Calcutta High Court
Manohar Kumar Kankaria And Ors. vs Sk. Md. Shawkat And Ors. on 13 April, 2006
Equivalent citations: AIR2006CAL256, AIR 2006 CALCUTTA 256, 2006 (6) ABR (NOC) 1010 (CAL), 2006 (5) AKAR (NOC) 730 (CAL), 2006 AIHC NOC 353, (2006) 2 RENTLR 523, (2006) 4 ICC 511
Author: Kalyan Jyoti Sengupta
Bench: Kalyan Jyoti Sengupta
ORDER Kalyan Jyoti Sengupta, J.
1. All the aforesaid three applications have been taken out by the respcr-tive applicants viz. Banshi Badan Dalai (G.A. No. 934 of 2006) and Bansi & Hari Sankar (G.A. No. 935 of 2006) carrying on business under the name and style of "Studio Fine Arts". Ranjit Bose of Rup Chakra (G.A. No. 933 of 2006). The applicants have come with these three applications to resist the execution of the decree passed in the aforesaid suit, for delivery of possession of the suit premises. These three persons are not the parties to the suit. The plaintiff decree holder obtained the decree in a suit for eviction against the aforesaid defendants on the application under Chapter X1IIA taken out by the plaintiff/petitioner. The said application under Chapter XIIIA was contested by one of (he defendants and his contest failed. Thereafter the decree has been put into execution. The Receiver was appointed in and over the decreetal property for effective execution of the decree. In terms of the Court's order the Receiver put up a notice for vacating all the occupants within a certain time. The Court also allowed the respective occupant or occupants to come to this Court and to establish their right to remain jn possession of the suit premises. Pursuant to this direction and order the aforesaid three applicants came up to this Court. In their respective applications the plea was taken by them that all these persons were necessary parties and they should have been im-pleaded as party defendants in the suit and therefore, the decree was not binding upon them. Regarding their right, title, interest in the property it is stated in the affidavit that the tenancy was initially created in respect of their respective area of occupation of their decreetal premises in 1974-75 with the consent of Ajoyendra Krishna Deb, since deceased, one of the head lessors. They were actually inducted by the then lessees of the said premises. Therefore, the present owner as successor-in-interest is bound by the aforesaid assent for creation of tenanry by the lessees. The alternative case has been made out that even after expiry of the lease the lessees concerned paid rent and it was accepted by the plaintiffs and thereby new relationship has been created. With the acceptance of rent and allowing them to continue in possession there is holding over and as such these applicants have become lawful sub tenants of the said premises. So they should have been made parties.
2. Mr. Ranjan Bachawat, learned Advocate appearing for one of such applicants has advanced argument. After completion of filing of affidavits a supplementary affidavit has been filed enclosing a document showing that one of the defendants had died before the decree was passed. Therefore, the decree is nullity. In course of hearing it was detected that the said defendant (assuming the certificate is valid one) died after hearing of the application had been concluded and before pronouncement of the judgment and decree. In view of the aforesaid factual position Mr. Ranjan Bachawat and his supporting group of learned Advocates have not pressed the point of nullity as they have conceded that by virtue of provision of Order 22, Rule 6 of the Code of Civil Procedure the decree cannot be nullity.
3. Mr. Bachawat has taken me through the rent receipts issued by one Sk. Md. Shawkat and Sahadat Ali in support of creation of tenancy. He contends that by virtue of holding over his clients have become lawful sub tenants and so they are necessary parties and they are kept in dark absolutely. There has been no serious challenge in the application under Chapter XIIIA and the defendants in collusion with plaintiff fraudulently allowed the decree to be passed without any contest in real sense and without telling the Court that there has been holding over. The theory of expiry of lease in this case does not and cannot arise. Admittedly, no notice under Section 106 of the Transfer of Property Act was given and without giving such notice there cannot be any lawful termination of the lease and therefore the suit itself was bad. This execution proceedings is not due and lawful process of law by which his clients should be evicted. He further contends whether his clients are lawful sub-tenants or not as contended by the decree holder, cannot be decided by the Civil Court or for that matter this Court in the execution proceedings also, and for this purpose the Controller appointed under the provision of West Bengal Premises Tenancy Act, 1997 is empowered to decide this matter. When the lease is alleged to have expired this Act did not come into operation but at the time of the filing of the present suit this Act came into force and by virtue of Section 45 the earlier Act i.e. West Bengal Premises Tenancy Act, 1956 this Act stood repealed and so there is no application of the same.
4. In support of his submission he has relied on the following decisions of this Court and Supreme Court, and . Mr. Samrat Sen, appearing for other applicants has not advanced any separate argument and has adopted argument of Mr. Bachawat. Mr. A. K. Chatterjee appearing with Mr. P. Roy for the decree holder contends that going by the affidavit it appears that each of the applicants has failed to establish any right, title, interest whatsoever to remain in possession or occupation. On expiry of the lease all tenants inducted by the lessees have no manner of right to remain in possession, and they have become trespassers along with the original lessees. He further contends that in order to establish a case of holding over one has to satisfy the Court that there has been offer of payment of rent by the lessees after expiry of lease and acceptance of the same by the lessor. The applicants fail to establish this case. He further contends that even assuming there has been holding over and the applicants cannot be sub-tenants under the provision of West Bengal Premises Tenancy Act, 1956 which was then prevailing, under Section 16 of the said Act. In order to become a lawful sub-tenant both the sub-tenants and the tenant were required to serve written notice to the landlord. There was no such document and averment nor any notice having been given. Therefore, it was not necessary to make them parties in the said suit.
5. He further contends that in the application under Chapter XIIIA this point was raised and the Learned Judge decided this point on fact that there was no offer of payment of rent nor acceptance of the same even after expiry of the lease. According to him, by necessary implication the point of holding over has been negatived. Therefore, it does not lie in the mouth of the applicants the same plea in the execution proceedings as they are claiming their interest through the defendants.
6. As far as jurisdiction of the Controller under the 1999 Act is concerned he contends that there is no need to decide the plea of sub tenancy.
7. I have heard the respective contentions of the learned Counsels for the parties. I have gone through the plea taken in the affidavit in support of the Summons carefully. The first plea taken by the applicants that they, with the assent of the predecessor-in-interest of the plaintiffs' decree holder, had been inducted. Rent receipts were issued in their favour by the lessees. In my view their induction was not unlawful but their right to continue in possession of their respective area of occupation was to exist till the subsistence of the lease and on expiry of the lease their right has been extinguished and they do not have any protection. As such, on determination of the lease they are liable to be evicted without being made as parties under the provision of Transfer of Property Act they are bound by all the obligations under the said Act as those of the lessees. A plea has been taken that there has been a holding over under the Transfer of Property Act. It is, therefore, necessary to set out Section 116 of the Transfer of Property Act which is set out and which is done hereunder:
If a lessee or-under-lessee of property remains in possession thereof after the determination of the lease granted to the lessee, and the lessor or his legal representative accepts rent from the lessee or under -lessee, or otherwise assents to his continuing in possession, the lease is, in the absence of an agreement to the contrary, renewed from year to year, or from month to month, according to the purpose for which the property is leased, as specified in Section 106.
8. Therefore, in order to establish a case of holding over two things are required viz. (1) acceptance of rent from the lessee or under-lessee; or (2) otherwise assenting to his continuing in possession.
9. There is no document apart from bare statement on oath that there has been any acceptance of rent either from the lessee or under-lessee either by the plaintiffs or their predecessors-in-interest. It is alleged that there is otherwise assenting to his continuing in possession but such case has been denied. Therefore, it was incumbent on the applicant or for that matter on the lessee to establish by cogent evidence that there was an assenting after expiry of the lease. More- over, I find from the judgment and decree passed by The Hon'ble Justice Subhro Kamal Mukherjee dated 6th May, 2005 that His Lordship came to the fact finding that the lessees have paid the lease rent in December, 1993. From January, 1994 lessees did not even offer the lease rent to the lessor. Under Clause 2 of the lease deed the lessees were responsible to pay the municipal rates and taxes. The lessees did not pay the municipal rates and taxes. The lessees could not produce any paper to show that lessees have requested the lessor to execute a fresh document as per Clause 6 of the lease deed. In view of the aforesaid findings it is now difficult for this Court at the instance of the persons who are deriving interest through the lessees to reopen the same plea and to decide this matter on the execution application. I think the principle of res judicator and/or analogous thereto is applicable as the proceedings under Order 21, Rules 97, 99 and 100 partakes the character of this civil suit. In the said judgment I find His Lordship did not accept the case of monthly tenancy. His Lordship clearly found that it was a case of lease and, the lease has expired by efflux of time. In view of the aforesaid findings the case of holding over is not acceptable nor can be accepted. When His Lordship did not accept the case of monthly tenancy under the Rent Act the issue of sub tenancy is not required to be decided by me. The plea of collusion, connivance and fraudulent representation are absolutely misleading submission and statement. It appears from the decree itself and the records that the application under Chapter XIIIA was seriously contested and all possible points were taken and dealt with by the Learned Judge by passing decree. Moreover an appeal was preferred against this judgment and decree and this decree sustained upon hearing of appeal and dismissal of the same. On the face of the aforesaid proven fact how it can be said that decree was obtained in collusion with the defendants and fraudulently. Therefore, this contention of Mr. Bachawat is rejected accordingly.
10. As there has been a clear finding of the Learned Judge by passing decree that the lease has been determined by efflux of time question of service of notice under Section 106 of the said Transfer of Property Act did not and could not arise. The decisions cited by Mr. Bachawat in support of his case are absolutely misplaced on the facts and circumstances of this case.
11. The objections raised by these three applications are devoid of any substance and are just to perpetuate possession illegally.
12. This application accordingly is dismissed. However, in the event the applicants make over physical possession voluntarily to the Receiver within one month from date of service of copy of this order, the Receiver will not take possession forcibly. However, they must pay their occupation charges at the rate of Rs. 500/- per month from the date of passing of the decree. So upon depositing a sum calculated at the said rate per month till the date of vacating the said premises within 15 days from the date of receipt of the signed copy minutes of the order of the Court the Receiver shall allow to remain failing which or on expiry of one month from date of service of copy of this order, the Receiver will evict them with the help of the police in terms of my earlier order.
13. Stay of operation of this judgment and order is prayed for. Since I have granted one month's time, I do not find any reason to grant stay. Accordingly, prayer of stay is rejected.
14. All parties are to act on a signed copy of the minutes of the order on the usual undertaking.