Calcutta High Court (Appellete Side)
Smt. Mukti Sengupta vs Sri Golok Saha on 15 March, 2012
Author: Prasenjit Mandal
Bench: Prasenjit Mandal
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Form No.J(2) IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
S.A. No.399 of 2005
with
C.A.N. No.8562 of 2005
Present :
The Hon'ble Mr. Justice Prasenjit Mandal
Smt. Mukti Sengupta.
Versus
Sri Golok Saha.
For the appellant: Mr. Sabyasachi Bhattacharya,
Mr. Jayanta Pandit,
Mr. Sayantan Bose.
For the respondent: Mr. Asit Baran Raut,
Mr. Tuhin Subhra Raut.
Heard On: 24.02.2012 & 01.03.2012.
Judgement On: March 15, 2012.
Prasenjit Mandal, J.: This second appeal is at the instance of the plaintiff and is directed against the judgment and decree dated July 30, 2005 passed by the learned Judge, City Civil Court, 13th Bench, Calcutta in Title Appeal No.81 of 2004 thereby reversing the judgment and decree dated June 24, 2004 passed by the learned 2 Chief Judge, Presidency Small Causes Court, Kolkata in Ejectment Suit No.639 of 2000.
The plaintiff instituted a suit being Ejectment Suit No.44 of 1994 (subsequently re-numbered as Ejectment Suit No.639 of 2000) against the defendant / respondent herein for ejectment, khas possession, injunction, mesne profits, etc. in respect of the premises in suit as described in the schedule of the plaint before the learned Judge, City Civil Court, Calcutta. The said suit was subsequently transferred to the Court of the Presidency Small Causes Court and the learned Chief Judge, Presidency Small Causes Court decreed the said ejectment suit on the ground of reasonable requirement against the respondent. Being aggrieved, the defendant / respondent preferred a first appeal being Title Appeal No.81 of 2004 and the said appeal was allowed in part thereby dismissing the Ejectment Suit No.639 of 2000. Being aggrieved, the plaintiff / appellant has preferred this second appeal.
At the time of hearing under Order 41 Rule 11 of the C.P.C., the following substantial question of law was framed for decision:-
Whether the landlord having given to the tenant one month's notice expiring with a month of tenancy and having instituted the eviction suit after expiry of such period, the 3 learned Judge of the Court of Appeal below erred in law in dismissing the suit on the ground of absence of cause of action.
The appellant filed the said suit for ejectment and other reliefs on the ground of default, reasonable requirement and other grounds. So far as the ground of default is concerned, the learned Trial Judge has held that the tenant / respondent being a defaulter for the first time is entitled to get the benefit of Section 17(4) of the West Bengal Premises Tenancy Act, 1956 and accordingly, he was given the benefit on that ground.
The other ground for ejectment placed on behalf of the plaintiff before the Trial Court is the reasonable requirement under Section 13(1)(ff) of the 1956 Act. In this regard, upon analysis of the evidence on record adduced by the parties, the learned Trial Judge has held that the plaintiff is in need of the premises in suit for their own use and occupation and such claim for the premises in suit is a reasonable one.
While disposing of the appeal, the First Appellate Court has supported the same view on re-appreciation of the evidence that the plaintiff has got good reasonable requirement of the premises in suit. Thus, I find that both the Courts below, upon analysis 4 of evidence on record, have come to the concurrent findings that the plaintiff has proved the ground of reasonable requirement as per provisions of Section 13(1)(ff) of the 1956 Act. Therefore, there is no scope of taking a different view on the ground of reasonable requirement in this second appeal, upon further appreciation of evidence.
In order to succeed in a suit under Section 13(1)(ff) of the 1956 Act, the plaintiff is required to prove the compliance of Section 13(6) of the 1956 Act. In this regard, the learned Trial Judge has come to a clear finding that the plaintiff has proved the cause of action and the service of notice to quit has been duly effected and after expiry of 30 days, the plaintiff filed the suit for recovery of possession and other reliefs.
In order to appreciate the situation, it may be pointed out that as per evidence on record the copy of the notice to quit dated July 29, 1993 has been marked Exhibit 6 and the said notice is reproduced below for convenience:
Nandulal Bandyopadhyay Court:
Advocate Bar Association, Room NO.9
High Court, Calcutta High Court, Calcutta
Phone: 28-3190
Resi:
50/3B, Gouri Bari Lane
5
Calcutta-700004
REGISTERED WITH A/D Phone: 30-7267.
Dated: 29th July, 1993
To
Shri Golak Saha
9/3B, Jagadish Nath Roy lane,
P.S.-Bartala,
Calcutta - 700006.
My Client: Smt. Mukti Sengupta
Of 9/3B, Jagadish Nath Roy
P.S.- Bartala,
Calcutta- 700006.
Dear Sir,
Under instruction from and on behalf of my abovenamed
Clients, I write to address you as hereunder:-
1. That you are a monthly tenant in respect of one room with common bath and privy excluding Electricity on the ground floor situated at premises No.9/3B, Jagadish Nath Roy Lane, P.S.-
Bartala, Calcutta - 700006 under my abovenamed client at a monthly rental of Rs.60/- (Rupees Sixty only) payable according to English Calendar.
2. That you are defaulter of payment of rent since July, 1993 in respect of the above tenancy.
3. That you are guilty of committing breach of condition of clauses (m) (o) and (p) of section 108 of the Transfer of Property Act.
4. You are committing of nuisance and annoyance construct the house illegally.
5. That the said room and space is reasonably required for own use and occupation by your Landlady (i.e. my client) along with the members of their family.
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6. In the circumstances, I am instructed by my said client to give you this notice, which I hereby do, that your tenancy in respect of the above premises will be determined and/or terminated on the expiry of one clear English Calendar month next following the month in which this notice is received by you and that you are demanded and called upon to make over the peaceful vacant and khas possession of the said room of the said premises to my said client on expiry of your tenancy in aforesaid manner.
7. Please note that on your failure to comply with the above requisition my client will be at liberty to take legal action against you for your eviction on the expiry of one clear English Calendar month next following the month in which you will receive the notice and you will be liable to pay mesne profit at market rate, cost and interest.
8. This is a notice under section 13(6) of the West Bengal Premises Tenancy Act read with 106 of the Transfer of Property Act.
Yours faithfully, Signed Advocate.
The original notice was sent by Registered Post with A/D and it was duly served upon the defendant/tenant on August 6, 1993. The suit for eviction was filed on January 25, 1994. As per evidence on record, the rent for the premises in suit was for Rs.60 per month payable according to English Calendar month. Though, the plaintiff/landlord became the owner of the property by purchase on May 16, 1993, as per evidence on record, the tenancy commenced from the first day upto the last day of a month according to English Calendar month. So, there is no dispute 7 about the fact that the tenancy in respect of the suit premises after purchase by the plaintiff commenced according to English Calendar month. The provisions of Section 13(6) is very much relevant to decide whether the notice is legal, valid and sufficient. Since, both the Courts below have taken reversal views, I am to consider the same afresh. For proper appreciation Section 13(6) of the West Bengal Premises Tenancy Act is quoted below:
"Notwithstanding anything in any other law for the time being in force, no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in sub-section(1) except the grounds mentioned in clauses (j) and (k) of that sub-section shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy."
Therefore, the landlord is required to give one month's notice expiring with a month of the tenancy to the tenant. As the notice was served on August 6, 1993 in order to make the notice effective, valid and sufficient, one month's clear notice expiring with a month of the tenancy is a must. The clear one month's notice shall be reckoned from the month next to the month when the notice was served on August 6, 1993, that is, one month's clear 8 notice expiring with a month of the tenancy should be treated as on the end of September 30, 1993. The First Appellate Court has analyzed this fact clearly holding that the cause of action to file the suit arose with the expiry of one month's notice ending on September 30, 1993, that is, w.e.f. October 1, 1993, but the plaint lays down that the cause of action arose on September 7, 1993, evidence has been adduced to that effect and the learned Trial Judge has supported such view. So, the view adopted by the learned Trial judge cannot be accepted and the view rendered by the First Appellate Court on the cause of action should sustain. So, the cause of action as stated in the plaint, cannot be supported. The suit for eviction was filed on January 25, 1994, that is, after when the cause of action arose but within the period of limitation to file a suit from the date of cause of action. Under such circumstances, I hold that the plaintiff cannot be made non-suited on that ground only. The learned First Appellate Court has, therefore, committed an error of law in dismissing the suit on that ground only. On realising this fact, the plaintiff filed an application being C.A.N. No.8562 of 2005 for amendment of the plaint in the second appeal.
The notice to quit (Ext. No.6) is legal, valid, sufficient and duly served upon the defendant. The ground of reasonable requirement as recorded by the Courts below does not suffer from 9 perversity. So, the defect as to cause of action as noted in the plaint needs correction and unless and until it is done, no decree of ejectment can be granted. So, the matter requires sending back the suit to the Trial Court on remand.
Mr. Sabyasachi Bhattacharya, learned Advocate appearing on behalf of the appellant has referred to the decisions of Kuldeep Singh V. Ganpat Lal & Anr. reported in (1996) 1 SCC 243, Navinchandra N. Majithia V. State of Maharashtra reported in AIR (2000) SC 2966, Bhajabandas Agarwalla V. Bhagwandas Kanu & Ors. reported in AIR (1977) SC 1120 and Md. Nissar V. Md. Anis & Ors. reported in (1983) CWN 601 on cause of action, service of notice, etc. Since, I have decided to send back the suit to the learned Trial Judge on remand after setting aside the judgments and decrees passed by the Courts below, if I discuss these decisions my observations might influence the mind of the learned Trial Judge. So, I am not discussing those decisions in my findings over the cause of action and the notice to quit.
It may be pointed out here that at the time of filing the second appeal, the application for amendment of the plaint was filed and it was directed that the said application being C.A.N. NO.8562 of 2005 should be disposed of along with the second appeal.
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Under the circumstances, I am of the view that because of not making appropriate pleading in the plaint, the suit should not be dismissed. Rather, an opportunity to amend the plaint as prayed for in the C.A.N. No.8562 of 2005 should be granted.
The judgments and decrees passed by both the Courts below should be set aside.
The learned Trial Judge shall be directed to hear out the application for amendment of the plaint if filed and to dispose of the same within a reasonable time after giving an opportunity to the defendant/appellant to file a written objection thereon and thereafter he shall proceed with the suit in accordance with law.
The substantial question of law is thus answered. The second appeal is, therefore, allowed.
The judgments and decrees of the Trial Court as well as of the First Appellate Court are hereby set aside. The suit is remanded to the learned Trial Court on limited points as mentioned above.
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The learned Trial Judge shall proceed with the suit in the manner indicated above. If no application for amendment of the plaint in the manner as prayed for in the C.A.N. application bearing No.8562 of 2005 is filed within a period of two weeks from the date of communication of this order to the learned Trial Judge, the matter shall be dealt with as a closed chapter and the judgment and decree passed by the First Appellate Court in Title Appeal No.81 of 2004 will stand as revived and the fate of the second appeal shall stand as dismissed.
Considering the circumstances, there will be no order as to costs.
C.A.N. No.8562 of 2005:-
The C.A.N. No.8562 of 2005 is disposed of in the manner indicated above.
Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.
(Prasenjit Mandal, J.)