Calcutta High Court (Appellete Side)
Md. Sharif Qureshi vs Rabindra Nath Sarkar & Ors on 6 April, 2018
Author: Shivakant Prasad
Bench: Shivakant Prasad
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE
Present :
The Hon'ble Justice Shivakant Prasad
C.O. 1182 of 2010
With
CAN 2800 of 2016
Md. Sharif Qureshi
Vs.
Rabindra Nath Sarkar & Ors.
For the Petitioner/appellant : Mr. Sudipto Kumar Bose
Mr. A.M. Sabir
Ms. Lipika Nath
For the Opposite Party Nos. 1 to 4(b) : Mr. Siddhartha Banerjee
Mr. Suchayan Banerjee
CAV On : 22.12.2017
Judgment On : 06.04.2018
SHIVAKANT PRASAD, J.
This is an application under Article 227 of the Constitution of India challenging an order dated 15.02.2010 passed by the learned Judge, 2nd Bench, City Civil Court at Calcutta in Misc. Appeal No. 01 of 2007 arising out of rejection of an application under Order 39 Rule 1 & 2 read with Section 151 of Code of Civil Procedure in Misc. Case No. 128 of 2003 wherein the petitioner had prayed for mandatory injunction under Section 151 of Code of Civil Procedure read with Section 39 of Specific Relief Act.
The petitioner son of Hazi Abdul Mazid Qureshi filed a Misc. Case being No. 128 of 2003 claiming title independent of the judgment debtor Smt. Bani Dutta alleging illegal dispossession by execution of ejectment decree passed in Ejectment Suit No. 2683 of 2000 (Smt. Kanak Prava Sarkar Vs. Smt. Bani Dutta) passed by the learned Judge 3rd Bench, Small Causes Court, Calcutta. He filed an application under Order 21 Rule 29 of the CPC in ejectment case being Execution No. 346 of 2001 registered as Misc. Case No. 49 of 2003 and an application under Order 39 Rule 1 and 2 read with Section 151 of CPC was filed, challenging the execution of the decree and dispossession of the petitioner in view of the provision of Section 141 of the Code of Civil Procedure.
Specific case of the petitioner is that his father (since deceased) was a monthly tenant in respect of the premises No. 72/A, Acharya Prafulla Chandra Road, Kolkata-700 009 under opposite party nos. 1 and 3 and the predecessor-in-interest of said opposite party nos. 4(a) and 4(b). The petitioner as one of legal heirs was ordinarily residing with his father at the time of his death on May 7, 2003. The opposite party nos. 5 to 10 are the other legal heirs of late Hazi Abdul Mazid Qureshi who had died at his ancestral home in Memary, Burdwan. The opposite party nos. 1 and 2 were duly authorized by their mother Kanak Prava Sarkar under a power of attorney to induct tenant into the said premises and to collect rents. According to him, said Bani Dutta had surrendered the tenancy and vacated the premises in favour of the said mother of opposite party nos. 1 and 2 on August 25, 1992. Petitioner's said father had tendered a lump sum of Rs. 4,500/- as rent for the month of October 1992 to December 1993 @ 150/- per month in respect of each portion in the ground floor and the other on the first floor of the suit premises as one time payment to the opposite party nos. 1 and 2 in cash without issuance of any receipt for the same. Hazi Abdul Mazid Qureshi had paid consolidated taxes and water bills to the Kolkata Municipal Corporation and telephone bills raised by the Calcutta telephone now Bharat Sanchar Nigam Limited for providing new telephone connection being No. 3511616 renumbered as 23511616. Correspondence from the banks postal authorities, the return of money orders showing remittance of rent by him to the opposite party nos. 1 and 2 and even the name of the petitioner and his family members in the electoral roll are the documents showing the address at the suit premises.
It is also submitted that the opposite party nos. 1 and 2 practised fraud on the Court by institution of Ejectment Suit being No. 465 of 1997 against Bani Dutta who was not the tenant in respect of the said premises as she had surrendered her tenancy to said Kanak Prava Sarkar on August 25, 1992 and she never possessed the suit premises after August 25, 1992 as such, she had no interest to defend the suit. It is further submitted that a new tenancy was created in the name of the father of the petitioner but the opposite party nos. 1 and 2 deliberately omitted to array him in the Ejectment Suit No. 456 of 1997 which was renumbered as Ejectment Suit No. 2683 of 2000 on being transferred to the Small Causes Court, Bench-III and was decreed ex parte by the judgment and the decree dated January 9, 2001 and in execution thereof, the petitioner was dispossessed by practising fraud on the Court as the entire proceeding was carried on behind the back of the petitioner and his father.
During pendency of the Misc. Case being No. 283 of 2003 the learned Court below rejected the petition for interlocutory relief vide order No. 36 dated August 28, 2003 refusing to grant injunction, inter alia, on the grounds that the petitioner could not produce any rent receipt against which the petitioner preferred Misc. Appeal and an interim order was passed but subsequently, the order was recalled by the impugned order.
The petitioner had filed an application for injunction in connection with Misc. Case No. 128 of 2003 praying for injunction restraining the opposite parties from transferring, alienating and/or handing over the possession of the suit premises to any third party and or changing the nature and character of the suit premises till the disposal of the suit. In support of his case, the petitioner relied on an agreement of tenancy dated 10th October, 1992 between his father Hazi Abdul Mazid Qureshi and Rabindra Nath Sarkar and Rathindra Nath Sarkar the opposite party nos. 1 and 2 herein in respect of a piece and parcel of both privy entire open passage on the southern side of the premises having one garage, one kitchen, separate entrance thereon at the ground floor of the Premises No. 72/A, Acharya Prafulla Chandra Road, Kolkata-700 009 and Scheduled 'B' mentioned in the said petition. Piece and parcel of three bed rooms, corridor both and privy and open passage on the southern side at the first floor.
According to the petitioner, Bani Dutta alias Bani Sarkar was a tenant under the original owner landlord Kanak Prava Sarkar in respect of ground floor and first floor flat of the suit premises No. 72/A, Acharya Prafulla Chandra Road, Kolkata-700 009 at a monthly rental of Rs. 110/- and Rs. 175/- respectively who by a letter of surrender of tenancy dated 25th August, 1992 gave notice to Kanak Prava Sarkar that she has surrendered her right title interest in the said two flats in favour of Hazi Abdul Mazid Qureshi and requested the landlady to accept him as tenant in respect of the said premises. The said letter of intimation to the landlady has been claimed by the petitioner as the surrender of the tenancy by Bani Sarkar.
I am unable to agree that such a letter can be treated as surrender of tenancy by said Bani Sarkar to said landlady, Kanak Prava Sarkar as the letter speaks of surrender of her tenancy in favour of Hazi Abdul Mazid Qureshi.
I am of the concluded opinion that surrender of tenancy occurs only when both parties to tenancy i.e. landlord and tenant, voluntarily agree to bring the tenancy to an end and tenancy be construed to have been terminated, if the parties agree to it. There may be express surrender and implied surrender. Express surrender means a written document by way of letter to the landlord and the letter accepting the same. Therefore, mutual consent of the landlord is imperative but in case the tenant does not give up possession of the tenanted premises to the landlord, despite surrender of the tenancy, the landlord is entitled to recover possession of the premises by institution of an ejectment suit through Court whereas implied surrender will operate as a matter of circumstance where it is implied from the conduct of the parties, that is to say, where the parties have entered into a new tenancy on different terms to the existing tenancy, the existing tenancy may be considered as surrender of tenancy impliedly, ergo, the essence of implied surrender is the consensual giving up of possession of the premises to the landlord by the tenant. Therefore, there must be evidence of surrender of the tenancy by the tenant to the landlord and none else.
The rent challans placed on record showing tender of rent in favour of Rabindra Nath Sarkar and Rathindra Nath Sarkar by said Qureshi the father of the petitioner, was at his risk because he was not accepted as a tenant by the original owner landlady Kanak Prava Sarkar.
A notice to quit dated 21.7.1994 was issued to the tenant Bani Dutta calling upon her to quit and vacate the tenanted premises on behalf of Kanak Prava Sarkar. Mr. Amitabha Bera, Advocate of said tenant by his letter dated 05.8.1994 in reply to the said notice to quit wrote to said Kanak Prava Sarkar , landlady which reflects that said Bani Dutta was ready to hand over the tenanted premises with the immediate effect if the land lady pays to Bani Dutta an amount of Rs. 2.5 lacs towards shifting charges. This fact prima facie proves that there was no surrender of the tenancy to the landlady by virtue of alleged letter dated 25th August, 1992.
The Trial Judge in his order dated 10.11.2016 passed in Misc. Case No. 128 of 2003 rightly held that the alleged letter of surrender by Bani Dutta was an unilateral act on her part and no reliance can be made in accordance with law because the letters issued by Bani Dutta on 05.8.1994 as well as 16.6.2003 prove that the suit premises was not surrendered on 25.8.1992. So a new tenancy could not be created on 10.10.2002 on the basis of alleged surrender. That apart, execution of said tenancy agreement was also challenged by the opposite parties disputing their signatures thereon. Hence, the contentions of the petitioner that though Kanak Prava Sarkar was the owner and landlady of the suit premises, the opposite party nos. 1 and 2 inducted the petitioner's father as a tenant in respect of the suit premises and after death of Kanak Prava Sarkar the order of injunction has become legal under Section 43 of TP Act cannot be accepted. The learned trial Court found on the factual aspect of the case that the opposite parties had entered into an agreement with a development for developing the suit premises and the possession of the suit premises has been transferred to the developer but the petitioner did not implead the said developer as a party to the case. Therefore, no injunction order can be enforced as it would not be binding on the said developer. With that view in mind, the trial Court rightly rejected the application under Order 39 Rule 1 and 2 read with Section 151 of Code of Civil Procedure.
The said order was appealed before the 2nd Bench of City Civil Court, Calcutta in Misc. Appeal No. 1 of 2007. In Appeal learned Appellate Court below was of the opinion that the alleged dispossession of the appellant/ the petitioner herein from the suit premises was about seven years back in execution of a decree of a Court of law and the order under challenge was passed on 10.11.2006 but the appellant/petitioner herein did not make any prayer for mandatory injunction and thus, the Appeal Court below dismissed the Misc. Appeal along with Section 151 of Civil Procedure Code read with Section 39 of a Specific Relief Act bearing in mind settled principle of law on mandatory injunction vide the impugned judgment.
Having perused the impugned judgment and considered the rival contentions of the learned Advocates for the parties, I find no ground to interfere into the findings of the learned Courts below. Accordingly, the revisional application is liable to be dismissed and thus, the revisional application being C.O. 1182 of 2010 is hereby dismissed, however, there shall be no order as to costs.
The petitioner by filing a CAN application being CAN No. 2800 of 2016 has prayed for an order of temporary injunction restraining the opposite parties and their men, agents, servants and associates from changing the nature and character of the suit property in question and from transferring and alienating any part of the suit property to any third party or from touching the rights of the same in any manner till the disposal of the revisional application.
Since, I have already dealt with the merit of the case in this revisional application, CAN application being CAN No. 2800 of 2016 is disposed of.
Certified website copies of this judgment, if applied for, be urgently made available to the parties, subject to compliance with all requisite formalities.
(SHIVAKANT PRASAD, J.)