Calcutta High Court
Shri Deb Kumar Chatterjee vs Smt. Helena Ghosh And Ors. on 17 May, 1990
Equivalent citations: (1990)2CALLT354(HC), 95CWN274
JUDGMENT Jyotirindra Nath Hore, J.
1. This is an appeal by the tenant/defendant against the judgment and decree for ejectment passed by the learned Judge, City Civil Court, 10th Bench, Calcutta in ejectment Suit No. 827 of 1974.
2. The plaintiff/respondent brought the said suit against the appellant/ defendant for ejectment from the suit premises on the ground that the defendant caused damage to the suit building in violation of provisions of Clause (m) of Section 108 of Transfer of Property Act, 1882 inter alia on the allegations that by an agreement in writing dated 1.2.56 entered into between the plaintiff No. 1 and the defendant, the defendant was inducted as a monthly tenant under the plaintiff in respect of one big hall on the ground floor of premises no- 14, Ramanath Majumder Street, Calcutta-9 at a monthly rental of Rs. 55/- payable according to English calendar month. By another agreement in writing dated 15.5.71 entered into between the plaintiff and the defendant, the rent of the disputed premises was enhanced from Rs. 55/to Rs. 70/- per month in consideration of the fact that the disputed room instead of being used as a godown was being used for running a printing press. The defendant was given permission to use the disputed premises as a printing Press without causing any damage, waste, material deterioration of the building in which the disputed tenancy was situated. The defendant, however, in violation of the aforesaid condition enlarged his printing business and installed a heavy and big printing machine on the disputed room and as a result the second and third floor were damaged by way of cracks of the walls and chunks of plaster fell from some places and in the later part of 1973, the portion of the corridor just in front of the stair case in the first floor of the suit building was damaged to such an extent that the entire cemented cover was broken into several pieces. The plaintiff immediately asked the defendant to repair the aforesaid damage and not to run the printing press but the defendant refused to comply. The defendant failed to keep the suit premises in such good condition as it was when the defendant was put into possession of the suit-room and acted contrary to the provisions of Clause (m) and as such is not entitled to protection against eviction. The plaintiff determined the tenancy by a notice to quit on the expiry of the month of April, 1D74 sent by a registered post. It was a combined notice under Section 106 of the Transfer of Property Act and Section 13(6) of the West Bengal Premises Tenancy Act.
3. The defendant contested the suit by filing a written statement contending inter alia that the alleged notice was never served and it was not valid, legal and sufficient. It was contended that the building was not damaged due to operation of the printing press by the defendant in the disputed room. The defence of the defendant against delivery of possession was, however, struck out under Section 17(3) of the West Bengal Premises Tenancy Act and the defendant was allowed to contest only on the point of notice.
4. Upon a consideration of the materials on record the learned Judge has held that the notice was duly served and that it was legal, valid and sufficient. He has further held that the tenant/defendant has caused damage to premises No. 14, Ramanath Majumder Street by operating heavy printing machine and acted contrary to the provisions of Clause(m) of Section 108 of the Transfer of Property Act and as such he is liable '-under Section 13(1) (b) of the West Bengal Premises Tenancy Act. He has accordingly passed a decree for ejectment in favour of the plaintiff against the defendantBeing aggrieved by the said judgment and decree for ejectment, the tenant/ defendant has preferred the present appeal.
5. Mr. Roychowdhury, learned Advocate for the appellant has firstly contended that in the absence of notice under Section 114A of the Transfer of Property Act to remedy the alleged breach, the suit for ejectment on the ground under Section 13(1)(b) of the West Bengal Premises Tenancy Act for violation of provisions of Clause(m) of Section 108 of the Transfer of: Property Act is not maintainable. The second contention of Mr. Roychowdhury is that the plaintiff has failed to prove by cogent and satisfactory evidence that the tenant/defendant violated the provisions of Clause(m) of Section 108 of the Transfer of Property Act by causing the alleged cracks in the walls of second and third floor rooms by negligent running of the printing machines. Thirdly, even if the alleged damage was caused by opera tion of the printing machine to the second and third floor rooms which are outside the defendant's tenancy, the tenant/defendant is not liable to be evicted under Clause(m) of Section 108 of the Transfer of Property Act and the remedy of the plaintiff lies in a suit for mandatory injunction or damages. The last contention of Mr. Roychowdhury is that the defendant whose defence against delivery of possession was struck out under Section 17(3) of the West Bengal Premises Tenancy Act was allowed to contest the suit only on the point of service and validity of the notice and was not allowed to cross-examine the plaintiff's witnesses on other point but in view of the Supreme Court decision in Modula India v. Kamakshya Singh Deo, , he was entitled to cross-examine the plaintiffs witnesses on all points.
6. Mr. Mukherjee, learned Advocate for the respondent has, on the other hand, contended that in a suit for ejectment on the ground under Section 13(1)(b) of the West Bengal Premises Tenancy Act for violation of the provisions of Clause(m) of Section 108 of the Transfer of Property Act, notice under Section 114A of the Transfer of Property Act is not necessary. He has further contended that the plaintiff has satisfactorily proved the violation of the provisions of Clause(m) of Section 108 by the tenant/defendant. It has further been contended that the tenant/defendant is liable to eviction under clause(m) of Section 108 of the Transfer of Property Act though damage was caused to other part of the building outside the tenancy. Mr. Mukherjee, does not however controvert the last contention of Mr. Roy Chowdhury that the defendant was entitled to cross-examine the plaintiff's witnesses on all points and not only on the point of notice only. He has contended that for ends of justice the case may be sent back for a fresh trial after giving an opportunity to the tenant/defendant to cross-examine the plaintiff's witnesses on all points.
7. The first contention raised by Mr. Roy Chowdhury on behalf of the appellant does not merit acceptance. Section 114A of the Transfer of Property Act provides for relief against forfeiture in respect of express terms and conditions between the lessor and the lessee. Section 114A can be invoked only when there is an express condition which provides that on the breach thereof, the lessor may re-enter. The provision in Section 108 of the Transfer of Property Act is an implied term. The written agreement (Ext. 2) does not contain any specific term that the landlord may re-enter if damage is caused by the running of the printing machine. In our opinion, Section 114A of the Transfer of Property Act has no application in the present case. This view is fortified by the Full Bench decision of this court in Bhagaban Biswas v. Bijoy Singh Nahar, , where it has been held that a notice under Section 114A of the Transfer of Property Act need not be given if the ground on which the ejectment is prayed for is under Section 13(1)(b) of the West Bengal Premises Tenancy Act, 1956 .i.e. if a tenant or a person residing in the premises has done any act contrary to the provisions of Clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act.
8. The second contention of Mr. Roy Chowdhury, however, merits acceptance. We have been led through the entire evidence and upon a careful perusal of the same and upon hearing the learned Advocates for both sides, we are of the opinion that the plaintiff has hopelessly failed to prove the alleged violation of the provisions of Clause (m) of Section 108 of the Transfer of Property Act by causing the alleged damage by his negligent act. Admittedly the tenancy was for business purpose, more particularly for running a printing press. The tenant/defendant was, therefore, at liberty to instal printing machines and operate them which would necessarily cause some vibration. Now, there is absolutely no evidence worth the name to show that the tenant/defendant installed heavier machines than agreed upon or was negligent in operating the same. The plaintiff has examined Mr. K.C. Paul, a Consulting Engineer as P.W. 2 and his report is Ext. 3. He inspected the suit building before the institution of the suit. He saw cracks on the walls and floors of the second and third floor and chunks of plasters had fallen down from places. In the opinion of the expert the said damage was caused due to the running of the heavy printing machines installed in the ground floor of the premises. The grounds on which the opinion of the expert is based were not given by P.W. 2 either in his testimony or in his report. It is to be noted that the alleged damage was caused not in the demised room in the ground floor or any other part of the ground floor or even the first floor. Cracks and fall of chunks of plaster in the walls were found only in the second and third floor. The vibrations due to running of the machines would be the severest in the suit room where the machines are installed and operated and it seems quite unlikely that the vibrations would cause such damage only in the second and third floor leaving the ground and first floors unaffected. It appears from the report of P.W- 2 that the condition of the building including the second and-third floor which were constructed later is not good. The building was not kept in good repairs. P.W. 2 has not given the nature and number of the cracks. The report also does not show the extent of the alleged damage; The possibility that the cracks and fall of chunks of plaster were due to normal wear and tear cannot be ruled out. The report of P.W- 2 does not contain anything from which it may be reasonably inferred that the vibrations caused in the disputed room by operation of the printing machines were responsible for the alleged damage in the second and third floor. P.W. 2 does not explain how cracks were caused in second and third floor and not in the first floor and not even in the ground floor demised from where the vibrations would be the highest. No causal nexus appears to have been established between, the operation of the printing machines by the defendant and the alleged damage in the form of cracks and fall of chunks of plaster. No reliance can, therefore, be placed upon the testimony of P.W. 2. The plaintiff has failed to prove by cogent and satisfactory evidence that the tenant/defedant has violated the provisions of Clause (m) of Section 108 of the Transfer of Property Act-
9. Assuming, however, that the alleged damage was caused by the tenant/defendant by negligent operations of the printing machines this will not come within the mischief of Clause (m) of Section 108 of the Transfer of Property Act, since the damage was not caused to the demised premises but to other part of the building outside the tenancy. The obligation of the lessee under Clause (m) of Section 108 of the Transfer of Property Act is to keep the demised property in good condition and to restore it after termination of the lease in the same condition in which it was let out subject to the changes as caused by reasonable wear and tear or irresistible force. Clearly, the obligation of the lessee is with respect to the property comprised in the lease. The violation of the provisions of Clause (m) of Section 108 of the Transfer of Property Act incorporated as a ground of ejectment in Section 13(1) (b) of the Premises Tenancy Act must, therefore, relate to the premises comprised in the tenancy and not to any other premises. Admittedly, there was no damage in the disputed room in the ground floor comprised in the tenancy of the defendant. The defendant is not, therefore, liable for eviction for violation of the provisions of Clause (m) of Section 108 of the Transfer of Property Act under Section 13(1) (b) of the West Bengal Premises Tenancy Act. If the alleged damage in the second and third floor of the building which was outside the tenancy of the defendant was really caused by the defendant by operation of his printing machines, he was at best liable for damages or for restoring the property to its former condition by remedying breach, if possible, but the plaintiff could not sue him for ejectment from the suit premises-
10. Mr. Mukherjee has relied upon a Division Bench decision of this Court in. Kalpana Dhar & Or. v. Subodh Kumar Paul and Ors, 1978(2) CLJ 292, in support of his contention that the tenant, is liable to be evicted even if the damage was caused to other part of the building which was outside the tenancy of the defendant. It has been held in that case that during the continuance of the lease or tenancy if the tenant erects or constructs any permanent structure in a portion to which the landlord and other tenants can have access, then the tenant will come within the mischief of Section 108(p) of Transfer of Property Act and will be liable to be evicted. It will be no answer of the tenant that the portion in respect of which the tenant has made the construction is outside the demised premises. The true test is whether the tenant can retain possession of the new construction he has made after his eviction from the demised premises. If the answer be "no", then any construction he has made will entail the eviction of the tenant, if he has violated the provisions of Section 108(p) of the Transfer of Property Act. In our opinion, this decision is not applicable to this case which is quite distinguishable on facts. The decision relates to unauthorised construction of a permanent structure by the tenant in violation of Clause(p) of Section 108 of the Transfer of Property Act but in the instant case the ground for ejectment is violation of Clause(m) of Section 108 of the Transfer of Property Act by causing damage in other part of the building and not unauthorised construction of any permanent structure in violation of Clause (p) of Section 108 of the Transfer of Property Act. The decision referred to above does not, therefore help the plaintiff/respondent in any manner.
11. This brings us to the last point raised by Mr. Roychowdhury. In Modula India v. Kamakshya Singh Deo, the Supreme Court has held that even in a case where the defence against delivery of possession of a tenant is struck off under Section 17(3) the defendant tenant, subject to the exercise of an appropriate discretion by the Court on the facts of a particular case, would generally be entitled (a) to cross-examine the plaintiff's witnesses ; and (b) to address argument on the basis of the plaintiff's case. However, when the defendant is afforded the aforesaid right he would not be entitled to lead any evidence of his own nor can his cross-examination be permitted to travel beyond the very limited objective of pointing out the falsity or weaknesses of the plaintiff's case. In no circumstances should the cross-examination be permitted to travel beyond this legitimate scope and to convert itself virtually into a presentation of the defendant's case either directly or in this form of suggestions put to the plaintiff's witnesses.
12. We are not, however, inclined to send back the case on remand for a fresh hearing to enable the defendant/tenant to cross-examine the plaintiff's witnesses in accordance with the decision of the Supreme Court referred to above, in view of our finding that the plaintiff has hopelessly failed to prove the alleged violation of the provisions of Clause(m) of Section 108 of the Transfer of Property Act.
13. The appeal is, therefore, allowed and the judgment and decree of the court below are set aside. Plaintiff's suit stands dismissed on contest with costs. We do not make any order for costs in this appeal.
M.G. Mukherji, J.
13. I agree.