Calcutta High Court
M/S Nopany & Sons Pvt. Ltd. & Anr vs Gopal Krishna Bhagat on 25 March, 2010
Equivalent citations: AIR 2010 (NOC) (SUPP) 292 (CAL.), 2010 A I H C 2515
Author: K. J. Sengupta
Bench: Kalyan Jyoti Sengupta
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G.A. No. 979 of 2009
C.S. No. 3 of 2009
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
Original Side
PRESENT:
The Hon'ble JUSTICE KALYAN JYOTI SENGUPTA
M/s Nopany & Sons Pvt. Ltd. & Anr.
V.
Gopal Krishna Bhagat
Judgment on: 25.3.2010.
K.J. Sengupta, J:-
The notice of motion has been taken out in the above application for
judgment upon admission against defendant/respondent for eviction of the suit
premises particulars of which are described in the Schedule 'A' to the plaint.
Both the plaintiffs have filed the suit against the lone defendant for eviction on the ground that in view of commencement of the West Bengal Premises Tenancy Act 1997 on and from 10th July 2001 the defendant is not a tenant in respect of entire suit premises as per definition of tenant in Section 2(g) of the said Act after period of 5 years lapsed from the date of coming into force of the aforesaid Act. In the schedule A of the plaint the suit premises has been described as partly three storied, partly two storied and partly one storied 2 building together with out houses being the demarcated major portion of the premises No. 11, Rawdon Street measuring about 29 cottahs 7 chittaks and 31 sq.ft. (hereinafter referred to the suit premises).
The ground for obtaining judgment in this application is that after the aforesaid suit was filed an application for claiming interlocutory relief in the form of injunction etc. was made by the plaintiff/petitioner against the defendant who while contesting the same has filed an affidavit making statement admitting the case of the plaintiff.
This application is opposed by filing an affidavit, and therefrom it appears that the defendant has tried to explain the statement made in the earlier affidavit and contended that suit is not maintainable as no notice for ejectment has been served admittedly, with the affidavit document purporting to establish monthly tenancy has been filed.
Mr. Ranjan Deb, learned Senior Advocate with Ms. Joyshree Chakraborty, Mr. Asish Chakraborty and Mr. Rabi Kapur Advocates drawing my attention to the statement and averment which according to them, constitute clear admission of the case of the plaintiff for entering final judgment as provided under Order 12 Rule 6 of the Code of Civil Procedure.
In the affidavit, he submits, it has been unequivocally stated that in the year 1934 the lower flat of the said premises was let out to his father late Madan Gopal Bhagat at a monthly rent of Rs. 335/- and both of them i.e., the defendant and his father regularly used to pay rent to their landlord Gooptu Estates Limited for their respective portion of tenancy. Immediately, after the death of his father 3 in 1962 in view of dispute having arisen in between several persons and the said Gooptu Estate Limited regarding ownership of the said estate, a suit was filed in this Hon'ble Court wherein Receiver was appointed. Since the date of appointment of the Receiver the defendant for his own portion i.e., upper flat of the said premises, and as legal heir and representative as well as the executor of Will of his deceased father and his mother as an executrix and legal heiress of the said deceased used to pay rent in the name of the learned Receiver thereafter with the learned Rent Controller, Kolkata.
Mr. Deb submits that in view of the aforesaid unequivocal admission that lower portion was let out to his father and further his death having occurred prior to commencement of the present Act and 5 years having expired from the date of commencement of this Act on and from 10th July 2001 going by the definition of Section 2(g) of the said Act the defendant has no right, title, interest to occupy the said premises so far his father's portion is concerned under any circumstances.
According to him the decree can be passed automatically at least for the portion occupied by his late father.
He further submits that in the affidavit used in the present application the defendant has taken inconsistent plea and has wrongfully claimed that both the stories of the said building were let out to his father and him jointly and as such there has been joint tenancy. Therefore no eviction decree is possible without resorting to the provision of the said Act.
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He submits with support of decision of this Court reported in 22 CLJ 254 that this inconsistent pleading should not be allowed to be taken in the present petition. He, therefore, claimed the judgment upon admission at least for part of the premises with the authority reported in (2000) 7 SCC 120.
Mr. Tandon learned Advocate appearing on behalf of the defendant submits that the entire statement and averment of the earlier affidavit-in-opposition has to be read as a whole and actual fact and circumstances have been stated in the present affidavit and no decree could be passed on this application in summary manner. The grant of relief under the provision of Order 12 Rule 6 is discretionary and no case has been made out to exercise such discretion by the Court. He derives support of two decision of this Court reported in 2005(2) CHN 601 and AIR 1924 Cal 190.
I have heard the learned counsel for the parties, I have examined the pleading before me. In this case, it appears to me that suit has been filed for eviction of the entire suit premises which comprises of partly three storied, partly two storied and partly one storied building together with out houses as described by the plaintiff in the Schedule A of the plaint. The decree for judgment upon admission has been claimed for the self-same property as mentioned in Schedule A of the plaint.
The statement and averment which according to the plaintiff constitute admission are stated in earlier affidavit which of course is disputed in the present affidavit filed to contest the instant application, are as follows:- 5
"I state that at the time of introduction of the tenancy in the year 1954 the landlord let out the upper flat of the said premises to me at a monthly rent of Rs. 325/- and in the year 1934 the lower flat of the said premises was let out to my father Late Madan Gopal Bhagat at the monthly rent of Rs.335/- and both of us i.e. I and my father regularly used to pay the rent to the landlord Gooptu Estates Limited. I and my father separately used to pay the rent to the landlord for the respective portion as stated hereinafter............"
"Immediately after the death of my father Madan Gopal Bhagat in the year 1962 dispute arose in between several persons and the said Gooptu Estates Limited regarding the ownership of the said estate and a suit was filed before this Hon'ble Court wherein a Receiver was appointed. Since the date of appointment of the Receiver I for my portion i.e. upper flat of the said premises and as an legal heir and representative as well as the executor of Will of my deceased father and my mother as an executrix and legal heiress of the 6 said deceased used to pay rent in the name of the learned Receiver before the learned Rent Controller, Kolkata. I for my aforesaid flat firstly used to pay rent to the learned Receiver directly but subsequently as per the advice of the learned Receiver I also paid the rent for my portion i.e. upper flat of the said premises to the learned Rent Controller, Kolkata in the name of the learned Receiver..."
From the said statement and averment it appears that there has been unequivocal admission of fact that the defendant and his late father were having separate tenancies. After death of his father the defendant and his mother used to pay rent for his late father's tenancy of lower flat of the said premises.
Of course, this earlier statement and averment has been sought to be varied by the affidavit filed in present application and by which it is claimed that both the storied were let out to the defendant and his father jointly. I am of the view as rightly submitted by Mr. Deb, such inconsistent statement cannot be allowed to be taken to suit the situation, as I think Judicial pronouncements viz. the decision in case of Matilal Poddar -vs- Yudhistir Das Teor & ors. reported in 22 CLJ 254 in this regard does not allow the court to encourage the litigant to take such inconsistent statement. Now question remains whether it is such an admission on which judgment can be entered and followed by decree. I am of the considered opinion when any decree is sought to be obtained on the basis of 7 statement and averment made in the pleading purported to constitute the admission, are to be taken as a whole.
It appears from the said admission the defendant has said that a portion namely lower storey of the said building is let out to his father and upper story to him, whereas the relief in the suit is sought for the entire suit premises which consist of partly first storied, second storied and partly third storied. In the application, relief is claimed for entire suit premises.
In order to get the judgment upon admission either partly or entirely the petitioner has to establish admission of such character having clear and distinct link with relief claimed. Passing of part decree is possible on the authority of the Supreme Court pronouncement reported in (2000) 7 SCC 120, paragraph 12 wherein the Supreme Court held that part claim admitted can be decreed under Order 12 Rule 6 which is as follows:
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"Order 12 Rule 6 Judgment on admissions.-(1) Where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the Court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions.
(2) Whenever a judgment is pronounced under sub-rule (1), a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced."
Under the Rule of the Original Side the said affidavit used earlier can be treated to be a pleading. The statement made by the defendant earlier in the affidavit binds him and he cannot get out of it.
However, language of the said provision is very clear that the Court is not bound to pass any decree on any admission of fact and it is the decision of the Court. This legal position is firmly established by judicial pronouncement to wit AIR 1924 Cal 190 (J.C. Galstaun -vs- E.D.Sasson & Co. Ltd). In this case 9 Division Bench of this Court at page 192 followed earlier decision of this Court on the legal principle that final judgment ought not to be signed upon admission in a pleading or an affidavit, unless the admissions were clear and unequivocal and power of the Court is discretionary. Later in case of Dinesh K. Singhania -vs- Cal Stock Exchange Asson Ltd. Reported in 2005 (2) CHN 601 taking note of and following above decision same view is expressed in paragraph 21 therein.
Therefore, it is clear that in all cases even if admission is there the decree as prayed for finally cannot be passed.
In the context as above the task of the Court is to evaluate the nature and extent of the admission for passing summary judgment and decree.
I am unable to accept submission of Mr. Deb for signing final judgment either for whole or part of suit premises firstly, admission relate to part of the suit premises, secondly the admission made does not have distinct and clear link with claim of the plaintiff, for the defendant has admitted that lower flat of the said premises was let out to his father, and which is the lower part and which is the upper one is not very clear. On the other in the plaint it is mentioned partly one storey to three stories which without any acceptable material at this stage can be equated with upper flat or lower flats.
On reading of the definition 'tenant' as mentioned in Section 2(g) of the said Act it appears to me carefully reading the said statement and averment the defendant is not entitled to claim any tenancy right after 5 years from the date of commencement of this Act as far as the portion let out to his late father is concerned. It is condign to set out Section 2(g) of the said Act. 10
"Section 2(g) - "tenant" means any person by whom or on whose account or behalf the rent of any premises is or, but for a special contract, would be payable, and includes any person continuing in possession after termination of his tenancy and, in the event of death of any tenant, also includes, for a period not exceeding five years from the date of coming into force of this Act, whichever is later, his spouse, son, daughter, parent and the widow of his predeceased son, who were ordinarily living with the tenant up to the date of death of the tenant as the members of his family and were dependent on him and who do not own or occupy any residential premises and [in respect of premises let out for non-residential purpose his spouse, son, daughter and parent who were ordinarily living with the tenant up to the date of his death as members of his family and were dependant on him or a person authorised by the tenant who is in possession of such premises,] but shall not include any person against whom any decree or order for eviction has been made by a court of competent jurisdiction:
Provided that the time limit of five years shall not apply to the spouse of the tenant who was ordinarily living with the tenant up to his death as a member of his family and was dependent on him and who does not own or occupy any residential premises:
Provided further that the son, daughter, parent or the widow of the predeceased son of the tenant who was ordinarily residing with the tenant in the said premises up to the date of death of the tenant as a member of his family and was dependent on him and who does not own 11 or occupy any residential premises, shall have a right of preference for tenancy in a fresh agreement in respect of such premises [or condition of payment of fair rent]. This proviso shall apply mutatis mutandis to premises let out for non-residential purpose."
In view of the said definition clearly providing irrespective of the degree of heirs and legal representative after expiry of 5 years from the date of commencement of this Act in case of death of the original tenant prior to commencement of this Act, neither spouse nor any heir can claim any tenancy right by way of inheritance from predecessor-in-interest except the spouse under the situation as mentioned in the Proviso. Here wife is not alive. Considering scope and nature of the prayer in the application and further having regard to the nature of this admission it is difficult for this Court to write judgment right now even for the part of the said premises as the portion of the suit premises as admitted is not identical and same as described in the plaint as well as in the application and it can only be ascertained upon evidence.
The language of the Rule 6 of Order 12 with the words "make such order or give such judgment as it (Court) may think fit, having regard to such admission,"
enable the Court may pass judgment immediately or may pass such order having regard to admission that may help to pass judgment finally if possible. Hence the Court may collect material in order to have clear idea of the matter. 12
Accordingly, I, under provision of Rule 9 of Order 26 of the Code of Civil Procedure deem fit and proper for the purpose of elucidating the area of tenancy right of the father of the defendant to issue Commission.
I, therefore, appoint Justice Pradiptya Ray, a retired Judge of this Court Commissioner for the above purpose to ascertain the area upon hearing and taking evidence.
After receipt of the report of the Learned Commissioner this Court would proceed to examine the matter whether the final judgment viz. the decree can be signed by this Court or not.
Needless to mention, the remuneration of the Commissioner is fixed at 1000 Gms. per sitting to be paid by the plaintiff/petitioner at the first instance and the same will abide by the result of the suit. However duration of the sitting must not be less than two hours. The Learned Commissioner would be entitled to take help of a stenographer, interpreter if necessary and a clerk and their remuneration shall be assessed by the Learned Commissioner. Such costs shall also be borne by the plaintiff at the first instance.
All parties including Learned Commissioner concerned are to act on a xerox signed copy of this order on the usual undertakings.
(K. J. Sengupta, J.)