Bhagat Singh Uberoi v. Pan Bai — 1977 DIGILAW 341 (CAL)

JUDGMENT The judgment of the Court was as follows :–– This is an appeal against the judgment and decree passed by Sri A. K. Nayak, Additional District Judge, 4th Court, Alipore, dated June 24, 1970 in Title Appeal No. 573 of 1969 affirming those of Sri T. P. Chatterjee, Munsif, 1st Additional Court, Alipore, passed on February 27, 1969 in Title Suit No. 20 of 1968. 2. The facts of the case may briefly be stated as follows :–– "The defendant was a monthly tenant under the plaintiff at a rental of Rs. 40/- per month payable according to English calendar. The defendant failed to pay rent since the month of January 1969 and is a defaulter. The suit premises was let out to the defendant only for female residence and not for business and other purpose. The defendant has been using the suit premises for business purpose and purpose other than female residence. Hence the suit. 3. The case of the defendant is that he is not a defaulter, that on refusal by the landlord to accept rents, the rents were deposited with the Rent Controller. After appearance in court, the defendant has deposited all arrears of refit in court within time. In the additional written statement the defendant asserts that it is false to say that the suit premises was let out to the defendant for female residence only. The defendant was not using the premises for purpose other than that for which it was leased. The learned Munsif found that the defendant was a defaulter and he also found that the defendant violated the terms of tenancy and used the premises for purpose other than that for which it was let out. The defendant preferred an appeal before the learned District Judge, but the learned Additional District Judge, who heard the appeal affirmed the finding of the learned Munsif that the defendant have violated the terms of the tenancy, but the finding of the learned Munsif that the defendant was a defaulter was set aside. Being aggrieved, the defendant has come up to this Court. 4. Mr. Sudhis Das Gupta, learned Advocate appearing on behalf of the appellant, in the first place, submits that both the courts wrongly relied on an inadmissible document, namely, Ext. 1. The said document is a letter written by the tenant to the landlady. The letter is dated 12th of January 1950. 4. Mr. Sudhis Das Gupta, learned Advocate appearing on behalf of the appellant, in the first place, submits that both the courts wrongly relied on an inadmissible document, namely, Ext. 1. The said document is a letter written by the tenant to the landlady. The letter is dated 12th of January 1950. The relevant portion of the letter is as follows :–– "This is to place on record that I have tenanted one room for female residence being room No. 15 on the second floor on 12th of January 1950 as a monthly tenant under you............ I agree not to use the room for business or any other purposes". From this statement both the courts below found that the defendant agreed to take the room only for female residence and he further agreed that he will not use the room for business or any other purpose. As admittedly male persons were residing in the premises and admittedly in one portion of the room some business articles were kept, it was found by both the courts below that the defendant used the room for purpose other than that for which it was let out. Mr. Das Gupta submits that the letter, Ext. 1, being an unregistered memorandum is not admissible in evidence. In support of his contention he refers to a decision reported in (1) Fort Canning and Land Improvement Co. Ltd. v. Katyani Debi, 32 Calcutta Law Journal 1. In this case it has been held by the Judicial Committee that an unregistered memorandum, neither being a lease nor an agreement for a lease, relating to a previous and completed transaction by which the tenure-holder obtained possession of the land, is inadmissible in evidence and no effect can be given to it. Mr. Das Gupta submits that this letter, Ext. 1, cannot be treated as a lease or an agreement for a lease, but it is simply a memorandum relating to a previous and completed transaction. The letter shows that the defendant states that he has tenanted one room and that being so, this letter must be treated as a memorandum relating to a transaction which was completed earlier. 5. Mr. The letter shows that the defendant states that he has tenanted one room and that being so, this letter must be treated as a memorandum relating to a transaction which was completed earlier. 5. Mr. P. K. Das, learned Advocate for the respondent, however, submits that the letter is dated 12th of January 1950 and the tenancy was taken on 12th of January 1950 and that being so, it cannot be said that the memorandum relates to a past transaction and as such this memorandum does not require registration and this memorandum is admissible in evidence. 6. Mr. Das in support of his contention refers to a decision reported in (2) Deb Dutt Seal v. Raman Lal Phumra and others, AIR 1970 SC 659 . In this case a question arose whether the document evidencing mortgage by deposit of title deeds required registration. On consideration of the document it was held that "the document did not require registration and as such admissible in evidence as it did not create a mortgage or any interest in property but merely recorded a past transaction". On going through the contents of Ext. 1, I find that the terms of the tenancy have been incorporated in the letter Ext. 1. This letter, in my opinion, is a mere acknowledgment of the tenancy in question and does not purport to be a document of lease or a document for the creation of tenancy and as such I am of opinion that the courts below were right to hold that the document though not registered was admissible in evidence. 7. Mr. Das Gupta, in the next place, submits that even assuming that the document is admissible in evidence the courts below were wrong to think that there was any change in the nature of the tenancy. It is true that in the document it has been stated that the room was tenanted for female residence, but that does not mean that if at some point of time some male persons reside in the room that will be changing the nature of the tenancy. I accept the submission of Mr. Das Gupta. The only thing to consider is whether the room which was taken for residential purpose has been used otherwise. It is the admitted position that the defendant is a businessman and in one portion of the room he has kept some articles of business. I accept the submission of Mr. Das Gupta. The only thing to consider is whether the room which was taken for residential purpose has been used otherwise. It is the admitted position that the defendant is a businessman and in one portion of the room he has kept some articles of business. That, according to Mr. Das Gupta, cannot change the nature of the tenancy. In support of his contention he refers to a decision reported in (3) Mrs. C. Colaco v. Urban D'Silva, AIR 1970 Mysore 297. In this case it was held that "Even though a house is taken for residential purpose by a professional man it does not prevent him from carrying on some professional work in the house during spare time. Some occupation and profit-making activities by such person in a small portion of the house unostentatiously and without running a shop or causing any nuisance do not amount to conversion of a residential premises into a non-residential one". The next case relied on by Mr. Das Gupta has been reported in (4) Prem Chand v. The District Judge, Dehradun and another, AIR 1977 SC 364 . In this case it was held that "In a portion consisting of two rooms in which the tenant with his wife, two young sons and a daughter was residing, the fact that in one of the rooms he was running a tailoring shop was not sufficient to convert what otherwise to all intents and purposes was a residential building into a non-residential building". Mr. Das on the other hand, submits that the tenanted room must be used for the purpose for which it was taken and if the room is used for purpose other than that for which it was taken, the defendant is under the mischief of Section 13(1)(h) of the West Bengal Premises Tenancy Act and is liable to ejectment. In support of his contention Mr. Das refers to a decision reported in (5) Segal Securities Ltd v. Thoseby, 1963(1) A.E.L.R. 500. In this case it was held that "The defendant was in breach of the covenant to use the demised premises only as a private residence". The facts are distinguishable and do not apply to the facts of the present case. It is not the plaintiff's case that the tenant has used the room for business purpose, and has not used the room for residential purpose. The facts are distinguishable and do not apply to the facts of the present case. It is not the plaintiff's case that the tenant has used the room for business purpose, and has not used the room for residential purpose. The only allegation is that in one portion of the room some articles of business have been kept, this, in my opinion, cannot change the nature of the tenancy and it cannot be said that the defendant has used the room for a purpose other than that for which he took the room. The findings of the courts below on this point therefore cannot be accepted. 8. A cross-objection has been filed on behalf of the respondent stating amongst other grounds that the defendant not having deposited the admitted arrear rents within one month from the date of service of summons, the learned appellate court below erred in holding that the defendant was entitled to relief for once. The other grounds taken in the cross-objection have not been pressed. Mr. Das draws my attention to the order passed by the learned trial court. He first refers to Order No. 4 dated 19.12.66 which shows that on that date the court passed the following order : "Summons served. Defendant does not appear. For additional precaution plaintiff to issue R.P.C. upon the defendant" On 16.1.67 postal receipt was filed. R.P.C. was returned with remark 'not claimed'. The words 'not claimed' have been penned through without any initial. On 13.2.67 the plaintiff filed an application for fixing a date for ex parte hearing. 6.3.67 was fixed for exparte hearing. On that date the defendant appeared and on 23rd of March 1967 the defendant filed an application under Section 17(2) of the West Bengal Premises Tenancy Act. It is contended by Mr. Das that the registered post card was ordered to be issued only as additional precaution but on 19th December 1966 the court found that summons was served and R.P.C. which was returned with remark 'not claimed' also shows that the defendant had knowledge of the suit. Mr. Das Gupta on the other hand contends that in this case no summons was served on the defendant. On 19th December 1966 the court did not record that summons was duly served, but passed an order for issuing registered post card. Mr. Das Gupta on the other hand contends that in this case no summons was served on the defendant. On 19th December 1966 the court did not record that summons was duly served, but passed an order for issuing registered post card. Even assuming that the registered post card was not claimed by the defendant, it cannot be said that the summons was duly served. In support of his contention Mr. Das Gupta refers to a decision reported in (6) Suresh Chandra Sarkar v. Gosaidas Pal, AIR 1976 Cal. 87 . In this case it was held that "summons by post card stating the number of suit and date fixed but not allegations in the plaint and not in prescribed form and copy of plaint having not been served it must be said that there was no service of summons and in the circumstances the exparte decree was set aside". The defendant in his application under Section 17(2) stated that he had no knowledge about the suit earlier than 6th of March 1967 and no summons was served on him. Mr. Das Gupta also draws my attention to order dated 29.11.68 by which the application under Section 17(2) was disposed of. The relevant portion of the order runs as follows :–– "The learned lawyer for the plaintiff also submits that challans lying with the record show that deposits have been made by the defendant. Hence the petition under Section 17(2) is disposed of according as that challans on record show the deposits". The objection that the deposits were not made under Section 17(2) within one month from the service of summons was not raised by the plaintiff before the learned Munsif. Rather it was conceded on behalf of the plaintiff that the deposits were validly made and that being so, Mr. Das Gupta submits that such an objection cannot be raised in second appeal. In support of his contention Mr. Das Gupta relies on a decision reported in (7) Chotalal Shaw Alias Ramdas Chotalal, 80 Calcutta Weekly Notes 36. Rather it was conceded on behalf of the plaintiff that the deposits were validly made and that being so, Mr. Das Gupta submits that such an objection cannot be raised in second appeal. In support of his contention Mr. Das Gupta relies on a decision reported in (7) Chotalal Shaw Alias Ramdas Chotalal, 80 Calcutta Weekly Notes 36. In this case it has been held "Where no application under Section 17(3) of the West Bengal Premises Tenancy Act, 1956 is made in the trial court for striking out the defence of delivery of possession on the ground of default in the payment of rent and the plaintiff landlord's suit for ejectment is dismissed, the appellate court acts illegally in striking out the defence of the tenant defendant on the ground of default and decreeing the suit". In the facts of the case it was further held that the plaintiff had by his conduct waived his right for striking out the defence under Section 17 (3) of the Act. From the fact that the court did not accept the service of summons and as such passed an order for issuing registered post card and as the service of the registered post card cannot be said to be the service of summons as contemplated in Section 17(1) of the Act, it cannot be said that the defendant made default in depositing rents according to the provisions of Section 17(1) of the Act. The cross-objection filed on behalf of the respondent is therefore dismissed. 9. In the result, the appeal is allowed on contest. The judgment and decree passed by the learned courts below are set aside. The suit is dismissed. The cross-objection is dismissed. There will be, however, no order as to costs in this appeal or cross-objection.