Calcutta High Court (Appellete Side)
Smt. Ratna Bose @ Basu vs Smt. Jharna Mullick & Ors on 10 January, 2017
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Jyotirmay Bhattacharya
AND
The Hon'ble Justice Ishan Chandra Das
S.A.T. 349 of 2016
with
CAN 12078 of 2016
Smt. Ratna Bose @ Basu
versus
Smt. Jharna Mullick & Ors.
For the Defendant/Appellant : Mr. Probal Kumar Mukherjee, Sr.Adv.,
Mr. Subir Kumar Chandra,
Ms. Aditi Kumar.
For the Plaintiffs/Respondents : Mr. Indranath Mukherjee,
Mr. Prasenjit Saha.
Heard On : 10-01-2017. Judgement On : 10-01-2017.
Jyotirmay Bhattacharya, J. : Leave is granted to the learned advocate-on- record of the appellant to rectify the defect in the appeal in terms of the report of the Stamp Reporter.
This second appeal is directed against the judgement and decree dated 13th June, 2016 passed by the learned Additional District Judge, 3rd Court at Alipore in Ejectment Appeal No. 26 of 2012 reversing the judgement and decree dated 30th June, 2012 passed by the learned Civil Judge (Junior Division), 2nd Court at Alipore in Ejectment Suit No. 285 of 2008 at the instance of the defendant/appellant.
Let us now consider the merit of the appeal to find out as to whether any substantial question of law is involved in this appeal for which the appeal is required to be admitted for hearing under the provision of Order XLI Rule 11 of the Code of Civil Procedure or not.
The eviction suit was filed by the husband of the respondent no.1 herein since deceased against the defendant/appellant. It was alleged by the plaintiff that Jogesh Chandra Bose, predecessor-in-interest of the defendants was the original tenant in the suit property. The husband of the respondent no.1 was the transferee landlord. The predecessor-in-interest of the defendants viz., Jogesh Chandra Bose paid rent to the plaintiff up to June 2002 against which rent receipts were granted by the plaintiff. From July 2002, the said tenant started sending rent by money order. Jogesh Chandra Bose died on 8th June, 2003 leaving the defendants as his heirs and legal representatives who used to reside with Jogeshbabu at the time of his death in the suit premises. Mira Bose, wife of Jogeshbabu, pre-deceased her husband. As such, even after the death of Jogeshbabu, the defendants were regarded as tenants for a period of five years from the date of death of Jogeshbabu as per the definition of "tenant" as defined in Section 2(g) of West Bengal Premises Tenancy Act, 1997.
It was alleged by the plaintiff that after expiry of five years from the date of death of Jogeshbabu, the defendants ceased to be tenants of the said premises. However, since despite service of notice upon the defendants calling upon them to vacate the said premises, the defendant/appellant did not vacate the suit premises even after expiry of the notice period, the instant suit was filed.
The defendant no.1/appellant contested the said suit by filing written statement, asserting the plea of her tenancy right in respect of the suit property. She claimed that even after the death of Jogeshbabu, the plaintiff accepted rent from the defendants and as such the defendants became tenants under the plaintiff. The defendant/appellant, however, challenged the maintainability of the suit on the ground that the suit for eviction framed under the scheme of West Bengal Premises Tenancy Act, 1997 is not maintainable for evicting a person who ceased to be a tenant after expiry of five years from the date of death of the original tenant.
Accepting the aforesaid contention of the defendant no.1/appellant, learned Trial Judge was pleased to dismiss the said suit by holding that the suit as framed is not maintainable. Challenging the legality and propriety of the said judgement and decree of the learned Trial Judge, the plaintiff preferred an appeal before the learned first Appellate Court. Learned first Appellate Court was pleased to allow the said appeal by reversing the findings of the learned Trial Judge. Learned first Appellate Court held that the suit as framed for eviction of the defendants is well maintainable. The legality of the said judgement and decree passed by the learned first Appellate Court is under challenge in this second appeal before us.
While considering the issue regarding maintainability of this suit, as argued by Mr. Probal Kumar Mukherjee, learned senior counsel appearing for the defendant/appellant, we have considered the plaint as a whole. On perusal of the plaint, we do not find that the plaintiff framed the said suit for eviction under the scheme of Section 6 of West Bengal Premises Tenancy Act, 1997. The plaintiff very specifically stated in the plaint that Jogeshbabu was the original tenant and on his death, the heirs of Jogeshbabu who were residing with him viz., the defendants had the right to remain in the said tenancy as tenants thereof for a period of five years after the death of Jogeshbabu.
The plaintiff claimed that the defendants ceased to be tenants under the plaintiff after expiry of the period of five years after the death of Jogeshbabu. The instant suit was filed after expiry of five years from the date of death of Jogeshbabu, not by treating the defendants as tenants, but by treating the defendants as trespassers. Even the suit was not founded on the basis of cause of action arose following service of notice under Section 6(4) of West Bengal Premises Tenancy Act, 1997. Had it been a suit for eviction of a tenant under the Premises Tenancy Act, 1997, notice under Section 6(4) of the said Act would have been served upon the defendants as the said provision gives a mandate for filing of such suit after expiry of notice period under Section 6(4) of the said Act, if the tenant does not vacate the tenancy after expiry of the notice period. No such notice was served upon the defendants by the landlord before filing such suit. Even the suit was not founded on the basis of the cause of action arose due to non-compliance of the notice under Section 6(4) of the said Act. As a matter of fact, service of such notice upon the tenant is a pre-condition for maintaining the suit for eviction under the said Act. Or, in other words, the cause of action for filing such suit of eviction against a tenant will be completed only when the tenant refuses to vacate his tenancy ever after expiry of the notice period.
The plaint averments are clear enough to show that the instant suit was not founded on the basis of the cause of action arose, on the failure of the tenant to vacate the suit premises even after expiry of the period of notice under Section 6(4) of the said Act.
As such, we hold that the suit is essentially a suit for eviction of a trespasser which is well maintainable and since the suit is not against a tenant within the meaning of tenant as defined under West Bengal Premises Tenancy Act, 1997, the defendants are not entitled to get any protection against eviction under Section 6 of the said Act. Hence, we hold that the learned first Appellate Court was absolutely justified in holding that the suit is well maintainable and the plaintiff is entitled to get a decree for eviction as the defendants have failed to prove a better title than the plaintiff in the suit property.
We, thus, do not find involvement of any substantial question of law in this appeal for which the appeal is required to be admitted for hearing under the provision of Order XLI Rule 11 of the Code of Civil Procedure. We, thus, decline to admit this appeal.
The appeal, thus, stands dismissed.
Re: CAN 12078 of 2016 (Stay) After we declined to admit this appeal for hearing under the provision of Order XLI Rule 11 of the Code of Civil Procedure, Mr. Mukherjee, learned senior counsel appearing for the defendant/appellant prays for six months time for vacating the suit premises by his client.
We, thus, stay the execution of the decree being Ejectment Execution Case No. 11 of 2016 pending before the learned Civil Judge (Junior Division), 2nd Court at Alipore till 30th June, 2017 subject to compliance of the following conditions :-
(i) The defendant/appellant will have to pay occupational charges of the suit premises at the rate of Rs.4,500/- (Rupees four thousand five hundred only) per month to the plaintiffs/respondents during the period of her stay. First of such payment of occupational charges for the month of January 2017 will be paid by the defendant/appellant to the plaintiffs/respondents within 7th February 2017 and for the subsequent months till May 2017 will be paid within 7th of each following month. Occupational charges for the month of June 2017 will be paid by the defendant/appellant to the plaintiffs/respondents within 15th June, 2017. Such payment may be made either directly to the plaintiffs/respondents or may be made by way of deposit in the savings bank account of the plaintiffs/respondents being A/c.
No. 31851898403 with the State Bank of India, Chetla Branch. Payment of occupation charges will not be construed as payment of rent.
(ii) The defendant/appellant will have to submit an undertaking before the learned Executing Court within ten days from date, stating therein that the defendant/appellant will vacate the suit premises and give up vacant and khas possession thereof to the plaintiffs/respondents and/or their authorised representative on or before 1st July, 2017 and during the period of her stay, the defendant/appellant will not create any third party interest therein and/or cause any damage to the suit premises.
In default of compliance of any of the conditions, as mentioned above, and also in the event, the defendant/appellant, even after submitting such undertaking, fails and neglects to give up vacant and khas possession of the suit premises to the plaintiffs/respondents and/or their authorised representative on or before 1st July, 2017, stay, as granted above, will automatically stand vacated and in that event, the learned Executing Court will grant police help to the plaintiffs/respondents for evicting the defendant/appellant without entertaining any application filed by the defendant/appellant.
We, however, make it clear that decree for mesne profit will be executed in accordance with law.
The application for stay being CAN 12078 of 2016 is, thus, disposed of. Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.
(JYOTIRMAY BHATTACHARYA, J.) ( ISHAN CHANDRA DAS, J. ) dc.