Indian Institute of Management v. J. Majumdar — 1990 DIGILAW 8 (CAL)

Judgment Amarabha Sengupta, J. 1. The respondents in this second appeal instituted as plaintiff an ejectment suit under the West Bengal Premises Tenancy Act against the Appellant, Indian Institute of Management, for its eviction from a flat being part of the first floor of premises no. P/19, Gariahat Road in Calcutta. 2. The appellant defendant Indian Institute of Management is a Society registered under the West Bengal Societies Registration Act of 1961. This Society admittedly was a monthly tenant under the plaintiffs in respect of the flat in suit. The plaintiffs claimed to be the owners of the suit premises and pleaded that they required the suit premises for their own use and occupation. There was a further ground, namely, that before the institution of the suit plaintiff no. I who was in service and was living elsewhere had intimated the society that on his retirement from service he would require the demised flat and requested the society to vacate the same. Correspondences were exchanged by and between the parties and ultimately the Society, agreed to vacate the flat on the retirement 9fthe plaintiff no. I, and for that purpose requested the plaintiff to give to the Society notice of his retirement at least six months ahead of the retirement. Thereafter on 1.12.82 the plaintiff no. I gave the Society notice by a letter that he would retire on the expiry of June, 1983 and renewed the request for vacating the fiat. The plaintiff retired in or about June. 1983. But the Society did not vacate the flat in terms of the promise given by it Meanwhile the plaintiff No. I had to shift to the suit house under compelling circumstances. Ultimately the plaintiffs issued upon the Society a formal notice under s. 13(b) of the West Bengal Premises Tenancy Act and instituted the ejectment suit. Plaintiffs claimed decree for eviction on the ground of their own use and occupation and also on the ground under’s. 13(k) of the West Bengal Premises Tenancy Act founded upon the assurance given by the Society to vacate the flat on the retirement of plaintiff no. 1 from service. 3. The suit was first instituted in the Court of the Munsif at Alipore. 1 from service. 3. The suit was first instituted in the Court of the Munsif at Alipore. The Society contested the suit challenging the maintainability of the suit against the Society in its registered name, the alleged' reasonable requirement of the suit flat for the use of the plaintiffs and also the ground under s. 13(k) of the Premises Tenancy Act. The alleged ownership' of the plaintiffs in respect of the suit property was also challenged. 4. The learned Munsif found and held that the suit was maintainable although the Society was sued in its registered name, and that the plaintiffs were the owners of the suit premises. The learned Munsif rejected the claim of the plaintiffs that they reasonably required the suit property for their own me and occupation. The learned Munsif, however, held that the ground for eviction under s. 13(k) of the Premises, Tenancy Act had been proved and accordingly decreed the suit in favour of the plaintiffs. 5. On appeal the learned Additional District Judge Of Alipore differed with the learned Munsif on the issue of the alleged reasonable requirement of the suit property by the plaintiffs and decided the issue in favour of the plaintiff. The learned Additional District Judge agreed with and affirmed all other findings of the learned Munsif and dismissed the appeal. 6. The Society viz.. Indian Institute of Management, having thus lost the case in both the courts below, has preferred this instant second appeal against the judgement and decree of the learned Additional District Judge. The judgement under Appeal is dated 27.1.1988 and was passed in Title Appeal No. 325/87. 7. We have heard at length the contentions of the learned counsel of both parties and have gone through the judgements of both the courts below. Neither side addressed us on the issue as to the alleged ownership of the plaintiffs in respect of the suit property. And it appears that the suit property was originally purchased by the mother of the plaintiffs 1 to 3 and plaintiffs 2 to 5. Plaintiffs t to 3 are brothers and plaintiffs 4 and 5 are respectively the wives of plaintiffs I and 2. The mother of the plaintiffs 1 to 3 later died and her interest devolved upon the plaintiffs. 1 to 3 as her only legal heirs. Plaintiffs t to 3 are brothers and plaintiffs 4 and 5 are respectively the wives of plaintiffs I and 2. The mother of the plaintiffs 1 to 3 later died and her interest devolved upon the plaintiffs. 1 to 3 as her only legal heirs. We must, therefore, proceed on the ground that these plaintiff are the owners of the suit property as claimed by them. 8. Before us the contentions of the learned Counsel for the defendant appellant were mainly three fold: namely that (i) the materials do not prove reasonable requirement of the suit property by the plaintiffs for their own use and occupation; (ii) that there was no ground for eviction under s. 13(k) of the P.T. Act and (iii) that the suit against the registered Society in its registered name was not maintainable. 9. Whether the plaintiffs reasonably require the suit property for their own use and occupation is a question of fact. Though normally in Second Appeal the High Court should not reassess the evidence to examine the correctness of a finding of fact, we have considered the materials in respect of the present issue to see if there has been miscarriage of justice and because on this issue the courts below differed with each other. 10. It appears the plaintiffs are at present in occupation of 5 rooms, one dining space, 3 toilets, one kitchen, one varandah, one store room and a tin shed and one thakurghar (pujaghar). This accommodation is in the second floor and partly on the third floor of the building in suit. So their are 5 living rooms in occupation of the plaintiffs besides the kitchen, toilets etc. 11. The plaintiffs constitute a joint family, and their family consists of the following members :- i) The Plaintiff no. 1 and his wife and his married son. The son is posted at Delhi and occasionally comes to Calcutta to his parents. Plaintiff no. 1 has also a daughter, but she is married and lives elsewhere. ii) Plaintiff no. 2 has wife. He is childless, He was previously working at Durgapur, but is now posted at Calcutta and is living in• a quarters provided by his employer. He happens to be a high official in an organization. iii) Plaintiff no. 3 has his wife, one adult son and one adult unmarried daughter. ii) Plaintiff no. 2 has wife. He is childless, He was previously working at Durgapur, but is now posted at Calcutta and is living in• a quarters provided by his employer. He happens to be a high official in an organization. iii) Plaintiff no. 3 has his wife, one adult son and one adult unmarried daughter. He was previously working at Dalmianagar, but is now residing at Calcutta consequent upon termination of his employment at Dalmianagar. 12. Plaintiff no. 1 and Plaintiff no.2 are now actually residing in the above accommodation in the building in suit. But for want of accommodation, so is the plaintiffs' case, Plaintiff no. 2 is unable to shift to the suit house and is compelled to continue in this quarters with inconvenience. 13. The learned Additional District Judge has been of the opinion and has held accordingly that i) plaintiff no. 1 requires two bed rooms-one for himself and his wife and the other his Delhi posted married son who comes to him with his wife; ii) plaintiff no. 2 (childless) requires one room for himself and his wife and another for use as his separate office room to meet his visitors who come to him on official or other business; and iii) plaintiff no. 3 requires 3 rooms one for himself and his wife, one for his grown up daughter and one for his adult son. Thus, according to the learned Additional District. Judge, the plaintiffs require at least seven rooms, whereas they have now only five rooms. 14. We have considered the views of the learned Additional District Judge. We do not think that the view, of the learned Judge are perverse or unreasonable. Some grievance was made before us for allotting one room for the Delhi posted son of the plaintiff no. 1 and for allotting one separate room for office purpose of the plaintiff no. 2. We do not see any substance in this grievance. It is natural for the Delhi posted son come occasionally to his parents, and he being married one room may be reasonably claimed for him. Plaintiff no. 2 being in a high position, it is natural for him to have callers on official or other purposes. He may claim a separate room to •meet his visitors in privacy. It may be pointed out here that there is no ground to deny plaintiff no. Plaintiff no. 2 being in a high position, it is natural for him to have callers on official or other purposes. He may claim a separate room to •meet his visitors in privacy. It may be pointed out here that there is no ground to deny plaintiff no. 2 accommodation in the suit home merely on the ground that he is presently living in the quarters provided by his employer. His present accommodation cannot be taken into account for negativing his need for the suit premises. A reference in this connection may be made to the case Phiroze Bamanji Desai v. Chnndrakanta M. Patel in AIR 1974 SC 1059 . We do not see any sufficient ground to interfere with the findings of fact arrived at by the learned Additional District Judge on the issue under consideration. 15. With regard to the question whether the plaintiffs could invoke the ground prescribed by s. 13(k) of the Premises Tenancy Act, we do not see reasons to set aside the decisions of the Courts below. It appears the Society by its letter dated 14.880 assured the plaintiff no. 1 that it would vacate the demised flat on the plaintiff's retirement from service and further advised the plaintiff by letter dated 11.6.81 to intimate the Society the time of his retirement six months before such retirement. Plaintiff no r accordingly by his letter dated 1.12.82 informed the Society that he would retire on the expiry of June, 1983. And, in fact he retired in or about June, 1983, The Society, therefore, was under an obligation to vacate the flat on the basis of its own promises which amounted to an agreement in writing within the meaning of Clause (k) of s. 13. 16. Learned Counsel for the appellant Society has contended that even if any assurance to vacate the .flat was given by the Society, the plaintiffs treated the tenancy as continuing even after June, ]983 inasmuch as the plaintiffs served upon the Society notice 'to quit under s. 13(b) which would not otherwise be necessary. We are unable to accept this argument. Learned Counsel for the appellant Society has contended that even if any assurance to vacate the .flat was given by the Society, the plaintiffs treated the tenancy as continuing even after June, ]983 inasmuch as the plaintiffs served upon the Society notice 'to quit under s. 13(b) which would not otherwise be necessary. We are unable to accept this argument. Eviction was sought not only on the ground of the assurance given by the Society but also on the ground of reasonable requirement of the demised premises by the plaintiffs, In that view of the matter, the statutory notice can be conceived as necessary to sustain the suit on the second ground of reasonable requirement. It does not appear that the plaintiffs by their conduct gave the slightest hint' that they were ignoring the assurance given by the Society to vacate the suit premises on the retirement of the plaintiff no. 1. The Society, in our view, cannot ignore its own promises saying that the statutory notice to quit absolved it of its promised liability. Further, there has been a concurrent finding on this issue of the Courts below which, in our view, has not led to any miscarriage of justice. We, therefore, see no sufficient ground to interfere with the finding of the lower Appellate Court on this issue. 17. The third contention of the learned Counsel for the appellant is that the suit against the appellant, Indian Institute of Management, in its registered name was not maintainable. The basis of this contention is the provision in s. 19(1) of the West Bengal Societies Registration Act, 1961, which runs as follow : "Every Society may sue or may be sued in the name of the President, the Secretary, or any office-bearer authorised by the Governing Body in this behalf," 18. Admittedly, the defendant, Indian Institute of Management, is a Society registered under the West Bengal Societies Registration Act, 1961. It appears that the written statement was filed in the suit by the Superintendent of the Society. It has been contended that since the suit was not instituted against or some other officer as mentioned in s. 19(1) of the Act, it was not maintainable. 19. We have considered the above contention. It appears that the written statement was filed in the suit by the Superintendent of the Society. It has been contended that since the suit was not instituted against or some other officer as mentioned in s. 19(1) of the Act, it was not maintainable. 19. We have considered the above contention. The question that arises for our consideration is whether a suit by or against a Society, registered under the West Bengal Societies Registration Act, in the registered name of the Society is incompetent in view of the provisions of s. 19(1) of the said Act. That is, whether the provision in s. 19(1) is mandatory or it is merely an alternative enabling provision and does not bar a suit by or against a Society in its registered name. 20. The provisions in s. 6 of the Societies Registration Act of 1860 are virtually similar to the provision in s. 19(1) of the State Act with differences only as regards the designation of the officers who may be impleaded in a suit to represent the concerned Society. These provisions in the Central Act are as follows: "Every Society registered under this Act may sue or be sued in the name of the President, Chairman or principal Secretary, or Trustees as shall be determined by the rules and regulations of the Society, and in default of such determination, in the name of such person as shall be appointed by governing body for the occasion." (The proviso not being necessary for our purposes is not re-produced ). 21. In a number of cases the question arose as to whether a suit by or against a Society (registered under the Central Act of 1860) in the registered name of the Society was competent and maintainable. The decision which we have found, one of them being a Division Bench decision of our High Court, have held that s. 6 of the Act is nobar to institution of a suit by or against a Society in its registered name. We may refer 10 some of the-se decisions below. 22. In Nabadwip Bhajan Ashram v. Commissioners of Nabadwip Municipality ( AIR 1959 Cal 361 ) the suit was instituted by the Nabadwip Bhajan Ashram, a Society registered under the Societies Registration Act of 1860. We may refer 10 some of the-se decisions below. 22. In Nabadwip Bhajan Ashram v. Commissioners of Nabadwip Municipality ( AIR 1959 Cal 361 ) the suit was instituted by the Nabadwip Bhajan Ashram, a Society registered under the Societies Registration Act of 1860. A question arose as to the maintainability of the suit in the registered name of the Society despite the provisions of s. 6.of the Act. The Court observed that such a Society is a legal entity and has a legal status, and, therefore, it can sue in its own name. Section 6 of the Act was construed as permissive and the mode of institution of suit prescribed therein as alternative to the normal mode. The Court observed that the provisions of ss. 6 and 7 of the Act are not mandatory and do not militate against a registered Society suing or being sued in its registered name. In Sonar Bangla. Bank Ltd. v. Calcutta Engineering College & On ( AIR 1960 Cal. 409 ), the Calcutta Engineering College, being a Society registered under the Societies Registration Act of 1860, "as sued in its registered name. The Court held that s. 6 the said Act does not make a suit against a registered Society incompetent. The Court constructed s. 6 of the Act as only permissive. In Satyavari Sidhantalankar v. Arya Samaj (AIR 1946 Bombay 516) also the same view was taken. 23. The principles and interpretation of law laid down in the above cases apply with equal force to a Society registered under the West Bengal Societies Registration Act of 1961. For, the provisions of s. 19(1) of the State Act regarding institution of suits are materially the same as the corresponding provisions in the Central Act, the only difference being in the designation of the office bearers mentioned in the relevant provisions of the two Acts. 24. In the Central Act the Registering Authority is the Registrar of Joint Stock Companies, but in the State Act the Registering Authority is not designated as the Registrar of Joint Stock Companies. In view of this, it was so light to impress upon us that a Society registered under' the Central Act is a legal entity like a Company incorporated under the Companies Act, and so it is competent for such a Society to sue or be sued in its own name. In view of this, it was so light to impress upon us that a Society registered under' the Central Act is a legal entity like a Company incorporated under the Companies Act, and so it is competent for such a Society to sue or be sued in its own name. The position, it is argued, is otherwise in the case of a Society registered under the State Act. Such an argument does not at all appeal to us. The Registrar of Joint Stock Companies while discharging functions under the Societies Registration Act of 1860 does not discharge any function under the companies Act, but functions under the Societies Registration Act as the Registering Authority. 25. Whether a Society obtains the status of a separate legal entity depends upon the provisions and scheme of the Act under which it is registered, and not upon the description or designation of the officer appointed to discharge the functions of registration under the Act. 26. The provisions of the Central Act and the State Act relating to the status and character of the Societies registered under these Acts are materially of the same kind. So, there is no reason why a Society registered under the State Act should not also be recognised as being a legal entity for institution of a suit by or against it, when a Society registered under similar provisions of the Central Act is accepted as a legal entity. 27. Further, Section I of the Central Act of 1860 has been amended in its application to different states namely (a name to few, Andhra Pradesh Assam. Bihar, Kerala, Orissa. Nagaland and Uttar Pradesh so as to substitute the words "Registrar of Joint Stock Companies" by such words as ''Inspector General of Registration", "Registrar of Societies", "Registrar". 28. These amendments make it clear that a Society registered under the Central Act of 1860 is taken to be a legal entity with a legal status not because in the original s. 1 of the Act the Registrar of Joint Stock Companies, is shown as the Registering Authority, but because the scheme and provisions of the Act lend to give a registered Society such a status. 29. 29. 11 appeals to us to hold the view that a Society registered under the West Bengal Societies Registration Act is also a legal entity like one registered under the corresponding Central Act, and that like the provisions of s. 6 of the Central Act the provisions of s. 19(1) of the State Act are not mandatory but permissive. No objection can, therefore, be taken to the institution of the instant suit against the Indian Institute of Management in its registered name. 30. The learned Counsel for the appellant, Indian Institute of Management drew our attention to a Division Bench decision of our Court in 12, I.C. Base Road Tenants Association v Collector of Howrah & Ors. reported in 82 CWN 33 to strengthen his argument that the suit we are considering is not maintainable against the appellant in its registered name. In the case cited, 12 I. C. Bose Road Tenants Association, a Society registered under the West Bengal Societies Registration Act, filed a writ petition challenging certain declarations under s. 6 of the Land Acquisition Act relating to premises nos. 12 and 16 I.C. Bose Road. The members of the Society were in occupation of or were otherwise interested in those premises, But the writ petition was filed by the Society in its registered name. 31. The question arose whether in the above case the Society could maintain the action under Article 226 of the Constitution of India. On merits the Court held that the Society had no locus standi to maintain the action in as much as the right which is the foundation of an application under Article 226 of the Constitution is a personal and individual right. 28. The Court, however, also made an observation that the writ petition was also incompetent because it had been filed by the Society and not by the President, Secretary 0f any other office bearer in terms of s. 19(1) of the West Bengal Societies Registration Act. It is on this observation that reliance is placed by the appellant. 33. In our view, the aforesaid observation of the Court was only an abiter dictum. As the Court has recorded in its judgment, the point regarding maintainability of the writ petition by the Society in its registered name was not taken by the respondents either before the. It is on this observation that reliance is placed by the appellant. 33. In our view, the aforesaid observation of the Court was only an abiter dictum. As the Court has recorded in its judgment, the point regarding maintainability of the writ petition by the Society in its registered name was not taken by the respondents either before the. Trial Judge or before the Division Bench Secondly even if the writ petition had been filed by the President or Secretary of the Society, it would be a writ petition not by the President or the Secretary in their personal capacity but for and on behalf of the Society. And in that case too on the same finding on merits reached by the Court, the writ petition would fail as the Society as such could not claim any legal right for invoking Article 226. 34. Thus, the relevant observation in 82 CWN 33, relied upon by the appellant being an obiter according to our understanding cannot help the appellant in this case. 35. For the foregoing reasons, we are of opinion that the findings of the learned Additional District Judge in the connected suit are correct and we affirm the same. 36. Accordingly, the instant appeal is dismissed and the judgement and decree under appeal are affirmed. We make no order as to costs. Sachi Kanta Hazari, J. I agree. Appeal dismissed.