Calcutta High Court (Appellete Side)
Smt. Ila Mukherjee vs Education Corner Girls' High School on 16 August, 2011
1
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Mr. Justice Syamal Kanti Chakrabarti
C. O. No. 1522 of 2010
Smt. Ila Mukherjee
Vs.
Education Corner Girls' High School
For the petitioners : Mr. Swapan Mallick,
Mr. Lutful Haque.
Heard on : 21.02.2011
Judgement on : 16.08.2011
Syamal Kanti Chakrabarti, J.:
In the present revisional application under Article 227 of the Constitution the judgement and order dated 29.03.2010 passed by the learned Judge, 2nd Bench, City Civil Court at Calcutta in Misc. Appeal No. 79 of 2006 affirming order no. 98 dated 21.09.2006 passed by the learned 2 Judge, 2nd Bench, Small Causes Court at Calcutta in Misc. Case No. 217 of 2005 has been assailed.
2. The petitioner/ plaintiff/ decree-holder has contended that she is the sole and absolute owner of premises no. 15, Radha Nath Mullick Lane and obtained an ex parte order of eviction of the tenant in Ejectment Suit No. 39 of 1981 and filed Ejectment Execution Case No. 85 of 1993. The judgement-debtor Rabi Mukherjee resisted the bailiff for which the writ of possession issued by the Court could not be executed. The said Rabi Mukherjee in his individual capacity then preferred an appeal before this Hon'ble Court against the judgement and decree passed in Ejectment Suit No. 39 of 1981. The said appeal was, however, abated and dismissed by order dated 18.11.2004 passed by the Hon'ble Division Bench of this Hon'ble Court. As there was no substitution of said Rabi Mukherjee after his death followed by the death of his wife Smt. Bani Mukherjee. On account of jurisdictional change the said Ejectment Execution Case No. 85 of 1993 was renumbered as Ejectment Execution Case No. 39 of 2002. Thereafter, she filed an application under Order 22 Rule 4A of the CPC praying for impleading Administrator General of West Bengal in place and stead of deceased Smt. Bani Mukherjee 3 successor-in-interest of Rabi Mukherjee which was allowed on 22.03.2005. Then she filed an application before the learned Executing Court praying for execution of the said ex parte decree by delivery of possession with police help. At this stage the third party (opposite party), Education Corner Girls' High School represented by its present Secretary filed an application under Order 21 Rules 98, 100 and 101 CPC claiming retention of their possession of premises no. 14B, 15 and 16, Radha Nath Mullick Lane by way of independent right. Though the petitioner/ plaintiff opposed the move the learned Executing Court after hearing both parties allowed such application which was registered as Misc. Case No. 217 of 2005.
3. Being aggrieved by and dissatisfied with such order the petitioner herein then preferred an appeal being Misc. Case No. 79 of 2006 before the learned City Civil Court at Calcutta. By impugned order dated 29.03.2010 the learned Judge, 2nd Bench, City Civil Court dismissed the said appeal and affirmed the order no. 98 dated 21.09.2006 passed by the learned Judge, 2nd Bench, Small Causes Court at Calcutta in Misc. Case No. 217 of 2005.
4
4. The said order dated 29.03.2010 is now being assailed by the petitioner herein contending, inter alia, that as per contract Rabi Mukherjee was inducted as a tenant in his individual capacity and the opposite party school as a third party occupying the premises having no legal right to retain possession of the same after determination of the tenancy granted to the said Rabi Mukherjee. At the time of execution of the writ of possession the said Rabi Mukherjee alone resisted the bailiff and not the school authorities who are running the school in the said premises and they had never any contractual relation with the owner or successor-in- interest in respect of the disputed property. As such the findings of the learned Courts below are not sustainable in law and are liable to be set aside.
5. Learned lawyer for the petitioner has drawn my attention to the principles laid down in AIR (2004) SC 4386 (Singer India Limited - Vs.- Chander Mohan Chadha & Ors.) and one unreported case of this Hon'ble Court between Tusharmoy Dasgupta -Vs.- Amarnath Das & Ors. in CO 3940 of 2010 and 2001(1) CHN 490 in support of such contention.
5
6. Though due notice was issued to the opposite party, none appeared while the matter was taken up for hearing. I have heard the learned Lawyer for the petitioner and perused the materials on record including the impugned orders.
7. From order no. 98 dated 21.09.2006 it appears that Rabi Mukherjee was admittedly the tenant in respect of the decreetal premises who has been succeed by his wife Bani Mukherjee and the said Bani Mukherjee has been substituted by the Administrator General of the West Bengal after her death on 23.02.2005.
8. The opposite party took the plea that the said Rabi Mukherjee the original tenant took the premises for running the school. So the decree is not executable without terminating the tenancy of the petitioner school.
9. After careful consideration of the exhibits 1 to 10 and the testimony of PWs 1 and 2 the learned trial Court has arrieved at a decision that the petitioner school was initially set up as a private institution by the said Rabi Mukherjee, actual tenant and the same has been subsequently affiliated to the Board of Secondary Education and got the benefit of grant-in-aid scheme in 1980-81 6 on wards. Since its inception said Rabi Mukherjee was the Secretary of the Managing Committee and his wife was the Headmistress of the institution. At a later stage dispute and difference arose between said Rabi Mukherjee and the management of the school for which Rabi Mukherjee was suspended from the office of the Secretary of the Managing Committee (exhibit 9). From exhibits 1, 3, 5 and 8 the learned Court below was satisfied that the school was running at the disputed premises and as such possession of the same by the school along with the other non-suit premises was proved to the satisfaction of the learned trial Court. The learned trial Court has further observed that after suspension of Rabi Mukherjee from the secretaryship of the school the administrator who took over the charge and management of the school is the only legal person who can represent the estate of the school with effect from 12.03.1979. Therefore, before filing the instant ejectment suit in 1981 the administrator who stepped into the shoes of Rabi Mukherjee became a tenant in respect of the school premises but without impleading the school as a necessary party the suit was filed and decreed ex parte ignoring the occupation of a portion of the disputed premises by the school authority which was running for 7 more than decades. The learned trial Court has held that the school has got an independent right as tenant in respect of the decreetal premises. Therefore, decree obtained by the decree- holder without terminating the tenancy and impleading the petitioner school in the suit is neither binding nor executable against the petitioner school. He has further held that till the tenancy of the school is determined in accordance with law, the petitioner school continues to be the tenant in respect of the suit premises. Therefore, he has allowed the misc. case on contest and the petitioner school was declared to be legal tenant in respect of the decreetal premises under the observation that the decree under execution is not binding upon the petitioner school.
10. The said finding of the learned trial Court has been upheld by the learned Judge, 2nd Bench, City Civil Court at Calcutta in Misc. Appeal No. 79 of 2006. In fact, the learned appellate Court has accepted the reasoning and findings of the learned Trial Court in all respect which are now assailed.
11. Learned Lawyer for the petitioner has claimed that the opposite party school is a third party stranger who has no locus standi to resist the execution of the ex parte decree. In this connection it is 8 to be noted that in terms of Order 21 Rule 101 CPC all questions including questions relating to right, title or interest of a property shall have to be determined by the Court dealing with the application and no separate suit is required to be filed for the same. Learned First Appeal Court has carefully considered the initial terms of agreement by and between the owner and the tenant dated 27th August, 1976. Clause 4 of the said agreement is quoted below:
"4. The tenant hereby agrees to use the said premises ad dwelling for Mr. and Mrs. Rabi Mukherjee and for running a school and shall not sublet the said premises or any portion of the said premises without the written consent of the parties of the First Part."
12. From the terms of such agreement it will, therefore, apparent on the face of record that the object of tenancy was partly for residential purposes and partly for other purposes within the very knowledge of the owner from its inception.
13. It is also admitted that the suspension of the tenant Rabi Mukherjee as Secretary of the Managing Committee was assailed before the Hon'ble High Court in appeal no. FMA 472 of 1979 which was disposed of by the Hon'ble Division Bench of this 9 Hon'ble Court by order dated 04.06.1979 with the direction that the building in premises no. 14B Radha Nath Mullick Lane can be used by the administrator by holding special classes and the administrator may also use one room in premises no. 15 (decreetal premises) and also 16 Radha Nath Mullick Lane but will not hold school there. Therefore, it was also within the knowledge of the owner from June, 1979 that a portion of the premises is occupied by the school represented by the administrator under judicial verdict who cannot be evicted without due process of law in as much as such. Because his possession was as per direction dated 04.06.1979 passed by this Hon'ble Court in the aforesaid appeal.
14. It appears from the ex parte decree dated 27.08.2987 passed in Ejectment Suit Nos. 38, 39 and 40 of 1981 that notice of ejectment to the original tenant Rabi Mukherjee was only issued on 26.06.1980 in all the three suits through the learned Advocate though at that time it was within the very knowledge of the owner that a portion of the premises was in occupation of the school authorities in terms of Clause 4 of their agreement and order dated 04.06.1979 of the learned Court concerned and no effective decree can be passed without impleading the school authorities, i.e., the administrator. Admittedly, no notice to quit was issued to 10 the learned Administrator or the Secretary of the school, as the case may be, before filing the ejectment suits.
15. Referring to the principles laid down in the case of Tusharmoy Dasgupta Vs. Amarnath Das in CO 3940 of 2010 the learned Lawyer for the petitioner has contended that a Single Bench of this Hon'ble Court has already decided that in the ejectment suit on ground of sub-tenancy the sub-tenant ought to have been impleaded as a party under Order 1 Rule 10 CPC. But the Hon'ble Court held that the landlord is entitled to evict a sub-tenant without notice. The said principle should be applied in the facts and circumstances of this case also.
16. I hold that this Hon'ble Court while disposing of the application was considering an application under Order 21 Rule 101 CPC which is on a different footing. After amendment of the Civil Procedure Code, the right of a third party in occupation of a premises has been recognized by the legislature and the executing Court is now bound to consider the right, title or interest in respect of such property at the time of execution of the decree under Order 21 Rule 101 CPC. Therefore, the said principle is inapplicable in the instant case.
11
17. Similarly, in AIR SC (2004) 4368, i.e., in the case of Singer India Limited the ratio was enunciated in respect of eviction petition on ground of sub-letting and the facts and circumstances of that case is not identical. Here the tenant at the time of his induction has clearly set fourth in unambiguous terms the object of his occupation for the two-fold purposes. Firstly, for occupation of himself and his wife and secondly, for running a school.
18. Under Clause (g) of Section 2 of the West Bengal Premises Tenancy Act, 1997 tenant has been defined in the following manner:
"2. Definitions. - In this Act, unless there is anything repugnant in the subject or context,
(g) "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 termination of his tenancy and, in the event of death of any tenant, also includes, for a period not exceeding five years from the date of death of such tenant or from the date of coming into force of this Act, whichever is later, his spouse, son, daughter, parent and the widow of his predeceased son, who were ordinarily living with the tenant up to the date of death of the tenant as the members of his family and were dependent on him and who do not own or occupy any residential premises, and in respect of premises let out 12 for non-residential purpose his spouse, son, daughter and parent who were ordinarily living with the tenant up to the date of his death as members of his family, and were dependant on him or a person authorised by the tenant who is in possession of such premises but shall not include any person against whom any decree or order for eviction has been made by a Court of competent jurisdiction:
Provided that the time-limit of five years shall not apply to the spouse of the tenant who was ordinarily living with the tenant up to his death as a member of his family and was dependent on him and who does not own or occupy any residential premises, Provided further that the son, daughter parent or the widow of the pre-deceased son of the tenant who was ordinarily residing with the tenant in the said premises up to the date of death of the tenant as a member of his family and was dependent on him and who does not own or occupy any residential premises, shall have a right of preference for tenancy in a fresh agreement in respect of such premises on condition of payment of fair rent. This proviso shall apply mutatis mutandis to premises let out for non-residential purpose."
19. I lay much emphasis upon the words "or a person authorised by the tenant who is in possession of such premises" used in the aforesaid definition which means and includes not only the tenant 13 but also person authorised by the tenant who shall be treated as a tenant. In the instant case running of the school since inception was under authorization of the original tenant Rabi Mukherjee and, therefore, the school shall be treated as a tenant in occupation of the premises along with the original tenant in succession as defined in Clause (g) of Section 2 of the Act.
20. Learned Lawyer for the petitioner has drawn my attention to the cases of Raja Dhirendra Narayan Roy -Vs.- M. Imamuddin & Ors., reported in 74 CWN 375, B. P. Achala Anand -Vs.- S. Appi Reddy and Anr., reported in (2005) 3 SCC 313 and Smt. Krishnawati Vs. Shri Hans Raj, reported in AIR 1974 SC 280 in support of his same contention. What I find that the circumstances dealt with in those cases are quite dissimilar with the facts and circumstances of the present case and does not deserve any unnecessary elaboration to distinguish the same. Therefore, I hold that the principles laid down therein are not applicable in the present case.
21. After careful consideration of all these aspects I hold that the learned First Appellate Court is justified in dismissing the appeal and affirming the order of the learned trial Court which does not suffer from any infirmity or illegality which calls for interference. 14 Therefore, I do not find any merit in this revisional application which is accordingly dismissed.
22. Urgent certified photocopies of this order, if applied for, be supplied to the parties, on compliance of all requisite formalities.
(Syamal Kanti Chakrabarti, J.)