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1985 DIGILAW 18 (CAL)

Lalita Pattrea v. Raman I Kanta Das

1985-01-16

Amitabha Dutta

body1985
JUDGMENT 1. THIS is an appeal by the defendant from an appellate decree and it arises out of a suit for ejectment. 2. THE plaintiff's case was that the defendant was a -monthly tenant under him in a one roomed flat in the second floor of premises No. P-49, Block 'b', Lake Town, Calcutta at a rent of Rs. 175/- plus Rs. 25|- electric charge3 per month payable according to English Calendar from October 1977 and that during the continuance of the tenancy the defendant agreed in writing on 24. 8. 1979 to deliver vacant possession of the suit premises on or before 30. 9. 1980 but failed to do so. The defendant in her written statement contended that the alleged agreement was vitiated by fraud: undue influence and coercion and that the alleged agreement does not come within the purview of the ground of eviction mentioned in Section 13 (1) (k) of the west Bengal Premises Tenancy Act, 1956 (hereinafter called the Act). 3. BOTH the courts below have decree-ed the suit accepting the plaintiff's case and rejecting the defiance contention. 4. ADMITTEDLY, the plaintiff agreed to grant and the defendant agreed to take a monthly tenancy in the suit of rs. 200 per month inclusive of electric charges subject to renewal of the term if cordial relations prevailed between the parties. Both the trial court and the first appellate court have concurrently found, that the defendant voluntarily gave notice in writing on 24.8.1979 which was accepted by the plaintiff and the said document has been marked ext. 1, the contents of which are as follows :- "this Renewal Agreement is in continuation of the Agreement signed by Dr. Lalita Pattrea dated 1-10-77 relating to her occupation of one room flat as a Tenant under Land lord Sri Ramani Kanta Das at P-49, block - 'b' Lake Town, Calcutta - 55. 1, the contents of which are as follows :- "this Renewal Agreement is in continuation of the Agreement signed by Dr. Lalita Pattrea dated 1-10-77 relating to her occupation of one room flat as a Tenant under Land lord Sri Ramani Kanta Das at P-49, block - 'b' Lake Town, Calcutta - 55. Ref : Para 11 of the Contract of tenancy dated 1-10-77, I hereby request Land Lord Sri Ramani Kan to Das to extend tenancy period for further period up to 30th September 1980 with effect from 1-10-79 and I promise that I shall hand over the one Room flat in the 2nd Floor of P-49, Block- 'b', Lake Town, Calcutta-55 which is now in my occupation in vacant position to Shri Ramani Kanta das or in his absence to his son Tarun Das on or before 30th September 1980. Further I has sure the Land Lord in presence of witness, that I shall not ask for any further exten tion of my stay in the aforesaid flat now under ray occupation. All other terms and conditions of the contract signed by me on 1-10-79 will be respected. Witness :-Sd/- Amar Nath Mukherjee 207a, Lake Town 'a' block, Cal-55. Sd/- Lalita Pattrea, (Dr. Lalita Pattrea) ' 24,8,79 "the genuineness of document (Ext. 1) bearing signature of the defendant has not been challenged before this Court by mr. Mitra appearing for the appellant, in view of the concurrent finding of fact of the courts below based on proper appreciation of evidence, to the effect that it was voluntarily executed by the defendant, without any fraud, undue influence or coercion as alleged by her. Mr. Mitra has however contended firstly that the document (Ext. 1) is nothing but an agreement for extension of the term of the tenancy which was going to expire on 30-9-1979 and what the defendant meant to express was that she would not ask for further renewal beyond another year. Secondly it is argued on behalf of the appellant that being a renewal of the existing monthly tenancy it does not come within the purview of Section 13 (1) (k) of the Act the third and last contention on behalf of the appellant is that the plaintiff having written a letter dated 9.5.80 (Ext. Secondly it is argued on behalf of the appellant that being a renewal of the existing monthly tenancy it does not come within the purview of Section 13 (1) (k) of the Act the third and last contention on behalf of the appellant is that the plaintiff having written a letter dated 9.5.80 (Ext. B) to the defendant asking her to Vacate the suit premises by 30.5.80, cannot maintain, the suit on the basis of the alleged agreement (Ext. 1). In my view, none of the aforesaid contentions is well founded. Section 13 (1) (k) of the Act runs as follows :- (k) Where subsequent to the creation of the tenancy, the tenant having agreed in writing with the landlord to deliver vacant possession of the premises to the landlord has failed to do so "the most important element of the said clause is that the agreement in writing to deliver vacant possession to the landlord must be subsequent to the creation of the tenancy. In the present case the tenancy was created on 1.10.77 for two years. The agreement in writing ext. 1) was made on 24.8.1979 subsequent to the creation of the tenancy. It expressly contains a request to extend the term of the tenancy up to 30.9.80 and. a promise to deliver vacant possession of the suit premises on or before 30.9.80. It also contains a further promise that the tenant shall not ask for further extension of the term. So taken as a whole the document (Ext. 1) cannot be called merely an agreement not to ask for further renewal coupled with a re quest for the renewal of the term for one year. It is essentially, an agreement in writing with the landlord to deliver vacant possession of the suit premises to him on or before 30.9.1980 on extension of the tenancy in terms of a renewal clause in the original lease, does not create a new or a fresh lease. It extends the period of the original lease which continues from its inception. Had a new lease been created by the agreement (Ext. 1), a contemporaneous agreement to deliver vacant possession of the suit premises on or before 30.9.80 would not have come within the purview of Section 13 (I) (k) of the Act. It extends the period of the original lease which continues from its inception. Had a new lease been created by the agreement (Ext. 1), a contemporaneous agreement to deliver vacant possession of the suit premises on or before 30.9.80 would not have come within the purview of Section 13 (I) (k) of the Act. The learned advocate for the appellant has relied on the decision in M. M. Goswami v. J. Chowdhury 69 CWN 568 in which the learned Judge P.B. Mukherji (as His lordship then was) has held that clause (k) of Section 13 (1) of the Act must be strictly construed against the landlord and in favour of the tenant. The facts of the reported case (at page 57. 1) were as follows. The tenancy was created on 1st December 1960 but there was an agreement in writing of the terms of that tenancy on the 2nd December 1260. A term of that agreement was that the petitioner would vacate the premises on the expiry of the 30th November 1961. On the expiry of the first year the land lord Chowdhury, the opposite party required the petitioner to sign another letter of agreement in similar terms. That letter was dated the 2nd December 1961 recording the agreement in terms of the tenancy which started from 1st december 1961. Thereafter the landlord filed a suit for breach of the condition of the tenancy to vacate and deliver up possession on the 30th November 1962 on the grounds mentioned in Section 13 (l) (j) and (k) of the West Bengal premises Tenancy Act, 1956. The learned Judge in disposing of re visional application against an order under Section 17 (3) of the Act has observed that on a construction of the letter of tenancy dated 2nd December 1961 it is plain that it is not a subsequent agreement in writing to deliver vacant possession nor a genuine notice to quit but is really a subsequent written record of the terms of the tenancy that had already started operating from the 1st December 1961. His Lordship has further observed that it will not be necessary further at that stage to finally decide the question of interpretation as that would await the decision at the trial court. His Lordship has further observed that it will not be necessary further at that stage to finally decide the question of interpretation as that would await the decision at the trial court. In my view, the reported decision relied on by the appellant is of no assistance to her because the facts of the instant case are materially different. In this case the agreement to vacate was entered into subsequent to the creation of the tenancy and when it was continuing. While in the reported case the agreement in writing was made after the expiry of the previous one year's lease and on the date of commencement of second one year term from 1.12.1961 although it was dated 2.12.1961. In my view, the court of appeal below has rightly held that the document (Ext. 1) accepted by the plaintiff is proof of the fact that the defendant agreed with the plaintiff landlord to deliver vacant possession of the suit premises on or before 30.9.80 within the meaning of clause (k) of Section 13 (1)of the Act. 5. NO doubt the plaintiff sent a letter dated 9.5.80 (Ext. B) to the defendant making various allegations against her and requesting her to vacate the suit premises by 31.5.80. But in that letter the plaintiff also mentioned that the defendant had notified in writing to the plaintiff that she would hand over vacant possession of the suit premises to the plaintiff on or before 30.9.1980 and the plaintiff had accepted the said notice. The defendant however did not reply to the said letter. In this state of evidence it cannot be said that the plaintiff gave a notice to quit and of suit under Section 13 (6) of the act requiring one month's notice expiring with a month of tenancy. He expressly reserved his right to sue on the basis of the agreement in writing (Ext. 1) in case the defendant failed to vacate the suit premises by 31.5.80 in response to the plaintiff's letter (Ext. B). 6. SO there is no substance in any of the aforesaid contentions raised on behalf of the appellant. No other point has been argued in, this appeal. In the result the appeal fails. The appeal is dismissed. The judgment and decree of the court of appeal below are affirmed. No order is made as to costs.