Calcutta High Court (Appellete Side)
Manju Alias Manjin Bansal And Another vs Abeera Goswami And Others on 8 April, 2019
Author: Sanjib Banerjee
Bench: Sanjib Banerjee
1
Serial. Nos.5 & 6.
April 8, 2019.
SG
SAT 45 of 2019
with
CAN 2477 of 2019
with
SAT 46 of 2019
with
CAN 2664 of 2019
with
CAN 2478 of 2019
Manju alias Manjin Bansal and another
-versus-
Abeera Goswami and others
Ms Abha Tiwari
... for the appellants.
Mr G.C. Ghosh
Mr D. Sinha
... for the respondents.
These two appeals are of a tenant seeking to stretch the rent laws to obtain undue benefits by taking advantage of the court's delays.
The appellants are the heirs of the original tenant who died in or about the year 2009. In 2010 the suit was instituted for the eviction of the appellants on divers grounds. The appellants contended before the trial court that since the spouse of the original tenant had not been served any notice under Section 6 of the West Bengal Premises Tenancy Act, 1997, the suit was incurably bad. The trial court agreed and dismissed the suit. The present second 2 appeal arises out of the reversal of such order of dismissal by the lower appellate court.
It may bear repetition that the original tenant died in the year 2009. By virtue of Section 2(g) of the Act of 1997, the protection enjoyed by the spouse is life-long, as long as the spouse does not have an alternative place and was ordinarily residing with the original tenant till the death of the original tenant. Under Section 2(g) of the said Act, there is no protection available to the other heirs or legal representatives of a deceased tenant after the expiry of five years from the date of the death of the tenant if such date of death is after the Act of 1997 came into effect. The Act of 1997 came into effect in July, 2001.
The lower appellate court found that the spouse of the original tenant had purchased another flat along with her sons or other relatives and that the spouse may have been living at such other flat. In such circumstances, based on the evidence that the first appellate court had every authority to read and appreciate, the first appellate court found that it was unnecessary to issue any notice to the spouse and decreed the suit in favour of the landlord.
Two grounds have been urged by the second appellant: that an application under Order XLI Rule 27 of the Code for adducing additional evidence to demonstrate that the landlord had impeded the appellants' use of the property was illegally rejected; and, no grounds have been furnished to reverse the finding rendered by the trial court.
It is evident that the material which was sought to be brought on record by way of additional evidence was not germane to the 3 matters in issue in the appeal. If the appellants were aggrieved by the acts and conduct of the landlord or if the appellants' access to the tenanted premises had been unlawfully impeded by the landlord, the appellants ought to have carried their independent action in such regard. Experience shows that undeserving litigants seek to rake up a side issue with the deliberate and malicious intention of dislodging the lis and diverting the attention from the principal matters in issue. It was a proverbial red herring, that the lower appellate court appropriately chose to ignore.
As to the ground of notice not having been issued to the spouse, it is evident that Section 2(g) of the Act of 1997 grants limited protection to a class of heirs of the original tenant. The Act of 1997 has to be read not only for the benefit of the tenants, but also for the benefit of the landlords who have been freed from the clutches of the previous claustrophobic regime under the Act of 1956. Classes of tenancies based on the monthly rent have been given protection under the Act of 1997. Heirs of a deceased tenant have also been given protection, but such protection is limited and hedged with statutory conditions.
Since the spouse in this case had acquired another flat and the evidence in such regard was before the court, there was no impediment to the lower appellate court holding that the spouse was not entitled to further protection under Section 2(g) of the said Act and, as such, there was no requirement of any notice being served on the spouse of the original tenant.
No question of law of any substance is raised in this appeal. As to whether the spouse had or had not obtained an alternative 4 accommodation is essentially a question of fact. The evidence was recorded and the lower appellate court has read the evidence to imply that the spouse had an alternative residential accommodation. Such aspect of the matter does not have to be looked into afresh. More importantly, once the spouse loses the protection under the Act of 1997 following the death of the original tenant, the other heirs or representatives of the original tenant do not enjoy any protection after the expiry of five years from the date of death of the original tenant as long as the death took place after the 1997 Act came into force.
In the present case, the original tenant died in 2009. The heirs other than the spouse of the original tenant were not entitled to any protection after the expiry of five years from the date of death of the original tenant. Since it has already been seen that the spouse enjoys no protection under the Act of 1997 upon the spouse having acquired an alternative accommodation, there is no merit in these two second appeals and the same are dismissed.
SAT 45 of 2019 along with CAN 2477 of 2019 and SAT 46 of 2019 along with CAN 2664 of 2019 and CAN 2478 of 2019 are dismissed with costs assessed at RS.50,000/-.
( Sanjib Banerjee, J. ) ( Suvra Ghosh, J. ) 5