Calcutta High Court
Global Exports Limited vs Dalhousie Properties Limited on 22 November, 2016
Author: Rakesh Tiwari
Bench: Rakesh Tiwari
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
(ORIGINAL SIDE)
Before:
The Hon'ble Justice RAKESH TIWARI
And
The Hon'ble Justice MIR DARA SHEKO
G.A.No. 546 of 2016
A.P.D. No. 264 of 2015
C.S.No. 223 of 2007
GLOBAL EXPORTS LIMITED
...Petitioner
-Versus-
DALHOUSIE PROPERTIES LIMITED
...Respondent
Mr. Abhrajit Mitra, Senior Advocate, Mr. Anirban Roy, Ms. Micky Chowdhury, Mr. Saptk Sanyal, Mr. Subhasis Pyne, Mr. S.N. Pyne ... for the Appellant Mr. David Mantosh, Advocate, Ms. Lopita Banerjee, Mr. S.R.Das, ... for the Respondent Last heard on : 15.09.2016 Judgment on : 22.11. 2016.
MIR DARA SHEKO,J.:-
1. The appellant/ defendant/ tenant, to be called on hereafter as the "appellant" preferred this appeal assailing of the judgment dated 29th April, 2015 delivered by Learned Trial Judge in Civil Suit No. 223 of 2007 filed by the respondent/plaintiff/landlord, hereafter will be called on as the "respondent", who obtained decree of eviction of the appellant from the suit premises.
The case of the respondent, in brief, is that their company has its registered office at 1 & 2, Humayan Place, Kolkata, and owns a very large property numbered as premises No. 4, BBD Bag, Kolkata and known as "Stephen House". Now said 4, BBD Bag is known as 56E, Hemanta Basu Sarani, Kolkata-1. By virtue of an agreement the appellant was a monthly tenant in respect of room numbers 40, 41, 42, 43 & 44 on the third floor of the said premises and the appellant thus occupied an area of about 14000 square feet. The respondent received rent of Rs. 20,079/- per month inclusive of the tenant's contribution of Rs. 7,079/- towards municipal rates and taxes and the tenancy was governed accordingly under the Transfer of Property Act and not under the West Bengal Premises Tenancy Act, 1997. By a notice dated 10th May, 2007 the respondent terminated the tenancy of the appellant on expiry of the month of May, 2007, but despite service of said notice the appellant did not vacate the suit premises in favour of the respondent who accordingly filed the suit no. 223 of 2007 (Dalhousie Properties Ltd. Vs. Global Exports Ltd.) praying eviction of the appellant therefrom and for other reliefs, as sought for in the plaint.
2. The appellant by filing written statements denied the averments of plaint. Asserting tenancy right between respondent and appellant in respect of room nos. 40 to 44 in the 3rd floor of suit building pursuant to agreement dated 2nd November, 1972, the appellant stated that the tenancy would be governed by the West Bengal Premises Tenancy Act, 1997 and not by the Transfer of property Act. It was stated that since the suit premises was situated within the limits of Kolkata Municipal Corporation, and the rent paid would not the basis of applicability of the provisions of Transfer of Property Act for eviction since such rent was paid in excess of fair rent for the suit premises. Therefore the tenancy of the respondent was not terminable by the unlawful notice of eviction as served upon the respondent under Section 106 of the Transfer of Property Act. The respondent further stated that the eviction suit is liable to be dismissed due to vagueness and lack of detailed description in respect of the suit premises in the plaint schedule.
3. In the suit on behalf of the respondent one Mr. John Mantosh was examined as the sole witness, but in turn no witness was tendered by the appellant.
4. Learned Trial Judge though observed, "there is no real defence that the defendant could possibly have. But they defended the suit on the ground that the demised part was not properly identified. Room numbers 40, 41, 42, 43 &44 were neither numbered nor demarcated. Hence, the suit be dismissed", but Learned Judge attended the only lis as it was argued by the appellant relying on Order VII Rule 3 that in absence of a clear description of the immovable property i.e. the tenanted premises, in the plaint, the suit would fail, since any decree, if passed on unidentifiable schedule, it would be inexecutable.
5. Mr. Abhrajit Mitra learned Senior Advocate for the appellant with the same thread of Canvass argued before us that the Landlord could not establish identity of the tenanted premises and the respondent subsequently on perusal of statements of the written statements amended the schedule of the plaint to mention the room nos. 40 to 44 lying in the 3rd floor of the suit building known as Stephen House, but, according to Mr. Mitra the respondent could not establish either by sufficient pleading or evidence about the exact area of the leasehold premises. Therefore Mr. Mitra assailed the decree as inexecutable for want of proper and sufficient description of the suit premises and the decree of eviction therefore is liable to be set aside. Mr. Mitra also drew our attention to the grounds of appeal assailing the decree on the point of illegality of notice of eviction for having no description of leasehold premises therein, and also about referring the claims of misne profits to the special referee. Mr. Mitra relied on the following decision, amongst which the decision under serial nos. 5,6,7, 8 and 10 were cited before learned Trial Judge:-
1. Niru Bhagat Vs. Emperor AIR Patna 582.
2. Madanlal Vs. State of Rajasthan: 2012 Criminal Law Journal 1430.
3. Kanye Lall Ruj & Anr. Vs. Kangal Chandra Ruj 1878 ILR 4 Calcutta p.69 at 72 (Para 2) DB.
4. Gopendra Krishna Chandra Vs. Mrinalini Basu 1975(1) ILR Cal 156 at para 123.
5. Chutahru Bhagat & Ors. Vs. Hialal Sah & Ors. AIR 1950 Patna 306 Para 5.
6. Bandhu Das & Anr. Vs. Uttam Charan Pattanaik AIR 2007 Orissa 24 Para 9.
7. Abdul Satter & Anr. Vs. Mt. Hamidan AIR 19509 Patna 239 Para 9 DB.
8. Rama Subudhi & Ors. Vs. Bhaghirathi & Ors: AIR 1982 Orissa 86 Para 9 DB.
9. Dwaraka alia Dwarka Prasad Agarwalla & Anr. Vs. Mst.
Sashiprabha Gountiani 32 (1966) CAL LT 864 Page 115 at Para 4
10.Laxman Singh Vs. Jagannath 2000(1) MPLJ 97 at page 121 at page 124.
Learned Advocate for the respondent Mr. David Mantosh supported the judgment under challenge and submitted with reference to the rent receipts issued by the respondent to realise monthly rent from the appellant at the rate of Rs. 20,079/- (Rs. 13,000/- as net rent and Rs. 7,079/- as Municipal Taxes) that the pleadings and evidence are sufficient proof of identity of the suit premises, and there being also no lacuna in the notice to quit served upon the appellant well within time terminating the tenancy on expiry of the month of May 2007, the appeal is liable to be dismissed. Mr. David Mantosh relied upon the following decisions:-
1. Nagaraj Vs. Kalluramma ILR 1995 KAR 1114.
2. Pratibha Sing and Anr. Vs. Shanti Devi Prasad and Anr.
3. Niyamat Ali Molla Vs. Sonargon Housing Cooperative.
6. Let us now consider whether the judgment under challenge should be upheld in appeal or is liable to be set aside for any legal reason?
7. We find that the facts regarding relationship of landlord and tenant between the parties, payment of the sum equivalent to monthly rent at the rate of Rs. 20,079/- including municipal taxes by the appellant in favour of the respondent for the suit premises situates in the 3rd floor of Stephen House at the given address are undisputed. It is also not disputed that the suit premises was leased out in favour of the appellant for its commercial use. Though there was a defence that fair rent for such tenanted premises ought not to be exceeded Rs. 6,000/-
per month, and therefore the provisions of Transfer of Property Act would not apply for eviction, but such defence was not pursued, even no ground to that effect was taken in the memorandum of appeal.
8. Arguments of the appellant are mostly concerned on the vagueness in describing the tenanted premises in the notice of eviction and in the plaint schedule. Admittedly, notice to quit dated 10.05.2007 was served upon the appellant Global Exports Ltd. under Section 106 of the Transfer of Property Act asking to vacate, "on expiry of the month of May 2007 or at the expiry of the month of tenancy, which .....would expire after 15 days of receipt of this notice." In the eviction notice however there was no description of schedule of the tenanted premises though name of the suit building with its address were well mentioned therein. The schedule of the pre-amended plaint was also silent about detailed descriptions of the suit premises, but after the defence being disclosed in the written statements the schedule of plaint was amended by the respondent under order of Court. The pre-amended plaint schedule is set out hereunder:-
"All that office rooms at 3rd Floor of Stephen House, 56E, Hemanta Basu Sarani, formerly 4, BBD Bag (East), Hare Street Police Station, Calcutta- 700 001..........."
Now the amended plaint schedule is set out:-
"All that office rooms Nos. 40, 41.42, 43 and 44 at 3rd Floor of Stephen House, 56E, Hemanta Basu Sarani, formerly 4, BBD Bag (East), Hare Street Police Station.............."
9. Law is settled that once amendment of pleading is allowed it shall relay back to the original pleading, as if it would have existed since its date of filing in the Court, be it a plaint or a written statement, which, thereafter, is subject to proof through legal evidence. We find from the record that admittedly the building, where the tenanted premises situate, is known as "Stephen House" lying at 56E, Hemanta Basu Sarani under Hare Street Police Station. As per plaint schedule room nos. 40, 41, 42, 43 and 44 at the 3rd Floor is the suit premises. The appellant in their written statement though had raised dispute on the area of the tenanted premises in square feet but admitted in paragraph 2 of their written statement by contending as follows:-
"the defendant is a monthly tenant of the plaintiff in respect of room nos. 40 to 44 ......."
The PW1 during cross-examination (vide question no. 109) was asked by the appellant, "whether room nos. 40 to 44 of Stephen House is one unit or segregated unit?", to which the witness answered, "it is one unit".
PW 1 further against question nos. 156 and 157 in cross- examination successfully answered specifying more legible description of the suit premises, which is set out hereunder:-
Q. 156 Ans:- According to you these rooms are demarcated? Yes, by walls.
Q 157 Ans:-At any point of time did the defendant raise any dispute regarding description and/or area of the rooms? No, never.
This is also matter of record without any dispute that the appellant would pay monthly rent for the suit premises till before receipt of notice of eviction at the rate of Rs. 13,000/- plus Rs.7,079/- as municipal taxes forming the said amount also as a part of monthly rent.
We may remind ourselves that the appellant did not adduce any evidence either to counter the case of the respondent or to establish defence, had there been any.
10. Law is also settled that it is well-known to the tenant as to in which premises the tenant has been enjoying his right of tenancy discharging his obligations in making payment of rent for months or years together or by maintaining other terms and conditions of lease, if any. So the appellant enjoying so far his tenancy right now in the status of statutory tenant to the self- same premises is not entitled to raise dispute on the plea that the respondent is not entitled to get decree of eviction for lack of description in details including its area in the plaint schedule in respect of the suit premises, when we find that the leasehold right of the appellant admittedly was pertaining to room nos. 40 to 44 in the 3rd floor of the suit building which situate in one unit and not in scattered way. Non-mentioning of rooms with area of the suit premises, in the notice to quit, or, non- mentioning of area of the suit premises in the plaint schedule, or, discrepancy or mistake in giving exact area of the rooms in square feet during oral evidence by PW1 are not fatal to a case of eviction which is liable to be determined under some special statute.
11. The purpose of notice to quit is to notify about termination of relationship of landlord and tenant on expiry of the period mentioned in the notice. Obviously, such termination of tenancy means without any ambiguity with regard to the leasehold premises, details of which are well known to both of them. So we hold that such a notice to quit either under Section 6 of the West Bengal Premises Act, 1997 or under Section 106 of the Transfer of Property Act, does not require to contend all description in details in respect of the tenanted premises. Therefore, if a suit for eviction of a tenant is dismissed then the tenant will continue his tenancy right with regard to the same tenanted premises, so long he is not evicted either mutually or with due process of law. But if the eviction suit, subject to fulfilling of its other pre-requisite condition, is decreed with regard to the said tenanted premises then the tenant is estopped to raise any dispute about area or identicality of such premises, and such tenant being judgment debtor is liable to vacate such premises which was in his enjoyment in lieu of rent.
12. The decree of eviction thereby is well executable and the statutory tenant in that case is liable to hand over the entire tenanted premises without having any scope of resisting such decree of eviction on the plea that the suit premises is not identifiable. Because the rule of estoppel under Section 115 of Evidence Act shall come heavily in the occasion upon the tenant from precluding to take any such plea relating to the suit premises which is in his possession in lieu of payment of rent to his landlord for months or years together. Rather the only obligation of the tenant shall be to comply with the decree of eviction, if it is not set aside, or modified, or made otherwise, by any higher forum.
13. Thus the ground nos. 5 to 8 and 12 to 23 taken in the memorandum of appeal are devoid of substance. All the cases cited by Mr. Mitra being connected either with criminal proceedings or suits of declaration, recovery of possession, damages, or suit for easement, or proceeding praying for withdrawal of suit for recovery of possession and injunction, ratio of the principles enunciated therein are simply misplaced. Therefore the citations made by Mr. Mitra are not applicable in the case of eviction of tenancy from the suit premises which is found to have been sufficiently described and established without any vagueness for its execution.
We also refrained from discussing the decisions cited by Mr. D. Mantosh, since either of the same is not related to any suit for eviction of tenant either under premises Tenancy Act or under Transfer of Property Act.
14. We have also examined observations of learned Trial Judge. Learned Trial Judge appreciating pleadings and evidence correctly observed as follows:-
"In fact the defendant paid rent on the basis of the area occupied by them and the rent receipt issued by the plaintiff mentioned those room numbers."
"I am firmly of the opinion that both the plaintiff and the defendant are clearly aware of the demised area. There is no difficulty on the part of either party to understand the area actually demised. They have proceeded on that basis." (Paper Book, Page 129) "According to the evidence of Mr. John Manthosh room 40, 41, 42, 43 & 44 are clearly identifiable. If they are indentifiable they can be easily identified at the execution stage. He has also said that the rooms are separated by wooden walls. If such be the case, then also the rooms can be identified." (Paper Book, Page 131)
15. The suit premises is situated at Calcutta - 700001, where usually the provisions of the West Bengal Premises Tenancy Act, 1997 do apply. Notice of eviction in the case has been served under Section 106 of the Transfer of Property Act. We find that the appellant paid rent for the suit premises @ Rs. 13,000/- (Thirteen Thousand) and Rs.7,079/- towards municipal taxes per month, and the suit premises were in the occupation of the appellant for commercial purpose. Therefore, in view of the quantum of monthly rent the exemption under Section 3 of the West Bengal Premises Tenancy Act, 1997 comes into play to settle about applicability of notice of eviction to be served under Section 106 of the Transfer of Property Act for terminating tenancy of appellant instead of service of notice under Section 6 of the West Bengal Premises Tenancy Act, 1997. Relevant portion from Section 3 of the West Bengal Premises Tenancy Act, 1997 is set out:-
Exemption- Nothing contained in this Act shall apply to- Section 3(f) :- any premises let out for non-residential purpose which carries more than-
(i) (ten thousand rupees) as monthly rent in the areas included within the limits of the Kolkata Municipal Corporation or the Howrah Municipal Corporation, or
16. We have already indicated that the defence of the appellant towards claim of alleged fair rent for the purpose of justifying their case of applicability of the West Bengal Premises Tenancy Act, and, not the Transfer of Property Act, was not pursued to discharge the onus under Section 104 of the Evidence Act, rather it was left simply as half hearted, and, even no ground has been taken to that effect by the appellant in the Memorandum of appeal. Therefore we find no scope but to go by the records in accepting the case of the respondent that the monthly rent of the said commercial premises was Rs. 13,000/- per English calendar month apart from municipal taxes payable at the rate of Rs. 7,079/- per month which also formed part of rent for the suit premises. Meaning thereby, in view of such quantum of monthly rent for the non-residential suit premises exemption clause under Section 3(f)(i) of the Act, 1997 is applicable in the case in hand to determine the tenancy accordingly under Section 106 of the Transfer of Property Act and not under Section 6 of the West Bengal Premises Act, 1997.
17. The appellant contended only that notice issued under Transfer of Property Act was illegal and so the suit for eviction would be liable to be dismissed. There was no case and no ground taken in the Memorandum of appeal that the impugned notice to quit under Section 106 of the Transfer of Property Act was not served upon the appellant. Relevant portions of notice to quit dated 10.5.2007 are set out:-
We referred to your tenancy with regards to all that office rooms in the 3rd floor of Stephen House, at premises no. 56E, Hemanta Basu Sarani, previously known as 4, B.B.D. Bag (East), Calcutta-700 001. You are a tenant in respect of the said rooms, under our clients at a monthly rental of Rs. 13,000/-. You are also liable to pay Municipal Rates and Taxes, amounting to Rs. 7,079/-, which forms part of the rent payable by you for the said rooms. Accordingly the total amount payable as rent by you, for the said rooms is Rs. 20,079/- per month. In the circumstances, we hereby give you this notice on behalf of our said client, terminating your tenancy of the expiry of the month of May 2007 or at the expiry of the month of tenancy, which accordingly to your calculation would expire next after 15 days of receipt of this notice. Accordingly you have to quit and vacate the said premises, on the expiry of month of May 2007, or at the expiry of the month of tenancy, which accordingly to your calculation would expire next after 15 days of receipt of the notice.
If you fail to comply with this notice and fail to vacate your occupation, you will be treated as a trespasser from the expiry of the aforesaid period and please take notice that our client will file a suit against you for recovery of possession of the above tenanted premises and for damages, mesne profit and cost for which you will also be liable. The appellant, except taking plea, could not demonstrate any legal evidence to caption such a legal notice as illegal either from the point of description of tenanted premises, or its monthly rent, or about the given period of clear 15 days to vacate the suit premises as mentioned in the said notice. So there being no infirmity in the matter of service of notice under Section 106 of the Transfer of Property Act upon the appellant, the judgment under challenge in decreeing the suit for eviction does not suffer from any illegality. The ground Nos. 1, 2 and 9 or 10, 11, 24, 26 have no merit for any favourable consideration. Therefore the judgment dated 29th April, 2015 decreeing the Civil Suit no. 223 of 2007 (of original jurisdiction) in terms of the prayer of the plaint is upheld and the appeal is hereby dismissed with cost of rupees ten thousand payable by the appellant in favour of the respondent within a month from this day failing which the respondent may realise the same taking recourse of law.
Urgent certified copy be supplied on priority basis to the parties, if applied for.
(MIR DARA SHEKO, J.) (RAKESH TIWARI, J.)