Calcutta High Court (Appellete Side)
Abhishek Sharma vs Nitesh Kanoria & Ors on 29 June, 2018
1 22. 29.06.2018
mb In the High Court at Calcutta Civil Revisional Jurisdiction Appellate Side C.O. No. 4101 of 2017 Abhishek Sharma
-Vs.-
Nitesh Kanoria & Ors.
Ms. Hasnuhana Chakraborty, Mr. Vinay Kumar Purohit ...for the petitioner Mr. Ashis Chandra Bagchi, Mr. Prabir Kumar Misra, Mr. S.N. Chattopadhyay ...for the opposite parties The present revisional application has been preferred at the instance of a tenant, against whom the opposite parties filed a suit for eviction under the West Bengal Premises Tenancy Act, 1997. In such suit, the petitioner filed an application under Order VII Rule 11 of the Code of Civil Procedure for rejection of the plaint on the ground that the plaintiffs/opposite parties have based their right on concurrent lease, which is not permissible under the Indian law. Such application under Order VII Rule 11 of the Code having been rejected by the impugned order, dated November 13, 2017, the present revision has been preferred. 2 It is submitted by learned counsel for the petitioner, upon placing reliance particularly on paragraph nos. 1 and 2 of the plaint, that the opposite parties have admitted in their plaint itself that they were inducted as lessees in respect of the suit premises by the superior landlord on April 19, 2012 and that the petitioner was already a lessee in respect of the suit property prior to such induction by the superior landlord. In such view of the matter, it is submitted, a complete and meaningful reading of the plaint ought to have resulted only in rejection of plaint, which the trial court refused to do.
Learned senior advocate appearing on behalf of the opposite parties placed reliance on paragraph 4 of the plaint, where the plaintiffs have alleged that the defendant paid rent in respect of his tenancy till the month of December, 2011, and, thereafter, neglected and failed to pay rent in respect of his tenancy.
By referring to the said paragraph, learned senior advocate argues that in view of such averment of payment of rent in respect of the suit premises, the petitioner could be said to have admitted the petitioner's tenancy under the plaintiffs/opposite parties.
In this context, learned senior advocate appearing for the opposite parties cites an unreported judgement rendered in Smt. Sabita Sharma vs. Smt. Seema Kanoria and others, (C.O. No. 1343 of 2013), wherein it was held by a co-ordinate Bench of this Court 3 that in view of an averment made in the plaint that, after receipt of the letters of attornment from the plaintiffs and from the erstwhile landlord of the defendant therein, the defendant therein tendered rent for a particular month and the arrears rent for three previous months. On such premise, the learned Single Judge held that said issue involved an arguable case, which would entitle the suit to progress to trial and not call for the rejection of the plaint.
Learned senior advocate further cites an unreported judgment rendered in Sri Mahabir Prasad Sharma vs. Sri Nitesh Kanoria (C.O. 1822 of 2013), wherein another learned Single Judge of this Court, while dealing with an issue relating to concurrent lease, held that since the relevant lease deed had not been filed and it related to some mixed questions of fact and law, evidence was required to be gone into and the trial court had rightly rejected the petition made therein under Order VII Rule 11 of the Code of Civil Procedure.
On the basis of such judgments, it is argued on behalf of the opposite parties that the impugned order was perfectly justified and called for no interference, since an arguable mixed question of fact and law had been made out by the plaintiffs in paragraph 4 of the plaint as to whether the petitioner had admitted the opposite parties as the landlord of the petitioner.
4
Upon perusal of the plaint, it is evident that the averment as to the defendant/petitioner making payment of rent in respect of his tenancy, was confined to the period till the month of December, 2011. In fact, it was categorically averred by the plaintiffs/opposite parties that thereafter the defendant/petitioner neglected and failed to pay rent in respect of his tenancy. Such averment, if taken in proper context, would show that the last payment made by the petitioner, even as per the plaint averment, preceded the induction of the plaintiffs/opposite parties as lessees, the latter event having taken place on April 19, 2012. As such, the facts of the present case differ on a fundamental pivot from the cited judgment in Smt. Sabita Sharma vs. Smt. Seema Kanoria and others. In the present case, the statement in paragraph 4 of the plaint rather endorses the fact that the defendant/petitioner had been a tenant in respect of the suit premises when the plaintiffs/opposite parties were inducted, thereby obviously indicating creation of a concurrent lease in favour of the opposite parties.
As to the judgment of Sri Mahabir Prasad Sharma vs. Sri Nitesh Kanoria , no ratio relevant to the present context , was decided therein. What was ultimately decided by the learned Single Judge was that since the lease deed had not been filed there and the case was related to some mixed questions of fact and law and 5 evidence was required to be gone into, the application under VII Rule 11 of the Code of Civil Procedure was rightly rejected. The pleadings made in the plaint, at least the portion set out in the said reported judgement, also do not directly tally with the present case.
This apart, the other aspect of the matter, being that the plaintiffs/opposite parties also averred that they were empowered to induct tenants and to realize rent from them including arrears, does not relieve the plaintiffs/opposite parties from the bar of law of creation of concurrent lease in India. Even if the definition of "landlord" as provided in the West Bengal Premises Tenancy Act, 1997 is taken into account, due to concurrent lease being barred in India, it could not be said that the plaintiffs/opposite parties, even as per the plaint averment, were entitled to collect rent. All the more so, since the plaintiffs/opposite parties did not stop at claiming mere rights to realize rent, but went on to claim themselves as lessees under the superior landlord and, in fact, have filed the present suit in the capacity of lessees, which is a stronger right, and not in the capacity of mere assignees.
In the circumstances, as narrated aforesaid, there could be no other option for the court below but to have rejected the plaint on the ground of bar of law, in view of concurrent lease, which is barred under Indian law, having been created in favour of the 6 plaintiffs/opposite parties during subsistence of the lease in favour of the defendant/petitioner.
Accordingly, C.O. No. 4101 of 2017 is allowed on contest, thereby setting aside the impugned order dated November 13, 2017 and rejecting the plaint filed by the opposite parties in Ejectment Suit No. 138 of 2013, which was pending before the Fourth Bench, Small Causes Court at Calcutta, District-Kolkata.
There will be no order as to costs.
Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance of all requisite formalities.
(Sabyasachi Bhattacharyya, J.)