Calcutta High Court (Appellete Side)
Lawrence & Mayo (India) Pvt. Ltd vs Life Insurance Corporation Of India & ... on 9 July, 2010
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
1 IN THE HIGH COURT AT CALCUTTA Civil Revisional Jurisdiction Appellate Side Present:
The Hon'ble Justice Jyotirmay Bhattacharya C.O. No. 2161 of 2009 LAWRENCE & MAYO (INDIA) PVT. LTD.
VERSUS LIFE INSURANCE CORPORATION OF INDIA & ORS.
For the Petitioner : Mr. Sabyasachi Chowdhury
Mr. R. K. Khanna
For the Opposite Party No.1: Mr. Arijit Chowdhury
Mr. Alok Banerjee
Mr. P. K. Das
Ms. Debjani Roy
For the Official Liquidator : Mr. M. C. Sen
Ms. M. Sen
Judgment On : 9th July, 2010.
This application under Article 227 of the Constitution of India is directed against an order being No.100 dated 24th June, 2009 passed by the Estate Officer in an eviction proceeding under the Public Premises (Eviction of unauthorized occupants) Act of 1971 being E.O. No. EO/19/0878, by which the reliefs claimed by the petitioner in its application, was rejected by the Estate Officer. The petitioner is aggrieved by the said order. Hence the petitioner has come before this Court with this application.2
Heard Mr. Sabyasachi Chowdhuri, learned Advocate, appearing for the petitioner and Mr. Arijit Chowdhuri, learned senior Counsel, appearing for the opposite party No.1 and Mr. Sen, learned Advocate, appearing for the opposite party No.3.
Let me now consider as to how far the Estate Officer was justified in passing the impugned order in the facts of the instant case. Admittedly the Ritz Continental Hotel Limited (In Liquidation) was a lessee in respect of the property in question being premises No. 11, Government Place, East Calcutta, under Life Insurance Corporation of India, the opposite party No.1 herein. The tenancy of the said Ritz Continental Hotel Limited (In Liquidation), was terminated by notice and thus, the said tenant became an unauthorized occupant in the said premises in view of the provision contained in Section 2(g) of the Said Act. Since the said tenant did not vacate the said premises in spite of determination of its tenancy, an eviction proceeding was initiated against the said tenant under Section 4 of the said Act before the Estate Officer. In the said proceeding various other occupants of the said premises including the petitioner herein were impleaded as unauthorized occupants and their eviction was also sought for from the said premises, in the said proceeding.
The petitioner herein is contesting the said proceeding by filing its reply to the show cause notice issued by the Estate Officer. The petitioner claimed therein that the petitioner was inducted in a portion of the said premises as a sub-tenant in 1938 by the then tenant of the said premises, namely, FIRPO Limited and since then the petitioner has been in possession thereof as sub-tenant therein. Though the tenancy right was changed on different occasions creating new tenancy right in favour of different companies but the petitioner's possession therein was never disturbed by the subsequent tenants; rather, the petitioner was recognized as sub-tenant by all he subsequent tenants.
The petitioner further claims that even the sub-tenancy of the petitioner in a portion of the said premises was recognized by the present lessee, namely, Ritz Continental Hotel Limited (now 3 in liquidation) (hereinafter referred to as the present tenant). The petitioner further claims that not only the creation of such sub-tenancy in favour of the petitioner was known to the establishment (landlord) but the subsequent recognition of the petitioner as sub-tenant therein by the present tenant was known to the owner/landlord of the said premises. As such, the petitioner cannot be evicted from the said premises on the ground of unauthorized subletting by the present tenant.
Trial of the said proceeding started with these set of facts before the Estate Officer.
Problems started after submission of the reply to the said show cause notice, when the petitioner was called upon to give evidence in the said proceeding. The petitioner contended that in a proceeding of this nature, the opposite party No.1, hereinafter referred to as the owner/landlord, should give evidence first to prove its case. The said proposal was not accepted by the opposite party No.1. Accordingly, the petitioner filed an application before the Estate Officer seeking two fold reliefs; firstly for issuance of direction upon the opposite party No.1 to disclose the documents on which the said opposite party wants to rely upon in course of hearing of the said proceeding and secondly for giving direction upon the owner/landlord, the opposite party No.1 to give evidence first in the said proceeding to prove its claim therein.
The Estate Officer rejected both the aforesaid prayers of the petitioner. Hence the instant application was filed by the petitioner before this Court.
In this background, this Court is required to consider the legality of the impugned order. In fact, an identical issue was raised before the Hon'ble Supreme Court in the case of New India Insurance Company Limited vs. Nasli Naville Wadia and 4 another reported in (2008) 3 SCC 279, wherein the Hon'ble Supreme Court, after considering various provisions of the said Act particularly Sections 4, 5 and 7 thereof, held that the procedural aspect as to who should lead evidence first is required to be determined on the basis of the issue arising in the matter. The Hon'ble Supreme Court observed therein that under the scheme of the said Act an eviction proceeding may be initiated under Section 4 of the said Act simplicitor. Again a composite proceeding may also be initiated both under Sections 4 and 7 of the said Act. In the latter category of cases the landlord would be required to establish not only the bona fide need on its part but also the quantum of damages to which it may be held to be entitled, in the event an order is passed in favour of the establishment. It was thus, held therein that when an application for eviction is based on such grounds which requires production of positive evidence on the part of the landlord, it would be directed to adduce evidence first; more so in a composite application where the evidence is also required to be led on the quantum of damages to be determined by the Estates Officer. It was further held therein that there may be cases where the tenant may take a defence which discloses no prima facie case in which event the Estate Officer may ask him to lead evidence first but there may be cases where ground of eviction having regard to the defence taken by the occupants will be required to be gone into then the establishment may be called upon to give evidence first. Again there may be cases where the landlord being the State within the meaning of Article 12 of the Constitution of India is required to prove fairness and reasonableness on its part in initiating a proceeding, in such cases, it is for it to 5 show how its prayer meets the constitutional requirement of Article 14 of the Constitution of India. Under such circumstances, the landlord is required to lead evidence first.
On perusal of the said decision, this Court holds that no hard and first rule regarding order of leading of evidence by the parties in a proceeding under the said Act, can be laid down as the requirement of giving evidence in such a proceeding by the parties differs from case to case. That apart the procedure laid down for trial of such proceeding in Sections 4 and 5 of the said Act, is a total departure from the normal procedure which is followed in trial of suits before the Civil Court. On plain reading of Section 5 of the said Act, it will appear that only the noticee is required to give reply to the show cause notice and he is also required to prove his defence by evidence unlike in the civil suit where the plaintiff is required to prove his case by evidence and the Court can pass a decree in his favour only on proof of the plaint case by the plaintiff and such decree cannot be passed on the basis of the defence weakness only. Thus, if the literal meaning is given to Section 5 of the said Act in the manner as aforesaid then the trial may be vitiated in some cases, as was clarified by the Hon'ble Supreme Court in the aforesaid decision.
Let me now consider as to who is required, to give evidence first in the facts of the instant case. I have already indicated above that as a matter of fact the eviction was sought for against the tenant on the ground of unauthorized subletting in the instant proceeding. Subletting is not disputed by the petitioner 6 as the petitioner itself claimed in its reply to the show cause notice that its sub- tenancy was initially created in 1938 by the tenant therein and since then the petitioner is in possession of a portion of the said premises as a sub-tenant thereof and presently its sub-tenancy under the present tenant which is now in liquidation has also been recognized by the opposite party No.1 herein. In view of such admission made by the petitioner in its pleading regarding its status as that of a sub-tenant in the said premises, the opposite party No.1 being the owner/landlord is not required to prove the factum of subletting by the present tenant in favour of the petitioner. However, the petitioner has taken a defence that such sub-tenancy was not created unauthorisedly and as such the petitioner being a lawful sub-tenant, its possession in the part of the said premises cannot be disturbed.
It is a settled principle of law that admission need not be proved. As such the allegation regarding subletting by the tenant in favour of the petitioner, need not be proved by the establishment in the instant case. Again it is also a settled law that once such subletting is admitted or proved, the tenant is required to prove that such subletting is authorized and legal and his possession is protected under the law. In view of the admission made by the petitioner about this status in the said premises as aforesaid, the burden of proof regarding legality of such sub-tenancy shifts upon the petitioner. If the principle of Order 18 Rule 1 of Civil Procedure Code is borrowed herein then also the noticee has the right to begin. 7
In this set of circumstances, this Court cannot hold that the opposite party (owner/landlord) is required to give evidence first in such a proceeding. However, the said opposite party, if so desires, may give evidence in rebuttal after conclusion of the evidence of the petitioner.
Before concluding, this Court also keeps it on record that it is not a case where the opposite party No.1 is required to prove fairness and reasonableness on its part in initiating a proceeding for eviction under Section 4 of the said Act unlike in the case of New India Assurance Company Limited vs. Nasli Naville Wadia and another (supra) wherein eviction was sought for by the landlord against its tenant on the ground of its reasonable requirement, wherein reasonableness of the requirement of the landlord was required to be proved by the landlord. But in the present case the landlord need not go to the box first to prove subletting as subletting is admitted by the noticee.
Thus, this Court holds that the Estates Officer did not commit any illegality in rejecting the petitioner's prayer for issuance of direction upon the opposite party No.1 to lead evidence first before the witness of the petitioner goes to the box for giving evidence.
Accordingly, this Court does not find any necessity for interfering with this part of the impugned order.8
However, in view of the submission made by Mr. Arijit Chowdhury, learned senior Counsel, appearing for the opposite party No.1 that his client will produce all the documents on which his client will rely upon in course of trial of the said proceeding before the Estate Officer and will also give inspection of those documents to the petitioner, if the petitioner so wants, this Court does not feel any necessity to pass any direction regarding production of those documents by the opposite party No.1 before the Estate Officer and/or for giving inspection thereof to the petitioner herein.
Accordingly, the revisional application is disposed of without any interference with the impugned order but with the observation made hereinabove.
Urgent xerox certified copy of this order, if applied for, be given to the parties as expeditiously as possible.
(Jyotirmay Bhattacharya, J) 9 Later After passing of this order, learned Advocate appearing for the petitioner, prays for stay of the operation of the order for enabling the petitioner to challenge the order before the Hon'ble Supreme Court. such prayer is opposed by Mr. Banerjee, learned Advocate appearing for the opposite party No.1.
Considering such prayer of the petitioner, the petitioner's prayer for stay is allowed.
The operation of the impugned order will remain stayed for a period of two weeks from date.
(Jyotirmay Bhattacharya, J)