Calcutta High Court (Appellete Side)
Semila Bibi vs Hare Krishna Pramanik on 8 December, 2010
Author: Tarun Kumar Gupta
Bench: Tarun Kumar Gupta
1
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
Present :
The Hon'ble Justice Tarun Kumar Gupta.
S. A. 4-5 of 1998.
Semila Bibi.
Vs.
Hare Krishna Pramanik.
Mr. Abhijit Banerjee,
Mr. Sushanta Kr. Rakshit
Mr. Tanmoy Saha................for the Appellants.
Mr. Alok Kr. Ghosh,
Mr. Anubrata Sinha,
Mr. Santanu Bhattacharjee...........................for the Respondent.
Heard on : 01/12/2010.
Judgment on : 08/12/2010.
Tarun Kumar Gupta, J. : These second appeals are directed against the
common judgment and decree dated 29th August, 1997 passed by the learned court of Civil Judge (Senior Division), Hooghly in title appeal nos. 233 of 1992 and 235 of 1992, affirming the judgment and decree dated 29/08/1992 and 04/09/1992 respectively passed by the learned Munsif, 1st Court, Chandannagore in title suit nos. 36 of 1983 and 108 of 1983.
The appellant Smt. Semila Bibi being the plaintiff filed both the suits, in the trial court for delivery of khas possession along with recovery of arrear rent against defendant tenant in respect of two separate tenancies. According to the 2 appellant/plaintiff, suit premises belonged to one Karu Parsi who was in possession of the same. On his demise his grand daughter Ashalata Dasi inherited the suit properties and while she was in possession inducted the respondent/defendant as tenant in respect of two parts of the property, i.e. the suit premises at a monthly rent of Rs. 17/- per month and Rs. 10/- per month respectively according to Bengali Calendar month. The defendant paid rent to Ashalata Dasi who later on sold the same to Smt. Kamala Bala Bera plaintiff's vendor. After purchase, Kamala Bala Bera served a notice of attornment to the respondent/defendant/tenant on 20/03/1973. After receiving of the notice defendant/tenant manufactured a Kobala in his favour in respect of the suit property by setting up one bunddia as legal heirs of deceased Karu Parsi. The defendant instituted a suit bearing no. 105 of 1973 in the court of learned Munsif, 1st Court, Chandannagore against Kamala Bala Bera praying for declaring defendant's title in the suit property as well as for permanent injunction. Defendant lost said legal battle upto the Hon'ble High Court, Calcutta. Present plaintiff purchased the suit buiding from Kamala Bala Bera by Kobala dated 01/03/1983 with a right to claim arrear rent from the defendant/tenant. The defendant/tenant was also guilty of causing damage of the suit property. Plaintiff/landlord was in need of the suit premises for addition and alteration. Defendant also defaulted in payment of rent. Accordingly, plaintiff terminated the tenancy of the defendant in the suit premises by sending two separate notices to quit. As defendant did not vacate the suit premises those two suits on identical grounds were filed.
The respondent/defendant contested both the suits by filing written statement denying material allegation of the plaints and containing inter alia that the suits were 3 not maintainable as those were framed. The specific case was that he was the tenant under Karu Parsi , the original owner. He gave rent to Karu Parsi only for one year. Thereafter he stopped payment of rent and acquired a title to the property by way of adverse possession. He denied passing of title of suit premises either to Ashalata Dasi or to Kamala Bala Bera or to the plaintiff. He denied to be a tenant under either of them.
The learned trial court framed several issues in both the suits and after analogous hearing passed the judgment wherein he dismissed the suits observing that the plaintiff failed to establish that she had title to the property or that the defendant was the tenant under her.
The appellant/plaintiff/landlord filed appeals in the lower appellate court against said analogous judgment of trial court.
The learned lower appellate court on scrutiny of evidence on record, both oral and documentary, came to the findings that the defendant was the tenant under original owner/landlord Karu Parsi in respect of the suit premises and that title of the suit premises passed from Karu Parsi to Ashalata Dasi then to plaintiff's vendor Kamala Bala Bera and lastly to plaintiff. He also held that the status of the defendant as a tenant first under Karu Parsi and then under subsequent owners continued and remained unchanged. It was also an admitted fact that the defendant was a defaulter in payment of rent since long.
However, learned lower appellate court dismissed the appeals by the impugned analogous judgment only on the ground that the notices which were duly served upon defendant/tenant suffered from ambiguity and were not valid in the eye of law. 4
Present appellant/landlord has filed the second appeal alleging that aforesaid findings of learned lower appellate court regarding insufficiency and invalidity of notice was bad in law. No other point was taken in the memo of appeal.
The respondent/defendant/tenant also did not file any cross appeal or cross objection against the findings of the learned lower appellate court determining the respondent/defendant as defaulting tenant under the plaintiff.
The substantial question of law that is formulated in this case is as follows :-
Whether the learned lower appellate court substantially erred in law by holding that the notices to quit were not sufficient and valid as the date of termination was not pinpointed by describing tenancy to be governed by a particular calendar month, though plaintiff/landlord specifically mentioned the termination dates both under Bengali and English Calendar months.
Mr. Abhijit Banerjee, learned advocate appearing on behalf of the plaintiff/appellant has submitted that learned lower appellate court came to a wrong finding about the validity of notice to quit only on the ground that the termination date was stated either on the expiry of Aghrayan month as per Bengali Calendar or on the expiry of the month of his tenancy (in case of tenancy according to English Calendar month), which was to expire next after the end of one month from the service of notice.
According to Mr. Banerjee, the notice to quit though was not strictly accurate or consistent but it should have been construed liberally. According to him, the test is what would the notice mean to the tenant who is in occupation of the tenancy knowing the terms and circumstances of his tenancy.5
In this connection, Mr. Banerjee has referred case laws reported in Indian Appeals (Vol. 45) 22 (Harihar Banerjee & Ors. Vs. Ram Sashi Roy & Ors.), AIR 1977 SC 1120 (Bhagabandas Agarwalla Vs. Bhagwandas Kanu & Ors.), 81 C.W.N. 376 (Mahasukrai Ramrichpal Vs. Kishori Charan Law) and 87 C.W.N. 278 (Sonabati Devi & Ors. Vs. Achyutanand Dey & Anr.).
In all the above referred case laws it was consistently held by Hon'ble Apex Court as well as by this court that notice to quit though not strictly accurate or consistent in the statements made therein, may still be good and effective in law ; that the test of their sufficiency is not what they would mean to a stranger ignorant of all the facts and circumstances touching the holding to which they purport to refer, but what they would mean to tenants presumably conversant with all those facts and circumstances. It was further held that the notices to quit are to be construed not with a desire to find faults with them which would render them defective but to be construed ut res magis valent quam pereat. (It is better for a thing to have effect than to be made void).
Mr. Alok Kr. Ghosh, learned advocate appearing on behalf of the respondent/defendant/tenant on the other hand has submitted that admittedly, said notices dated 15th October, 1982 correspondence to 28th Aswin, 1389 B. S. sent under Registered Post with AD, were duly served upon the defendant on the same date. According to him if Bengali Calendar date of termination of the notice is taken, it is to expire of 30th Aghrayan, 1389 B.S. which correspondence to 16th December, 1982, whereas if English Calendar month of tenancy is accepted then the tenancy terminates on 30th November, 1982. According to him there cannot be two separate 6 dates of termination of tenancy of a tenant and hence learned lower appellate court was justified in holding that the notices to quit were bad in law for suffering from uncertainty.
In this connection, Mr. Ghosh has referred a law reported in 1983 (1) CLJ 378 (Saroj Kumar De & Ors. Vs. Smt. Radharani Saha & Ors.). In that case, the tenancy of the tenant was according to the Bengali Calendar month and landlord gave notice to quit treating the tenancy as per English Calendar month and accordingly, this court held that the notices to quit was bad in law. But in the present case facts are quite different. Here by the impugned notice to quit the calendar of tenancy has not been changed.
The plaintiff/landlord not being sure about the calendar of tenancy that is whether as per Bengali Calendar or as per English Calendar, incorporated expiry date of tenancy, as per both the Calendars to avoid controversy in future. As such, the above referred case law has no application in the facts and circumstances of the present case.
In this connection, he further submits that the notices asked the defendant to deliver Khas possession 'in his favour' instead of 'in favour of plaintiff' and that it was also an anomaly making the notice invalid. He has also submitted that in terms of Section 13 (6) of the West Bengal Premises Tenancy Act, one month's notice expiring with the month of tenancy was required to be given but in the case in hand notice was given for two months if Bengali Calendar dates in the notice are taken into consideration. According to him it was also an added ground for declaring a notice invalid.7
Now it is a settle principle of law that a notice to quit should be construed so as to make it effectual, and inaccuracies, obviously opposed to the intention to the party giving it, will be corrected. The test generally applicable is whether the notice is quite clear to a reasonable tenant reading it and whether it is plaint that he cannot be misled by it.
The original notices were lengthy notices giving details of the facts, grounds of giving notice of ejectment and intention of the plaintiff for filing a suit in case of not delivery of possession on the expiry of the notice period. It is true that as appellant/plaintiff was a transferee owner/landlord and never received rent from defendant/tenant, she terminated the tenancy of the defendant in the suit premises on expiry of Aghrayana, 1389 B.S. or on expiry of month (in case of English Calendar month tenancy) which is to expire next after the one month from the service of notice. Admittedly, tenant was the best person to say whether his tenancy was governed by Bengali Calendar month or English Calendar month. As such, there was no scope of misleading of defendant/tenant by those averments in the notice to quit.
In this connection, the case of Mahasukrai Ramrichpal Vs. Kishori Charan Law, reported in 81 CWN 376 may be referred. In that case, this court held that where the term of a monthly tenancy would expire on the first day of the next month and a notice to quit was given asking the tenant to vacate the premises let out on "the expiry of the month of November or in the alternative at the end of a month of your tenancy, the notice was good. The same principle is squarely applicable in the facts and circumstances of the present case.8
Notice to quit is meant to give the tenant prior information that if he fails to vacate the suit premises on the expiry of notice period then he has to face a case of eviction to be filed by the landlord. The legislatures in their wisdom fixed the period to be one month expiring with the month of tenancy. If landlord gives an extended period but fixed the date expiring with the month of tenancy then tenant has nothing to say, and the same is very much legal.
Accordingly, I find and hold that the finding of learned lower appellate court that the notices to quit were invalid, was not sustainable in law.
As such, notices to quit are found to be valid. Admittedly, those were served upon the respondent/tenant. As there was an admitted ground of default in payment of rent, the appellant/landlord is entitled to get a decree of eviction.
As a result, the appeal succeeds.
The impugned judgment and decree of lower appellate court are hereby set aside. The appellant/plaintiff/landlord do get a decree of eviction against the respondent/tenant. The appellant/plaintiff/landlord do also get a decree of arrear rent and mesne profit subject to payment of sufficient court fees in the trial court in appropriate proceeding. The respondent/tenant is required to handover vacant possession of the suit premises to the appellant/landlord within 4 (four) months from the date of passing of this judgment, failing which the appellant will be at liberty to put the decree into execution in the trial court, as per law.
L.C.R. be sent down to the lower appellate court along with copy of the judgment expeditiously.
Urgent xerox certified copies are to be supplied, if applied for. 9 (Tarun Kumar Gupta, J.)