Calcutta High Court
W. Newman & Company Limited vs Apollo Zipper India Limited on 13 June, 2017
Equivalent citations: AIR 2017 CALCUTTA 182, (2017) 2 RENTLR 301, (2017) 4 ICC 156, (2017) 176 ALLINDCAS 507 (CAL), (2018) 1 RENCR 654, (2017) 3 CAL HN 184, (2017) 4 CALLT 101
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
Original Side
Present :
THE HON'BLE MR. JUSTICE BISWANATH SOMADDER
AND
THE HON'BLE MR. JUSTICE SANKAR ACHARYYA
APD No. 510 of 2015
with
CS No. 201/2012
W. Newman & Company Limited
Vs.
1. Apollo Zipper India Limited
2. Bharat Hotels Limited
For the appellant:- Mr. Pratap Chatterjee, Senior Advocate
Mr. Tilok Bose, Senior Advocate
Mr. Raj Ratna Sen, Advocate
Mr. A.P. Gomes, Advocate
Ms. Akriti Jain, Advocate
Ms. Debolina Dey, Advocate
For respondent no. 1:- Mr. S.K.Kapoor, Senior Advocate
Mr. Utpal Bose, Senior Advocate
Ms. Hashnuhana Chakraborty, Advocate
Ms. Neelina Chatterjee, Advocate
Ms. Soumali Basu, Advocate
Heard on : 13.02.2017, 21.02.2017, 28.02.2017,
06.03.2017, 09.03.2017, 23.03.2017,
28.03.2017, 30.03.2017, 11.04.2017,
20.04.2017, 25.04.2017, 27.04.2017,
08.05.2017
Judgment on : 13.06.2017
The Court:- On 06.06.2012 the plaintiff/respondent no. 1 as
owner of suit premises filed a civil suit, being C.S. 201 of 2012,
for eviction of the tenant, being the defendant/appellant before
us, from the suit premises with prayers for recovery of arrear rent
and mesne profit while claiming service of notice to quit upon the
defendant prior to filing of the said suit.
On 22.08.2012, the defendant/appellant entered
appearance in that suit after receiving Master's summons and
expressed intention to file a written statement. On 31.08.2012,
the defendant filed an application, being G.A. No. 2427 of 2012,
which was affirmed on 29.08.2012, for extension of time to file
the written statement. After receiving the notice of motion in
respect of that application, the plaintiff/respondent no. 1 filed
G.A. 2408 of 2012 affirmed by an affidavit on 31.08.2012 for
passing of a final judgment under Chapter XIIIA of the Original
Side Rules of this High Court in favour of the plaintiff for a
summary decree for recovery of vacant possession in the suit
premises. Defendant/appellant filed affidavit-in-opposition dated
20.11.2012 to the said application of plaintiff/respondent
challenging the material allegations of plaintiff/respondent no. 1
and dealing with all matters of fact specifically.
Succinctly stated, the plaintiff's case is that the suit
premises at 18, Hemanta Basu Sarani, belonged to Great Eastern
Hotel and the defendant was monthly tenant therein. The State
of West Bengal acquired the property by legislative enactment
and it vested in the State. Subsequently, by successive
legislations and Government notifications, the property ultimately
vested in the plaintiff company with effect from 05.10.2005.
Defendant failed to pay monthly rent at the rate of Rs.40,000/-.
Plaintiff served notice dated 17.05.2012 upon the defendant
determining the tenancy, but the defendant did not vacate the
suit premises even after expiry of notice period.
The defendant, in the affidavit-in-opposition to G.A. 2408 of
2012 denied the plaintiff's case. The defendant, inter alia,
challenged the pecuniary jurisdiction of the Court, locus standi of
the plaintiff to file the suit, plaintiff's acquisition of ownership in
the suit premises and plaintiff's claim of monthly rent as
Rs.40,000/-. Specific defence of the defendant is that the
monthly rate of rent is Rs.1,600/- in respect of the suit premises
and since the suit premises was badly damaged for want of
maintenance in 2003, there was an understanding between Great
Eastern Hotel and defendant for payment of Rs.38,400/- per
month as maintenance charge in respect of the suit premises by
the defendant to Great Eastern Hotel in addition to the monthly
rent of Rs.1600/-. By a letter dated 28.04.2006, the
defendant/appellant was informed by M/s. Khaitan & Co. that
Bharat Hotel Limited has become the absolute and exclusive
owner of the suit premises by transfer. Both the respondents
including the plaintiff of C.S. 201 of 2012 had jointly filed C.S.
53 of 2007 claiming their right, title and interest in the suit
premises against the defendant praying for declaration and
consequential reliefs alleging, inter alia, termination of
defendant's tenancy right on acquisition of suit premises by the
State of West Bengal in 1980. During pendency of said suit,
plaintiff/respondent no. 1 alone served notice under section 106
of the Transfer of Property Act and filed C.S. 201 of 2012. On
23.06.2014, the said C.S. 53 of 2007 was dismissed for default.
It is also the contention of the defendant/appellant that after the
plaintiff company became a Government company, transfer of the
suit premises, if any, as alleged in the plaint, is a transfer by the
State Government to a Government company, which
tantamounts to transfer by the State of West Bengal to the State
of West Bengal and therefore, not lawful. Defendant/appellant
contended that the State of West Bengal and Bharat Hotel
Limited are necessary parties to the suit for ascertaining the
rightful ownership in the suit premises. Therefore, the notice
under section 106 of the Transfer of Property Act is not legal and
consequently G.A. 1208 of 2012 and C.S. 201 of 2012 are liable
to be dismissed.
It appears from the impugned judgment that the learned
senior counsel for both the parties exhaustively argued the case
of their respective clients.
In this appeal also, the learned counsel for both the parties
argued at length covering all points of facts and law. Mr. Pratap
Chatterjee, learned senior counsel - with his sagacity -
strenuously argued that the matters of fact, as stated in the
defendant's affidavit-in-opposition against plaintiff's claim of
eviction of tenant, sufficiently establishes a good defence to prove
that the notice under section 106 of the Transfer of Property Act -
which is the basis of the suit for eviction - was not legal.
Having gone through the impugned judgment dated
14.10.2015 passed in G.A. 2408 of 2012 in connection with C.S.
201 of 2012 it appears that the First Court did not accept the
arguments advanced by Mr. Pratap Chatterjee, the learned senior
counsel for the defendant (being appellant herein) and delivered
the impugned judgment on the prayer of the plaintiff made under
an application filed under Chapter XIIIA of the Original Side
Rules of this High Court. On the same day (i.e.14.10.2015) after
disposal of G.A. 2408 of 2012, the learned Single Judge disposed
of G.A. 2427 of 2012 passing the following order -
"In view of the order passed in G.A. 2408 of 2012
the defendant shall be permitted to file written
statement only with regard to the claim on account of
arrear rents as claimed in para 39 of the plaint and
mesne profits and/or damages. This application being
G.A. No. 2427 of 2012 stands disposed of. However,
there shall be no order as to costs.
Urgent xerox certified copy of this judgment, if
applied for, be given to the parties on usual
undertaking".
Having gone through the impugned judgment and aforesaid
order it appears to us that the First Court has delivered the
judgment in favour of plaintiff so far as regards the part of claim
for eviction of tenant from the suit premises is concerned and has
granted unconditional leave in favour of defendant to defend
against the plaintiff's claim of arrear rent and mesne profit for
occupying the suit premises. Impliedly, defendant's prayer for
leave to defend the plaintiff's claim for eviction of tenant has been
denied by the First Court.
Under Rule 6 of Chapter XIIIA of the Original Side Rules of
this Court, upon an application of the plaintiff made under Rule
3 for final judgment for recovery of the suit premises on the
ground that there is no defence against the claim of plaintiff, the
Judge may - unless (emphasis supplied) the defendant by
affidavit or otherwise as the Judge may direct for the purpose of
satisfying himself that the defendant has a good defence to the
claim on merits or disclose such facts as may be deemed
sufficient to entitle him to defend - make an order refusing leave
to defend and forthwith pronounce judgment in favour of the
plaintiff.
In our opinion, the scheme of said Rule makes it clear that
it is an exception to the general procedure to allow a defendant to
defend himself against a plaintiff's claim. As such, the matter of
granting leave or refusal of granting leave to defend should be
decided first - that too, supported with cogent reasons - before
the Court proceeds to pronounce a judgment on the merits of the
case in an application under Chapter XIIIA of the Original Side
Rules. In the impugned judgment, the First Court has made
elaborate discussions on merits of the case without, at first,
coming to any clear finding as to why the Court was satisfied that
the defendant had no good defence to the plaintiff's claim on its
merit. It is a vital omission. Such omission may destroy a
valuable right of a defendant to adequately defend himself,
causing prejudice to him. Simply by observing to the effect that
the defence is sham or illusory or frivolous or bogus or
moonshine or unconvincing (which is not even the case here) is
not enough. It must be supported with cogent reasons as to why
the Court considers the defence to be either sham or illusory or
frivolous or bogus or moonshine or unconvincing. A matter under
Chapter XIIIA of the Original Side Rules is always an exception to
the general rule of procedure governing adjudication of civil
disputes and requires to be considered only in a summary
manner based on the statements made by the respective parties
on oath. Scrutinizing controverted documents, which are yet to
be tendered as evidence and thereafter analysing them in the
backdrop of statements made by the respective parties while
adjudicating an application under Chapter XIIIA of the Original
Side Rules of this Court will tantamount to usurping the general
rule of procedure governing adjudication of civil disputes.
Consideration of documents as evidence is a matter of trial. We
may observe at this stage that a good defence does not
necessarily mean that it shall always translate into defeating the
claim of the plaintiff. However, such defence must not be sham or
illusory or frivolous or bogus or moonshine. Such defence should
be convincing to the Judge to the extent that the same reflects an
arguable case made out by the defendant against the plaintiff's
claim for the suit to ultimately proceed for trial. When necessity
of trial can be palpably felt by the Judge while adjudicating an
application under Chapter XIIIA of the Original Side Rules, there
shall not be any refusal to the defendant of an opportunity to
defend himself against the plaintiff's claim. At the same time, it
must also be borne in mind by the parties that they may not dare
to file a false affidavit on oath in a proceeding under Chapter
XIIIA, on pain of shouldering penal consequences, which can also
tantamount to abuse of process of Court.
In this regard, apart from the oft quoted and relied
upon judgment rendered by Justice S.R.Das of our High Court in
Kiranmoyee Dassi and another vs. Dr. J. Chatterjee reported
in AIR (36) 1949 Calcutta 479, (which follows and relies upon a
Division Bench judgment of our Court rendered in Radha Kissen
Goenka vs. Thakursidas Khemka reported in 30 C.W.N. 228),
we also draw inspiration from the observations made by the
Supreme Court in Mrs. Raj Duggal vs. Ramesh Kumar Bansal
reported in AIR 1990 SC 2218. Although the latter judgment
was rendered in the context of Order 37 Rule 2 of the Code of
Civil Procedure, the following observations are squarely
applicable while our Courts decide applications under Chapter
XIIIA of the Original Side Rules:-
"Leave is declined where the Court is of the
opinion that the grant of leave would merely enable
the defendant to prolong the litigation by raising
untenable and frivolous defences. The test is to see
whether the defence raises a real issue and not a
sham one, in the sense that if the facts alleged by the
defendant are established there would be a good or
even a plausible defence on those facts. If the Court
is satisfied about that leave must be given. If there is
a triable issue in the sense that there is a fair dispute
to be tried as to the meaning of a document on which
the claim is based or uncertainty as to the amount
actually due or where the alleged facts are of such a
nature as to entitle the defendant to interrogate the
plaintiff or to cross-examine his witnesses leave
should not be denied. Where also, the defendant
shows that even on a fair probability he has a bona
fide defence, he ought to have leave. Summary
judgments under Order 37 should not be granted
where serious conflict as to matter of fact or where
any difficulty on issues as to law arises. The Court
should not reject the defence of the defendant merely
because of its inherent implausibility or its
inconsistency."
In the instant suit some undisputed facts are that the
defendant / appellant company is in occupation of the suit
premises for about 100 years. For want of proper maintenance,
the suit premises has been damaged. The defendant/appellant
used to pay Rs.1600/- only as monthly rent for the suit premises.
Subsequently it started making payment of Rs.40,000/- per
month. The plaintiff/respondent no. 1 together with respondent
no. 2 jointly filed Civil Suit no. 53 of 2007 in this High Court
against the defendant/appellant - claiming themselves as owners
of the suit premises. The plaintiff/respondent no. 1, before
institution of the suit, being C.S. 201/2012, (wherein the
impugned judgment under Chapter XIIIA was passed) served a
notice to quit upon the defendant/appellant claiming that the
plaintiff is the sole owner of the suit premises even when C.S. 53
of 2007 remained pending. Plaintiff claimed that the rate of
monthly rent is Rs.40,000/- while the defendant claimed that he
paid monthly rent @ Rs.1600/- and maintenance charge of
Rs.38,400/- per month for the dilapidated suit premises.
Referring to C.S. 53 of 2007, the defendant/appellant sent a
letter for knowing the rightful owner of the suit premises with
intention to make payment of rent. Since at the same time, the
plaintiff claimed in C.S. 53 of 2007 that he alongwith respondent
no. 2 in the instant appeal are joint owners of the suit premises
and in C.S. 201 of 2012, the plaintiff alone claimed that he is the
exclusive owner of the suit premises, we cannot form an absolute
opinion, at this stage, that the defendant has raised
unconvincing or untenable or frivolous defence or it is a sham or
an issusory issue which may enable the defendant to prolong the
litigation even when speedy disposal of litigations is the crying
need in our country.
Therefore, without going to trial it cannot be said that the
defendant/appellant has no defence against plaintiff's locus
standi to file the suit claiming exclusive ownership in respect of
the suit premises and for charging rate of rent @ Rs.40,000/- per
month and in respect of service of notice to quit. This is
inextricably linked to the plaintiff's claims of arrear rent and
mesne profit also in respect of which the First Court has granted
leave in favour of the defendant to defend while passing order in
G.A. 2427 of 2012. The above observation is being made by us
as the instant appeal is continuation of C.S. 201 of 2012.
In the light of what has been stated by us in the foregoing
paragraphs, we are satisfied that the defendant has a good
defence to the plaintiff's claim in C.S. 201 of 2012 and is,
therefore, entitled to defend the suit, unconditionally. We,
however, refrain ourselves from entering into any further
discussion, lest it would affect adjudication of the suit on its own
merit.
The impugned judgment dated 14.10.2015 passed by
learned Single Judge is, therefore, set aside. The defendant is
entitled to defend the whole claim of the plaintiff in C.S. 201 of
2012 unconditionally and leave is granted accordingly.
It is made clear that observations made in this judgment
shall have no impact in respect of the trial or final disposal of the
suit in accordance with law. Deposit of money, if any, made by
the plaintiff pursuant to any order passed earlier in the instant
appeal shall be governed by the final result of the suit.
The appeal stands allowed accordingly.
No order as to costs.
Urgent photostat certified copy of this judgment and order,
if applied for, be supplied to the parties on priority basis.
SANKAR ACHARYYA, J. BISWANATH SOMADDER, J.
