Calcutta High Court
Maheswar Pramanik & Ors vs Satkari Sadhukhan & Ors on 7 March, 2014
Author: Debangsu Basak
Bench: Debangsu Basak
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
Original Side
Before:
The Hon'ble Justice Debangsu Basak
C.S. No. 83 of 1977
Maheswar Pramanik & Ors.
Vs.
Satkari Sadhukhan & Ors.
For the Plaintiff : Mr. Sabyasachi Chowdhury, Advocate
Mr. Lalratan Mondal, Advocate
Mr. Shiladitya Bose, Advocate
For the Defendant No. 6 : Mrs. Suparna Mukherjee, Advocate
Mr. Ambar Banerjee, Advocate
Mrs. Leena Panja, Advocate
Mrs. Amrita Panja, Advocate
Heard on : February 27, 2014
Judgment on : March 07, 2014
DEBANGSU BASAK, J.
The continued occupation of Premises No. 67/45-B, Strand Road, Kolkata by the defendants gave rise to the instant suit. The owner of the premises was Kolkata Port Trust. Lalita Sadhukhan was the tenant of Kolkata Port Trust. The original plaintiff took lease of the said premises form Lalita Sadhukhan. The original plaintiff gave sub-lease of the said premises to the Defendant No. 6 by a deed of sub-lease dated December 16, 1965 on and from February 9, 1965.
The Defendant No. 6 was a partnership firm of which Lakshan, Ram, Bharat, Manick, Ratan and Mangal Chandra Sadhukhan were the owners.
The sub-lease was in respect of Plot No. 161A, Premises No. 67/45 B, Stand Road, Kolkata. The sub-lease was for a period of 10 years commencing on and from June 29, 1964 at a monthly rent of Rs. 75/- be paid on or before the 7th day of each succeeding Bengali Calendar month inclusive of all rates and taxes. The deed provided that, in the event the sub-lessees did not deliver peaceful and vacant possession of the demised premises on the expiry or sooner determination of the lease, the sub-lessees would be liable to pay damages at the rate of Rs. 12.50 for each day until the sub-lessees were evicted in due course of law.
By a registered memorandum of agreement dated December 16, 1965 entered into between the same parties it was recorded that, the Defendant No. 6 was carrying on business at the demised premises and that, in lieu of the rent as mentioned in the deed of sub-lease the plaintiff would receive 50% of the net-profit of the business of the Defendant No. 6.
The plaintiffs claimed that, the defendants failed and neglected to give accounts. The plaintiffs also claimed that, the sub-lease expired by efflux of time. With the sub-lease expiring by efflux of time the plaintiff became entitled to immediate possession of the demised premises. The plaintiff caused issuance of two letters dated April 22, 1975 and April 28, 1975 calling upon the defendants to vacate the suit premises. The defendants replied through their Advocate's letter dated May 11, 1975 claiming monthly tenancy under Lalita Sadhukhan. The defendants failed and neglected to make over vacant and peaceful possession of the demised premises to the plaintiff. The defendants did not render accounts. The plaintiff, therefore, instituted the present suit. During the pendency of the instant suit, various parties died. Their heirs and legal representatives were duly brought on record.
Written statement on behalf of the defendants was filed. In such written statement the defendants contended that, the sub-lease was for a period of 10 years with an option to renew the sub-lease for a further period of 5 years. The deed of sub-lease as well as the memorandum of agreement dated December 16, 1965 was admitted. The defendant denied failure to submit true and faithful accounts to the plaintiff. They claimed that they offered inspection of all relevant books of the business of the Defendant No. 6 to the plaintiff. They claimed that, the original plaintiff took inspection of such accounts and of the relevant books of the Defendant No. 6. According to the defendants, the plaintiff granted receipts after inspecting the books of accounts of the Defendant No. 6. The claim of the plaintiffs that, no accounts of the Defendant No. 6 were furnished, according to the defendants, was without any basis. The defendants claimed that, the plaintiff from time to time received a sum of Rs.1,93,925.60p. Such sum was paid either to the plaintiff directly or to the Income Tax authorities for and on behalf of the plaintiff. There were large outstandings of the plaintiff to the Income Tax department. The defendants received notices from the Income Tax authorities on which they paid on behalf of the plaintiff. The defendant also contended that, the plaintiff's lease dated December 13, 1965 with the superior landlord expired on February 8, 1975. Consequently, the plaintiff ceased to be a lessee of the premises. According to the defendants, the lease in favour of the plaintiff having expired, the partners of the Defendant No. 6 approached the original plaintiff and the superior landlord Smt. Lalita Sadhukhan. According to the defendants, the superior landlord agreed to allow the Defendant No. 6 to occupy the premises as a monthly tenant under her. After such agreement, the Defendant No. 6 made over cheques drawn in favour of the superior landlord and continued to remain in possession of the premises as a monthly tenant. In the written statement, however, it was admitted that the cheques taken in the name of the superior landlord was not encashed. According to the defendants, therefore, they continued to remain in occupation as a monthly tenant under the superior landlord.
Maheswar Pramanik adduced evidence as the plaintiff witness No. 1. The defendants produced the accountant of the Defendant No. 6 as their witness. Various documents were relied upon in evidence by both the parties.
On behalf of the plaintiff, it was contended that, the plaintiff was entitled to a decree for eviction with the expiry of the term in the deed of sub-lease. It was contended that, the deed of sub-lease was originally for a period of 10 years. Even with the option for renewal of another 5 years being shown to be exercised, such period also expired. Consequently, the plaintiff was entitled to an order of eviction since the defendants failed, neglected and refused to vacate the suit premises.
It was contended that, the status of the plaintiff as the landlord of the defendants did not change. No document was shown in evidence, to establish, that the plaintiff accepted the so-called change any status. The defendants reliance on the so-called eviction decree dated March 17, 1978 was misplaced. The said decree did not change the relationship between the parties to the instant suit.
The plaintiff contended that, the defendant could not establish a new tenancy coming into being between the defendants and superior landlord. It was also submitted that, the defendants having acknowledged the profit of the Defendant No. 6 to be in excess of Rs. 2,50,000/-, the defendants were liable to pay rent at least at such rate. Few questions and answers given by the accountant of the Defendant No. 6 were referred to. It was submitted that, the Court in absence of any evidence of the profit of the Defendant No. 6 being disclosed should draw adverse inference. The accounts of the Defendant No. 6 were within the personal knowledge of the defendants. They were obliged to produce such accounts. The defendants did not produce such accounts. In absence of such accounts being produced, the Court ought to make adverse presumption against the defendants. The plaintiffs referred to the Order dated August 17, 1977 which required the defendants to submit accounts. However, it was fairly submitted by the plaintiff that, the defendants complied with the direction contained in the Order dated August 19, 1977. The plaintiff relied upon 63 Calcutta Weekly Notes page 192 (National Jewellery Works & Ors. v. Diana Printing Works Ltd. & Anr.) and All India Reporter 1985 Calcutta page 37 (Ganesh Trading Co. Pvt. Ltd.) for the proposition that the defendants were liable to pay the plaintiff the rent for the period they were in occupation even if the status of the plaintiff as landlord changed from a particular date.
On the quantification of mesne profit, it was contended on behalf of the plaintiff that, the plaintiff was entitled to mesne profit. The defendants did not pay rent to the plaintiff since February 1975. The plaintiff contended that, the calculation of mesne profit should be directed to be made under Order XX Rule 12 of the Code of Civil Procedure, 1908.
On behalf of the defendant it was contended that, the sub-lease expired on February 8, 1975. After such expiry a new tenancy came into being between the Defendant No. 6 and Lalita Sadhukhan on the basis of an oral agreement. It was next contended that, the owners of the premises, the Kolkata Port Trust obtained a decree for eviction against the superior landlord Smt. Lalita Sadhukhan. Such decree was obtained by consent of the parties. Consequent to such decree, the status of the plaintiff as the landlord of the Defendant No. 6 underwent a change. The defendants referred to the decree dated March 17, 1978 passed in Ejectment Suit No. 1442 of 1974 and the Ejectment Execution Case No. 125 of 2000.
It was next contended that, the plaintiff was not entitled to a decree for eviction inasmuch as the plaint did not have a Schedule of the suit premises. The agreement was also devoid of a Schedule. In absence of the suit premises being defined in the plaint, according to the defendant, the plaintiff was not entitled to a decree for eviction.
It was next submitted on behalf of the defendant that, the plaintiff failed to establish its case. The only witness of the plaintiff had no knowledge of the facts and circumstances of the case. The plaintiff did not prove its case under Sections 101 and 102 of the Evidence Act, 1972. The plaintiff failed to prove the loss and damages it allegedly suffered. Quantum of rent outstanding was not clearly established.
It was next contended on behalf of the defendants that, this Hon'ble Court did not have pecuniary jurisdiction to entertain the instant suit. The pecuniary value of the claim of the plaintiff was below the pecuniary jurisdiction of this Hon'ble Court. It was suggested that, the plaintiff did not come with clean hands and as such the plaintiff was not entitled to any relief in the instant suit.
The defendant contended that, as a tenant the defendants were entitled to question the title of the plaintiff in the event the status of the plaintiff as the landlord underwent a change. According to the defendants, the status of the plaintiff as the landlord of the defendants underwent change subsequent to the eviction decree dated March 17, 1978. The decree was passed by consent of the parties. The defendants relied upon All India Reporter 1974 Patna page 364 (Jaikaran Singh v. Sita Ram Agarwalla& Ors.), All India Reporter 1959 Punjab page 564 (Shri Sain Dass Farngu v. Pt. Sant Ram Jaishi Ram), All India Reporter 1939 Allahabad page 670 (Rev. Luckman Chaplain v. Pearey Lal), All India Reporter 1987 Supreme Court page 2192 (D. Satyanarayana v. P. Jagadish) in this regard.
In support of the contention that, the plaintiff was required to prove its own case and that the plaintiff cannot rely upon the defects of the defendants to obtain a decree reliance was placed on 2002 Volume 3 Calcutta High Court Notes page 596 (Jhatu Mondal & Ors. v. Surendra Nath Mondal & Ors.), 2002 Volume 3 Calcutta High Court Notes page 482 (Bibhuti Bhusan Dutta v. Dr. Samarendra Nath Misra), All India Reporter 2003 Gujarat page 82 (Heirs Kantilal Purshottamdas Patel v. Dahiben Jagdish Rathod) and All India Reporter 2000 Supreme Court page 1203 (Subhra Mukherjee & Anr. Bharat Coking Coal Ltd & Ors.) by the defendants.
The first relief sought by the plaintiff was for eviction of the defendants from the suit premises. The plaintiff claimed eviction on the basis expiry of the period of lease and the refusal of the defendants to vacate subsequent to the letters dated April 22, 1975 and April 25, 1975.
The defendants resisted the claim for eviction primarily on three grounds. The first ground of the defendants was that a new tenancy came into being. This stand of the defendants was taken in the reply dated May 17, 1975 being Exhibit 'E'. In addition to such stand the defendants in the written statement took a second ground that, by virtue of the decree of eviction dated March 17, 1978 marked as Exhibit '1' there was a change of status of the plaintiff as landlord. The plaintiff was no longer the landlord of the defendants and as such was not entitled to any decree for eviction. The third ground of the defendants was that, neither the plaint nor the deed of sub-lease contained any schedule and as such no decree for eviction could be passed in absence of the property from which the defendants were sought to be evicted being adequately defined in the plaint. In support of the contention that a new tenancy came into being, it was claimed by the defendants that such new tenancy was granted by Lalita Sadhukhan subsequent to the expiry of the term of the deed of sub-lease. Such period would, therefore, be from February 9, 1975.
No document was produced on behalf of the defendant to establish that a new tenancy came into being as contended by them. In the written statement the defendants contended that, cheques towards payment of rent for the new tenancy were issued by the defendants to Lalita Sadhukhan. In such written statement they also admitted that none of such cheques were encashed. They claimed that, such cheques were not encashed with a wrong motive. The defendants could not prove that a new tenancy came into being at any point of time. The defendants admitted that the original tenancy expired on February 8, 1975. The admission of the defendants that the sub-lease expired on February 8, 1975 was found in the reply letter dated May 17, 1975 of the Advocate for the defendants which was marked as Exhibit 'E'. The receipt of the letter dated April 25, 1975 by the defendants was admitted as the letter dated May 17, 1975 was in reply thereto. The letter dated April 25, 1975 was Exhibit 'D' collectively. By this letter the defendants were called upon to vacate the suit premises. The defendants did not vacate. The plaintiff was, therefore, entitled to decree of eviction. In support of the contention that, the status of the plaintiffs and as the landlord of the defendants changed, the defendants sought to rely upon the decree dated March 17, 1978 being Exhibit '1' passed in proceedings between Kolkata Port Trust and Lalita Sadhukhan. According to the defendant, the decree dated March 17, 1978 was an eviction decree. Such decree was passed by consent of the parties. The defendant contended that, by virtue of such decree the status of the plaintiff changed. As a tenant the defendants were entitled to question the title of the landlord when its status changed and the defendants relied on Jaikaran Singh (Supra), Sant Sain Dass Farngu (Supra), Rev. Luckman Chaplain (Supra), D. Satyanarayana (Supra) in support of such contention.
In Jaikaran Singh (Supra) the Patna High Court was concerned a suit for eviction. Section 116 of the Evidence Act and the principle of estoppel arising from a contract of tenancy was considered. The Patna High Court noted the consensus of judicial opinion, both of the Courts in India as well as those of English Courts that before surrendering or solemnly renouncing possession the tenant was not permitted to set up a title in a third person or jus tertii. It was noted that, possession must be surrendered before any defect in the lessor's title was allowed to be proved. This position in law was no different even after the notice to quit determining the tenancy was served. Such principle was, however, subject to certain exceptions. Some of the exceptions enumerated were (i) where a plaintiff or a defendant did not seek either to evict or to defend his title as a landlord on the strength of a tenancy but on the strength of his title and the erstwhile tenant acquired an indefeasible right in himself in opposing the stand on the strength of a title in himself; (ii) where the tenant was evicted by a person holding a title paramount; (iii) where under a threat or compulsion of eviction by an owner or a person claiming better title than the landlord, the lessee attorns to such person with notice to the original lessor. In all these cases the actual physical possession need not be given up. In such circumstances the lease would be deemed to be surrendered and a new title created either as an owner or by the lessee or a paramount title-holder.
In the instant case, none of the three instances were established. The defendants did not claim to become the owner of the premises. The plaintiff was not evicted by the owner, Kolkata Port Trust. The defendants did not attorn their tenancy in favour of either Kolkata Port Trust or to any paramount title-holder upon notice of the plaintiff or otherwise. The so-called tenancy between the defendants and Lalita Sadhukhan was not established. Jaikaran Singh (Supra), therefore, was not attracted in the facts and circumstances of the instant case.
Section 116 of the Evidence Act, 1872 and the principle of estoppel of tenant was considered in Sant Sain Dass Farngu (Supra). The question before the Punjab High Court was whether a tenant was at liberty to controvert his landlord's title while he retained the possession under which he originally entered. In the facts of that case it was held that, the defendant was not entitled to deny the title of the landlord and attorn to a third party on the apprehension of a suit for eviction might be brought by the paramount landlord. It was held that, a tenant was precluded during the continuance of the tenancy from denying that the landlord did not have title to the premises let out to him. This authority was against the defendants. Following this ratio the defendants were precluded from questioning the title of the plaintiff to the suit property.
The defendants contended that, they were not precluded from questioning the plaintiff's title on the basis of facts subsequent to the commencement of tenancy. They relied on Rev. Luckman Chaplain (Supra). The Allahabad High Court in Rev. Luckman Chaplain (Supra) was concerned with a revisional application. The revisional application arose from an order passed in a suit for arrears of rent. In the facts of that case the Allahabad High Court was of the view that, it was open to the defendant to plead that the title of the plaintiff passed to the Government and that the plaintiff had no right to realize any rent for the period in the suit. In this case, the title to the suit property did not undergo any change as suggested by the defendants. Therefore, the ratio of Rev. Luckman Chaplain (Supra) was not available to the defendants.
The defendants persisted with their contention that they were entitled to question the title of the plaintiffs. They relied on D. Satyanarayana (Supra). In a suit for eviction the Supreme Court was concerned with the question whether the tenant was estopped from denying the title of the lessor under Section 116 of the Evidence Act, 1872 despite the fact that there was a threat of eviction by a person having title paramount. Their Lordships held on facts that, there was an order of eviction passed against a sub-tenant. Their Lordships held that, it was open to a tenant even without surrendering possession to show that since the date of the tenancy, the title of the landlord came to an end or that he was evicted by a paramount title-holder or that even though there was no actual eviction or dispossession of the property under a threat of eviction he had attorned to the paramount title-holder. In the facts of this case none of the circumstances was satisfied for the defendants to come within the exception of Section 116 of the Evidence Act, 1872.
The decree dated March 17, 1978 marked as Exhibit '1' was passed by consent in Ejectment Suit No. 1442 of 1974. The suit was filed on December 23, 1974 in the City Civil Court at Calcutta. The plaintiff in such suit was the Board of Trustees for the Port of Calcutta. Lalita Sadhukhan was the defendant in such suit. The decree records that, the same was disposed of on compromise in terms of the joint petition which was directed to form part of the decree. The joint petition admitted that there were arrears of monthly rent and mesne profit in respect of the tenancy in the suit for the period and sum specified therein. The compromise petition went on to record the modality of payment of such arrears. It provided that, in the event the defendant to such suit failed to pay the arrears then in that event the plaintiff to such suit would be at liberty to execute the decree for recovery of possession. It also provided that, in the event the defendant to such suit paid the plaintiff the arrears of monthly rent and mesne profit and the sum specified together with interest, then in that event, the decree would be treated as fully satisfied and the defendant to such suit would be accepted as a tenant in respect of the tenancy in the suit.
Exhibit '1' also showed that, an eviction proceeding was initiated which was numbered as Ejectment Execution Case No. 125 of 2000. The eviction proceeding was initiated by the Board of Trustees for the Port of Kolkata against Lalita Sadhukhan. The order bearing No. 100 dated February 14, 2001 was the last order which was produced in evidence. The result of the Ejectment Execution Case No. 125 of 2000 was not placed on record. From the Order dated February 14, 2001 it did not appear that Lalita Sadhukhan was evicted from the suit premises. Till date the defendants were in actual physical possession of the suit premises.
Therefore, the contention of the defendants that, the status of the plaintiff in the instant suit as the landlord underwent a change consequent to the decree dated March 17, 1978 was untenable. The defendants resisted any decree being passed in the instant suit for eviction on the ground that the plaint did not contain any schedule. It was also contended that, the deed of sub-lease dated December 16, 1965 also did not contain any schedule to the property. In the plaint, the plaintiff sought decree for vacant and peaceful possession of Premises No. 67/45-B, Strand Road, Kolkata (No. 7, Cross Road) more fully described in Annexure 'A' to the plaint. Annexure 'A' to the plaint was the deed of sub-lease dated December 16, 1965. The deed of sub-lease dated December 16, 1965 was marked as Exhibit 'A' in the suit. The deed of sub- lease in Clause (j) page 11 provided the schedule of the suit premises. The premises were adequately described in the deed of sub-lease. The municipal number of the premises was stated. The area for which the sublease was granted was easily identifiable from the deed of sublease. This contention of the defendant, therefore, was without any basis and must fail. The defendants contended that, the plaintiff failed to establish its case. According to the defendant, the only witness of the plaintiff did not have any knowledge of the facts and circumstances of the instant case inasmuch as such a witness was not of age when the incidents took place. The plaintiff having failed to establish its case, the defendant contended that the plaintiff was not entitled to any relief. The defendant also contended that, it was for the plaintiff to establish its case and not rely upon any weakness of the case of the defendant to obtain a decree from Court. According to the defendant, the plaintiff failed to discharge its burden of proof.
The only witness of the plaintiff stated that, his deceased father used to look after the legal proceedings. In the instant case the claim of the plaintiff could be divided into three categories. The first category was its claim for eviction. The next two categories were dependent upon the result of the first category. The other two categories were claim for arrears of rent and for mesne profit and damages. The claim for eviction of the defendants from the suit premises revolved around a written document. The deed of sub-lease dated December 16, 1965 was an admitted document. Therefore no further evidence was required to be adduced on behalf of the plaintiff to establish the document. The terms and conditions of the sub-lease were written in the deed. The deed of sub-lease dated December 16, 1965 was marked as Exhibit 'A'. No evidence could be allowed for the purpose of overriding the written provisions of the deed of sub-lease. The parties did not attempt to do so. The entry of the defendants into the suit premises was by virtue of the deed of lease being Exhibit 'A'. This was an admitted position. The plaintiff witness also proved the letters dated April 11, 1975 and April 28, 1975 written on behalf of the plaintiff requiring the defendants to make over possession immediately. The defendants admitted that, the deed of sub-lease expired on February 8, 1974 by efflux of time. The defendants contended that, a new tenancy came into being subsequent to the expiry of the sub-lease by efflux of time. The claim of new tenancy by the defendants was required to be proved by the defendants. The defendants failed to establish the so-called new tenancy. No document was brought on record to establish the so- called new tenancy. The defendants, therefore, became liable to be evicted on the expiry of the deed of sub-lease. Therefore, it could not be said that, the plaintiff failed to establish its case. The plaintiff was also not relying upon the defects of the defendants in proving the defendants case for obtaining the decree of eviction.
The next two claims of the plaintiff that a decree for the sum that may be found due on taking of accounts; and a decree for mesne profit at such rate as to this Hon'ble Court may deem fit and proper.
The plaintiff claimed that, the defendants did not furnish true and proper accounts of the Defendant No. 6. The Defendant No. 6 was obliged to pay 50% of its profits as rent. The defendants admitted that in terms of the agreement dated December 16, 1965 they were to be 50% of the net profit of the Defendant No. 6 as rent. They also pointed out that, the memorandum of understanding dated December 16, 1965 provided that, in the event the Defendant No. 6 did not make any profit it was not liable to pay any rent for such year. The defendants in their written statement contended that, the memorandum of agreement dated December 16, 1965 provided that, the profit and loss of the Defendant No. 6 would be calculated on Akshoya Tritiya day of every Bengali year. The net profit was required to be paid within 60 days from the date of taking of such accounts. The defendants claimed that, the Defendant No. 6 duly offered inspection of all relevant books of the business to the plaintiff. The plaintiff from time to time took inspection of such books. The present claim of the plaintiff was made with an ulterior motive. Prior to 1972 the plaintiff granted receipts after inspection of the books of accounts of the Defendant No. 6 and after receiving statement of accounts in respect of 50% share in the profits in terms of the memorandum of agreement dated December 16, 1965. The defendants claimed in their written statement that after 1972 the plaintiff do inspection of the books of accounts of the Defendant No. 6 and also receive statement in respect of his 50% share of the profits. However, the plaintiff at the instigation of his son refused to sign the receipts. The defendants claimed that, the son of the plaintiff used to visit the Defendant No. 6 regularly and used to inspect the books on behalf of the plaintiff. The plaintiff did not raise this objection or made any complaints contemporaneously. Statement of account for the year 1972 was sent to the plaintiff on September 3, 1974 and no objection was taken by the plaintiff in that regard till filing of the suit. The plaintiff was well aware of the profit and loss of the business and was estopped from challenging the same.
The defendants claimed that up to 1975 the rent amounted to Rs.2,34,318.65p. This composed of the 50% share of the profit of the Defendant No. 6. The defendants claimed that, from time to time the plaintiff received a sum of Rs.1,93,925.60p either directly or as payment made on his behalf to the income tax authorities. According to the defendants, the plaintiff had large outstanding to the income tax authorities. The defendant sought to explain how they paid the sum of Rs.1,93,925.60p to various parties on behalf of the plaintiff. The defendants admitted that, the balance was payable and that the same was required to be paid in instalments.
To arrive at a finding on these rival claims, evidence led by the parties was required to be appreciated. The defendant contended that, the plaintiff was required to prove its own case; the plaintiff could not prove its case; the plaintiff cannot rely upon the defects of the defendant's evidence to obtain a decree. On behalf of the defendant diverse authorities were cited on this issue. In Jhatu Mondal (Supra) this Hon'ble Court was concerned with a suit for partition. The plaintiff in that suit claimed jointness of the properties relying on the record of rights. Thus, a presumption was admitted to be drawn from the record of rights that the properties were joint. The defendants claimed partition dating 50 years back. In such circumstances it was held that, unless it was shown by cogent evidence, at least by a reliable witness and corroborated by independent witness it was very difficult to presume jointness solely on the basis of record of rights. The suit for partition on facts of that case was dismissed. In Bibhuti Bhusan Dutta (Supra) an application under Order XXI Rule 99 of the Code of Civil Procedure, 1908 was under
consideration on appeal. It was held that, executing Court cannot go behind the decree. However, an exception of such rule was that when fraud was alleged the executing Court could examine the same even if it amounted to going behind the decree inasmuch as fraud unravelled everything. In the instant case there was no decree for eviction against the plaintiff. Bibhuti Bhusan Dutta (Supra) also dealt with burden of proof. In the instant case, it was an admitted fact that, the defendants were put into possession of the suit premises as tenants by the original plaintiff. It was also an admitted fact that the lease expired by efflux of time on February 8, 1975. In my view, the plaintiff discharged their onus. It was the defendant who failed to substantiate that a new tenancy came into being between them and Lalita Sadhukhan and that there was a decree for eviction against the plaintiff.
In Heirs Kantilal Purshottamdas Patel (Supra) Sections 101 to 105 of the Evidence Act, 1872 was considered. It was held that, when matters pleaded by the plaintiff and converted by the defendant the same was required to be positively proved by the plaintiff and not negatively disproved by the defendant. In the instant case, the sub-lease and its expiry are admitted facts.
Such facts, therefore, stood proved. That the rate of rent was depended upon the profit of the Defendant No. 6 was also admitted. It was not the case of the defendants that the plaintiffs were the partners of the Defendant No. 6. The profit of the Defendant No. 6 was within the personal knowledge of the defendants. The defendants failed to discharge their onus of establishing the profit to determine the rate of rent. The memorandum of agreement dated December 16, 1965 provided that in the event there was no profit and the Defendant No. 6 suffered a loss he need not pay any rent. The fact that the Defendant No. 6 suffered loss was also not proved by the defendants.
In Subhra Mukherjee & Anr. (Supra) Section 101 of the Evidence Act, 1872 was considered by the Apex Court. It was held that, a person who attacked a transaction as sham, bogus and fictitious must prove the same. But when the issue raised disclosed that it was in two parts, and the first part said, whether the transaction, in question, was bonafide and genuine one and the second part said, or was a sham, bogus and fictitious transaction, it was only when that the party alleging it to be sham was required to dislodge it by proving that it was a sham and fictitious transaction. In the instant case, there was no evidence at all from the defendant to establish that a tenancy came into being between the defendants and Lalita Sadhukhan. The plaintiff in this case was not claiming anything with regard to the so-called tenancy between Lalita Sadhukhan and the defendants. It was the defendants who were as their defence to eviction claiming that a new tenancy came into being between them and Lalita Sadhukhan. It was for the defendants to establish such tenancy. In evidence, the witness of the plaintiff admitted that, the plaintiff received share of the profit is a rent up to 1973. The plaintiff did not receive rent for the period 1973 and 1974. This came out as an answer to question No. 22 in examination in chief. The witness of the plaintiff went on to claim rent at the rate of the profit made by the Defendant No. 6 for the period subsequent to 1974.
The accounts produced by the parties are sketchy. The plaintiff admitted that till 1973 it received the share of profit of the Defendant No. 6 as rent. Therefore accounts for the period of 1974 till the expiry of the lease by efflux of time was under
consideration. The defendants admitted that a sum of Rs.2,34,318.65p. was due and payable by the defendant to the plaintiff. The defendants failed to establish their claim that, such sum was paid to diverse parties on behalf of the plaintiff. The documents marked as exhibits on behalf of the defendants did not establish such fact. The witness of the defendant did not give cogent evidence to establish payment on behalf of the plaintiff. In such circumstances, a sum of Rs.2,34,318.65p. was due and payable by the defendants to the plaintiff on and from February 8, 1975.
In view of the evidence of the plaintiff that the received share of the profit up to 1973 it was not proper to reopen the accounts between the parties. For the subsequent period, the defendants admitted that a sum of Rs.2,34,318.65p. was due and payable by them to the plaintiff. In absence of cogent evidence, the claim of the defendants that such sum was paid on behalf of the plaintiff, could not be accepted.
Then came the question of mesne profits. On this issue, the defendants contended that, no evidence was led and that, the plaintiff failed to prove mesne profits and, therefore, was not entitled to any. The plaintiff contended that, the provisions of Order XX Rule 12 of the Code of Civil Procedure, 1908 be invoked. The plaintiff wanted the Court to direct enquiry under Clause (ba) of Order XX Rule 12 for computation of the mesne profit.
The defendants are in occupation of the suit premises since the expiry of the sublease. The defendants did not pay any rent or occupation charges to the plaintiff. The computation of mesne profit by the Court will consume valuable time of the Court. It would be appropriate to appoint special officer to compute the mesne profit receivable by the plaintiff from the defendants for the period of their occupation of the suit property. Mr. Kaushik Chowdhury, Advocate is appointed as the special officer with a direction upon the special officer to compute the mesne profit payable by the defendants from February 8, 1975 being the date of expiry of the lease till the defendants vacates the suit premises. The special officer will be entitled to a remuneration of Rs.50,000/-. The plaintiff will pay Rs.25,000/- while the defendants will pay the balance. The parties will pay such a remuneration to the special officer along with the communication of this order to the special officer. The parties will communicate this order to the special officer. The special officer will complete the enquiry and submit the report within four (4) weeks from the date of communication of this order. The special officer will not grant any unnecessary adjournment to the parties. The parties will provide all other assistance to the special officer that may be required for the special officer to complete the enquiry and submit the report.
The defendants contended that, this Hon'ble Court lacked pecuniary jurisdiction to entertain the instant suit. The suit was for eviction as well as for accounts and damages. By virtue of the arrangement between the parties the defendants were to be 50% of the net profit of the Defendant No. 6 as rent to the plaintiff. A sum of Rs. 2,34,318.65p. remained due and payable by the defendants to the plaintiff amongst others.
The defendants challenge on pecuniary jurisdiction was founded largely on the claim of the plaintiffs for compensation at the rate of Rs.12.50 per day. It was submitted that, even if the Court was to allow the damages at the rate of Rs.12.50 per day the same was below the pecuniary jurisdiction of Rs.50,000/-. This contention of the defendant therefore could not be accepted. The value of the claims of the plaintiff was well within the pecuniary jurisdiction of this Court. This Hon'ble Court has the pecuniary jurisdiction to try, entertain and determine the instant suit.
The defendants contention that, the plaintiffs did not come with clean hands and as such were not entitled to any reliefs was also without any basis. The so-called uncleanliness of the plaintiffs was not elaborated upon. The facts did not disclose that, the plaintiffs came to this Court with unclean hands. If at all, there was any uncleanliness it was required to be fastened onto the defendants. The defendants sought to suggest a new tenancy which they failed to establish. The defendants' persistent refusal to pay the occupation charges speaks of volume of their stand. The plaintiff relied on In Re: Ganesh Trading Co. Pvt. Ltd. (Supra) for the proposition that, an order for eviction passed against the lessee by itself did not determine the lessee's title to realize rent from the sub-lessee. The plaintiff also relied on National Jewellery Works & Ors. (Supra) for the same proposition.
There will be a decree in terms of prayer (a) of the plaint. The defendant shall pay a sum of Rs.2,34,318.65p. to the plaintiff together with interest at the rate of 10% per annum on and from February 8, 1975 until payment. The rate of 10% per annum was agreed as recorded in Exhibit 'A'.
Let the suit appear for hearing four (4) weeks hence.
[DEBANGSU BASAK, J.]