease annuls all under-leases, except where such
forfeiture has been procured by the lessor in fraud of the under-leases. Such
fraud in the instant case is clear. There is a collusion between the
plaintiffs/lessors and the defendant/lessee. As such the same cannot have the
effect of affecting the right of the petitioners as an under-lessee.
Mr. Saha submits that the applicant in any event is an ostensible tenant as
relied upon the Division Bench judgments of our court in the case of A.C.
Bhattacharjee -Vs- Arun Krushna Roy & Others, reported in (1960-1961) 65
CWN 1175 and Jadu Nath Bose Vs.Srimati Premmoni Dasi (Paragraph 5)
reported in (1909-10) 14 CWN 774, Dr. A. K. Roy Vs. J. C. Roy Choudhury &
Anr. (Paragraph 10, 11) reported in AIR 1982 Cal 8.
Mr. Saha has also referred to Sections 226, 230 and 231 of the Indian
Contract Act, 1872 and submits that the principles of agency may be applied in
24
the instant case in support of the claim made by the applicant in the present
proceeding. According to Mr. Saha it was known to all that the applicant is
fulfilling all the obligations required to be discharged and such facts were known
both to the plaintiffs and the defendant. Mr. Saha has referred to the Hon'ble
Supreme Court decision in Niranjan Kumar & Others -Vs- Dhyan Singh and
another reported in (1976) 4 SCC 89 and Bai Hira Devi & Ors. Vs- Official
Assignee of Bombay reported in AIR 1958 SC 448 (Paragraph 3, 4, 5,) and
submits that the description of a person in the lease as lessee or tenant does not
necessarily negate agency and Section 99 of the Indian Evidence Act enables a
person not a party to the document or his representative in the interest to give
evidence of any fact tending to show a contemporaneous agreement varying the
terms of the document. Person other than to those who are parties to a
document are not preclude for giving extrinsic evidence to contradict, vary, add
to or subtract from the terms of the document.
Mr. Saha submits that in Bai Hira Devi (supra) has clearly recognised a
right of a third party to not only give evidence to show that there is a variation of
the terms of the contract but he can also give evidence to show that there has
been an addition or subtraction from the original terms. Mr. Saha also referred
to the decision of Madras High Court in C. Venkatasubbiah Vs. T.
Govindarajulu, reported in (1908) 18 MLJ 1 and submits that the court has
recognized that oral evidence can be lead and the same shall not be barred under
Sections 91 and 92 of the Evidence Act, 1872 even if there is a written contract,
provided the same does not change the terms and conditions of the contract. The
25
said decision was rendered on the basis that by leading oral evidence the names
of the parties to the contract were changed, but the terms of the said contract
remained the same.
Mr. Saha has referred to a decision of the Bombay High Court in Laxmibai
Vs. Keshav Aungji Pokharkar reported in 33 Ind Cas 396 (Bom), in a case of
benami transaction and agency, oral evidence was held to be permitted to be lead
and that shall not be barred under Section 91 and 92 of the Evidence Act, 1872.
In the instant case, the property was under occupation from the very
beginning by St. Mary's Nursing Home. It was as such the Nursing Home which
was from the very inception is in the relationship as a tenant of the property.
Even after change in the constitution of the Nursing Home, it is the Nursing
Home alone which continued to occupy, use and enjoy the property to the
exclusion of others. Dr. Achinta Krishna Deb never occupied the property himself
in view of the fact that it was always the Nursing Home which used, occupied
and enjoyed the property, he clearly acted as the agent of the Nursing Home.
Mr. Saha submits that although the Nursing Home carried on business
openly from the premises in question and although it clearly advertised its
presence at the premises, no objection was raised by the plaintiffs or their
predecessors to the Nursing Homes use occupation or enjoyment of the property,
whether before or after the expiry of the period of lease dated 10th August, 1960.
It can as such be said that even the plaintiffs and their predecessors at all
material times accepted that it was the Nursing Home which was entitled to use,
enjoy and occupy the property to the exclusion of all others.
26
Mr. Surajit Nath Mitra, learned Senior Counsel appearing on behalf of the
decree holder submits that the applicant has failed to establish any independent
right in respect of the premises in question. It is submitted that a bare perusal of
the application and the documents relied upon by the applicant would show that
the applicant had failed either to aver or to prove any such independent right in
respect of its claim of possession of a portion of the demised premises. It is
submitted that from the application it would appear that one Dr. Achintya
Krishna Deb had agreed to obtain and has obtained sub-tenancy of a portion of
the said premises on certain terms and conditions and on that basis had entered
into an agreement with the defendant on 20th November, 1972. The predecessor-
in-interest of the plaintiffs was not a party to the said agreement and as such any
term or condition contained in the said agreement was not and is not binding
either on the predecessor of the plaintiffs or on the plaintiffs. Moreover, the
registered deed of lease dated 10th August, 1960 prohibits sub-letting.
The learned Senior Counsel has referred to the agreement dated 20th
November, 1972 and submitted that the alleged agreement pleaded in the
petition as to the consent of the then landlord for alleged continuation of tenancy
by Dr. Achintya Krishna Deb after the expiry of the deed of lease did not find any
place in the alleged agreement dated 20th November, 1972. There is not even a
whisper in the said agreement that the defendant had taken consent of the
landlord for creation of such sub-lease in favour of Dr. Deb. Such alleged
consent as introduced in this application did not find place in the suit filed by
Dr. Deb against the predecessor-in-interest of the plaintiffs in the City Civil Court
27
at Calcutta being Title Suit No. 1211 of 1981. In any event, there was no
previous consent in writing from the predecessor-in-interest of the plaintiffs
authorizing the defendant to sub-let or sub-lease any portion of the said
premises to Dr. Achintya Krishna Deb and in absence of such previous consent
in writing was mandatory under the provisions of the West Bengal Premises
Tenancy Act, 1956 in Calcutta on account of sub-tenancy must fail and has to
fail. Moreover, no notice of creation of such sub-tenancy was also given by Dr.
Deb or by the applicant to the predecessor-in-interest of the plaintiffs as was
required by the West Bengal Premises Tenancy Act, 1956.
It is argued that although a tall claim was made by the applicant that Dr.
Achintya Krishna Deb has established St. Mary's Nursing Home at the said
premises and has started the same which was subsequently converted into a
partnership firm and ultimately taken over by the applicant company. There is
nothing on record to show that either the proprietorship or the partnership firm
or the applicant made any payment towards the rent or other charges. Even if it
is assumed for the sake of argument that such payment is made either by the
proprietorship concern or by the partnership firm or by the applicant, such
payment was made on behalf of Dr. Achintya Krishna Deb and on the basis of
such alleged payment no right was or could be created, either in favour of the
partnership firm or in favour of the applicant. The rent control challans relied
upon by the applicant at pages 90 to 98 would reveal that rents were deposited in
the office of the Rent Controller on behalf of the legal representatives and
28
successors of Dr. Achintya Krishna Deb, the son of the deceased and not by the
present applicant.
The suit filed by Dr. Deb before the City Civil Court, Calcutta being Title
Suit No. 1211 of 1981 was subsequently transferred to this Hon'ble Court and
renumbered as Extra Ordinary Suit No.15 of 1987. During the pendency of the
said suit, Dr. Achintya Krishna Deb died in or about October, 2007. Since
thereafter, the said suit and the claims made therein have abated. It is, thus,
argued that the application is barred by the principles of res judicata and/or
principles analogous thereto.
On the contrary, the defendant had filed a suit against Dr. Achintya
Krishna Deb in the year 1982. The said suit was dismissed on contest by a
judgment and order dated 23rd February, 1992. From a perusal of the judgment,
it would appear that in the said suit Dr. Achintya Krishna Deb did not assert
that there was a fresh tenancy in his favour by the plaintiff or their predecessor
in title or any such tenancy was created in favour of the applicant. In respect of
the several letters disclosed in this proceeding, it is submitted that the applicant
did not give inspection of the original documents although initially it had agreed
to offer. The advocate-on-record of the applicant subsequently contended that
the original documents are not in the custody of the applicant since the
correspondence relied upon were between the plaintiffs or their predecessor-in-
interest and the defendant. According to the learned Senior Counsel these
documents are fabricated and/or forged and created for the purpose of this
litigation. In any event, it is submitted that it is a settled law that a sub-tenant is
29
bound by the decree passed against the tenant and he has no independent right
to resist the execution of a decree passed against the tenant.
Mr. Mitra has referred to the series of letters disclosed in the amended
written statement filed by the defendant in April, 2011 and submits that
although inspection was sought for of the original letters but no inspection was
given by the defendant. Several letters are all fabricated and the plaintiffs have
never accepted the existence and factum of the said letters. Mr. Mitra submits
that even if it is assumed that the said letters were, in fact, issued by Tarun
Kumar Ghosh, the contents of the said letter would not show that the plaintiffs
have accepted any rent from Mr. Deb or has accepted the status of Mr. Deb as
sub-tenant of defendant No.1.
This argument of Mr. Saha is not acceptable in view of the facts narrated in
the earlier part of this judgment.
To summarize, applicant has failed to prove any independent agreement
between R.C. Ghosh and Dr. Deb and produce any cogent evidence to show that
Late R.C. Ghosh or his successors have ratified such sub-tenancy of Dr. Deb,
notwithstanding the specific bar of sub-letting contained in the lease deed.
Moreover, no notice either under Section 16 of the West Bengal Premises
Tenancy Act, 1956 or under Section 26 of the West Bengal Premises Tenancy Act,
1997 read with rule 12 of the West Bengal Premises Tenancy Act, 1999 was ever
given to Durgabati or the present plaintiffs. In any event the sub-lessee is bound
by the decree passed against the lessee. (See. Rup Chand Gupta vs. Raghu
Banshi reported at AIR 1964 SC 1889 Para 12, Suresh Chand Jain vs. III
30
Rd. Addl. District Judge, Mathura & Others reported at (2001) 10 SCC 508,
Para 6 and H. Seshadri vs. K.R. Natarajan & Anr. reported at (2003) 10 SCC
449 Para 13).
A sub-tenant is bound by the decree for eviction of the tenant if the decree
is based upon a ground which determines the sub-tenancy and he may then be
removed in execution of the decree. However if a sub-tenant claims a statutory
right to occupy a property independently of the tenant under the Rent Control
laws, he is not a representative of the judgment-debtor tenant and is not bound
by the decree of ejectment and he may not therefore be removed in execution of
the decree against the tenant. He is therefore entitled to resist execution of the
warrant and if he is dispossessed, he may apply under Order 21, Rule 100 for
restoration of possession.
The mere fact that the Judgement-debtor has filed the written statement
but did not ultimately contest the suit does not mean that the decree is obtained
by collusion. A similar situation occurred in Rupchand Gupta (supra). In that
case, the landlord brought a suit against his lessee for ejectment after serving a
valid notice to quit but without impleading the sub-lessee as defendant. The
lessee did not contest the suit in pursuance of his agreement with the plaintiff
landlord and an ex parte decree was passed. The sub-lessee thereupon brought
a suit against the landlord and the lessee for a declaration that he was not bound
by the decree which had been obtained by collusion between the defendants in
order to injure the plaintiff and to evict him from the premises without a decree
31
being passed against him. The suit was dismissed on the ground that the
plaintiff failed to establish collusion.
On such facts it was held that the suit was rightly dismissed. The mere
fact that the sub-lessee was not impleaded or that the lessee did not actually
contest the suit did not render the decree passed in the suit as collusive
especially when it is clear that the defendant No.1 had even a plausible defence
to the claim for ejectment. Collusion in judicial proceedings is a secret
arrangement between two persons that the one should institute a suit against the
other in order to obtain the decision of a judicial tribunal for some sinister
purpose.
Where the landlord institutes a suit against the lessee for possession of the
land on the basis of a valid notice to quit served on the lessee and does not
implead the sub-lessee as a party to the suit, the object of the landlord is to eject
the sub-lessee from the land in execution of the decree and such an object is
quite legitimate. The decree in such a suit would bind the sub-lessee. This may
act harshly on the sub-lessee, but this is a position well understood by him when
he took the sub-lease. The law allows this and so the omission cannot be said to
be an improper act. The mere fact that the defendant agrees with the plaintiff
that if a suit is brought he would not defend it, would not necessarily prove
collusion. It is only if this agreement is done improperly in the sense that a
dishonest purpose is intended to be achieved that they can be said to have
colluded.
32
Rupchand Gupta (supra) has been followed in a fairly recent decision of
our High Court in Birla Corporation Limited Vs. Basant Properties Limited
reported at 2011 (3) CHN (Cal) 193.
Although under the general law, the tenant enjoys the right to sublet
without the landlord's consent but such sub-tenant is bound by the decree for
eviction passed against the tenant and cannot resist such eviction. However,
both under the West Bengal Premises Tenancy Act, 1956 and under the present
Act, the tenant cannot sublet without the written prior permission of the
landlord. Section 26 of the 1997 Act is the same as Sections 14 and 16 of the old
Act of 1956. Sections 14 and 16 of the 1956 Act reads:-
"S.14.Restriction of subletting.- (1) After the commencement of this
Act, no tenant shall, without the previous consent in writing of the
landlord, -
(a) sublet the whole or any part of the premises held by him as a
tenant; or
(b) transfer or assign his rights in the tenancy or in any part
thereof.
(2) No landlord shall claim, demand or receive any premium or
other consideration whatsoever for giving his consent to the subletting
of the whole or any part of the premises held by a tenant.
S.16.Creation and termination of sub-tenancies to be notified. -
(1) Where after the commencement of this Act, any premises are sublet
either in whole or in part by the tenant with the previous consent in
writing of the landlord, the tenant and every sub-tenant to whom the
33
premises are sublet shall give notice to the landlord in the prescribed
manner of the creation of the sub-tenancy within one month from the
date of such subletting and shall in the prescribed manner notify the
termination of such sub-tenancy within one month of such termination.
(2) Where before the commencement of this Act, the tenant with or
without the consent of the landlord, has sublet any premises either in
whole or in part, the tenant and every sub-tenant to whom the
premises have been sublet shall give notice to the landlord of such
subletting in the prescribed manner [within six months] of the
commencement of this Act and shall in the prescribed manner notify
the termination of such sub-tenancy within one month of such
termination.
(3) Where in any case mentioned in sub-section (2) there is no
consent in writing of the landlord and the landlord denies that he gave
oral consent, the Controller shall, on an application made to him in this
behalf either by the landlord or the sub-tenant within two months of
the date of the receipt of the notice of subletting by the landlord or the
issue of the notice by the sub-tenant, as the case may be, by order
declare that the tenant's interest in so much of the premises as has
been sublet shall cease, and that the sub-tenant shall become a tenant
directly under the landlord from the date of the order. The Controller
shall also fix the rents payable by the tenant and such sub-tenant to
the landlord from the date of the order. Rents so fixed shall be
deemed to be fair rent for purposes of this Act."
There is practically no difference between the new law and the old law as
regards statutory requirement of giving notice for creation and termination of
sub-tenancies except that the notice is to be given within two years of the
34
commencement of the Act of 1997. Section 14 of the 1956 Act and Section 5
sub-section 5 of the present Act, the requirement of a written prior permission of
the landlord is essential. It has clearly provided that no tenant shall sublet
premises without the consent of the landlord in writing. Over and above, this
prohibition of Section 16 of the 1956 Act made specific provision for giving notice
both by the tenant as well as by the sub-tenant as well as the creation of sub-
tenancy after the introduction of the 1956 Act. In respect of sub-tenancy created
prior to 1956 sub-section 2 of Section 16 of 1956 Act also provided for giving
notice both by the tenant as well as by the sub-tenant. Rule 4 of the West
Bengal Premises Tenancy Act, 1956 requires the notice under Section 16 to be
given by registered post with acknowledgement due and such notice is to contain
the particulars specified in the said rule giving of such a notice is mandatory.
The factum of actual possession in the absence of any legal basis could
only mean an occupation as a trespasser or a sub-lessee. A sub tenant, whose
sub-tenancy has been created without the consent in writing of the superior
landlord, would have no rights in law so far as that landlord is concerned.
Section 115 of the Transfer of Property Act proceeds on the basis that there is a
valid lease. If the basis of the lease goes, section 115 of the Transfer of Property
Act would not be available to the sub-tenant. (Bhagbati Builder Vs. Karim Bux,
AIR 1971 Cal 319 (321)
In Biswanath Poddar vs. Archana Poddar reported at 2001 (8) SCC
187, the Hon'ble Supreme Court held that unless requirement of 1956 Act is
35
complied with the provision of Section 16 and the mandatory requirement of a
notice under Section 16(1) was issued, the sub-tenant has no right to challenge
the decree of eviction passed by the Court even if such sub-tenant has not been
impleaded.
Section 26(2) deals with pre-Act sub-tenancy whether such sub-tenancies
were with or without the landlord's consent. Both the tenant and the sub-tenant
were to give notice of the creation of pre-act sub-tenancies. Such notice has to
be issued within two years of the date of commencement of the 1997 Act. The
manner of service of notice has been prescribed in Rule 12 of the West Bengal
Premises Tenancy Rules, 1999. There is no basic difference between Rule 12 of
the 1999 Rules and Rule 4 of the 1956 Rules. The Rules are identical. Rule 12
has been divided into two laying down the duties to be complied with when the
cases come within the fold of Section 26(1) and the cases coming within the
ambit of Section 26(2) of the Act of 1997. It has to be sent by registered post
with acknowledgement due. The requirement of the first part of sub-section (2) of
Section 26 of the new Act is that there must be notice of subletting once again to
the landlord within two years of commencement of the new Act. The second part
of sub-section 2 requires that tenant and sub-tenant shall notify the termination
of sub-tenancy within one month of such termination. The reading of the said
two sub-sections shows that it is obligatory for every sub-tenant to give notice to
the landlord of the creation of sub-tenancy. Unless this is done a sub-tenant has
no locus standi to come forward and challenge the legality of eviction decree
36
passed against the tenant unless he alleges fraud. It has to be a fraud going to
the extent of suppression of fact of notice given by him and keeping him in dark
intentionally about the ejectment suit. Then and then only sub-tenant can
oppose the execution of the decree.
In Biswanath Poddar (supra), it was contended that the bilateral
agreement between the tenant and the sub-tenant creating sub-tenancy which
contained clause that the landlord had given consent to sub-let would bind the
landlord and the sub-tenant cannot be evicted and the sub-tenant is a necessary
party in a suit for eviction by the landlord against the tenant was negative. The
decision of our High Court, in Paspur Travels Pvt. Ltd. Vs. Biswanath Poddar
& Anr. reported at 2000 (2) CLJ 204 was reversed by the Hon'ble Supreme
Court. It is stated in Biswanath Poddar (supra) that under provisions of the Act
the requirement of previous consent of the landlord as also intimation in writing
in the manner prescribed under the Act by the tenant as well as the sub-tenant
within the time stipulated thereunder being a mandatory requirement, the
creation of sub-tenancy without fulfilling these requirements becomes opposed to
S.14 of the Act. If it is a sub-tenancy created contrary to the provisions of the
Act then as could be seen from S. 13(2) of the Act, it becomes unnecessary for
the landlord to implead the sub-tenant when he seeks to evict the original tenant
on the ground of unlawful tenancy.
In the aforesaid case based on evidence the trial Court had come to the
conclusion on facts that neither of the twin requirements, namely the previous
37
consent of the landlord and notice in writing by the tenants is fulfilled.
Therefore, it came to the conclusion that there was no obligation on the part of
the landlord to have impleaded the second respondent as a party to the original
eviction petition because the said respondent did not have a legal right to be heard in view of S.13(2) of the Act. A bilateral agreement between the tenant and the sub-tenant to deprive the owner of a statutory right of eviction by a contract inter se between themselves cannot be relied upon and on basis of clause in agreement "and whereas the first party by virtue of the consent of the tenant in respect of the said premises is otherwise empowered to sublet and/or part with possession and/or to let out the said premises or any portion thereof to any person or persons", it cannot be contended the landlord had given previous consent to the original tenant to sublet or part with possession of the premises to any person (s), and therefore, a separate previous consent of the original landlord (the appellant) is not essential. The landlord was not a party to the above agreement. Any statement made in the said agreement would not be binding on the landlord and there being no other evidence to show that in fact there was such written previous consent given by the landlord to create a sub-tenancy. This being a mandatory requirement of law, it was held that the sub-tenant has failed to establish this mandatory requirement of the Act, i.e., S.14 of the Act.
The language of S.14 clearly bars creation of any sub-tenancy without the previous consent in writing of the landlord. This requirement of notice is further qualified by the prescribed method of issuance of notice which is found in R.4 of the West Bengal Premises Tenancy Rules. The Section also prescribes the time 38 limit within which such notice has to be given. Under R.4 the notice has to be sent by registered post. It also statutory prescribes the contents of the notice and the place to which it should be addressed. All these conditions coupled with the use of the word "shall" both in Section and the Rules indicate that the Legislature intended this requirement of notice under S.16 of the Act to be mandatory. Therefore, the requirement of S.16 is mandatory and not directory.
At the time of filing of suit by Dr. Deb, the provisions of West Bengal Premises Tenancy Act, 1956 was applicable. Under Section 16 of the West Bengal Premises Tenancy, 1956 clearly recognizes that although under the general law tenant enjoys the right to sublet without the landlord's consent, the sub-tenants position is nonetheless precarious; he is not a necessary party in ejectment suit and is bound by decree against eviction passed by the tenant. Under Section 14 of the 1956 Act, the tenant's right to create sub-tenancy was curtailed. He could not do so without the previous written consent of the landlord. Even this was not being considered enough; creation and termination of sub-tenancies were to be notified to the landlord. Dr. Deb had the opportunity to seek declaration as a direct tenant under the Ghosh's as the same was available to him under Section 16 of the 1956 Act as a suit for ejectment against the defendant No.1 was pending but he did not pursue the said suit and the suit is abated. Under Order 22 Rule 9 of the Code of Civil Procedure, no fresh suit shall lie once a suit is abated.
It has been the consistent view both under the 1956 Act and the subsequent rent legislation in 1997 that in the suit by a landlord against tenant 39 for ejectment, the sub tenants are not necessary parties and, therefore, they cannot object to the delivery of possession on the ground that the decree is not binding as they were not made parties to it. Therefore, the decree for ejectment of the lessee can be executed against the sub-lessees although he was not made a party. The aforesaid discussion is made in order to show the status of the present applicants.
Even it is assumed that Dr. Deb was a sub-tenant with the death of Dr. Deb, the legal heirs of Dr. Deb at best could have claimed the tenancy right for a period of 5 years from the date of death of Dr. Deb provided they fulfill the requirement of Section 2(h) of the West Bengal Premises Tenancy Act, 1997. It is significant to mention that the legal heirs of Dr. Deb had asserted their right as sub-tenant in the capacity as the legal heirs of Dr. Deb is would be evident from the rent control challans mentioned above which would show that deposits have been made by the widow and son of Dr. Deb as legal heirs of Dr. Deb. The applicants have failed to prove any independent right.
Now turning on to the plethora of letters annexed to the written statement filed by the defendant in the amended written statement, apart from the fact that the authenticity of such letters were questioned by the plaintiffs and inspection of the original letters were demanded neither the defendant nor the present applicant has offered inspection of the said document. Initially the applicant agreed to offer inspection but later such inspection was denied presumably on the ground that these documents were exchanged by and between the plaintiffs and the defendants and the applicant could not be possession of any such 40 documents. None of the said letters even if, assumed to be in existence could make out a case of fresh tenancy. Both prior and after the period covered by the said letters pleadings have been filed by the defendant and Dr. Deb and in none of such pleadings such letters at all were referred to or relied upon. Moreover, having regard to the fact that Dr. Deb died before establishing the right as a monthly tenant under the Ghosh's and the said suit having not been pursued, it is a fait accompli for the present applicant to ride over such claim. The only person could have thrown any light was Durgabati or Dr. Deb. Both the persons are dead. The assertion by Dr. Deb today in his plaint could not be proved by anyone else in the suit.
Section 116 of the Transfer of Property Act contemplates a bilateral contract between the erstwhile landlord and the erstwhile tenant. On the one hand there should be an offer of taking a new lease evidenced by the lessee remaining in possession of the demised premises after his term was over and on the other hand there must be a definite consent of the landlord to the continuance of possession by the tenant expressed by the acceptance of rent or otherwise. The expression "holding over" is used in the sense of retaining possession. In a case of tenancy holding over, there is no relationship of landlord and tenant. The twin requirements are absent in the present case. The very fact that Durgabati instituted a suit for eviction shows that she never intended to continue the lease. In fact Dr. Deb complained that Durgabati had acted in breach of her premises in seeking to induct a third party to develop the property. There are clear indications to show the dissent of Durgabati and her successors 41 to continue with the lease. It is unbelievable and unacceptable that the Credit Union in possession of such letters would not take benefit of these letters for all these years. Credit Union made a last attempt after almost thirty years to rely on such alleged correspondence. The said letters cannot be proved by the present applicant. They were not parties. He who alleges must prove. The onus is not discharged. The authenticity of such letters in any event is in serious dispute. The present applicant in any event was not an under lessee. Durgabati had never intended to create any fresh tenancy either in favour of Dr. Deb or Credit Union and their appears to be a conflict between Dr. Deb and Credit Union as to who become a monthly tenant under Durgabati after the expiry of the lease. It is evident from the two suits filed by Dr. Deb and Credit Union. The payments for few months of rent as alleged appears to have been paid without the knowledge and consent of Durgabati and such payments cannot elevate the status of Credit Union as a tenant holding over. The earlier court proceedings between the parties would show that Dr. Deb was asked to pay occupation and Municipal taxes and charges being the person in actual occupation and not as a tenant holding over. The court had never accepted that Dr. Deb was lessee under Ghosh. However there is a prima facie finding that Dr. Deb was a monthly tenant under Credit Union. There is no finding that Dr. Deb was inducted as a sub-tenant with the consent of Ghoshes.
The question of holding over is one of animus and the real intention of the parties. There cannot be a valid contract without consensus ad idem of the 42 terms of the contract between the parties. (Munavar Basha v. Nrayanam reported in AIR 1961 Mad 20).
It is equally well settled that mere payment of rent without anything else does not automatically leads to an inference of holding over. (See. Shila Roy Choudhury And Ors. vs Nimai Charan Rakshit reported at 2006 (4) CHN 7 and C. Albert Morris vs. K. Chandrasekaran and Others reported at 2006(1) SCC 228). The assent of the landlord which is founded on acceptance of rent must be acceptance of rent as such and in clear recognition of the tenancy right asserted by the person who pays it. Merely because the lessors accept rents for few months after the expiry of lease without immediately initiating any action for recovery of possession would not be a factor against the lessors and is not indicative of the fact that they had accepted the erstwhile lessees as contractual tenants. In Smt. Minati Sen alias Smt. D.P. Sen Vs. Kalipada Ganguly & Ors. reported in AIR 1997 Cal 386 it has been held that mere knowledge of the landlord about occupation of the tenanted premises by a sub-tenant and acceptance of rent for the tenanted premises tendered by the tenant in the name of the sub-tenant will not create sub-tenancy unless induction of such tenant is made with the written consent of the landlord as required under the West Bengal Tenancy Act 1956. The payment of rent by Dr. Deb along with rates and taxes were under order of Court as Dr. Deb was found to be in occupation. In fact the Credit Union paid rent for five months after the expiry of lease and thereafter no amount was recovered by the landlord. The landlord never treated such payment as rent inasmuch it was contended that such payment was made without the 43 knowledge of Durgabati. As soon as Durgabati became aware of such fraudulent conduct immediately she refused to accept any sum from the defendant. There is no continuous uninterrupted act on the part of Durgabati soon after determination of the lease assenting to the tenancy of Credit Union after expiry of the lease and the defendant realising the weakness of its defence did not pursue its claim of holding over. The defendant was also not in a position to prove the alleged letters disclosed almost thirty years after the original written statement was filed. The original letters were never offered for inspection although asked for by the plaintiffs.
The doctrine of holding over does not apply to a person who has never been in occupation as a tenant. Dr. Deb was never recognized as a tenant by Durgabati or her successors. The applicant never had asserted such right until 27th July, 2007 but claimed through Dr. Deb.
The cumulative effect of all these discussions leads to a conclusion that the applicants have no right to resist the execution of the decree. The application fails. G.A.No.1074 of 2015 is dismissed.
The amount deposited by the applicants during the pendency of this proceeding shall be adjusted towards mesne profits and if any further sum is found to be due and payable, the decree holder may proceed for execution of such sum on account of mesne profits for any subsequent period if within two weeks from date the applicant does not make over peaceful possession of the area under their occupation to the court appointed receiver. 44
The Receiver shall not for a period of two weeks take actual physical possession of the premises in question. In view of dismissal of G.A. No.1074 of 2015, the other two applications being G.A. No.3723 of 2015 and G.A. No.3725 of 2015 are dismissed.
However, there shall be no order as to costs.
Urgent Photostat certified copy of this judgment, if applied for, be given to the parties on usual undertaking.
(Soumen Sen, J.)