Calcutta High Court (Appellete Side)
Bank Of Boroda vs Tirupati Assets Pvt. Ltd on 25 November, 2016
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
F.A. 198 of 2015
(CAN 3155 of 2016)
with
C.O.T. 53 of 2015
Bank of Boroda.
-Versus-
Tirupati Assets Pvt. Ltd.
For the Defendant/Appellant : Mr. Siddhartha Banerjee,
Mr. Suchayan Banerjee.
For the Plaintiff/Respondent : Mr. Abhrajit Mitra,
Mr. Jishnu Choudhury,
Mr. Biswajit Kumar.
Heard on : 25th November, 2016.
Judgement on : 25th November, 2016.
Jyotirmay Bhattacharya, J. :
This first appeal is directed against the judgement on admission dated 26th June, 2015 passed by the Learned Civil Judge, Senior Division, 10th Court at Alipur, in Title Suit No. 62 of 2012 at the instance of the defendant/appellant. Such decree on admission was passed by the learned Trial Judge under Order 12 Rule 6 of the Code of Civil Procedure in a suit for eviction under the Transfer of Property Act.
By the said decree, the defendant was directed to vacate the suit premises and deliver khas possession thereof to the plaintiff within three months from the date of passing of the decree. However, no decree for mesne profit was passed by the learned Trial Judge while disposing of the said suit.
Hence, the plaintiff has filed a cross objection in this appeal praying for a decree for mesne profit.
Both the appeals filed by the defendant and the cross objection filed by the plaintiff were taken up for hearing simultaneously.
Let us now consider the merit of the appeal first.
The plaintiff is the transferee landlord. The plaintiff claimed to have purchased the suit premises by five registered sale deeds from the owners of the suit premises. Admittedly, the defendant was a tenant under the plaintiff's vendor in respect of the said premises at a rental of Rs. 60,863/- per month. The relationship of landlord and tenant between the parties was determined by service of notice under Section 106 of the Transfer of Property Act upon the defendant by hand. The defendant was called upon to vacate the suit premises after expiry of notice period. The defendant replied to such notice and ultimately failed to vacate the suit premises after expiry of the notice period. Hence, the instant suit was filed by the plaintiff seeking the defendant's eviction from the suit premises and for mesne profit.
The defendant appeared in the said suit and filed written statement therein. Service of notice under Section 106 of the Transfer of Property Act upon the defendant was not denied by the defendant. However, legality of such notice was challenged as, such notice was not served upon the defendant by registered post.
It was alleged by the defendant that prior to the filing of the present suit by the plaintiff, the defendant, as plaintiff filed a suit against the plaintiff/respondent herein seeking a declaration of its tenancy right under the plaintiff/respondent herein. Injunction was also sought for restraining the plaintiff/respondent herein from disturbing the possession of the defendant/appellant herein in the suit premises.
It was also alleged that the plaintiff has only purchased some fractional shares from some of the owners of the said property. As such, the maintainability of the said suit at the instance of the plaintiff who has not purchased the entire suit property from the remaining owners thereof, was challenged in the suit.
In such a suit, the plaintiff filed an application under Order 12 Rule 6 of the Code of Civil Procedure inviting the learned Trial Court to pass a decree on admission as the service of notice under Section 106 of the Transfer of Property Act was admitted by the defendant/appellant in the said suit.
The defendant contested the plaintiff's said application under Order 12 Rule 6 of the Code of Civil Procedure by filing objection.
The learned Trial Judge after considering the pleadings of the respective parties, was pleased to pass a decree on admission after taking into consideration the admission made by the defendant with regard to the service of notice under Section 106 of the Transfer of Property Act upon the defendant. The learned Trial Judge thus, disposed of the suit by passing a decree for eviction under Order 12 Rule 6 of the Code of Civil Procedure.
The legality and/or correctness of the said decree on admission is under challenge in this appeal at the instance of the defendant/appellant.
Mr. Banerjee, learned advocate appearing for the appellant firstly submitted that the learned Trial Judge ought not to have passed a decree on admission simply by recording its satisfaction about the admission of the defendant regarding service of notice under Section 106 of the Transfer of Property Act upon the defendant. He submits that in a suit for eviction even under the Transfer of Property Act, the Court should not pass a decree on admission merely by recording its satisfaction about the service of notice under Section 106 of the Transfer of Property Act, particularly when in this case several other issues were raised by the defendant in the written statement and the fate of the suit is also dependent upon the decision on those issues. He pointed out from the written statement that the defendant/appellant mentioned therein about the pendency of the earlier suit between the same parties concerning the identical suit premises involving similar cause of action. According to him when an earlier suit is pending between the same parties concerning the identical suit premises, involving common cause of action, the learned Trial Judge ought to have stayed the further proceeding of the present suit which was filed by the plaintiff/ respondent herein subsequently.
To substantiate such submission, he has relied upon the provision contained in Section 10 of the Code of Civil Procedure and tried to convince us that stay of further proceedings of the subsequent suit should have been directed even without any application filed by any of the parties in the subsequent suit.
Let us now consider the substance of such contention raised by Mr. Banerjee in the facts of the instant case.
A copy of the plaint filed by the defendant/appellant herein, in the earlier suit, has also been included in the paper book wherefrom we find that the parties in both the aforesaid suits are common. Even the suit property is common in both the suits. However, nothing is disclosed in the written statement filed in the subsequent suit about filing of any written statement by the defendant in the earlier suit. Thus, we are deprived of an opportunity to consider the pleadings made out by the defendant in the said suit. Even the learned counsel appearing for the parties are unable to inform us as to whether any written statement has at all been filed by the defendant therein in the earlier suit.
Unless the written statement is filed by the defendant, Court cannot ascertain as to the issues which are likely to be raised by the defendant in the earlier suit. If the issues which are likely to be raised in the earlier suit cannot be ascertained, we cannot hold that common issues are involved in both the suits.
Thus, even by accepting the submission of Mr. Banerjee that stay of further proceeding of the subsequent suit can be directed by the Court, even without any application under Section 10 of the Civil Procedure Code, still then we hold that stay of further proceeding of the subsequent suit could not have been passed by the learned Trial Judge in the instant case as the Court is yet to ascertain the issues which are likely to be raised in the earlier suit as no written statement has yet been filed in the earlier suit.
We, thus, do not find any substance in this part of the contention of Mr. Banerjee.
Mr. Banerjee, further, contended that mere service of notice under Section 106 of the Transfer of Property Act cannot give a right to the plaintiff to get a decree for eviction even under the Transfer of Property Act, unless it is proved that such notice was duly served in the manner as prescribed under the law and termination of relationship between the parties was done in accordance with law. He elaborated his submission by pointing out from the pleadings made out in the plaint that such notice was alleged to have been served upon the defendant by hand. According to him, under Section 106 of the Transfer of Property Act, mode of service of notice is prescribed. He contends that Section 106 of the Transfer of Property Act provides for service of such notice by registered post with A/d. Since such notice was not served by post, such service by hand, according to Mr. Banerjee, cannot be held to be a valid notice for termination of relationship of landlord and tenant between the parties. In this regard we like to refer to the provision contained in Section 106(4) of the Transfer of Property Act. It prescribes the mode of service of such notice upon the lessee.
Sub-Section 4 of Section 106 of the Transfer of Property Act provides that every notice under sub-section (1) must be in writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property.
Reading the said provision we hold that personal service by hand upon the lessee or any member of his family or even upon its servant is a mode, prescribed under the said Act for service of notice under sub-section (1) of Section 106 of the Transfer of Property Act.
Service of notice by hand is not disputed by the defendant in the written statement. The defendant stated in the written statement that it had also replied to the said notice. Since the defendant replied to the notice under Section 106 of the Transfer of Property Act issued by the plaintiff, we hold that the defendant admitted the service of such notice and also admitted termination of relationship of landlord and tenant between the parties by service of such notice upon it.
We, thus, also do not find any substance in this part of the contention of Mr. Banerjee.
Mr. Banerjee lastly contended that his client never admitted the plaintiff as its only landlord in the suit premises. He pointed out from the written statement that the defendant categorically mentioned therein that the plaintiff by way of purchase of 1/9th share from a co-sharer became the owner of the suit premises to the extent of 1/9th share. He, further, has drawn our attention to that part of the written statement where his client has stated that after purchasing 1/9th share of the suit property from one of the co-sharers of the suit premises, the plaintiff demanded rent from the defendant to the extent of 1/9th share in the rent. Mr. Banerjee, thus, contended that since the notice under Section 106 of the Transfer of Property Act was not served by the entire body of landlords, the notice under Section 106 of the Transfer of Property Act should have been held to be illegal and invalid and on the basis of such invalid notice, eviction decree ought not to have been passed, even though, service of such notice upon the defendant was admitted by it. Mr. Banerjee has also drawn our attention to paragraph 2 of the plaint to show that even the plaintiff did not disclose their title deeds in the plaint though they claimed that they have purchased the entire property from the owners thereof and the particulars of such transfer were mentioned in the schedule appended to the plaint. Mr. Banerjee, thus, contends that unless the plaintiff succeeds in proving their absolute title in the suit property by admitting their title deeds into evidence, the learned Court below ought to have held that eviction decree on admission cannot be passed in such a case at the instance of one of such landlords without joining the remaining landlords as parties in the suit.
Looking at the plaint pleadings we were prima-facie convinced about such submission of Mr. Banerjee as we found that the remaining landlords were neither joined as plaintiffs in the suit nor they were joined as proforma defendants in the suit. However, ultimately, we could not find any substance in this part of submission of Mr. Banerjee as we found that the plaintiff annexed all the five sale deeds by which it purchased the entire suit property from all the co-owners thereof to their application under Order 12 Rule 6 of the Code of Civil Procedure. Not only purchasing of the absolute title in the suit property by virtue of such purchase from all the co-owners by five registered sale deeds were pleaded in its application under Order 12 Rule 6 of the Code of Civil Procedure, but also copies of all the five registered sale deeds were annexed to the stay application.
Though the defendant filed its objection to the plaintiff's said application under Order 12 Rule 6 of the Code of Civil Procedure, but purchase of the entire suit property by the plaintiff from all the co-owners thereof by five registered sale deeds referred to by the plaintiff in their aforesaid pleading was not specifically denied; even the legality of such transfer has also not been challenged.
Considering this part of the pleadings of the defendant, we are of the view that such evasive denial amounts to admission on the part of the defendant about the plaintiff's absolute title in the suit property.
As such, we also do not find any substance in this part of contention of Mr. Banerjee. We, thus, hold that the learned Trial Judge did not commit any illegality in passing a decree of eviction on admission, as Order 12 Rule 6 of the Code of Civil Procedure does not restrict the court's jurisdiction to pass decree on admission by finding out the admission of a party from the pleading alone. Order 12 Rule 6 of the Civil Procedure Code enables the Court to pass a decree on admission when the Court finds that admission of fact have been made either in the pleading or otherwise, whether orally or in writing.
The use of the expression 'otherwise' is worth mentioning here as, if the court finds that a party admitted any fact in any other form, apart from in the written statement, the court still can pass a decree on admission even under Order 12 Rule 6 of the Code of Civil Procedure.
We, thus, hold that none of the grounds as mentioned by Mr. Banerjee in support of his contention that the learned Trial Judge was not justified in passing the decree on admission in the instant case, does not deserve any merit for consideration in this appeal.
We, thus, dismiss the appeal and maintain the order of eviction passed by the learned Trial Judge on admission.
Re : C.O.T. 53 of 2015.
Though the plaintiff claimed a decree for mesne profit but the plaintiff did not lead any evidence in support of their claim for mesne profit in the said suit.
In the absence of such evidence, decree for mesne profit cannot be passed.
We, thus, decline to pass any decree for mesne profit in this cross objection.
However, we direct for holding an enquiry with regard to the plaintiff's claim for mesne profit as per the provision contained in Order 20 Rule 12 of the Code of Civil Procedure and pass necessary decree as early as possible but preferably within six months from the date of communication of this order.
Parties are given liberty to adduce evidence in connection with the said proceeding.
The cross-objection is also disposed of with the above direction.
We are informed by the learned counsel appearing for the appellant that the appellant has been regularly depositing a sum of Rs.2,00,000/- (Rupees Two Lakhs) only per month in Court, in pursuance of the order passed by this Court for enjoying the benefits of the stay order.
Let the said deposits which are so made by the appellant will remain in deposit with the learned Registrar General of this Court which will be disbursed subject to the result of the enquiry under Order 20 Rule 12 of the Code of Civil Procedure to be made by the learned Trial Court.
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