Calcutta High Court (Appellete Side)
Sri Paritosh Bhowmick vs Sri Nandadulal Kar @ Goswami on 25 November, 2010
Author: Tarun Kumar Gupta
Bench: Tarun Kumar Gupta
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IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present: The Hon'ble Mr. Justice Tarun Kumar Gupta
S. A. No.258 of 2003
Sri Paritosh Bhowmick
Versus
Sri Nandadulal Kar @ Goswami
For the appellant: Mr. Basudeb Gayen
For the respondent: Mr. Niranjan Ganguly
Mr. Soumendra Kumar Ghosh Heard on: 01.10.2010 Judgment on: November 25, 2010 Tarun Kumar Gupta, J.:-
This second appeal is directed against judgment and decree dated 22.03.2002 and 26.03.2002 respectively passed by learned Civil Judge (Senior Division), Tamluk, Midnapore (East) in Other Appeal No.12 of 2001 affirming the judgment 2 and decree dated 23.02.2001 and 03.03.2001 respectively passed by learned Civil Judge (Junior Division), 3rd Court Tamluk in Other Suit No.174 of 1995.
Admitted facts of this case as it appears from the record as well as from the submission of learned advocates may be summarized as follows:-
The appellant/defendant was inducted as a tenant in the suit premises by respondent /plaintiff /landlord on the basis of an agreement dated 1st of Baisak, 1400 B.S. As per agreement the defendant will occupy the tenanted portion till Chaitra, 1401 B.S. on payment of rent against receipt. There were other terms in the said agreement which bears signature of appellant /defendant/tenant. After expiry of Chaitra, 1401 B.S. defendant continued to possess the suit premises. Respondent /plaintiff took the plea that at the prayer of the defendant /tenant he permitted him to continue two-three months on payment of rent for searching out an alternative accommodation but defendant neither paid rent nor vacated the suit premises. The appellant/defendant/tenant, on the other hand, took the specific plea that after Chaitra 1401 B.S. there was a talk of further agreement between the parties when plaintiff agreed to execute a further agreement till 1406 B.S. but ultimately did not execute any such agreement.3
It was further specific case of appellant /defendant/tenant that he paid rent upto Ashar, 1402 B.S. without rent receipt and that thereafter sent rent to plaintiff through M.O. which was not accepted by the plaintiff. Plaintiff./landlord sent a notice under Section 106 Transfer of Property Act for vacating the suit premises but notice returned with the postal remarks 'refused'.
Both the sides adduced their respective evidence during trial. During argument in the learned Trial Court defendant/tenant filed a petition under Section 114 T. P. Act for permission to pay the arrear rent to the plaintiff along with interest so that defendant is not evicted from the suit premises. Learned Trial Court declined to grant relief under Section 114 T.P. Act as defendant/tenant made false claim of payment of rent for the months of Baisak, Chaitra and Ashar, 1402 B.S. to the plaintiff without receipt. Learned Trial Court was also of the view that defendant/tenant put forward a false claim of promise by plaintiff /landlord for execution of a new agreement. Learned Lower Appellate Court also declined to allow discretionary relief under Section 114 T. P. Act to the defendant /tenant considering his conduct.
At the time of admission of this appeal ground No. III of the Memo of appeal was identified as the substantial question of law to be decided in this appeal. 4
Ground No. III stands as follows:-
(III) For that the Ld. Court below erred in holding that the defendant/appellant was not entitled to get any protection under Section 114 of the Transfer of Property Act, 1882 as he did not come to the Court with clean hands as he had hopelessly failed to prove the plea of payment of rent to the plaintiff for the months of Baisakh, Jaistha and Ashar, 1402 B.S. without receipt in spite of the specific averment of the plaintiff/landlord in para 5 of the plaintiff inter alia that on the request of the defendant, the plaintiff allowed him to continue his tenancy for 2/3 months more after Chaitra 1401 B.S. and in as much as the specific averments of the defendant that he was ready and willing to pay all arrear rent with interest and full cost of the suit and to give such security as the Court thinks sufficient for passing an order relieving the defendant/tenant against forfeiture in lieu of making a decree of ejectment of the tenant.
Mr. Basudeb Gayen, learned advocate for the appellant/defendant, has submitted that in the agreement dated 1st Baisak, 1400 B.S. (Ext.1) there was no signature of plaintiff/landlord and hence it should not be treated as a valid agreement. 5
Mr. Niranjan Ganguly, learned advocate for the respondent/plaintiff/landlord, has submitted that in the evidence defendant himself admitted said agreement (Ext.1) as the document on the basis of which he came to possess the said premises and hence there is no scope of denying said agreement at this stage.
I find much force in the aforesaid contention of Mr. Niranjan Ganguly learned advocate for the respondent/plaintiff. Defendant while deposing as D.W.1 has categorically admitted said agreement bearing his signature as the document on the basis of which he was inducted in the suit premises. initially for the period till 30th Chaitra 1401 B.S. under certain terms and conditions.
Mr. Basudeb Gayen, Learned advocate for the appellant/defendant, has further argued that as defendant/tenant admittedly continued to possess the suit premises with the oral consent of plaintiff/landlord even after expiry of lease period, it was a case of holding over under Section 116 T. P. Act and that the lease amounted to be renewed from month to month on the ground of said holding over.
Section 116 of T. P. Act states as follows:-
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" If a lessee or under-lessee of property remains in possession thereof after the determination of the lease granted to the lessee, and the lessor or his legal representative accepts rent from the lessee or under lessee, or otherwise assents to his continuing in possession, the lease is, in the absence of an agreement to the contrary, renewed from year to year, or from month to month, according to the purpose for which the property is leased, as specified in Section 106."
Even if it is admitted that on account of holding over of the tenanted premises by the defendant/tenant with the consent of plaintiff/landlord Section 116 T. P. Act comes into play and appellant/defendant/tenant becomes lessee for further period with rents payable from month to month, but even in that case the landlord has a right to terminate the tenancy by giving a notice of 15 days under Section 106 T. P. Act.
In the case in hand a notice under Section 106 T. P. Act was sent by the plaintiff/landlord to the defendant /tenant in his correct address under registered post with A/D and the same returned with post remark 'refused'. The concerned postal peon was also examined in the Trial Court as a witness to prove the endorsement of refusal. As such there was no infirmity in the findings of learned Lower Courts that 7 there was a proper notice under Section 106 T. P. Act presumed to be duly served upon defendant /tenant on account of his refusal.
Learned advocate for the appellant /tenant further submits that where a lease of immovable property was determined by forfeiture for non- payment of rent and the lessor files a suit for ejectment of the lessee, as in the present case, the Court has a discretionary jurisdiction of passing the order relieving the lessee against the consequences of forfeiture if at the hearing of the suit the lessee pays or tenders to the lessor the rent in arrears with interest and costs or furnishes such security as the court thinks sufficient and that learned Lower Courts should have exercised said discretion. According to him the Courts should have been liberal in the matter of granting said discretion under Section 114 T. P. Act and that rejection of said prayer of the defendant/tenant under Section 114 T. P. Act cause miscarriage of justice. In this connection he has referred a case law reported in (2002) 5 SCC 440 ( Rakesh Wadhawan and others v. Jagdamba Industrial Corporation and others.) In said referred case law it was held by the Hon'ble Apex Court that the discretion conferred under Section 114 of the T. P. Act is of wide amplitude guided by the principles of justice, equity and good conscience and the Court would examine the conduct of the parties, the comparative hardship and lean in favour of one whose hands are clean. It was further held that the discretion to grant relief against forfeiture is available not 8 only to the Trial Court but also to the Appellate Court. Aforesaid proposition of law is not disputed.
It appears from the impugned judgment that the learned Lower Appellate Court took note of this fact that this discretion to grant relief against forfeiture is available to the Appellate Court also. It appears that he, after taking note of conduct of the defendant/tenant, namely false claim of payment of rent of three months without receipts, false claim of having oral agreement with plaintiff for execution of a fresh lease deed for further five years, was of the opinion that defendant/tenant was not entitled to get this discretionary relief as he did not come to the Court in clean hands.
Learned advocate for the respondent/plaintiff/landlord has submitted, in this connection, that in the second appeal there is no scope of considering whether Lower Courts could have exercised discretion under Section 114 of the T. P. Act or not, as the same was not a substantial question of law. According to him, this Court in the second appeal cannot substitute its own views regarding said discretion in place of the views of Lower Appellate Court.
I find much force in the aforesaid contention of learned advocate. 9 Severe erroneous findings and / or orders of Lower Appellate Court cannot be the subject matter of second appeal unless the same involves a substantial question of law. Again this Court can also interfere in the second appeal if it is found that the judgment of the Lower Appellate Court was perverse in perspective of the evidence on record. But in the case in hand, learned Lower Appellate Court has given reasons for not exercising discretionary power under Section 114 of the T. P. Act. In the process he also highlighted some conducts on the part of the defendant/tenant holding that defendant /tenant did not come to Court with clean hands and was not entitled to get said discretionary relief. By no stretch of imagination the aforesaid findings of the learned Lower Appellate Court can be said to be perverse or based on no evidence.
In view of the above discussions I am of the opinion that the instant appeal has no merit and is liable to be dismissed.
Accordingly, the appeal stands dismissed.
The impugned judgment and decree of Lower Appellate Court stand affirmed. 10 Send down L.C.R. along with a copy of this judgment to the Lower Court expeditiously.
Urgent xerox certified copy of this judgment be supplied to the learned Counsels of the party / parties, if applied for.
(Tarun Kumar Gupta, J.)