Calcutta High Court
Makali Engg. Works Pvt. Ltd. vs Dalhousie Properties Ltd. on 4 December, 2000
Equivalent citations: 2006(1)CHN419
Bench: Satyabrata Sinha, Pratap Kumar Ray
JUDGMENT
1. Two questions of law seemingly of some importance arise for our consideration in this appeal, which are :
1) Whether the deed of lease for a fixed period shall take effect from the date of execution thereof or anterior thereto for any purpose whatsoever?
2) Whether an application for amendment of the written statement explaining or resiling from an admission made in the original written statement can be allowed?
2. The basic fact, of the matter is not in dispute.
3. The defendant is the appellant and tenant under the plaintiff/respondent. The plaintiff/respondent filed a suit for eviction on or about 26.4.1989 purported to be in terms of the provisions of the West Bengal Premises Tenancy Act (hereinafter called and referred to, for the sake of brevity, as "the said Act") on the ground of: (1) default, (2) subletting of the premises without the consent of the landlord, and (3) unauthorised construction of the mezzanine floor.
4. In the plaint, the plaintiff described the defendant as a monthly tenant. The defendant for occupation of the said premises was to pay a monthly rent of Rs. 4,200/-. In the plaint it was inter alia prayed for the following reliefs by the plaintiff:
(a) Decree for recovery of vacant and peaceful possession of the portion of the ground floor of the premises N0.6D, R. N. Mukherjee Road, Calcutta fully described in the Schedule 8A8 hereof;
(b) decree for Rs. 1,04,985.08p. on account of arrears of rent with interest as claimed under para 7 hereof;
(c) further interest from March 16, 1989 including interim interest and interest upon judgment;
(d) decree for mense profits @ Rs. 1,300/-per diem from March 1, 1989 until recovery of vacant possession;
(e) alternatively, enquiry into mesne profits and decree for such sum and at such rate as this Hon'ble Court may deem fit and proper.
5. The defendant however in its written statement inter alia raised the plea that as the tenancy was for a fixed period of 20 years commencing from 18th July, 1975 they cannot be evicted unless the said period is over. Similar such statement was also made in other affidavits. Upon expiry of the aforementioned period of 20 years an application was filed by the plaintiff to pass a decree on admission inter alia stating as under :
8. That the defendant has in the facts and circumstances expressly admitted in its pleadings a question of fact that he is a lessee under the petitioner in terms of registered Deed of Lease executed on January 5, 1976 for a period of 20 years commencing from July 18,1975 and ending on July 17, 1995. In other words the defendant has admitted that the protection of the W.B.P.T.A. 1956 does not apply to the concerned lease.
9. The defendant has also admitted that the lease of the defendant came to an end on July 17, 1995 by efflux of time. The plaintiff is therefore entitled to recover possession of the suit premises.
10. The said admission is an admission of the essence in the plaintiffs suit for recovery of possession of a premises from the tenant. In fact the defendent has admitted the claim of the petitioner for recovery of possession. There are no other controversial issues involved in the suit with regard to the said issue. The admission of the defendant then as a whole would go to prove the complete admission of the defendant to the plaintiffs' claim.
6. The prayers made in the said application inter alia were as follows :
a) Judgment and decree for eviction be passed in respect of the suit premises as described fully in the schedule to be plaint.
b) The defendant be directed to forthwith deliver vacant possession of the suit premises to the plaintiff.
7. The appellant thereafter filed an application for amendment of the written statement on or about 30.9.1996 inter alia contending as under :
6. Your petitioner states that admission was made under some misapprehension or mistake, particularly by inadvertence or erroneously in ignorance of true fact that your petitioner entered into the suit premises as a lessee under registered Deed of Lease executed on January 18, 1976 for a period of 20 years commencing from July 18,1975 ending in July 17, 1995 on the terms and conditions contained therein at a monthly rent of Rs. 4200/-.
8. Affidavits in both the aforementioned applications were exchanged by the parties.
9. By reason of the impugned judgment the learned Trial Judge decreed the suit on admission and rejected the appellant's application for amendment of the written statement inter alia directing as under:
Let there be a decree in terms of prayers (a) and (b) of the plaint. The plaintiff shall be entitled to interim interest on arrears of rent at the rate of 6% per annum and interest on judgment at the rate of 4% per annum. The plaintiff shall be entitled to mesne profits at the rate of Rs. 1,000,00/- per diem to be calculated from May, 1995 till possession is obtained, because no particulars have been pleased in the plaint as to mesne profits. The defendant shall pay to the plaintiff a sum of Rs. 5,000.00 as and by way of costs. These two applications and the suit which is appearing in the Day's List are disposed of by this order.
10. Mr. Hirak Mitra, the learned Senior Counsel appearing on behalf of the appellant inter alia submitted that the learned Trial Judge went wrong in passing the impugned judgment and decree in so far as it failed to take into consideration that in terms of the provisions of the Transfer of Property Act vis-a-vis West Bengal Premises Tenancy Act, a Deed of Lease cannot take effect from an anterior date but takes effect only from the date of execution. In support of the said contention strong reliance has been placed in Cadogan (Earl) v. Guinness, reported in 1936(1) Ch. 515 in Shaw v. Kay reported in 154 ER 175, in Roberts v. Church Commissioners for England reported in 1971(3) All ER 703 : 1971(3) WLR 566 and a Division Bench decision of this Court in Baneswar Pal v. Smt. Nirmala Jyoti .
11. Our attention has further been drawn to a decision of a Division Bench of this Court in Dipak Sen and Anr. v. Lakshmi Rani Das reported in 2000(1) CHN 365, whereby and whereunder the question has been referred to a Larger Bench as the learned Judges doubted the correctness of the earlier decisions including the Division Bench decision of this Court in Smt. Nanda Rani Nath v. Brojo Mohon Kundu .
12. It was further submitted that in a suit of this nature, the learned Trial Judge ought not to have decreed the suit in exercise of his power under Order 12 Rule 6 of the Civil Procedure Code having regard to the fact that the grounds of eviction as initially pleaded in the plaint were grounds of default, subletting an unauthorised constructions which squarely come within the purview of the provisions of the West Bengal Premises Tenancy Act. As regards the second question, it was submitted that it is not correct to contend that admission made by the defendant can never be withdrawn or resiled from. According to the learned Counsel, when the admission relates to a question of law, despite the decisions of the Supreme Court to the contrary, such admission can be withdrawn. In support of the contention, strong reliance has been placed in the case of Hundari Bewa v. Keluni Dei and Ors. , Panchdeo Narain Srivastava v. Km. Jyoti Sahay and Anr. , Banarsi Das and Anr. v. Kanshi Ram and Anr. and .
13. Mr. P.K. Das, learned Senior Counsel appearing on behalf of the plaintiff respondent, on the other hand, submitted that despite the fact that the suit for eviction filed by his client was not based on the expiry of the period of tenancy but on other grounds as were available then, the plaintiff became entitled to a decree on admission keeping in view the decision of the Apex Court in Firm Sriniwas Ram Kr. v. Mahabir Prasad and Ors. reported in AIR (38) 1951 SC 177. The learned Counsel submits that for the purpose of obtaining a decree in terms of a subsequent event, which the Court can always take judicial notice of for the purpose of moulding the reliefs, is extended to a suit for eviction filed by the landlord against his tenant. Reliance in this connection has been placed upon Shikharchand and Ors. v. Mst. Bari Bal and Ors. ; Khali Panigrahi v. Kamal Devi ; New Brorock Mills Division of Mafatlal Industries Ltd. v. Somabhai Mathurbahi Patel ; Mir Niamath Ali Kahn v. Commercial and Industrial Bank Ltd. and Ors. AIR 1969 AR 294; Dhanpati Dutta v. Gita Dutta reported in 1987 (2) CLJ 41 and Laxmi & Co. v. Anant R. Deshpande and Anr. .
14. The learned Counsel submits that for the purpose of determining the period of lease the anterior date from which the same takes effect can be taken into consideration, although the rights and liabilities of the parties would accrue from the date of execution of the deed of lease. In support of the said contention, reliance has been placed on Landlord and Tenant, pages 89 to 91, paragraphs 144 to 147, Hill and Redman on Landlord and Tenant, pages 52 to 54, Halsbury's Laws of England, 4th Edition, Vol.27, pages 156-159 and Mulla on Transfer of Property Act, 8th Edn. at page 774. The learned Counsel has also placed strong reliance upon a Division Bench decision of this Court in Smt. Nanda Rani Nath v. Brojo Mohan Kundu as also in Ranjit Kumar Dutta v. Tapan Kumar Shaw and Anr. . Referring to the last decision, the learned Counsel would urge that although the same was referred to Vidyanand, J. on a difference of opinion between Baboo Lall Jain and Sidheswar Narayan, JJ., it would appear that all the three Judges were ad idem that tenure of a lease must be computed from the date of commencement thereof even if the same takes place anterior to the date of execution thereof. Provisions of West Bengal Premises Tenancy Act, 1956, contends Mr. Das, became inapplicable where the parties have entered into a lease for a period of not less than 20 years.
15. As regards the second question, the learned Counsel submits that an admission made by a defendant in his written statement can neither be resiled from nor explained away. According to the learned Counsel, this question is no longer res integra having regard to the various decisions of the Apex Court and this Court viz. Modi Spinning and Wearing Mills Co. Ltd. and Anr. v. Ladha Ram & Co. ; Haji Mohammed Ishaq Wd. S. K. Mohammed and Ors. v. Mohammed Iqbal and Mohammed Ali & Co. ; Jagan Nath (deceased) through LRs. v. Chandar Bhan and Ors. ; Sudhanshu Bimal Ghosh v. Ranjit Kumar Das 1998(2) CHN 270; Biva's Put. Ltd. v. West Bengal Khadi and Village Industries Board and Bhuramal Agarwala v. Samla Dalur Band Coal Co. (P) Ltd. and Ors. 1997(2) CLJ 310.
16. Having regard to the provisions of Order 7 Rule 7 of the Civil Procedure Code, the Court can always take into account the subsequent event and pass a decree without amending the plaint. Reliance in this connection has been placed on AIR 1976 SC 735 and Dhanapati Dutta v. Gita Dutta and Ors. 1987(2) CLJ 41. Mr. Das, however, conceded that the learned Trial Judge was not correct in passing a decree for mesne profit but urged that having regard to the quantum of rent which is not disputed, this Court in exercise of its jurisdiction under Order 41 Rule 33 of the Criminal Procedure Code may direct calculation of mesne profit on the agreed rate of rent.
Re: Question No. 117. Relationship between a lessor and a lessee is governed by the provisions of the Transfer of Property Act. The Legislatures of various State however with a view to granting protection to the tenants enacted various Rent Control Legislations. West Bengal Premises Tenancy Act, hereinafter referred to as the said Act, is one of such legislations, which governs the field. The said Act being a Special Statute undoubtedly would prevail over the provisions of the Transfer of Property Act which is a general statute.
18. The said Act having been enacted for the benefit of the tenants must be interpreted in such a manner so as to give effect to the legislative intent and the Court shall avoid such construction which would destroy such object and would give leaverage in the minds of the landlords to come out of the provisions thereof.
19. Section 8 of the said Act reads thus:
Certain provisions of the Act not to apply to certain leases.-(1) The provisions relating to rent and the provisions of Sections 31 and 36 shall apply to any premises held under a lease for residential purposes of the lessee himself and registered under the Indian Registration Act, 1908 (16 of 1908), where-
(a) such lease has been entered into on or after the 1st December, 1948, and
(b) such lease is for a period of not more than 20 years, and save as aforesaid nothing in this Act shall apply to any premises held under a lease for a period of not less than 15 years.
(2) Notwithstanding anything to the contrary contained in Sub-section (1) but subject to Sub-section (3) of Section 1 this Act shall apply to all premises held under a lease which has been entered into after the commencement of the West Bengal Premises Tenancy (Amendment) Ordinance, 1965 :
Provided that if any such lease is for a period of not less than 20 years and the period limited to such lease is not expressed to be terminable before its expiration at the option either of the landlord or of the tenant, nothing in this Act, other than the provisions relating to rent and the provisions of Sections 31 and 36, shall apply to any premises held under such lease.
20. Sub-section(1) therefore which contains a non-obstante clause in no uncertain terms states that the said Act shall apply to all premises held under lease. Proviso appended thereto, however, seeks to curve out an exception to the effect that the said Act other than the provisions contained in Sections 31 and 36 shall apply if such lease is for a period of not less than 20 years and the period limited by such lease is not expressed to be terminable before its expiration at the option either of the landlord or of the tenant.
21. Section 105 of the Transfer of Property Act reads thus:
105. A lease of immoveable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms.
The transferor is called the lessor, the transferee is called the lessee, the price is called the premium, and the money, share, service or other thing to be so rendered is called the rent."
22. In view of the aforementioned definition of lease vis-a-vis lessor and the lessee, there cannot be any doubt whatsoever that a lease constitutes transfer of a right to enjoy such property, made on a certain terms express or implied, or in perpetuity.
23. Transfer of a right, therefore, is sine qua non for constituting a lease. Before proceeding to consider the various authorities and decisions at the Bar, we may also notice the Section 108 of the Transfer of Property Act provides for rights and liabilities of the lessor and the lessee.
24. All the authorities and decisions cited at the Bar emerge on one point, viz. although for the purpose of computing the tenure of the lease, a deed of lease in writing may commence from an anterior date but the rights and obligations of the parties would arise only from the date of execution thereof. It is profitable to note Section 5 of the Transfer of Property Act which defines Transfer of Property. It is further to be noted that Section 47 of the Indian Registration Act merely states that in relation to a registered instrument, the same shall take effect from the date of execution thereof and not from the date of registration.
25. In the aforementioned context, therefore, the word 'lease' is to be construed. Having regard to the definition of lease as contained in Section 105 of the Transfer of Property Act read with Section 5 thereof, we have no doubt in our mind that for the purpose of the provisions of the said Act, the tenure of lease must be not less than 20 years which in turn would mean that transfer of property as such must take place by the lessor in favour of the lessee giving rise to their respective rights and obligations as contemplated under Section 108 of the Transfer of Property Act. A Deed of Lease cannot be created in vacuum. Such lease must be created for the purpose of the Act with an intent to transfer an interest of the lessor in favour of the lessee. Such transfer of interest is for consideration, viz. on payment of premium and rent both or at least 'rent'. From the date of commencement of the lease, the landlord receives rent from the tenant and accordingly the tenant has a duty to pay unto the same in terms of the agreement. Failure on the part of the tenant to do so would attract the requisite consequences.
26. Having regard to the fact that the learned Counsel for the parties are not at variance with each other on this aspect, we would shortly deal with the case laws and the authorities cited at the Bar.
27. In Foa it has been held as follows :
****** ******* ******* Hence, where the habendum of a lease was "from the 25th of March, now last part", and there was evidence to show that the lease itself, though dated the 25th March, 1783, was not in fact executed till afterwards, it was held that the term commenced on the 25th March, 1783, and not 1782(k)".
28. In Hill and Redman on Landlord and Tenant at paragraph 18 thereof, it has been held as follows :
The term may commence either immediately or from a past or future date (a); and although it is expressed to commenced from a past day, yet the actual interest of the lessee commences only on the execution of the deed (b), and his liability is limited accordingly; thus he is not liable for matters arising before the date of execution under the covenant to repair (c) or under a covenant not to erect buildings of less than a specified value....
29. In Halsbury's Laws of England, Vol. 27, paragraph 206, it has been observed as follows :
It is sufficient if the commencement of the term is ascertained with certainty at the time when the lease is to take effect in possession. Hence the term may be made to commence after the failure of specified lives, or upon the occurrence of a future contingent event. Where it is to take effect after the expiration of a previous term, and the previous term is surrendered or forfeited, the lease takes effect on the surrender or forfeiture, and if the previous lease has already determined, or if it is void or non-existent, the new lease takes effect at once.
30. In Woodfall on Landlord and Tenant, Vol. I, at paragraph 1-0500, at page 206 it has been observed as follows :
Commencement from date of lease if no date is fixed for the commencement of the tenancy, it is usually taken to commence at the date of the lease. This, however, may be negatived by internal evidence, as where a lease dated on December 20 was held, from the fact that the first payment of a quarterly rent was to be on March 25, to commence on December 25.
31. Again at paragraph 1-0508, at page 210 thereof it has been held as follows :
So, an agreement for a lease must mention the term, and from what day it is to commence, otherwise there is no complete agreement and no sufficient memorandum in writing. An instrument by which premises were let on the terms that the tenant should pay certain specified sums at the end of every three years upto a specified date, and that from and after that date "he should pay the clear annual rental of 9 till the end of the lease", without mentioning any period at which the lease was to terminate, was held good only from the time upto the specified date.
32. In Transfer of Property Act by Mollah at page 774, it is inter alia, stated as follows :
The commencement of a lease must be certain in the first instance, or capable of being ascertained with certainty afterwards, so that both the time when it begins and the time when it ends, is fixed. Section 110 enacts that if the day of commencement is not stated the lease begins from the day of execution. But this does not apply to an executory agreement of lease; and such an agreement is void for uncertainty if the commencement of the term is not mentioned or if there are no materials for ascertaining it. However, if possession is taken under such an agreement the term will commence from the date of entry.
33. In Cadogan (Earl) v. Guinness 1936(1) Chancery, P. 515, the Court considered Section 84(12) of the Law of Property Act in terms whereof the power was given to the authority named therein on the application of any person interested, by order to discharge or modify any restriction affecting land is extended to leaseholds in cases where the term created was one of more than 70 years, but only after the expiration of 50 years of the term in like manner as if the land had been freehold and in that context it has been held as follows:
In my view, a term created by a deed in 1936 to begin as from December 25, 1900, for 70 years would not be a term of 70 years. It would be a term of 34 years-namely, 70 less 36 years. And if I were asked in the case of such a term; When do the first 20 years of that term expire for the purposes of applying this Sub-section ****should be bound to say that the first 20 years expire in the year 1956 and not in the year 1920, because in 1920 there was no term. That, of course, is perfectly consistent with what I have already referred to, that if in a document a term which, as created is of less than twenty-one years, is spoken of as a term of twenty-one years, beginning as from a date prior to its creation, and there is a clause providing for determination at the end of the seventh or fourteenth year of the term it is perfectly easy as a matter of construction of such a document to say that the seven years according to the obvious intention of the parties is not to run as from the date of the execution of the lease but from the moment spoken of, though inaccurately, as the beginning of the term in the document.
34. In Robberts v. Church Commissioners for England reported in 1971(3) Weekly Law Reports, Stam. J, agreeing with the view of Russel, J. held as follows :
Some confusion has I think been introduced by the statement that the habendum only marks the duration of the tenant's interest, and, seizing upon that phrase, Counsel for the tenant in this case, as was done on behalf of the unsuccessful party in Cadogan (Earl) v. Guinness. 1936(1) Ch.515, seeks to treat the words "the duration of the term" as a reference to the length of the term. This is not a correct approach. The expression "duration of the term" connotes the period during which the term is to continue, and it cannot start until it is created. Until then there is no tenancy and no interest in the tenant.
Although the terms of the habendum are, or may be, relevant in construing the lease, here what has to be construed is an Act of Parliament. Unless there is, as a matter of law, within the meaning of Section 3(1) of the Leasehold Reform Act, 1967 "a tenancy granted for a term of years certain exceeding 21 years" there cannot be agreement between the parties found in the tenancy agreement, be deemed to be such a tenancy for the purpose of the Act, so as to confer upon the tenant a statutory right which he would not otherwise have.
35. It is admitted that the Deed of Lease has been registered on 5.1.1976 and not on 18.7.1975. In Nanda Rani Nath v. Brojo Mohan Kundu the lease was executed on Aswin 1369 B.S. and was for a period of 15 years i.e. till the last day of Bhadra 1384 B.S. A contention was raised that the date of commencement of the lease should be excluded. The said contention was overruled. In Baneswar Pal v. Nirmala Jyoti the aforementioned decision was distinguished. The Division Bench in Baneswar Pal (supra) held that in cases where a lease is expressed to commence from a date anterior to the date of execution of the lease such anterior date would be material only for the purpose of computation of the period of the lease when it is one for a term of years but the interest of the lessee under the deed cannot be said to have begun from that anterior date.
36. In Ranjit Kumar Dutta v. Tapan Kumar Shaw , Vidyanand. J, while acting as Third Judge in difference of opinion of Babu Lall Jain and Siddheswar Narayan, JJ. observed as follows :
The area of difference with respect to the 1st question is concerned is practically nil as both the Hon'ble Judges came to the same conclusion. It would be not irrelevant to quote Hon'ble Mr. Justice B. L. Jain on this point. His Lordship held as follows :
In other words where the date of commencement is mentioned, the same is to be considered as the day for which the lease commenced, such date may be earlier or subsequent to the date of execution of the lease. In the premises, I am of the view that the duration of the lease was for a period of 15 years and I do not find any grounds for accepting the contention of the appellant, that the lease was for a period of less than 15 years. I have already discussed Section 110 of the Transfer of Property Act as also the eviction on record and in view of that as also in view of the cases referred to herein above no other conclusion is possible in the facts of this case except that the original lease was for a period of 15 years.
37. Hon'ble Mr. Justice S. Narayan came to the same conclusion by observing as follows :
I, do agree with the learned Presiding Officer of this Bench, answering the first question in favour of the landlords-plaintiffs which upholding the findings of the Trial Court. The initial period of the lease defined in the deed as 15 years and actually commencing from the 1st October, 1956 to 30th September, 1971 cannot and does not fall short of 15 years merely because of the registration of the deed having been effected on October 8, 1956.
38. From the above it is amply clear that the two Hon'ble Judges of the Division Bench were unanimous on the point that the said deed of lease did not fall short of 15 years and as such they did not accept the contention of the defendant/appellant that it fell short of 15 years. This finding was not seriously challenged before me and I am also of the view that the two Hon'ble Judges came to the correct concurrent finding that the initial period of the lease as contained in the deed was for 15 years actually commenced from 1st October, 1956 to 30th September, 1971 and the said initial period did not fall short of 15 years merely because it was registered on a subsequent date, i.e., on October 8, 1956.
39. However, the contentions raised herein were neither raised nor answered.
40. Therefore, there cannot be any doubt whatsoever that the tenure of the lease is irrelevant for the purpose of exclusion of the provisions of the said Act. However, we must take into consideration another argument of Mr. Das, Mr. Das submitted that from the lease deed date 5th January, 1986 it would appear that prior thereto an agreement had been entered into on 18th July, 1975 which was also a registered one whereby and whereunder the parties agreed that the lease would be for a period of 20 years commencing from the date of making over delivery of vacant possession of the said demised premises of the lessee by the lessor at the rent and on the terms and conditions as mentioned. Clause B of the said agreement reads thus:
In pursuance to the said above agreement and in terms thereof the lessor duly put the lessee in possession of the said demised premises on 18th July, 1975 immediately after the execution and registration of the said agreement for lease.
41. Although we have been called upon to consider the aforementioned terms but having regard to the fact that the aforementioned agreement dated 18th July, 1975 was not placed before the learned Trial Judge or before us, we are not in a position to consider the effect and purport thereof.
42. The only question which arises for consideration in these appeals thus is as to whether the learned Trial Judge in the facts and circumstances of the case was right in passing a decree on admission. The answer to the aforementioned question, having regard to the reasons assigned by the learned Trial Judge, must be rendered in negative.
43. It may be true that the defendant admitted the lease for a period of 20 years but the legal effect thereof cannot be taken away by reason of such admission alone unless the Court comes to the conclusion upon reference to the agreement dated 18th July, 1975 and the lease deed dated 5th January, 1976 that the tenure of the lease was for 20 years although we do not intend to express our opinion finally as it is not required but we may observe that by reason of an agreement to the lease alone title to the property is not vested. If that be so, a contention can be raised that even thereby a monthly tenancy was created which upon execution of the registered deed of lease may amount to surrender of the old tenancy and creation of a new tenancy. If it is ultimately be held that for all intent and purport the rights and obligations of the parties commenced from 5th January, 1976 and not from 18th July, 1975, the suit should not have been decreed on the ground of expiry of period of tenancy.
44. Furthermore, the learned Trial Judge proceeded on the basis of the admission of the defendants alone in this regard without taking into consideration the legal effect thereof. It ought to have considered the admission on part of the plaintiff also made in the plaint as therein it has clearly been stated that the tenancy was a monthly one. The plaintiff, by filing an application for passing a judgment upon admission should not have given a go-by to his own admission as regards the status of the parties. If the admission made by the defendant was binding on him so was the plaintiffs.
45. We, therefore, are of the opinion that it was not a fit case wherein a judgment upon admission ought to have been passed.
Re: Question No. 246. Having regard to the various decisions cited at the Bar there cannot be doubt whatsoever that an admission made by the defendant cannot be permitted to be resiled or explained by filing an application for amendment but for the said purpose the nature of admission must also be considered. An admission made by a party creates an estoppel. It is admissible against him proprio vigore but it is also equally well-settled that there cannot be any estoppel against statute.
47. The status of the parties which has been granted by reason of a registered indenture and requires interpretation. For the purpose of arriving at a definite conclusion as regards their status an admission made in that regard would not be binding on the Court in view of the fact that interpretation of a document gives rise to a pure question of law. Despite an admission the defendant may raise a contention that the admission as regards his status was not legally tenable. Thus a distinction must be made between an admission on fact and admission on law. Whereas a party cannot raise a question or adduce evidence contrary to or inconsistent with a plea taken in his pleadings, he can do so in relation to a question of law.
48. We must consider the matter from another angle. By reason of the provision of the West Bengal Premises Tenancy Act, the Court is precluded from passing a decree for eviction unless it arrives at a finding that one or more grounds enumerated in Section 13 thereof stand satisfied. The Court, therefore, must satisfy itself about the existence of its jurisdiction to pass a decree. Once a question of jurisdiction arises, the procedural rules like estoppel or resjudicata cannot have any application whatsoever. If that be the legal position, we do not see any reason as to why the amendment cannot be allowed in relation to an admission wrongly made in this connection on a legal question inasmuch as such an erroneous admission is not even binding on the parties nor the Court is bound to act thereupon. A Court of Law, having regard to the facts and circumstances of the case, must arrive at a conclusion that it has jurisdiction to pass a decree. By reason of consent of parties or by reason of mere admission jurisdiction cannot be conferred upon a Court which it did not have.
49. In this view of the matter we are of the opinion that the application for amendment of the written statement filed on behalf of the appellant herein should be allowed.
50. The learned Trial Judge also went wrong in passing the impugned judgment in inasmuch as prayers made in the application and prayers granted are different. Under no circumstances, the decree for mesne profit could be granted by the learned Trial Judge.
51. For the views we have taken it is not necessary for us to consider the other decisions cited at the Bar.
52. For the reasons aforementioned both the appeals are allowed. The impugned judgment is set aside and the matter is remitted back before the appropriate Bench with the observations made hereinbefore.
53. No order as to costs.
54. All parties are to act on a xeroxed certified copy of the judgment, to be delivered on priority basis, on the usual undertaking.
55. Prayer for stay of the operation of the judgment has been made. Apart from the fact that no purpose would be served by grant of stay, we do not feel inclined to accept the prayer. It is rejected accordingly.