Calcutta High Court (Appellete Side)
Sanchita Mitra vs Prithwish Mohan Chakraborty & Anr on 6 January, 2017
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Jyotirmay Bhattacharya
AND
The Hon'ble Justice Ishan Chandra Das
R.V.W. 126 of 2016
(CAN 3804 of 2016)
in
S.A. 262 of 2016
Sanchita Mitra
-Versus-
Prithwish Mohan Chakraborty & Anr.
For the Defendant No2(a)/ : Mr. Aniruddha Chatterjee,
Petitioner Mr. Rahul Karmakar,
Mr. S.S. Bhutoria.
For the Respondent No.1 : Ms. Ronjaboti Sen,
Ms. Sarada Hariharan.
Heard on: 6th January, 2017. Judgement on: 6th January, 2017. Jyotirmay Bhattacharya, J. :-
Leave is granted to the learned advocate-on-record of the appellant to rectify the defect in the memorandum of review in terms of the report of the Stamp Reporter.
This application for review has been filed by the defendant no. 2(a)/appellant praying for review of the order passed by this Court on 14th March, 2016 refusing to admit the Second Appeal being S.A.T. No. 39 of 2016 for hearing under the provision of Order 41 Rule 11 of the Code of Civil Procedure, as this Court did not find involvement of any substantial question of law in this appeal.
Let us now consider the merit of the review application in the facts of the present case.
The traditional view that review is not an appeal in disguise, has now been diluted to a large extent after the pronouncement of the judgment of the Hon'ble Supreme Court in the case of Board of Control for Cricket vs. Netaji Cricket Club & Ors. reported in 2005(4) SCC 741, wherein it was stated that the word, 'sufficient reason' used in the provision of Order 41 Rule1 of the Code of Civil Procedure were held to be wide enough to include a misconception of fact or law by a court or even an advocate.
Let us now consider the merit of this review application by keeping in mind the extended field of review under Order 47 Rule 11 of the Code of Civil Procedure in the light of the aforesaid decision of the Hon'ble Supreme Court.
Here is the case where we find that one Bhupendra Nath Mitra was the original tenant in the suit premises. He died some time in the year 1979. After his death, his widow alone exercised the right of tenancy in respect of the suit premises. The rent of the suit premises was paid by her to the plaintiff/ landlord. Receipt was also granted acknowledging receipt of such payment of rent from the widow of the original tenant by the landlord. Sons and daughters of Bhupendra Nath Mitra including the defendant no.2(a)/appellant never came forward to exercise their right of tenancy in respect of the suit premises. They also never claimed that they inherited the said tenancy held by their predecessor along with their mother as tenants in common. Subsequently the widow of the original tenant died sometime in the year 1982. After her death, one of the sons viz., Buddhadeb Mitra alone inherited his tenancy right in respect of the said tenancy. His other brothers and sisters including the defendant no.2(a) never came forward to exercise their right of tenancy along with Buddhadebbabu as tenants in common. Since the time of death of the widow of the original tenant, Buddhadebbabu paid rent to the plaintiff/landlord and rent receipt was also granted in his favour by the plaintiff/landlord. The said Buddhadebbabu defaulted in payment of rent since February 1983.
The plaintiff/landlord filed an ejectment suit for evicting the said Buddhadebbabu from the suit premises on the ground of default of payment of rent and also on the ground of reasonable requirement. Such suit was filed as the said tenant failed and neglected to vacate the suit premises and/or deliver of vacant possession thereof to the plaintiff/landlord on expiry of the notice period.
The said tenant viz., Buddhadebbabu appeared in the said suit and filed written statement therein, but ultimately did not contest the said suit.
The appellant/petitioner herein filed an application under Order 1 Rule 10 of the Civil Procedure Code praying for his addition as party defendant in the said suit. He claimed that on the death of his mother, all the sons of Bhupendra Nath Mitra including he himself inherited the tenancy of the widow of Bhupendra Nath Mitra as tenants in common. His prayer for addition of party was allowed in the said suit and thus he was permitted to contest the said suit by filing written statement. An identical stand of inheritance of the said tenancy by himself along with his other brothers on the death of their mother as tenants in common was taken, by way of defence in the written statement filed by him in the said suit. The allegation of default in payment of rent made by the plaintiff in the plaint was also denied by him. He also denied the reasonableness of the requirement of the plaintiff of the suit premises. He, thus, prayed for dismissal of the said suit.
Parties viz., the plaintiff and the said added defendant adduced evidence in support of their respective claims in the said suit.
Learned Trial Judge held that on the death of the widow of Bhupendra Nath Mitra, the appellant herein along with his other brothers and sisters jointly inherited the said tenancy as tenants in common. He made a fine distinction between the joint tenancy and tenancy in common and ultimately held that the added defendant/appellant became the tenant in common with his other brothers and sisters since the time of their mother's death.
Admittedly eviction notice was served only on Buddhadebbabu. No notice was admittedly served upon the added defendant and/or upon any other legal heir of the widow of Bhupendra Nath Mitra. In this context, the learned Trial Judge held that the eviction notice is illegal and insufficient as the said eviction notice was neither addressed to all the co-tenants nor served upon them. Of course, it is true that in case of joint tenancy, service of notice upon anyone of the joint tenants is sufficient enough to maintain a suit for eviction, but in case of a tenancy held by tenant in common, eviction notice should be served upon all the tenants in common. Of course, service of such eviction notice which addressed to all, but served upon one of them is also a good notice on which an eviction proceeding can be founded. This has not been followed in the instant case. As such, the learned Trial Judge held that the eviction notice was invalid and insufficient and as a result, the suit failed.
Challenging the legality and/or propriety of the said judgement and decree of the learned Trial Court, the plaintiff/respondent filed an appeal before the learned first Appellate Court. Learned first Appellate Court was pleased to allow the said appeal by reversing the findings of the learned Trial Court. Learned first Appellate Court held that there was no material on record to show that the other heirs of Bhupendra Nath Mitra excepting Buddhadebbabu ever came forward to exercise any right of tenancy in respect of the suit premises. In this context, the learned first Appellate Court held that the tenancy of the other heirs of Bhupendra Nath Mitra stood surrendered impliedly. Thus, the learned first Appellate Court came to the conclusion that Buddhadebbabu alone was the tenant under the plaintiff/respondent and the eviction notice which was served upon him was legal, valid and sufficient.
Since the said Buddhadebbabu failed and neglected to vacate the suit premises and give up vacant possession thereof to the plaintiff even after the expiry of notice period, the suit which was filed by the plaintiff for eviction of Buddhadebbabu under the premises Tenancy Act, 1997 is well maintainable.
Learned first Appellate Court after considering the evidence of the respective parties as well as the Commissioner's report, ultimately came to the conclusion that the plaintiff reasonably requires the suit premises and he has no other suitable alternative accommodation elsewhere and as such the appeal was allowed and the relief for eviction which was prayed for by the plaintiff/respondent in the said suit, was granted.
The instant second appeal was directed against the judgement and decree passed by the learned first Appellate Court.
While considering the admissibility of this appeal under the provision of Order XLI Rule 11 of the Code of Civil Procedure, we did not find involvement of any substantial question of law in this appeal as we conquered with the finding of the learned first Appellate Court that the tenancy of the other heirs of Bhupendra Nath Mitra stood surrendered impliedly as they never came forward to exercise their right of tenancy along with their brother Buddhadebbabu as tenants in common. As such, we declined to admit the said appeal for hearing under the provision of Order XLI Rule 11 of the Code of Civil Procedure.
The instant application has been filed by the defendant no.2(a)/appellant seeking review of the order by which we declined to admit the said appeal in the facts of the instant case.
Mr. Chatterjee, learned advocate appearing for the appellant/petitioner tried to impress upon us that on the death of the widow of Bhupendra Nath Mitra, the added defendant/appellant inherited the said tenancy along with the other heirs of Bhupendra Nath Mitra as tenants in common.
Let us test as to how far such submission of Mr. Chatterjee can be accepted in the facts of the instant case.
We have mentioned earlier that the widow of Bhupendra Nath Mitra died sometime in the year 1982 i.e. at a point of time when the West Bengal Premises Tenancy Act, 1956 was in operation.
Section 2(h) of the West Bengal Tenancy Act, 1956 defined tenant in the following manner:-
"Section 2(h)--"tenant" means any person by whom or on whose account or behalf the rent of any premises is, or but for a special contract would be, payable and includes any person continuing in possession after the termination of his tenancy or in the event of such person death, such of his heirs as were ordinarily residing with him at the time of his death but shall not include any person against whom a decree or order of eviction has been made by a court of competent jurisdiction."
If we consider the definition of tenant as defined in Section 2(h) of the said Act, we find that the tenancy is heritable on the death of the tenant. But this right of inheritance on the death of the original tenant by his successors is not unqualified as the said provision makes it clear that only those heirs who were ordinarily residing with him at the time of his death will only inherit the said tenancy. Meaning thereby that the heirs who were not ordinarily residing with the tenant at the time of his death will not inherit the said tenancy though they are legal heirs and/or successor as per the law of succession applicable to them.
Thus, we are required to consider the present problem as to the inheritance of the said tenancy by the defendant no.2(a)/appellant within the restricted meaning of inheritance as provided in Section 2(h) of the said Act.
To establish the claim that the defendant no. 2(a)/appellant was residing in the suit premises even since before the death of the widow of Bhupendra Nath Mitra, the added defendant/appellant proved certain documents such as the Ration Card of her husband, since deceased and the certificate of Registration of Birth of her children issued by the Kolkata Municipal Corporation. Our attention was drawn to those exhibited documents by Mr. Chatterjee to convince us that the added defendants/appellants were staying in the suit premises even since before the death of the widow of Bhupendra Nath Mitra and as such, the added defendants being ordinarily resident of the said premises along with the said deceased inherited the said tenancy along with other heirs of the widow of Bhupendra Nath Mitra as tenants in common. We have considered the certificate of Registration of Birth of the children of the defendant no.2(a)/appellant. In the certificate of Registration of Birth issued by the Municipal Authority, the place of birth of the daughter Ipsita Mitra was shown as premises No. 60, Rash Behari Avenue, Kolkata-700026, P.S.- Tollygunge. Recording of the place of birth of Ipsita Mitra contradicts her Birth Certificate being Ext.-16 wherein the place of birth of the said Ipsita Mitra was mentioned as Ramkrishna Mission Seba Pratisthan. The address of the parents of Ipsita Mitra was recorded as premises No. 1, Chandra Mondal, Kolkata - 700026, P.S.-Tollygunge in the said Birth Certificate. The said Birth Certificate was also issued by the Kolkata Municipal Corporation. Identically, the Birth Certificate issued by the Kolkata Municipal Corporation for the son of the defendant no. 2(a)/appellant shows that her said son viz. Anik Mitra was born at Ramkrishna Mission Seba Pratisthan and the residence of the parents of the said male child was recorded as premises No. 65, Aswini Nagar, Kolkata - 700040, P.S.-Jadavpur. The said document was also proved into evidence as Ext. 18.
If these two documents are taken into consideration, we have no hesitation to hold that at least till 1982 when the female child was born to the defendant no.2(a)/appellant, they were not the ordinary residents of the suit premises which is numbered as 60, Rash Behari Avenue.
Two other documents were relied upon by the petitioner to substantiate her claim that they were residing at the suit premises at the time of the death of the widow of Bhupendra Nath Mitra. One of such documents was the School Leaving Certificate issued by the Headmaster of Shahanagar High School certifying that the husband of the defendant no.2(a)/appellant took admission in the said school on 6th January, 1965 in Class-VII of the said school and his address was recorded as 60, Rash Behari Avenue, Kolkata-700026. The said certificate which was issued by the Headmaster of the concerned school on 23rd February, 2013 was admitted into evidence as Ext. -'J' after objection. No step was taken by the added defendant no.2(a)/appellant to prove the said document by calling the Issuing Authority as witness.
The appellant has also relied upon the Ration Card which was issued in favour of the husband of the defendant no.2(a)/appellant. The Ration Card was issued during the lifetime of Bhupendra Nath Mitra. The Ration Card was also marked as Ext.-'G'. The said Ration Card was issued in the name of Amitava Mitra. His address was shown as 60, Rash Behari Avenue, Kolkata-700026. The name of the head of the family was mentioned as self. The said Ration Card cannot be accepted as evidence that the appellant was residing in the said premises at the time of death of either Bhupendra Nath Mitra or at the time of death of the widow of Bhupendra Nath Mitra. Though the said Ration Card was issued during the lifetime of his father viz. Bhupendra Nath Mitra but Bhupendra Nath Mitra was not shown as the head of his family. Even if we accept the Ration Card as an evidence of Amitava Mitra staying in the suit premises still then, we cannot come to the conclusion that he was residing in the suit premises with the tenant in the joint mess. The expression "ordinarily residing with him at the time of the death of the tenant" is very significant for the present case as in order to inherit the tenancy as heir the appellant is not only required to prove that her husband was residing at the suit premises but he was residing at the suit premises at the time of death of his predecessor but he is also required to prove that he was residing at the suit premises with the tenant viz. in the joint mess.
Thus, we hold that the added defendant/appellant could not satisfy the condition for inheriting the said tenancy on the death either Bhupendra Nath Mitra or on the death of his widow.
As such, we hold that the added defendant/appellant and the other heirs of Bhupendra Nath Mitra and/or his widow did not inherit the said tenancy either on the death of Bhupendra Nath Mitra or on the death of his widow.
We thus, conclude that on the death of Bhupendra Nath Mitra, his widow became the tenant in respect of the suit premises and after her death, Buddhadeb babu became the tenant of the suit premises and the suit founded on the basis of causes of action following service of eviction notice upon Buddhadeb babu alone is well maintainable in law.
In view of the conclusion drawn by us that the added defendant/appellant did not acquire the said tenancy as tenant in common with Buddhadeb babu, no jural relationship of landlord and tenant between the plaintiff/respondent and the appellant was ever established. As such, we hold that the appeal is not maintainable at his instance, for want of their locus.
Be that as it may, still we do not like to leave any stone unturned as Mr. Chatterjee also invited our attention to the illegality in the conclusion drawn by the First Appellate Court regarding reasonableness of the requirement of the plaintiff/respondent of the suit premises. He contended that though some accommodation was available to the plaintiff in the 2nd floor of the suit premises, the learned advocate commissioner was not allowed to have access thereto and as a result, the extent of available accommodation to the plaintiff in the 2nd floor of the suit premises could not be brought on record by way of such local inspection.
Let us now consider as to how far this part of the submission of Mr. Chatterjee is acceptable in the facts of the instant case.
The suit premises was ordinarily belonged to the grand-father of the plaintiff who published a Will during his lifetime. By the said Will only the first floor of the said premises no. 60, Rash Behari Avenue was given to the plaintiff. The other floors of the said premises was given to the other heirs of the testator. The Will has been duly probated. Thus, the plaintiff has become the owner of the first floor of the said premises. The entire first floor of the said premises was inspected by the learned advocate commissioner. Two rooms on the first floor of the said premises and a kitchen are in the possession of the tenant. It is nobody's case that apart from four rooms, any other accommodation is available to the plaintiff/respondent in the first floor of the suit premises. Since the second floor of the suit premises is not owned by the plaintiff/respondent, inspection of that floor by the advocate commissioner is irrelevant for the present purpose. As such, not allowing the advocate commissioner to inspect the second floor of the said premises, the ultimate conclusion drawn by the learned First Appellate Court with regard to the ground of reasonable requirement of the plaintiff cannot be vitiated. The plaintiff has three members in his family. Apart from the plaintiff, he has his wife and a son who has now become major. The plaintiff is an executive of a pharmaceutical company. The plaintiff's wife is an Assistant Teacher of a Higher Secondary School. The plaintiff's son is a student.
In our view, such a family requires at lease one bed room for the husband and wife and another bed room for their son. Apart from this, a drawing room and a dinning for such a family is their bare necessity. A study room is also necessary for the son of the plaintiff. Another exclusive room is also necessary for the wife of the plaintiff for giving private tuition to the students. If this basic and bare necessity of such a family is taken into consideration, we cannot hold that their demand for the suit premises is unreasonable. The plaintiffs have no other reasonable alternative accommodation elsewhere.
As such, we hold that we were justified in declining to admit the appeal by the order passed by us on 14th March, 2016 which is sought to be reviewed by the appellant in this application for review. The application for review deserves no merit for consideration.
The application for review thus, stands rejected with cost of Rs. 50,000/- (Rupees Fifty Thousand only).
After the judgement was pronounced in Court, Mr. Karmakar, learned advocate appearing for the appellant submits on instruction from his client who is present in Court today that his client will deliver vacant peaceful possession of the suit premises to the plaintiff/respondent provided four months' time is granted to her. He also prays exoneration from payment of cost.
It is made clear that the execution of the decree of eviction and the payment of cost will be kept in abeyance till 30th April, 2017 and if the appellant vacates the suit premises and gives up vacant peaceful possession thereof to the landlord/plaintiff/respondent by 30th April, 2017, the decree for eviction and the cost part will not be executed.
We make it clear that in the event possession is not given to the plaintiff/respondent within the period as mentioned above, the decree for eviction and the cost part will be immediately executable and the landlord will be entitled to execute the said decree for recovery of vacant and khas possession of the suit premises and realisation of the cost amount from the defendant/appellant.
The defendant/appellant/petitioner is thus, directed to submit an undertaking before the learned Executing Court within a week mentioning therein that she will vacate the suit premises and will give up vacant and peaceful possession thereof to the plaintiff/landlord on or before 30th April, 2017 and she will not sublet and/or re-let the same to any third person and will not cause any damage thereto during the period of their stay in the suit premises. In default of submission of this undertaking before the learned Executing Court within a week from date, the decree for eviction and the decree of cost will be executable instantly.
It is further clarified that if after giving such undertaking and enjoying the suit premises till the end of April, 2017, the defendant/appellant fails to deliver possession to the plaintiff/respondent peacefully, the learned Executing Court will grant police help to the plaintiff/respondent so that the khas possession of the suit premises can be recovered by removing the defendant/appellant therefrom by police help.
Urgent Photostat certified copy of this order, if applied for, be supplied to the Learned advocates for the parties immediately.
(Jyotirmay Bhattacharya, J.) (Ishan Chandra Das, J.) ac/dc/dp