Sudhir Kumar Bosh v. Phanindra Kumar Sanyal — 1957 DIGILAW 213 (CAL)

Judgment 1. THIS revisional application is directed against an order of the learned Judge, 4th Bench, Calcutta Small Cause Court, dismissing a suit for recovery of arrears of rent at Rs. 75 per month from April, 1954 to June, 1954 in respect of the premises No. 41, Karbala Tank Lane, Calcutta. According to the plaintiff petitioner the defendant opposite party, Phanindra Kumar Sanyal, was the monthly tenant under the plaintiff in respect of the premises. The monthly rental was Rs. 75 according to English Calendar and in spite of demand he failed to pay the arrears of rent for the period in suit. 2. THE defendant contested the suit contending that he had terminated the aforesaid tenancy by a notice dated the 1st March, 1954 and had lawfully determined or surrendered the tenancy with effect from the expiry of the month of March, 1954 and he had informed the plaintiff that one Hitendra Kanta Lahiri Chowdhury was the subtenant in respect of the premises in question under the defendant and that the plaintiff should deal direct with him. In the trial court the letter dated the 1st March, 1954 which bad been written by the defendant to the plaintiff was regarded as a letter of surrender and the issue was raised whether the surrender was legal, valid and binding on the plaintiff. The plaintiff contended that the surrender had been made without the consent of the landlord and vacant possession had not been given up and therefore the surrender could not be legal and valid. The learned trial judge, however, held that the surrender was legal and valid and the tenancy of the defendant had been lawfully determined by the surrender. There was then an application under section 38 of the Presidency Small Causes Court Act, which was heard by two judges of the Calcutta Small Causes Court. This learned Bench of the Small Causes Court accepted the contention of the plaintiff that there was no valid surrender because surrender must be with the consent of both the parties. There was then an application under section 38 of the Presidency Small Causes Court Act, which was heard by two judges of the Calcutta Small Causes Court. This learned Bench of the Small Causes Court accepted the contention of the plaintiff that there was no valid surrender because surrender must be with the consent of both the parties. The learned Bench of the Small Causes Court, however, held that the letter of the 1st March, 1954 could be regarded as a notice of the determination of the tenancy under section 106 of the Transfer of Property Act and that there was a valid determination of the tenancy by such notice in spite of the fact that vacant possession had not been given up on the expiry of the notice, that is, from the end of March, 1954. In this connection the learned Bench referred to an English authority (Watson v. Saunders-Roe Ltd. (1) (1947 1 K. B. 437) in which it was held that where the right to evict the tenant is restricted by statutory provisions, the tenant on determination of the tenancy was not bound to give up vacant possession. In the result the learned Bench of the Small Causes Court also held that the tenancy of the defendant Phanindra Kumar Sanyal, had been lawfully determined and there was no liability to pay rent, and accordingly the application was dismissed. From that order the plaintiff has preferred this revisional application. The first point urged by Mr. B. C. Dutta, appearing for the plaintiff petitioner, is that when the parties went to trial with the case that there had been a valid surrender, the learned appellate Bench had no power to substitute a case of determination of the tenancy by a notice under section 106 of the Transfer of Property Act. It is true that in the letter. Ext. 1, by which the tenancy was given up the tenant, Phanindra Kumar Sanyal, used the word 'surrender' saying "i now hereby give you notice that I surrender my tenancy in respect of the said premises with effect from the expiry of the month of March, 1954. " It is also true that in the subsequent correspondence between the solicitors of the two parties, the act of Phanindra was described as a surrender. Reference may be made in this connection to the fetter Ext. " It is also true that in the subsequent correspondence between the solicitors of the two parties, the act of Phanindra was described as a surrender. Reference may be made in this connection to the fetter Ext. B (l), dated the 2nd April, 1954 and the letter Ext. B (4), dated the 16th June, 1954. But in the written statement, which was filed by the defendant, the alternative case of surrender or determination of the tenancy by notice was made and therefore it cannot be said that the learned appellate Bench was wrong in falling back on the case of determination of the tenancy by notice. I would agree with the learned appellate Bench in holding that it was not a case of valid surrender because section 111, clause (e), which refers to a determination (of the tenancy by express surrender, explains that such surrender means a lessee yielding up his interest under the lease to the lessor by mutual agreement. In the absence of such mutual agreement there cannot be any express surrender. There is no case of implied surrender. In the present case admittedly there was no mutual agreement in respect of the surrender and therefore there could not be a valid surrender. 3. I have already pointed out that it was quite competent for the learned appellate Bench to fall back on the case of determination of the tenancy by a notice to quit under section 106 of the Transfer of Property Act and I would agree, with the view of the learned Bench, that reading the relevant letter of the 1st March, 1954 carefully, the conclusion must be reached that although the term 'surrender' was used, it was used loosely even though the defendant opposite party is an Advocate, and that it was really a case of determination of the tenancy by notice with effect from a future date, that is, the end of March, 1954; the notice was being given on the 1st March, 1954 and there was no surrender with immediate effect by this letter or by the act of the parties. 4. MR. 4. MR. Dutt has urged strenuously that unless the tenant gave up vacant possession on the expiry of the notice for determination of the lease there can be no valid determination and he has urged that the ruling on which the learned appellate Bench relied, namely, Watson v. Saunders-Roe Ltd. (1) (1947, 1 K. B., 437), does not apply to the facts of the present case. Mr. Dutt has referred to the provisions of section 108, clause (q), which is to the effect that on the determination of thee lease the lessee is bound to put the lessor into possession of the property. But this provision can only mean that there is this obligation on the lessee when the lease is determined and it cannot be inferred from this clause that unless the lessee carries the obligation the lease is not determined. The words used are "on the determination of the lease" and then the clause goes on to say that the lessee is bound to put the lessor into possession of the property. Thus even before the lessee has put the lessor into possession the lease is deemed to have been determined by the expiry of the notice under section 106 of the Transfer of Property Act. Mr. Dutt has nor been able to produce any clear authority to show that unless the lessee gives up possession on the expiry of the notice the lease is not determined. In the only relevant case on which he has relied, viz., Mehromal v. V. T. N. Behel, I. A. S., Deputy Commissioner (2) (A. I. R. 1954 Nag., 305), the question was discussed and it was observed as follows: "if a tenant leaves the premises without placing the landlord in possession thereof, that may entitle the landlord to claim rents or profits from him if he propose to exercise his rights under the lease, but in a case where he acquiesces in the act of the tenant even though he has not been placed in physical possession of the tenement, it cannot be said that the tenancy is still subsisting." In that particular case before the Nagpur High Court the landlord was found to have acquiesced in the action of the tenant of the first degree in putting the subtenant into possession. Therefore the observation that the landlord might claim rent or profits if he had not acquiesced in the action of the tenant must be regarded as an obiter dictum. There are cases which lay down clearly to the contrary that where the tenant has failed to put the landlord into possession of the premises on the expiry of the notice of determination of the tenancy, the tenancy is determined in spite of such failure to put the landlord into possession. I refer inter alia to the case of Ballaram Giri Ramchandragiri Indamdar v. Vasudev Moreshvar Niphadkar (3) (I. L. R. 22 Bom., 348. Therein it was held as follows: "a notice of relinquishment is not valid because it does not purport to give and does not in fact give vacant possession to the inamdar (landlord. . . . . A tenant giving up demised lands to his landlord is bound to give him vacant possession. The result, however, of his not doing so is not to continue the tenancy, but to create a claim for damages en the part of the landlord. The tenant is liable in damages to the extent of the loss of rent which the landlord sustains during the actual period from which he is kept out of possession and the expenses he is put to in recovering possession of the land." This ruling of the Bombay High Court finds support from the recital of the relevant law in another English case, namely, Regional Properties Ltd. v. Frankenschwerth and another (4) (1951, 1 A11. E. R. 178. E. R. 178. There the ordinary law is stated as follows: (p. 182-83) "under the common law, it is clear enough that if a tenant contracts to deliver up possession at the end of a lease and then by his own act put somebody into the place as sub-tenant or licensee and that latter person does not go out when the term ends, the tenant is liable in damages (at any rate, unless he shows that he has taken all reasonable and proper steps to get rid of the intruder), the measure of damages being, as was stated in Henderson v. Squire (5) (L. R. 4 Q. B. 170) by Cockburn, C. J. and Blackburn, J., a sum to compensate the landlord for loss of rent while he was getting the intruder out and the costs he was put to in getting the intruder out." This is the ordinary law in England as well as in India and Mr. Dutt has not been able to place any clear ruling to the contrary to show that the law was different in India or particularly in Calcutta High Court. Both the English and Indian cases have held that this common law has been further modified as the result of the rent restriction Acts because such Acts make it statutorily impossible for the tenant to evict the sub-tenant and give vacant possession. Where the tenant is thus restrained by the statutory laws from evicting the sub-tenant it has been held that the tenant is not even liable to such damages when he is unable to give up possession en the expiry of the notice for the determination of the lease. 5. MR. Dutt has pointed out that in the case of Watson v. Saunders-Roe Ltd. (1) the tenant of the first degree instituted the suit against the subtenant and made all possible efforts to evict him and thus showed his bona fides. But in the present case the tenant of the first degree, namely Phanindra Kumar Sanyal, appears to have made no effort to evict the subtenant. Moreover, although he himself was liable to pay rent at the rate of Rs. 75 per month he stated in the letter dated the 1st March, 1954 that the sub-tenant was liable to pay only Rs. 70 to him for the entire premises. Moreover, the sub-tenant is a brother-in-law of the tenant defendant Phanindra Kumar Sanyal. Moreover, although he himself was liable to pay rent at the rate of Rs. 75 per month he stated in the letter dated the 1st March, 1954 that the sub-tenant was liable to pay only Rs. 70 to him for the entire premises. Moreover, the sub-tenant is a brother-in-law of the tenant defendant Phanindra Kumar Sanyal. Mr. Dutt has urged that these circumstances indicate that the defendant was not acting in good faith and had not taken all possible steps to evict the sub-tenant, but on the other hand, had put him in mala fide in order to compel the landlord to accept him as the next tenant and that further the landlord may be put to some expenses in order to compel the sub-tenant, who may have to be recognised as a tenant of the first degree, to pay the same rate of rent as the original tenant had been paying. Section 13 (2) of the West Bengal Premises Rent Control Act, 1950, which was in force when the notice of determination was given lays down that when any premises has been sub-let by a tenant of the first degree if the tenancy of such tenant is lawfully determined otherwise than by virtue of a decree obtained by the landlord for reasonable requirements, the sub-lessee shall be deemed to be a tenant in respect of such premises held directly under the landlord on terms and conditions on which the sub-lessee would have held under the tenant if the tenancy of the tenant had not been determined; in other words, normally the sub-tenant to be recognised as the tenant of the first degree would be liable to pay the same rate of rent as he was paying. Under the proviso to sub-section (2) of section 13 the landlord may make an application to the Controller in order to fix the standard rent in such a case. It is, therefore, undoubtedly true that the landlord might have to incur some expenses if he has to recognise the sub-tenant as the tenant of the first degree, and it must be said that the action of the defendant tenant is open to criticism and he may have intended to force the hands of the landlord. It is, therefore, undoubtedly true that the landlord might have to incur some expenses if he has to recognise the sub-tenant as the tenant of the first degree, and it must be said that the action of the defendant tenant is open to criticism and he may have intended to force the hands of the landlord. But if the tenant defendant did not act bona fide, that would only mean that the landlord would be able to claim damages against him in a properly constituted suit and recover the expenses to which the landlord is put on account of the action of the tenant defendant. This cannot, by any means, lead to the conclusion that for that reason the tenancy would not be determined by the service of the valid notice of determination under section 106 of the Transfer of Property Act. 6. MR. Dutt has also urged that in similar circumstances it would be possible for a tenant of the first degree to put in a man of straw, who is unable to pay the rent of the premises and the landlord would lose rent for a certain period and thereafter would be compelled to take steps for evicting the new tenant for default. In such cases however the landlord would be entitled to reimburse himself for his loss in a properly constituted suit against the tenant. Mr. Dutt has urged that leave should be given in the present case for amending the plaint for converting the suit into a suit for damages after an order for remand. But it is clear that the present suit in which there was only a claim for three month's arrears cannot be converted into a suit for damages. It is not yet clear whether the landlord will at all suffer any loss on account of the act of the old tenant. It is also not known whether he will be compelled to evict the new tenant for default for his inability to bear the rent. Accordingly a suit for damages at this stage would be premature and there is no scope for conversion of the present rent suit into a suit for damages. Accordingly this revisional application fails and the Rule is discharged. There will be no order for costs.