Calcutta High Court
Mrs. R.S. Agha vs Sk. Ainul Hoq on 17 February, 1989
Equivalent citations: (1989)2CALLT25(HC)
JUDGMENT L.M. Ghosh, J.
1. On the grounds of default and subletting, the plaintiff filed the suit for ejectment against the principal defendant, Mrs. R. S. Agha. Her brother, Shri S. Mukherjee was made a proforma defendant. The allegation of the plaintiff was that the defendant was a habitual defaulter and had not paid any rent since the month of March, 1972. The other allegation was that after the West Bengal Premises Tenancy Act came into force, the defendant sublet and/or transferred and/or assigned the entire suite No. 2 to the proforma defendant, the said Samir Mukherjee. Then there was usual averment regarding the valid service of notice Under Section 13(6) of the West Bengal Premises Tenancy Act.
2. The defendants filed separate written statements. The defendant No. 1 denied that she was defaulter or that she had sublet, In paragraph 10 of the written statement of the defendant No. 1, it was made out that the defendant had been living, with her parents, brother and sisters jointly and in the same mess since the creation of the tenancy in/1965. But, according to the defendant No. 1, she had to go temporarily out of India, leaving her old father and her old mother under the care of the eldest member of the family, Mrs. Mina Chatterjee, a sister. The proforma defendant No. 2 supported the case of the defendant No. 1.
3. The parties went to trial with such pleadings, The Learned Trial Court decided the point of default against the plaintiff. But so far as the point of subletting was concerned, the decision of the Learned Trial Court was that the requirements of Section 13(1) (a) of the West Bengal Premises Tenancy Act were fulfilled.
4. The Learned First Appellate Court, hearing the appeal preferred against the judgment and decree of the Learned Trial Court concurred with him. He found that the deposits made by the defendant through her brothers were valid deposits and the defendant was entitled to the benefit Under Section 17(4) of the West Bengal Premises Tenancy Act. On the point of subletting, the finding of the Learned First Appellate Court was that the defendant No. 1 had sublet and/or transferred her interest in the tenancy in favour of the third person without the consent of the landlord and as such she was not entitled to the protection under the West Bengal Premises Tenancy Act, 1956. On that ground, the Learned First Appellate Court dismissed the appeal and maintained the judgment and decree of the Learned Trial Court, for evicting the defendants.
5. In this second appeal Mr. Mukherjee, the Learned Advocate appearing for the appellant, has contended that the Learned Courts below committed a gross error of law for not considering the ingredients of subletting, properly and in not evaluating the materials and circumstances emerging in the matter in the proper perspective. As to the ground of default, the Learned Advocate has submitted that the Courts below rightly decided that point in favour of the defendants.
6. Mr. Mitra, the Learned Advocate for the respondent, has supported the judgments and decrees of the Courts below not only on the ground of subletting, but also on the ground of default, though that point was decided against the client. Under Order 41, Rule 22 of the Code of Civil Procedure, no doubt, the respondent can support the decree only only on the ground decided in his favour, but also on the grounds not decided in his. favour. Therefore, the two points to be considered are whether the defendant became a defaulter and whether the defendant sublet the suit premises or transferred or assigned the same within the meaning of Section 13(1) (a) of the West Bengal Premises Tenancy Act.
7. As regards the point of default, it is evident that it does not require much consideration, because it is clear that the defendant is not a defaulter. With reference to the Foreign Exchange Regulation Act, 1973 (hereinafter referred to as 'the Act'), Mr. Mitra, the Learned Advocate for the respondent, has argued that no person in India can receive, otherwise than through an authorised dealer, any payment by order or on behalf of any person resident outside India. He has relied upon Section 9(1)(b) of the Act. It seems that Clause (b) cannot make any deposit invalid. Firstly, the deposit was made in Court and it is not to be concluded that the Court is a person. That apart, Section 50 of the Act provides for penalty for contravention of any provision of this Act. Whether a person would be guilty or not for contravention of this Act, there is nothing in the Premises Tenancy Act declaring that such a deposit by such a person would be invalid. This contention that the deposits are invalid is not supported by the West Bengal Premises Tenancy Act. Whether or not the conduct in this case would amount to an offence under the other Act, there is nothing in the West Bengal Premises Tenancy Act to indicate that such, a deposit would be invalid deposit. The Learned Courts below have rightly found there that the deposits are not invalid and that the defendant is entitled to the protection Under Section 17(4) of the West Bengal Premises Tenancy Act.
8. The only other point that need be considered is whether the defendant No. 1 has sublet or transferred the premises after the coming into force of the West Bengal Premises Tenancy Act (hereinafter referred to as the 'Act').
9. On this point, Mr. Mukherjee has argued with much emphasis that under the law as it stands, the plaintiff is to prove the ingredients of subtenancy. He has referred to the decision of the Supreme Court in the case of Dipak Banerjee v. Lilabati Chakraborty, for the proposition that when an allegation of sub-tenancy is made, two ingredients have to be established, firstly, the tenant must have exclusive right of possession or interest in the premises or part of the premises in question and secondly, that right must be in lieu of payment of some compensation or rent. That indeed is the settled law. The two ingredients must exist. In this case, there is no evidence whatsoever as to some compensation or rent. Mr. Mitra, however, has referred to a part in the evidence of D.W.2, where he has answered that himself and the other members of the family have been residing in the suit premises in exclusive possession since 1974. The statement of D.W.2 has been over emphasised but I think the whole contexts should be taken into consideration. When D.W.2 states that (he members of the family are residing in the suit premises in exclusive possession since 1974, he does not mean to exclude the defendant No. 1 herself from the family. He has all along mentioned that the defendant No. 1 was residing in the suit premises, whenever she came to Calcutta. At another place, he has answered emphatically that the defendant No. 1 cannot be treated as his guest, as she is the sister. It is also his statement that she took meal jointly for those days when she was in Calcutta. He has clearly denied that he is a sub-tenant in the suit premises. That is his concept that the defendant No. 1, himself and the other relations make up the joint family and in that context, he has answered .that the family is in possession of the premises exclusively. It is not settled that the other members have excluded the defendant No. 1 although she comes to India occasionally. That is one aspect of the matter. The other aspect is that there is no evidence whatsoever that any rent or some compensation for occupation by the other, was settled. As there is no attempt even to prove payment of any consideration, one of the ingredients of sub-tenancy is found to be absent prominently. Following the Supreme Court decision at once it can be declared that the case of sub-tenancy has not been established.
10. Mr. Mitra, the Learned Advocate for the respondents has referred to the pieces of evidence that the plaintiff got married sometime in 1946 and then she began to live in Chitagang and other places. I feel that as a matter of fact, the Courts below have not considered properly these pieces of evidences, now being referred to by Mr. Mitra. It is in fact found that the defendant No. 1 got married in 1946, as I get from her own evidence in cross-examination. After marriage, she adopted Muslim religion. Then I get from her evidence that she had been living in Karachi since 1963 and before that she was in Chitagang from 1948 to 1963. It is further stated by her that after the tenancy, her family consisting of father and brothers did live in the suit premises. Then she gives the Barnes of the brothers and sisters. So I get that she also means that even though she married a Muslim, the family ties remained and all the brothers and sisters continued to live in the suit premises in the same position as before. Then another significant thing is that according to P.W.1 himself, the defendant No. 1 inducted in 1965. Evidently, the defendant No. 1 was inducted after she had married a Muslim gentleman and began to reside abroad. That is to say, when the defendant No.1 took settlement of the property, she was in the same position as she is now. Even at the time of inception of the tenancy, she was habitually residing outside India and today she habitually resides outside India. Thus, it is misconception to say that after marriage or after the tenancy, there was some subsequent sub-tenancy or transfer. If the defendant No. 1 is not residing in the suit premises habitually, she also was not residing there when she took tenancy. So that, there was no change of events. This broad aspect has not been considered by the Courts below. There cannot be any question of subsequent change or transfer or sub-lease because, as has been shown just now, the position remains the same all along. The Learned Courts below committed a grave error in not noticing this situation that there could not be any question of any change subsequent to the settlement.
11. Therefore, the possession of Samir Mukherjee or other brothers cannot be referable to a subsequent subletting or event, because the position has remained same all along, as emerging from the evidence on record. And, the ingredient of consideration or compensation has also not been proved. The other question, namely, whether there could be a transfer also does not come in for consideration, because transfer or assignment must be read in collocation with the word 'sublet'. The transfer or assignment must be of some legal estate within the meaning of the transfer of Property Act. There is no evidence that some legal estate has been transferred in favour of Samir Mukherjee or any other person.
12. Mr. Mitra, the Learned Advocate of the respondent, has referred to the decision in support of his proposition that findings in favour of the landlord by Lower Courts on the basis of evidence cannot be interfered with by the High Court. But in that case, it was specifically noted that the tenant had given possession of the leased portion to his brother and shifted his residence without intention to return. There is a serious distinguishing feature in this case and it is that there is no evidence that the tenant shifted his residence. It has been shown carefully that there cannot be any question of shifting after the tenancy, because the tenant from before the tenancy was residing outside India and even now the same condition prevails. That is why, the decision cited is of no assistance to Mr. Mitra ; rather it highlights that some physical act of shifting should be the ordinary feature. Next Mr. Mitra has referred to the decision . This decision has been cited for the principle that the pleadings should be construed liberally. In that case, the tenant took the plea that there was no pleading by landlord on the point of money consideration for parting of possession. The landlord, however, pleaded subletting. The parties went to trial with full knowledge of the ambit of the case of each other. In this case, even if the pleading be liberally construed in favour of the plaintiff, the requisite evidence about compensation or consideration is wanting. So, this decision also does not come to the aid of the respondent. The case reported in 1977 C.L.J. 153 Anath Bandhu v. Ashim has next been cited by Mr. Mitra, That is as to when onus shifts upon the tenant when a question of subletting arises. It has been observed that initially the onus to prove subletting is on the landlord and if the landlord prima facie succeeds in showing that the occupant who was in exclusive possession of the premises, let out the same for valuable consideration, it would then be for the tenant-defendant to rebut such evidence adduced by the landlord. Here, the question of rebuttal by the defendant does not arise, because it has not been proved even prima facie that the occupant has given money compensation or consideration to the tenant. The other case cited by Mr. Mitra is reported in 82 C.W.N. 684 Prabhabati v. R. R. Toneja which enunciates the principle that where a person is found to be in possession of any premises apparently exclusive under a tenant, it is for the tenant to establish that in spite of the possession of such person under him there is no subletting as contemplated in law. In view of the Supreme Court decision , this cannot be held to be good law, because the Supreme Court has laid down that both the ingredients of exclusive possession and compensation must be established. Moreover, the distinguishing feature of this case is that there was no change of position in respect of the suit premises after that was let out to the defendant No. 1 ; she was living outside before and she is living outside even now.
13. It is noticed that the Learned Courts below have not considered the very material facts for the disposal of the matter. Whether there was any subsequent change or conduct which could amount to an act of subletting, was not considered. From the very existence of certain present facts, the Learned Courts below inferred that there was subletting. It was forgotten that to make out a case of subletting, first it must be shown that there was some change of the Courts of events. There could not be any question of subletting if the condition remained the same as at the time of letting out. This omission to take notice of this important feature is a substantial question of law, vitiating the whole findings. If an essential thing is not considered and a judgment is passed on the basis of partial consideration, the judgment is undoubtedly vitiated and there is a serious error of law, although the aspect is factual in nature. Moreover, the legal ingredient of absence of consideration or compensation has not at all been considered by the Courts below. It is found that the case of subletting was not proved according to law. Therefore, there cannot be any decree for eviction on the grounds of default and subletting.
14. The result is, the appeal is allowed. The judgment and decree of the Learned First Appellate Court, affirming the judgment and the decree of the Learned Trial Court, are hereby set aside. The suit of the plaintiff is dismissed on contest. I make no order for costs.