Calcutta High Court
K.B. Saha & Sons (Biri Merchants) Pvt. ... vs Development Consultants Ltd. on 18 May, 2001
Equivalent citations: (2002)2CALLT104(HC), 2001(2)CHN706
JUDGMENT J. Banerjee, J.
These are two appeals arising out of two suits, namely, T.S. 19/92 and T.S. 39/95, which suits were disposed of by the judgment dated 11th November, 1988 by Shri S.K. Prosad. Civil Judge, (Senior Division), 9th Court, Alipore in the District of South 24-parganas.
2. Briefly stated the facts and circumstances leading to the present appeals are as follows:-
The plaintiff/company brought T.S No. 19/92 against the defendant/ company alleging, inter alia, that the plaintiff was the owner of premises No. 28/8, Gariahat Road, previously within P.S. Tollygunge, now P.S. Lake within the District of South 24-Parganas and the defendant/company became a tenant in respect of a flat as described in Schedule-A of the plaint in the said premises. Initially the monthly rent of the said flat Including the rent of fixtures and fittings and rent for car parking space was Rs. 1,100/- only payable in advance by the 5th of the current month, for which rent becomes due and the said monthly rent and other charges were subsequently increased to Rs. 1,210/- since September, 1985. It is further alleged that the defendant/Company took the suit flat for the residential accommodation of its particular officer, Mr. Keshab Das, and the members of his family and for no other purpose and such condition was Incorporated in a memorandum in writing dated 30th March, 1976 executed by both parties prior to the Induction of the defendant as a tenant in respect of the suit flat. It was provided in such memorandum that if the tenant intends to use the tenancy for occupation of any other officer or employees it will seek for written consent of the landlord and the landlord would have the optlon'to agree or disagree to such consent. It was further alleged that the defendant/company by a letter dated 6th of March 1992 informed the plaintiff/company that the said Mr. Keshab Das, Chief Engineer (Cement) had vacated the said flat and wanted to make repair and painting and allot the said flat to another offlcer. The said letter was received by the plaintiff on 12th March, 1992. The plaintiff informed on telephone to the effect that the defendant had no right to allot the flat in question to any other officer and the defendant company should surrender the said flat in favour of the plaintiff/company. But the plaintiff was Informed by the defendant that it would not pay any heed to such request and it would repair and paint the said flat. In that background, the plaintiff brought the aforesaid suit for declaration that as per terms and conditions embodied in Clause 9 of the memorandum of agreement dated 30.3.76, the defendant had no right to allow any other officer or employee of the defend ant/company to occupy the said flat after vacation of the same by Mr. Keshab Das and also for a declaration that the defendant had no right to proceed with repairing or painting in respect of the suit flat and for mandatory injunction requiring the defendant to deliver vacant possession.
3. The plaintiff/company also brought a title suit being No. 39/95 with the similar allegations in respect of the said suit flat alleging further that although the defendant was bound to vacate the suit flat after Mr. Das had vacated, yet the defendant/company not having vacated the said flat, the plaintiff had, by way of abundant precaution Issued a notice dated 18th March, 1995, requiring the defendant/company to vacate the suit flat with the expiry of the month of April, 1995, asking the defendant to quit vacate and deliver up peaceful possession thereof. The said letter was sent under registered post and the same was duly served. In that suit, the plaintiff prayed for a decree for ejectment against the defendant/company from the suit flat more fully described in Schedule-A of the plaint and also for decree of damages and consequential reliefs.
4. The defendant-respondent/company contested both the suits on the written statements and their case as depicted in such written statements is that the defendant/company was in urgent need of rented accommodation for its officers. So, they hurrldly put their signatures on the alleged agreement dated 30.3.76. The defendant alleged that the tenancy was taken by the defendant for providing residential accommodation to its officers. The officer, Shri Keshab Das was not the tenant Th defendant was the tenant and the said defendant/company provided its officers, Shri keshab Das with that accomodatlon. So even after Shir Das shifted to another premises the tenancy of the company still continued and it has been continuing. It is specifically alleged that the defendant paid rent upto date. The allegations that the defendant had no right to allow any other officer to occupy or to allot the suit flat are misconceived and baseless. It is further alleged that the defendant Informed the plain tiff/company that the said employee of the defendant/ company had left the suit flat and that they were going to allot the suit flat to another officer. But the plaintiff-appellant/company with an ulterior notice withheld their consent and filed the suits on some false and frivolous grounds. The defendant/ company specifically asserted that since the tenancy in question was not the personal tenancy of the officer of the defendant/company and since the defendant/company paid rent to the plaintiff/company, such tenancy was protected by the West Bengal Premises Tenancy Act and the agreement in question was otiose.
5. In both the suits on the basis of the aforesaid pleadings of the parties, the learned trial Judge raised certain Issues and after consideration of the evidence on record came to a finding that inspite of Clause 9 of the agreement between the parties (Ext. No. 4), the defendant/company was tenant which had been inducted in respect of the suit flat for residential purpose for providing accommodation to its officers. The learned Judge further found that the agreement between the parties was clear to show that the defendant/company was inducted as a tenant in respect of the suit flat for the accommodation of the defendant's officer, namely, Mr. Keshab Das and the members of his family. The learned Court below further found through the Judgment Impugned that suit flat was let out by the plaintiff to the defendant/company, initially for providing accommodation to its particular officer, namely, the said Keshab Das but such agreement did not mean that the tenancy was created exclusively for providing accommodation and for residence of the said Keshab Das, Chief Engineer (Cement) and his family. The learned Judge further found that the landlord/plaintiff had no right to determine the tenancy and as such the notice issued for such purpose was not valid. With these findings, the learned Judge dismissed both the suits.
6. Being aggrieved by such decision, the plaintiff/appellant has come up in appeal this Court. The only question before us is whether the learned Civil Judge (Senior Division), Alipore was Justified in dismissing the suits, namely, T.S. No. 19/92 and T.S. No. 39/95 which were heard analogously?
7. On perusal of the pleading of the parties it transpires that the case of the plaintiff/appellant here, common in both the suits is based on the tenancy agreement dated 30th March, 1976. The assertion of the plaintiff is that in view of the specific terms of the agreement and the defendant's letter dated 6th March, 1992 and the plaintiffs reply thereto dated 12th March, 1992 the defendant has no alternative but to surrender/vacate the suit flat in favour of the plaintiff and the defendant not having vacated the same, the plaintiff has been compelled to file the present suit. The defendant's plea on the other hand is that the defendant is a tenant and even if the original occupier vacated the premises the tenancy continued. As it was a tenancy protected by the West Bengal Premises Tenancy Act such agreement is otiose. The alleged agreement is illegal and against the statute the purported agreement was never acted upon and it is not binding upon the defendant. It is the further allegation of the defence that by the purported agreement they never made any promise or gave any undertaking to surrender or to vacate the suit flat to the plaintiff and that the consent regarding the further occupation by any officer of the defendant company as provided in the agreement is a matter of formality and courtesy.
8. Now to determine the real question in issue we are required to see the tenancy agreement the relevant portion of the same starting from page 9 and ending at the middle of page-11 of paper Book (part-II) are as follows:-
"This Memorandum of Agreement made this the 3rd day of March , one thousand nine hundred and seventy six between M/s. K.B. Sana & Sons (Biri Merchants) Limited a body corporated registered under the Companies Act, 1956 having its registered office at 28/8, Gariahat Road within P.S. Tollygung, Calcutta-29 within the local limits of Corporation of Calcutta hereinafter called the landlords (which expression unless repugnant to the contest shall include its successors and assigns) of the First part and Development Consultants Private Ltd., a body corporate registered under the Companies Act, 1956 having its registered office at present at Premises No. 24-B, Park Street, Calcutta, within P.S. Park Street, Calcutta-700016 hereinafter called the tenant (which expression unless repugnant to the contest shall include its successors and assigns) of the second part;
Whereas the party of the First part, the landlord hereof is the sole owner and proprietor of multistoreyed buildings being premises No. 28/8, Gariahat Road, within P.S. Tollygunge, Calcutta-700029 within the local limits of Corporation of Calcutta and whereas the said Landlord, party of the first party hereof offered to let out flat No. 3 on the 2nd floor of the said premises along with fittings, fixtures and installations therein at a total monthly rental of Rs. 1,100/- (Rupes One thousand one hundred) only inclusive of rent of fittings and fixtures and service charges and parking space for one car and whereas the party of the second part hereof approached the party of the first party hereof and offered to it the said flat No. 3 of the 2nd floor of the said Premises No. 28/8, Gariahat Road, Calcutta-29 for the use and occupation of its present Chief Engineer (Cement) of the aforesaid party Mr. Keshab Das and the members of his family only agreeing and accepting to the aforesaid offer by the party of the first part at a total rental of Rs. 1,100/- (rupees one thousand one hundred only) Inclusive of the rent of fittings and fixtures, service charges and parking space for one car and whereas the party of the first part hereof has agreed to let out the said flat to the party hereto of the second part for the use and occupation of the present said Chief Engineer (Cement) and his family members only and whereas the party of the first part agreed to give vacant possession of the said tenancy and the party of the second part hereto agrees to take possession of the said tenancy for the use and occupation of the said Chief Engineer (Cement) and his family members on First day of April, 1976."
9. Thereafter Clause-9 of the same Agreement at page 14 of the paper Book (part-II) which runs as follows:-
"That the party of the second part hereof agrees and undertakes that the tenancy will be used and occupied by its present officer Mr. Keshab Das and members of his family for residential purpose only and for no other purposes. If the tenant Intends to use the tenancy for occupation of any other officer or employees, it will seek for written consent of the landlord and the landlord shall have the option to agree or disagree to give such consent."
10. Then again para 20 at pages 17 and 18 of Paper Book (part-II) which reads as follows:-
"That the tenant shall vacate and deliver vacant khas possession of the demised premises upto the landlord on termination or determination of the tenancy with whole of the fittings and effects in as sound, perfect and clear condition as they were at the commencement of the tenancy excepting natural wear and tear."
11. Considering the aforesaid provisions of the tenancy agreement, the learned Court below came to the following findings:
"In view of my findings in the foregoing issues I hold that the suit premises i.e suit flat let out by the plaintiff to the defendant company was Initially for providing accommodation to the particular officer, namely, Mr. Keshab Das but that mean that the tenancy was created exclusively for the accommodation and residence of said Mr. Keshab Das, Chief Engineer (Cement) and his family only. Therefore, I farther hold that the said tenancy was created in respect of the suit flat in favour of the defendant/company and for no other purpose."
12. Now it is the contention of the plaintiff/appellant that the tenancy was exclusively for the benefit of named officer and his family and unless and landlord gives his consent no other persons can use It. On the other hand it has been argued on behalf of the defendant/respondent that as per the tenancy agreement dated 30th March, 1976, such tenancy was created in favour of the defendant/company and the rent paid by the defendant company to the plaintiff/company and rent receipt Issued in favour of the defendant/company not against possession and Individual person. Therefore, it can be stated that the tenancy was created between plaintiff/ company and the defendant/company and Mr. Keshab Das, the Chief Engineer (Cement) of the defendant company was occupying the suit flat on behalf of the defendant/company. The defendant /respondent also claims the protection of the West Bengal Premises Tenancy Act, 1956 and submits that the question for consideration in view of the tenancy agreement is whether the naming of the person is or is not redundant and whether the naming of the person restricts the extent of the user permitted under the lease or tenancy in question.
13. Before we proceed further to consider the question touching the effect of such tenancy agreement, it should be noted very clearly here that the agreement in question entered into between the parties, which has been described as tenancy agreement is in effect and agreement for lease of the suit flat and admittedly the same was unregistered. Section 105 Transfer of properties Act, 1882 defines lease in following words:-
"A lease of immoveable property is a transfer of a right to enjoy such property, made for a certain time, express or implied or in perpetuity, no consideration of a price paid or promised or of money, a share of crops, service or any other thing of value to be rendered periodically on specified occasions to the transferor by the transferee who accepts the transfer on such terms."
Section 49 of the Registration Act provides that a document purporting to be a lease and required to be registered under Section 107 T.P. Act is not admissible in the evidence if it is not registered.
14. Section 107 of the T.P. Act provides that the lease of Immovable property from year to year or for any term extending one year can be made only by registered instrument Proviso to Section 49 of the Registration Act also provides that although a lease deed falling under the provision of 107 T.P. Act will not be admissible in evidence if the same is not registered but that deed may be used as evidence of any collateral transaction hot required to be effected by a registered instrument.
15. In the instant case, we have already seen from the discussion above that the specific plea taken by the defendant/tenant is that such defendant/ tenant company is protected by the provision of the West Bengal Premises Tenancy Act, 1956 and the tenant cannot be evicted only because of the tenancy agreement wherein the tenancy in question was initially occupied by one of the officers of the defendant/tenant-company. I.e., Keshab Das. The plaintiff/appellant on the other hand has placed his reliance on the judgment of the apex Court, Juthika Mallick v. M. Y. Sal , in order to assert that the tenancy agreement in question was only for the occupation of one officer of the defendant/company and as per the agreement, the defendant/tenant is bound to vacate the premises after the said officer has left the premises. The learned Advocate for the plaintiff/appellant has submitted relying on the aforesaid decision of the apex Court that the agreement between the parties is not contrary to the provisions of the West Bengal Premises Tenancy Act as held in that case. In this respect, the learned Advocate has placed his reliance on the following observation of the Hon'ble Court
16. From Paragraph 42 of the reported judgment which runs as follows :--
"In view of language of Section 13(1) of the Act, the parties have freedom to contract out of the Section. In this case Clause 1 of the lease deed extracted above stipulates that the heirs of the lessee will have no right to hold after the death of the lessee, and they have to deliver quiet, peaceful and vacant possession within 3 months after the demise of the original lessee. In other words the right has been made specifically not heritable."
17. In that case, the lease was for life time of the lessee and his heirs executors and administrators or assigns were required to give up and deliver quiet, peaceful and vacant possession of the demise premises within 3 months of the death of the lessee unconditional and without any objection whatsoever. A question arose for consideration of the Court whether such a clause being contrary to the provision of Section 13 of the west Bengal premises Tenancy Act would prevail so as to entitle the lessor to get a decree for eviction. The Hon'ble Court examined the words of Section 13(1) which has been enacted for the protection of tenant against eviction and the relevant portion of which runs as follows :- Notwithstanding anything to the contrary in any other law, no order or decree for recovery of possession of any premises shall be made or any law in favour of the landlord against a tenant except one or more of the following grounds, i.e.....". The Hon'ble Court pointed out that in such language there is no mention of contract and therefore in view of the language of Section 13(1) of the Act, the parties have freedom to contract out of section. In other words, as per the decision of the said reported case although the tenant is protected under the provision of Section 13 of the West Bengal Premises Tenancy Act and such tenant can only be evicted for one or more grounds as provided there, the parties have got freedom to enter into an agreement, to take their case out of the provisions of that section. But in our considered opinion, the appellant cannot get any benefit from the aforesaid decision in view of the simple fact that in that case the respondents leased out the suit premises in favour of the appellants under a registered lease deed. But in the Instant case, the lease deed is not registered. So the question is whether we can look into the condition noted in such deed that the tenancy in question would be used only for the purpose of occupation of one of the officers of the defendant tenant company or not and the answer to that question would be dependant upon the further question whether under the proviso to Section 49 of the Registration Act, such condition may be admitted as evidence of collateral facts. The learned counsel for the appellant has argued that the tenancy in question was exclusively for the benefit of the named officer and his family and unless the landlord gave his consent no other person can use it and such condition in the written agreement is admissible for ascertaining the purpose of letting out the suit flat, which is a collateral fact. For the aforesaid purpose, reliance has been placed upon a reported decision of the Delhi High Court, S.K. Gupta and Anr. v. R.C. Jain, . In that case, the High Court found that the lease deed was unregistered. So it held that it was not admissible in evidence under Section 49 of the Registration Act but at the same time observed that purpose of letting was collateral and this fact could be looked into from the lease deed Marked Ext. 4. The question is whether the said reported case will come into any help in advancing the argument on behalf of the appellant/landlord? in that case, the question before the Court was whether the tenancy was for residential purpose or for residential as well as commercial purpose and the Court held that unregistered lease deed, could be taken into consideration for ascertaining collateral purpose, namely, the purpose of tenancy, that is to say whether the tenancy was created for residential or for residential as well as commercial purpose. But in the instant case, the position is otherwise. Here the plaintiff/appellant wants to extinguish the right of the tenant/respondent with the help of the unregistered tenancy agreement by asserting that although defendant/ company was the tenant but such defendant/company must surrender the tenancy due to the specific agreement that the tenancy would be used only for the purpose of occupation of an officer of the company and none else. In the case of Ratan Led and Ors. v. Harisankar and Ors. , the High Court discussed what was meant by 'collateral purpose' by observing in the following manner:--
"The second contention was that the partition deed, even if it was not registered could certainly be looked into for a collateral purpose. This proposition is correct that if a document is compulsorlly registerrable and has not been registered, it will be admissible in evidence only for a collateral purpose, but the collateral purpose has a limited scope and meaning. It cannot be used for the purpose of saying that the deed created or declared or assigned or limited or extinguished right to immovable property ... term 'collateral purpose' would not permit the party to establish any of these acts from the deed."
18. In the case of Smt. Chanderwati v. Laxmi Chand and Ors. , the said Court considered the effect of an unregistered deed with is compulsorily registerable, and the question however such document can be used. The relevant portion at Paragraph 14 reads as follows :--"There is no dispute to this proposition of law as the fact of partition can be proved by oral evidence. The question is whether the nature of possession of the appellants and their predecessor-in-interest in the disputed passage could be proved by the oral and other documentary evidence. In our view, the combined effect of Section 91 of the Evidence Act and Section 49 of the Registration Act is to shut out all evidence to prove the terms of unregistered partition deed. Section 49 prohibits the use of unregistered document in any legal proceeding in which such a document is sought to be relied upon in support of a claim to enforce or maintain any right, title or Interest to or in an immovable property Section 91 of the Evidence Act excludes oral evidence in proof of the terms of contract."
19. Considering the question in issues in the light of the decisions referred to above, we feel no difficulty in holding that the tenancy agreement Ext.4 being unregistered document, cannot be used to establish the provision made in such agreement that the suit flat was let out to tenant/ respondent only for the purpose of occupation of its Chief Engineer (Cement) Mr. Keshab Das and the members of his family for their residential purpose and for no other purpose and if the tenant intends to use the tenancy for occupation of any other officer or employees it will seek for written consent of the landlord and the landlord shall have the option to agree or disagree or give such consent. These are not collateral purpose as these terms clearly have incorporated for the purpose of limiting or extinguishing a right to immoveable property.
20. In this connection, it should be pointed out that at a later stage appellant/landlord tried to terminate the tenancy by the service of a notice to quit, on the expiry of the month of April, 1955 and such letter as sent by Registered Post with A.D. on 18.3.95. That letter is at pages 5 to 8 of the Paper Book, Part-II. On going through such notice we find the said notice did not contain any of the grounds mentioned in Section 13(1) of the West Bengal Premises Tenancy Act. Therefore, no decree for recovery of posses-
ston of the suit flat can be passed on the basis of service of such notice to quit. A faint attempt has been made on behalf of the appellant to allege that the appellant is entitled to get a decree for eviction under Section 13(1b) of the West Bengal Premises Tenancy Act. which lays down that where the tenant or any person residing in the premises let to the tenant has done any act contrary to the provisions of Clause(M), Clause(O) or Clause (P) of Section 108 of the T.P. Act. Under Clause (M) of Section 108, the lessee is bound to keep on the termination of the lease to restore the property in a good condition as it was at the time when he was put in possession, subject only, to changes caused by reasonable wear or tear. Under Clause(O) of the section the lessee must not use or permit another to use property for a purpose other than for which it was leased and under Clause (P), the lessee must not without the lessors consent errect on the property any permanent structure, except for agricultural purposes. In this case, no allegations as contemplated under Clause (M), or (P) of Section 108 has been made. The learned counsel for the appellant has submitted that by refusing to hand-over the possession of the suit flat the tenant has done an Act contrary to the provision and Clause (O) of Section 108 of the T.P. Act. It is his contention that the purpose of the lease was for the use and occupation of one of the officers of the tenant/company and after such officer vacated the house, when the tenant/defendant failed to vacate the flat in question, such tenant/defendant violated the provision of Section 108 Clause (O) of the T.P. Act We do not find any force behind such argument. Clause (O) of Section 108 of the T.P. Act touches the question of user. This clause requires the lessee to use the property as a man of ordinary prudence would use his property and not to use the property, for any other purpose, for which it is leased. In the Instant case, from the tenancy agreement what can be seen as a collateral evidence is the purpose of the tenancy and such purpose clearly is for residence. Therefore, there is no question of violation of Clause (O) of Section 108 of the T.P. Act by the tenant/company in the facts and circumstances of the case.
21. In the result, we hold that the learned Court below has rightly, dismissed the suits, viz., T.S. 19 of 1992, and T.S. No. 39 of 1995, the first one, for a declaration that the defendant/tenant had no right to allow any other officer/employee to occupy the suit flat after vacation of the same fay Mr. Keshab Das, and the other suit for eviction of the defendant/tenant.
The appeals, therefore, stand dismissed with Courts. The judgment and decree passed by the Court below are hereby confirmed. Hearing fee, for the appeals which have been heard analogously is assessed at Rs. 1,700/- only T.R. Meena, J.
I agree.