Calcutta High Court
Smt. Kalyani Bhattacharjee And Anr. vs Sri Monoranjan Roy on 18 June, 1987
Equivalent citations: (1987)0CALLT486(HC), 92CWN440
JUDGMENT Sankari Prasad Das Ghosh, J.
1. This appeal relates to the dismissal of a suit for eviction under the West Bengal Premises Tenancy Act, 1956 on the grounds of default in payment of rent, sub-letting and reasonable requirement of the suit-premises for own use and occupation. The suit-premises mean two rooms and a kitchen at the ground floor of premises No. 286A, Chittaranjan Avenue, P. S. Jorasanko, Calcutta, as well as one bath-room and one privy on the open land in an adjacent premises, being premises No. 284 Chittaranjan Avenue, Calcutta.
2. The plaintiffs-appellants filed the suit for eviction on the aforesaid grounds. In the suit, there was also a prayer for permanent injunction for restraining the defendant-respondent from making any addition, alteration and/or construction and from changing the character of the tenancy described in Schedules 'A' and 'B' to the plaint. There was a further prayer for recovery of khas possession of the remaining vacant land in premises No. 284, Chittaranjan Avenue, Calcutta, which was described in Schedule 'C' to the plaint.
3. The suit was contested by the respondent by filing a written statement, wherein all the material averments in the plaint were denied. The respondent alleged suspension in payment of rent by him since July, 1974 on the ground of dispossession from a small room under the stair-case at premises No. 286A, Chittaranjan Avenue, Calcutta on 30. 6. 74.
4. After the filing of the suit, there were petitions by the respondent under Sections 17(2) and 17(2A)(b) of the West Bengal Premises Tenancy Act, 1956 (hereinafter referred to as "the Act" for the sake of convenience). By an order passed on 25.9.78, the court below rejected the petition under Section 17(2) of the Act and allowed the other petition under Section 17(2A)(b) of the Act. By that order, the respondent was directed by the court below to pay the arrears from July, 1974 by way of monthly instalments and to continue to pay the current rent. Subsequently, on the prayer of the appellants under Section 17(3) of the Act, the defence against delivery of possession was struck out by an order passed on 18.4.79 by the court below. As the defence against delivery of possession was struck out, the contest in the suit, at the time of peremptory hearing of the suit remained confined to the legality and validity of a notice dated 15.1.76, Ext. 1, under Section 13(6) of the Act and Section 106 of the Transfer of Property Act. It is not disputed that the notice was received by the respondent. The learned Judge, Seventh Bench, City Civil Court, Calcutta, who tried the suit, after examining P. W. 1 (appellant No. 2), was of the opinion that the notice of ejectment was not legal, valid and sufficient and that relationship of landlord and tenant between the appellant No. 1 and the respondent! had not been proved. As such, the suit was dismissed. Being aggrieved, the present appeal has been filed by the plaintiffs-appellants.
5. The learned Judge held that the notice of ejectment was not valid, legal and sufficient on the basis of the decision of this court in the case of Parekh Brothers v. Kartick Chandra (A. I. R. 1968 Calcutta 532). After hearing the learned Advocates for the parties, we are unable to agree with the finding of the learned Judge that the notice of ejectment is not legal, valid and/or sufficient. In the case of Parekh Brothers (supra), a suit for eviction was filed by three persons including one Kartick on alleging that those three persons were the landlords of the suit-premises of that suit. The defendant in that suit denied the existence of three landlords and accepted only Kartick as the landlord of the premises. It was proved in evidence in that suit that Kartick and not his other two brothers was the landlord of the premises. The plaintiffs are to succeed or fall on their own case. When the plaintiffs in that suit pleaded a case that they three were the landlords of the premises and failed to prove it and when the defendant proved its case that Kartick was the sole landlord of the premises, it was held in that case that the contract, that had been pleaded in the plaint of that case, was different from the contract that had been proved by evidence and that the plaintiffs could only succeed on the Case made out by the plaintiffs in their evidence and not on the basis of the case made out by the defendant. The facts of the present suit are quite different from the facts of that suit. In this suit, the plaintiffs alleged in the plaint that the respondent was inducted in the suit-premises by the appellant No. 2 acting for and on behalf of his wife, the appellant No. 1 and that rent-receipt was issued by the appellant No. 2 in his own name for the sake of convenience. The evidence of P. W. 1 was that the appellant No. 1 was the owner of the premises Nos. 284 and 286A, Chittaranjan Avenue, Calcutta, by purchase from his father and that the respondent was a tenant under his wife (appellant No. 1) in respect of the suit-premises. There was virtually no cross-examination of this evidence of P.W.1. The cross-examination of P.W.1, related to the question as to whether there was any power-of-attorney in his favour by his wife for looking after her properties or her suits on her behalf. In these circumstances, the appellant No. 2 adduced evidence as P. W. 1 in support of the case made out in the plaint, which was not challenged by way of cross-examination of P. W. 1. This is not thus a case where the contract pleaded was different from the contract proved in evidence. As such, the case of Parekh Brothers can have no application to the facts of the present suit.
6. Mr. Dey, the learned advocate for the respondent, referred us to the provisions of Sections 91 and 92 of the Evidence Act and contended that oral evidence was not admissible to vary the terms of the contract of tenancy mentioned in Ext. A. Ext. A is a letter dated 11.7.72 by the appellant No. 2, whereby the appellant No. 2 agreed to let out the ground floor of the premises No. 286A, Chittaranjan Avenue, Calcutta, and to permit user of the latrine and bath-room at premises No. 284, Chittaranjan Avenue, Calcutta, by his tenant, the respondent. Ext. A, is not, however, a contract of tenancy. Ext. B series are the rent-receipts granted by the appellant No. 2 to the respondent. By these rent-receipts, Exts. B to B(3), the appellant No. 2 collected rent of the suit-premises from the respondent by mentioning explicitly in each of these rent-receipts, "as per arrangement vide my letter dated 11.7.72. to Monoranjan Roy". The letter, Ext. A, dated 11.7.72 is thus an arrangement made by the appellant No. 2 for collection of rent of the suit-premises! from the respondent, though he described the respondents as his tenant in that letter. The question is whether, in view of this letter, Ext. A, and the rent-receipts, the suit is to be dismissed, as done by the learned Judge, If a property is owned by a person and is let out by a third person, the owner is entitled to institute a suit for eviction against the tenant on the basis of the inclusive definition of the word "landlord" in Section 2(d) of the Act. This Section 2(d) of the Act came up for interpretation in the case of Charubala Dey v. Sarashi Bala Roy (90 C.W.N. 796). It was held in the case of Charubala Dey (supra) that the definition of the word "landlord", included the owner and any other person, who collected rent on behalf of the owner either as rent-collector or as agent. With due respect, we are unable to go so far as to hold that the definition of "landlord" in the Act will include any other person, who will collect rent on behalf of the owner either as rent-collector or as agent. The emphasis in the definition of the word, "landlord", in Section 2(d) of the Act is on the word, "entitled" Halder v. P.M. Chakraborty 71 C.W.N. 152). The expression, "landlord", presupposes some legal right. Any person for the time being entitled to receive the rent refers only to the person entitled as between the landlord and the tenant. The appellant No. 2 will be the landlord on the basis of the letter dated 11.7.72, Ext.A, in view of the provisions in Section 116 of the Evidence Act. The appellant No. 1 will also be the "landlord" (landlady) as she is the owner of the suit-premises. The terms of the letter, Ext.A, were not varied by the evidences of P.W. 1. As such, the provisions of Sections 91 and 92 of the Evidence Act do not stand as a bar to the contention of the appellants that the appellant No. 1 is the owner and the appellant No. 2 collected rent for and on behalf of the owner, the wife of the appellant No. 2. In these circumstances, we are of the opinion that the notice of ejectment is legal, valid and sufficient. The learned Judge thus erred in dismissing the suit on the ground of invalidity of the notice.
7. The relationship of landlord and tenant between the plaintiffs and the defendant has been proved in evidence inasmuch as the appellant No. 1 is the owner of the suit-premises and the appellant No. 2 was a landlord on the basis of the averments in the plaint and the evidence read with Section 116 of the Evidence Act, at the time of issuing the notice of ejectment dated 15.1.76.
8. The appeal is, accordingly, allowed. The judgment and decree passed by the court below are set aside. The suit itself in the court below is decreed in part on contest against the defendant. The defendant-respondent is directed to deliver vacant possession of the suit-premises (premises described in schedules 'A' and 'B' to the plaint) to the plaintiffs within six months from this date on condition of the respondents depositing the arrears of mesne profits, if any, in the court below within three months from this date and on further condition of the respondent's depositing in the court below in favour of the plaintiffs-appellants the current mesne profits at the rate of monthly rent of Rs. 100 per month, month by month, by 15th of the English calendar month next following the English calendar month for which the current mesne-profit is due. On failure of the respondent's depositing in favour of the plaintiffs-appellants in the court below the arrears of mesne-profits, if any, within three months from this date or failure of the respondent to deposit in favour of the plaintiffs-appellants in the court below, the current mesne-profit as stated above, the decree will be executable at once and the plaintiffs-appellants will be entitled to evict the respondent from the suit-premises (premises mentioned in the schedules 'A' and 'B' to the plaint) and to recover khas possession of the same. In case the respondent does not deliver vacant possession of the suit-premises to the plaintiffs-appellants, after complying with the aforesaid conditions, within six months from this date, the plaintiffs-appellants will be at liberty to recover khas possession of the suit-premises (premises mentioned in schedules 'A' and 'B' to the plaint) on evicting the respondent therefrom. In the event the deposits are made in accordance with this order, the plaintiffs-appellants will be at liberty to withdraw the amounts so deposited without furnishing any security.
9. Prayer for recovery of khas possession of the premises mentioned in schedule 'C' to the plaint and the prayer for permanent injunction are rejected, as there is no evidence in the matter, no court-fee has been paid for these prayers and there is no valuation of these prayers in the plaint.
10. In the special circumstances of this appeal, the parties to bear their own costs of this appeal.
L.M. Ghosh, J.
11. I agree.