Parimal Dasgupta v. Deb Kumar Sen Sarma — 1980 DIGILAW 338 (CAL)

Judgment: Deb Kumar Sen Sarma, the opposite party No. 1 in these three Rules, was at all material times employed as Sub-inspector of Police, Calcutta. By a memorandum dated August 23, 1977 the Deputy Commissioner of Police, Head Quarters, Calcutta directed him to vacate the Government flat which was allotted to him at 20A, Lower Range, Calcutta as the same was urgently required by the Police Authorities and as he was owning a residential accommodation in the name of his wife at 22E, Lower Range, Calcutta. On receipt of the said memorandum Smt. Sudha Rani Sen Sarma, wife of the opposite party No. 1, served notices upon all the tenants who were occupying the premises No. 22E, Lower Range, Calcutta calling upon them to vacate the premises as the same were required for her own use and occupation and for the occupation of her family members, in view of the notice served by he Deputy Commissioner of Police. On the failure of the tenants to comply with the terms of the notices served upon them, the opposite party No. 1 and his sons and daughters filed four separate applications before the Rent Controller, Calcutta under S. 29B of the West Bengal Premises Tenancy Act, 1956 (hereinafter referred to as the Act) for their eviction as in the meantime, the wife of the opposite party No. 1 had died. These applications were registered as R. C. Case Nos. 10, 11, 12 and 13 of 1977. 2. In contesting the applications the tenants contended, inter alia, that all the opposite parties were not Government employees and has not been served with requisite notice entitling them to file application under S. 29B parties as heirs of Sadharani Sen Sarma and co-sharers of the property could not invoke the provisions of S. 29B of the Act; that the notice to quit under S. 13(6) of the Act was not served at the instance of the Government employee himself; and that the entire premises were not reasonably required for the occupation of the opposite parties. 3. After considering the evidence and materials placed before him the Rent Controller allowed three of the applications filed by the opposite parties, while rejection the other. The three aggrieved tenants thereafter moved this Court by filing applications under Article 227 of the Constitution of India and obtained these Rules. 4. 3. After considering the evidence and materials placed before him the Rent Controller allowed three of the applications filed by the opposite parties, while rejection the other. The three aggrieved tenants thereafter moved this Court by filing applications under Article 227 of the Constitution of India and obtained these Rules. 4. The learned Advocates, appearing for the petitioners in these three Rules, firstly contended that having regard to the facts and circumstances of the instant case, S. 29B of the Act had no manner of application. According to the petitioners the opposite party No. 1 was not the owner of the premises in question nor was he owning the same in the name of his wife or in the name of his children and as such the summary procedure for eviction of the petitioners under S. 29B of the Act was not available to the opposite parties. In resisting the above contention, the learned Advocate appearing for the opposite parties on the other hand contended that order served upon the opposite parties on the other hand contended that the order served upon the opposite party No. 1 for vacating the residential accommodation provided to him by the Government would unmistakably show that he (the opposite party No. 1) was the owner of the property but it was standing in the name of his wife. 5. On perusal of the averments made in the applications filed by the opposite parties under S. 29B the Act and the evidence on record I cannot but hold that the wife of the opposite party No. 1 was he real owner of the premises in question. In the notice of eviction served upon the petitioners it had been specifically stated that the petitioners were holding the tenancy as monthly tenants under Smt. Sudha Rani Sen Sarma, that is, the wife of the opposite party No. 1. In the applications filed before the Rent Controller the opposite parties described themselves as heirs of Smt. Sudha Rani Sen Sarma and it was no where stated that the opposite party No. 1 was the owner of the suit premises but it was standing in the name of his wife. In the applications filed before the Rent Controller the opposite parties described themselves as heirs of Smt. Sudha Rani Sen Sarma and it was no where stated that the opposite party No. 1 was the owner of the suit premises but it was standing in the name of his wife. In his deposition the opposite party No. 1 stated that the disputed premises were owned by his late wife Sudha Rani and in cross-examination he categorically admitted that the real owner of the disputed premises was his wife and after her death he and his children became the owners thereof. On the fact of such overwhelming materials on record I am unable to accept the contention of the opposite parties that the opposite party No. 1 was the owner of the property but it was standing in the name of his wife. 6. Though the opposite party No. 1 was not the owner of the premises when he order for vacating the Government accommodation was served upon him, at the time of filing of the application under S. 29B of the Act the said opposite party No. 1 became a co-owner in respect of his wife in the meantime. The question therefore that requires determination is whether such an application was maintainable more particularly when the notice under S. 13(6) of the Act was served at the instance of their predecessor in interest who was alive at the time of the service of the order upon the opposite party No. 1. There is no dispute that the wife of the opposite party No. 1 was the landlady in respect of the premises occupied by the petitioners and consequently the notice issued at her instance and on her behalf was a valid notice under S. 13(6) of the Act. Independent of the Government order, she was entitled to claim eviction of the premises for her own occupation under S. 13(1)(ff) of the Act and to serve notice upon the tenants under S. 13(6) of the Act. 7. It was the next contention of the petitioners that the application at the instance of the opposite parties was not maintainable as it was not precede by a valid notice issued by their predecessor. 7. It was the next contention of the petitioners that the application at the instance of the opposite parties was not maintainable as it was not precede by a valid notice issued by their predecessor. I find no substance in this contention in as much as a valid notice to quit once given is effectual for those who succeeded to the property after the death of the landlord, at whose instance the notice was issued. 8. It was next contended on behalf of the petitioners that the application filed by the opposite parties under S. 29B of the Act was not legally maintainable as it was the opposite party No. 1 alone who was entitled to file an application and not the others as the notice to quit the accommodation provided by the Government was made in this regard was that an application under S. 29B was maintainable by the Government employee who was the exclusive owner of the premises. In other words, the contention was the since the opposite party No. 1 was a part owner of the suit premises he could not invoke the provisions of S. 29B as it specifically provided that the Government employee must own a residential accommodation either in his own name or in the name of his wife or dependent children. I am unable to accept this contention having regard to the subject for which Chapter VIA of the Act, which contains S. 29B was enacted. 9. Keeping in view the law’s delay a summary procedure has been prescribed for Government employees to get immediate possession of his premises in case such employee is required to vacate accommodation allotted to him by the Government on the ground that he has a premises of his own. Once such an order is served calling upon such Government employees to vacate Government accommodation and once it is found that he has a right to certain premises he can legitimately invoke the summary procedure for eviction of his tenant. Once such an order is served calling upon such Government employees to vacate Government accommodation and once it is found that he has a right to certain premises he can legitimately invoke the summary procedure for eviction of his tenant. That being the object and scheme of Chapter VIA it is immaterial whether he is the owner of the entire premises or part owner thereof Difficulty might be encountered by a Government employee to file an application under S. 29B when he is owner of the premises along with others who did not want to be a party to the application to be so filed and in a given case it may have to be decided whether such an application would be maintainable but that question need not detain us here as the opposite party No. 1 along with his children were parties to the applications under S. 29B of the Act. This contention of the petitioner must therefore be overruled. 10. It was next contended on behalf of the petitioners that even if the applications were maintainable at the time the same were filed the Rent Controller should not have allowed the said applications having regard to the fact that during the pendency of the proceeding the opposite party No. 1 retired along with his children were parties to the applications under S. 29B of the Act. This contention of the petitioner must therefore be overruled. 10. It was next contended on behalf of the petitioners that even if the application were maintainable at the time the same were filed the Rent Controller should not have allowed the said application having regard to the fact that during the pendency of the proceeding the opposite party No. 1 retired from service and consequently, this subsequent event disentitled the opposite party No. 1 to the relief under S. 29B of Act. 11. Admittedly when the applications were pending disposal, the opposite party No. 1 retired form services and he was liable to vacate the Government premises independent of the notice earlier served upon him by the Government, due to his such retirement. In other words, his obligation to vacate the premises was no more dependent upon the notice of the Government earlier served but due to his retirement. In other words, his obligation to vacate the premises was no more dependent upon the notice of the Government earlier served but due to his retirement. The question therefore is whether happening of such subsequent event disentitled the opposite party No. 1 from obtaining the relief asked for by him through an application under S. 29B of the Act or he was obligated to file a regular suit. This point was agitated on behalf of the petitioners before the Rent Controller who negatived the same relying upon a decision of the Supreme Court in the case of Sri Nihal v. Sri Kalyan, reported in AIR 1978 SC 259 . 12. In the case of Sri Nihal (supra) a similar question arose before the Supreme Court while dealing with a case under the Delhi Rent Control Act, 1958 (hereinafter referred to as the Delhi Act) To appreciate the facts of the said case and its application to the facts of the instant case it will be necessary to refer to the following provisions of the Delhi Act: “S. 14(1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any court or Controller in favour of the landlord against a tenant. Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only namely:- That the premises let for residential purpose ate required bona fide by the landlord for occupation as a residence for himself or for any member of his family dependent on him, if he is the owner thereof, or for any person for whose benefit the premises are held and that the landlord or such person has no other reasonably suitable residential accommodation. Where a landlord has acquired any premises by transfer no application for the recovery of possession of such premises shall lie under sub section (1) of the ground specified in clause (2) of the proviso thereto, unless a period of five years has elapsed from the date of the order. S. 14A. Where a landlord has acquired any premises by transfer no application for the recovery of possession of such premises shall lie under sub section (1) of the ground specified in clause (2) of the proviso thereto, unless a period of five years has elapsed from the date of the order. S. 14A. Right to recover immediate possession of premises to accrue to certain persons-(1) Where a landlord who, being a person in occupation of any residential premises allotted to him by the Central Government or any local authority is required, by or in pursuance of, any general or special order made by that Government or authority, to vacate such residential accommodation or in default, to incur certain obligations on the ground that he owns in the Union Territory of Delhi, a residential accommodation either in his own name or in the name of his wife or dependent child, there shall accrue, on an form the date of a such order to such landlord. NOTWITHSTANDING ANYTHING CONTAINED ELSEWHERE IN THIS Act or in any other law for the time being in force or in any contract (whether express or implied), custom or usage to the contrary, a right to recover immediate possession of any premises let out by him. S. 25A. Provisions of this chapter to have overriding effect.-The provisions of this Chapter or any rule made thereunder shall have effect notwithstanding anything inconsistent therewith contained elsewhere in this Act or in any other law for the time being in force. 25B. Special procedure for the disposal of applications for eviction-(1) Every application by a landlord for the recovery of possession of any premises on the ground specified in clause (e) of the proviso to sub section (1) of section 14, or under section 14A, shall be dealt with in accordance with the procedure specified in this section. 25B. Special procedure for the disposal of applications for eviction-(1) Every application by a landlord for the recovery of possession of any premises on the ground specified in clause (e) of the proviso to sub section (1) of section 14, or under section 14A, shall be dealt with in accordance with the procedure specified in this section. The tenant on whom the summons is duly served (whether in the ordinary way or by registered post) in the form specified in the Third Schedule shall not contest the prayer for eviction from the premises unless he files an affidavit stating the grounds on which he seeks to contest the application for eviction and obtains leave from the Controller as hereinafter provided; and in default of his appearance in pursuance of the summons or his obtaining such leave, the statements made by the landlord in the application shall be entitled to an order for eviction on the ground aforesaid. The Controller shall give to the tenant leave to contest the application if the affidavit filed by the tenant discloses such fats as would disentitle the landlord from obtaining an order for the recovery of possession of the premises on the ground specified in clause (e) of the proviso to sub-section (1) of S.14, or under S. 14A. Where leave is granted to the tenant to contest the application, the Controller shall commence the hearing of the application as early as practicable. 25C. Act to have effect in a modified form in relation to certain persons.-(1) Nothing contained in sub s. (6) of S. 14 shall apply to a landlord who, being a person in occupation of any residential premises allotted to him by the Central Government or any local authority is required by, or in pursuance of, an order made by that Government or authority to vacate such residential accommodation, or, in default, to incur certain obligations, on the ground that he owns a residential accommodation either in his own name or in the name of his wife or dependent child in the Union territory of Delhi. In the case of a landlord who, being a person of the category specified in sub-s. (1) has obtained on the ground specified in cl. In the case of a landlord who, being a person of the category specified in sub-s. (1) has obtained on the ground specified in cl. (e) of the proviso, to sub-s. (1) of S. 14, or under S. 14A, an order for the eviction of a tenant form any premises, the provisions of sub-s. (7) of S. 14 shall have effect as if for the words “six months” occurring therein, the words. “two months” were substituted.” 13. Relying upon the words “there shall accrue, on and from the date of such order, to such landlord a right to recover immediate possession of any premises let out by him……..” in S. 14A the Supreme Court observed that once such right accrued to a landlord who was a government employee he cannot be divested of such right by the fact that he had subsequently retired form the Government service. According to the Supreme Court once such a right accrued to the Government employee, he was entitled to file an application under S. 25B of the Delhi Act and no other intervening factor can deprive him of such right. Comparing the relevant provisions of Chapter VIA of the Act it will be found that no such provision like S. 14A giving a substantive right to the Government employees has been incorporated therein. In other words, no corresponding provision has been enacted in the Act like S. 14A of the Delhi Act and the provisions of Chapter VIA corresponding to only Ss. 25(A), (B) and (C) of the Delhi Act, that is to say, the procedure for disposal of applications for eviction on the ground of bona fide requirement of Government employees who have been served with order for vacating Government accommodation have only been provided as in the Delhi Act without however granting any substantive right like S. 14A of the Delhi Act. In absence of such provision the Rent Controller was not justified in relying upon the above decision to repel the contention of the petitioners. 14. The question however still remains whether the opposite parties were disentitled to the relief sought for through the application under S. 29B in view of the subsequent event that took place namely, the retirement of opposite party No. 1. 15. 14. The question however still remains whether the opposite parties were disentitled to the relief sought for through the application under S. 29B in view of the subsequent event that took place namely, the retirement of opposite party No. 1. 15. The law is now well settled that ordinarily a suit is tried in all its stages on the cause of action as it existed on the date of its institution; but it is open to a Court including a Court of appeal to take notice of events which have happened after the institution of the suit and afford relief to the parties in the changed circumstances where it is shown that the relief claimed originally has (i) by reason of subsequent change of circumstances become inappropriate; or (ii) where it is necessary to take notice of changed circumstances in order to shorten the litigation, or (iii) to do complete justice between the parties. (Sikhar Chand v. D. J. P. Karinisabha AIR 1974 SC 1178 ). Notwithstanding any provision like. S. 14A of the Delhi Act, the opposite party No. 1 had a cause of action to invoke S. 29B of the Act when the applications were filed as he was still in service and was suffering the Government order and ordinarily the application was to be tried on such cause of action. The question is whether the fact that the opposite party No. 1 subsequently retired form service should be taken notice of which undoubtedly would disentitle the opposite party No. 1 to obtain the relief by the summary procedure. Having regard to the fact that none of the tests laid down by the Supreme Court in the case of Sikharchand for taking cognisance of subsequent events stands satisfied. In the instant case, the retirement of the opposite party No. 1 did not stand in the way of the opposite parties to proceed with the applications and for that matter of the Rent Controller to allow the same. The relief asked for by the opposite parties had not become inappropriate by reason of the retirement of he opposite party No. 1 as they were still entitled to the self same relief by filing a regular suit. The second test also does not stand satisfied as to take notice of the changed circumstances would have meant lengthening of the litigation in a regular suit and not its shortening. The second test also does not stand satisfied as to take notice of the changed circumstances would have meant lengthening of the litigation in a regular suit and not its shortening. Then again, without such cognizance, the parties did get complete justice in as much as both the parties had and availed of the opportunity to adduce evidence, both oral and documentary to argue their respective cases and to meet the cases of their adversaries. It cannot therefore be said that the parties have been prejudiced in view of the summary nature of the proceeding. For all these considerations I am unable to accept the contention of the petitioners that the subsequent even should have been taken into consideration and if so taken the opposite parties were disentitled to proceed with the applications. 16. It was the next contention of the petitioners that the applications filed by the opposite parties for their eviction were not maintainable as it had nowhere been stated therein that the opposite parties were not in possession of any reasonable suitable accommodation, an essential ingredient to invoke clause (ff) of S. 13(1) of the Act. In support of their contention, they relied upon the judgment of the Supreme Court in the case of B. Banerjee v. Anita Pan reported in AIR 1975 SC page 1146. It is true that it is not specifically pleaded that they had no other reasonably suitable accommodation other than the premises in question and that the Supreme Court judgment requires that there must be separate and specific pleading. But still then, in my considered view, applications under A. 29B of the Act cannot be thrown out in limine on that ground alone. Section 29B as stated earlier has been enacted to avoid the long drawn procedure of a suit and for that purpose it has provided a summers mode of disposal of applications filed under S. 29B have been provided for under sub-s. (4) of S. 29B. Unlike a suit where the tenant as of right can file a written statement, against an application under S. 29B he is required to obtain leave of the Rent Controller to contest the application provided if he can satisfy by filing an affidavit that there are facts which would disentitle the landlord from obtaining an order for recovery of possession. Unlike a suit where the tenant as of right can file a written statement, against an application under S. 29B he is required to obtain leave of the Rent Controller to contest the application provided if he can satisfy by filing an affidavit that there are facts which would disentitle the landlord from obtaining an order for recovery of possession. From the various sub-s. of S. 29B of the Act it would appear that an application filed under S. 29B cannot be equaled with a plaint of a suit nor need it be tested with the regions by which a plaint or written statement is judged. It must therefore be held that for mere absence of specific averment that the opposite parties were not in possession of reasonably suitable accommodation in their applications under S. 29B it cannot be said that the same are liable to be rejected; more particularly when I find that the opposite party No. 1 specifically stated in his deposition that he had no other accommodation besides the premises in question as described in the four cases and there is nothing on record to prove the contrary. 17. Now that all the common points raised in support of the three Rules have been disposed of, the only other question that survives for consideration is whether the application filed by the opposite parties against Smt. Anupama Sengupta and others which was registered as R. C. Case No. 10 of 1977 and which gave rise to C.R. No. 260 of 1980 in this Court was liable to be dismissed for defect of parties. Mr. Tarun Kumar Chatterjee, appearing in support of the Rule, submitted that the original tenant was Biswanath Sengupta who died intestate on 30.1.70 leaving behind his sister Anupama Sengupta, Amita Sengupta, Amiya Sengupta and Nirojbala Sengupta, and his bothers Dipendra Mohan Sengupta and Rabindra Nath Sengupta as heirs who all inherited the tenancy but since all of them have not been made parties, the applications was bad for non joinder of parties and as such the application was not maintainable. In support of his contention he relied upon a Division Bench judgment of this Court which lays down the proposition that unless all the heirs of a deceased tenant are made parties, a suit for ejectment is liable to be dismissed for non-joinder of parties. In support of his contention he relied upon a Division Bench judgment of this Court which lays down the proposition that unless all the heirs of a deceased tenant are made parties, a suit for ejectment is liable to be dismissed for non-joinder of parties. While there is no dispute about the legal proposition I am unable to hold on the materials on dispute about the legal proposition I am unable to hold on the materials on record that all the sisters and brothers of Biswanath Sengupta inherited the tenancy in absence of any evidence on record to support the above contention of Mr. Chatterjee. It is true that in paragraph 9 of their objection the petitioners in this rule specifically made those averment but there is not an iota of evidence to support such an averment. The opposite party No. 1 during his examination in chief stated. “Anupama Sengupta and two others are the tenants in respect of the premises in case No. 10 of 177” and these three person, namely, Anupama Sengupta, Rabindra Nath Sengupta and Amita Sengupta were impleaded as the opposite parties in the said application. This positive assertion of the opposite party No. 1 was not challenged during cross-examination and the suggestion that was put to the opposite party No. 1 during his cross-examination on behalf of the petitioners was “It is not a fact that the premises in possession of the O. P. Smt. Anupama and Rabindra Nath Sengupta who deposed as O.P.W. No.1 did not say anything to support her averments in paragraph 9 of the objection and her examination in chief, which is confined to only four lines, reads as follows: “She denies that the tenancy in her occupation is required by the applicant for his own use. It is not a fact that the applicant’s sons and daughters are unemployed and his mother-in-law are dependent on him” Such being the state of evidence I am unable to accept the contention of Mr. Chatterjee that the application is bad for defect of parties. 18. In view of the above discussions and as no other point has been raised in support of these three rules, all of them stand discharged. In the circumstances of the case, there will be no order as to costs. Rules discharged.