Calcutta High Court (Appellete Side)
Smt. Dipali Halder & Ors vs Sri Chandan Das & Anr on 13 December, 2017
Author: Sanjib Banerjee
Bench: Sanjib Banerjee
1 6 13.12.2017
CO 1534 of 2017 gd Smt. Dipali Halder & Ors.
Vs. Sri Chandan Das & Anr.
Mr. Srijib Chakraborty ..for the Petitioners Mr. Sharanyan Chatterjee ..for the Opposite Parties This petition is utterly misconceived and considerable time has been wasted to flog a dead horse.
The petitioners question the propriety of an order dated February 24, 2016 by which the petitioners' application under Section 7(2) of the West Bengal Premises Tenancy Act, 1997 has been rejected. The rejection is on the appreciation that the primary ground for eviction in the suit is the loss of status of the petitioners herein as tenants by operation of law. The principal case made out in the plaint is that the petitioners herein are trespassers in occupation of the suit premises who have not vacated the same despite due notice in such 2 regard.
The facts may be appreciated with reference to the plaint in the suit. Paragraph 2 of the plaint narrates that one Dilip Kumar Halder was inducted as a tenant at the suit premises on a monthly rent of Rs.180/- according to the English calendar month. The further assertion in paragraph 2 of the plaint must be seen in the language of the plaint:
"It is mentioned herein that the original tenant said Dilip Kumar Halder died in the month of November 2001 leaving behind Defendant No.1 (one) as wife and Defendant No.2 (two) & 3 (three) as son and daughter.
"It is further mention herein that the defendant No.2 (two) and 3 (three) at the time of of death of original tenant said 'Dilip Kumar Halder' were neither dependents to said original tenant nor ordinarily were living with the original tenant said 'Dilip Kr. Halder'."
After describing the particulars of the suit premises in a schedule and incorporating the schedule as a part of the plaint, the narrative proceeds to record that the rent remains unpaid from January, 1997 before the following is asserted at paragraph 5 of the plaint:
"That until determination the defendant 3 No.1 (one) had been in occupation of the suit premises as a monthly tenant under the plaintiffs on monthly rent of Rs.180/- (one hundred and eighty) only according to english calender month."
At paragraph 8 of the plaint it is averred that on October 9, 2006 the plaintiffs issued notice to the defendants to vacate the suit premises upon the expiry of the month of November, 2006. The suit was instituted in January, 2007 claiming that the cause of action arose on December 1, 2006.
As is appropriately recorded in the judgment and order impugned, the substance of the plaintiffs' case is that the tenancy stands determined by operation of law "and in this respect the notice to quit is also very specific, a copy of which is there with the plaint." There is a paragraph in the plaint where there is an allegation that the plaintiffs apprehend that the possession of the suit premises may be handed over by the defendants to a third party against receipt of illegal consideration, but such allegation does not destroy the substratum of the plaintiffs' case. Again, there is another short 4 paragraph in the plaint where it is alleged that the plaintiffs reasonably require the suit premises. But such allegation appears to have been made in passing and may be ignored in the context of the primary cause of action that is evident on a meaningful reading of the plaint.
There is also an assertion in the plaint that the rent in respect of the suit premises has not been paid since January, 1997. Even such assertion, in the context of the principal ground urged in the suit, would not entitle a petition under Section 7(2) of the Act to be maintained in the suit. At any rate, it is not the petitioning- defendants' case in their petition under Section 7(2) of the Act that a new tenancy was created after the death of the original tenant or after the expiry of the period when the heirs of the original tenant could be regarded as tenants by virtue of the extended definition of a "tenant" in the said Act. Further, the date of death of the original tenant, in the month of November, 2001 is clearly referred to in the plaint. The notice that was issued by the plaintiffs to the 5 defendants for delivery of possession of the suit premises also required the possession to be made over after the expiry of November, 2006.
The reference to the default in payment of rent may also be seen to be another head of claim which, if found correct, will entitle the plaintiffs to a money decree in addition to the decree for eviction that they seek upon the determination of the tenancy at the expiry of a period of five years after the death of the original tenant.
Section 2(g) of the Act of 1997 defines a tenant and, the material part relevant for the present purpose provides that "in the event of death of any tenant, also includes, for a period not exceeding five years from the date of death of such tenant or from the date of coming into force of this Act, whichever is later, his spouse, son, daughter, parent and the widow of his predeceased son, who were ordinarily living with the tenant up to the date of death of the tenant as the members of his family and were dependent on him and who do not own or occupy any 6 residential premises, and in respect of premises let out for non-residential purpose his spouse, son, daughter and parent who were ordinarily living with the tenant up to the date of his death as members of his family and were dependant on him ..."
The premises in question was used as a medical shop, according to the plaint. Thus, in view of the definition in Section 2(g) of the Act, for such non-residential tenancy, the spouse, son, daughter and parent who were ordinarily living with the tenant up to the date of his death as members of his family and were dependant on him would be entitled to be regarded as tenants for a period not exceeding five years from the date of death of the original tenant.
The suit is clearly one for eviction upon the expiry of a period of five years from the date of death of the original tenant. So that no complications arise, the plaintiffs have taken five years from the end of the month in which the original tenant died to be the end-point of the tenancy within the extended meaning of Section 7 2(g) of the Act in case of heirs of the deceased original tenant. The suit has been instituted after issuing a notice to quit on a date when the petitioners herein would have ceased to be tenants in respect of the relevant premises.
The petitioners refer to a judgment reported at 2017 (1) CHN 485 (Ratna Bose @ Basu v. Jharna Mullick). Paragraphs 8 and 9 from the report have been placed:
"8. While considering the issue regarding maintainability of this suit, as argued by Mr. Probal Kumar Mukherjee, learned senior counsel appearing for the defendant/appellant, we have considered the plaint as a whole. On perusal of the plaint, we do not find that the plaintiff framed the said suit for eviction under the scheme of Section 6 of West Bengal Premises Tenancy Act, 1997. The plaintiff very specifically stated in the plaint that Jogeshbabu was the original tenant and on his death, the heirs of Jogeshbabu who were residing with him viz., the defendants had the right to remain in the said tenancy as tenants thereof for a period of five years after the death of Jogeshbabu.
"9. The plaintiff claimed that the defendants ceased to be tenants under the plaintiff after expiry of the period of five years after the death of Jogeshbabu. The instant suit was filed after expiry of five years from the date of death of Jogeshbabu, not by treating the defendants as tenants, but by treating the defendants as trespassers. Even the suit 8 was not founded on the basis of cause of action arose following service of notice under Section 6(4) of West Bengal Premises Tenancy Act, 1997. Had it been a suit for eviction of a tenant under the Premises Tenancy Act, 1997, notice under Section 6(4) of the said Act would have been served upon the defendants as the said provision gives a mandate for filing of such suit after expiry of notice period under Section 6(4) of the said Act, if the tenant does not vacate the tenancy after expiry of the notice period. No such notice was served upon the defendants by the landlord before filing such suit. Even the suit was not founded on the basis of the cause of action arose due to non- compliance of the notice under Section 6(4) of the said Act. As a matter of fact, service of such notice upon the tenant is a pre-condition for maintaining the suit for eviction under the said Act. Or, in other words, the cause of action for filing such suit of eviction against a tenant will be completed only when the tenant refuses to vacate his tenancy ever after expiry of the notice period."
The facts as noticed in such paragraphs are almost identical to the facts as pleaded in the plaint pertaining to the present suit. In the reported case one Jogeshbabu was the original tenant and the court noticed that the plaint clearly stated who were the heirs of Jogeshbabu upon his death who were entitled to be regarded as tenants. The plaint in the present case has clearly indicated the month of death of the 9 original tenant and the particulars of his heirs with a rider that the son and the daughter did not ordinarily reside with the original tenant nor were they dependent upon him. The suit in the reported case was filed after the expiry of five years from the date of death of Jogeshbabu; the present suit has been filed after the expiry of five years from the date of death of Dilip Kumar Halder. The suit in the reported case was not founded on the basis of any cause of action following the service of notice under Section 6(4) of the Act of 1997; in this case a notice was issued calling upon the defendants to quit, vacate and deliver peaceful possession upon the expiry of the month of November, 2006. The mere issuance of the notice which reminded the petitioners herein of their obligation cannot detract from the plaintiffs' case, particularly since the suit was instituted after the time for delivering up possession as indicated in the notice had expired and the period of five years had also expired from the date of death of the original tenant. The suit in the present case was 10 clearly not founded on any of the grounds under Section 6 of the Act of 1997.
An application under Section 7(2) of the Act of 1997 may be filed by a tenant. The legislature has advisedly used the word "tenant" in preference to the word "defendant". In any event, Section 7 of the Act applies when grounds under Section 6 of the Act are invoked for eviction. In the present case no ground under Section 6 of the Act was invoked for seeking the eviction of the petitioners herein from the suit premises.
The trial court committed no error in rejecting the petitioners' petition under Section 7(2) of the Act of 1997 since such provision was inapplicable to the facts of the suit. Since it is the admitted position that a period of five years has elapsed from the date of death of the original tenant, it is now for the trial court to take expeditious steps in accordance with law to dispose of the suit.
It is improbable but still possible that in course of the trial of the suit, the defendants 11 may be able to assert and establish themselves as tenants in their own right. If the petitioners are able to establish their independent right as tenants, the petitioners will be entitled to apply afresh under Section 7(2) of the Act when the limitation will be counted from the date of such right being established as the suit has then to be regarded from such date to be one under Section 6 of the Act of 1997.
CO 1534 of 2017 is dismissed with costs assessed at Rs.5,000/-.
Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.
(Sanjib Banerjee, J.) 12