MONORAMA PAUL v. MATA PRASAD PODDAR — 1991 DIGILAW 189 (CAL)

M. R. MALLICK, J. ( 1 ) THIS is an appeal against the judgment and decree passed by the judge, 8th Bench, City Civil Court at Calcutta dated 11th October, 1985 dismissing the plaintiffs/appellants' suit for declaration and permanent injunction. ( 2 ) THE facts may be briefly stated as follows :-the plaintiffs are the legal heirs and representatives of one Bonbehari Paul, who was a Refugee from East Pakistan permanently settled at Duttapukur within the District of 24-Parganas. On 5. 8. 59 Bonbehari took Lease of the suit room in the ground floor of the Premises no. 11/1, Digambar Jain Temple Road, Calcutta by executing a registered Deed of Lease for 21 years in favour of the defendants and their mother Smt. Panbai. In the Deed of Lease there was no provision for enhancement of rent but as demanded by the Lessors and after the inception of the Lease Bonbehari agreed to pay and actually paid Rs. 55/- per month payable according to Hindi Calendar months even though the rent originally fixed was Rs. 50/- per month. During the lifetime of Bonbehari a notice dated 6. 2. 76 was served upon Bonbehari calling upon him to deliver peaceful possession of the above shop room, which is the subject matter of the present suit. The Lessors thereafter filed a suit u/s. 41 of the Presidency Small Causes Court Act in the Presidency Small Causes Court, Calcutta against Bonbehari for eviction on the ground of default and sub-letting. The suit was registered as No. 1476/76. Bonbehari filed a Written Statement in the said suit and was contesting. During the pendency of the suit Bonbehari died and the plaintiffs were substituted in his place and filed a Written Statement again. On 23. 6. 83 the said suit was decreed ex parte. An application under Order 9 Rule 13 C. P. Code was filed by the present plaintiffs but the same was rejected. An appeal was preferred against the said order of rejection in the Hon'ble High Court at Calcutta and in F. M. A. T. No. 118/84 and under Order of the Division Bench, the plaintiffs deposited Rs. 6100/- being the entire arrear rent due in the Small Causes Court, Calcutta. The appeal was, however, dismissed by the Division Bench with liberty to file a suit in the City Civil Court at Calcutta u/ss. 6100/- being the entire arrear rent due in the Small Causes Court, Calcutta. The appeal was, however, dismissed by the Division Bench with liberty to file a suit in the City Civil Court at Calcutta u/ss. 47 and 49 of the Presidency Small Causes Court Act that is why the plaintiffs have filed the present suit contending, inter alia, that the decree for ejectment passed against them in the Suit No. 1576/76 is void and without jurisdiction because the plaintiffs are governed by the provision of the West Bengal Premises Tenancy Act because of the termination of the Lease due to enhancement of rent from Rs. 50/- to Rs. 55/- per month and a new tenancy under the provision the West Bengal Premises Tenancy Act have been created. The plaintiffs have, therefore, filed the present suit for declaration that the decree in Suit No. 1576/76 of the Small Causes Court, Calcutta not binding that the plaintiffs are tenants at a rental of Rs. 55/- per month and for permanent injunction restraining the defendant from taking delivery of possession of the suit room on execution of the decree passed in the above suit. ( 3 ) THE defendants contested the suit by filing a Written Statement. It was contended that the Deed of Lease specifically stipulated that in case of increase in the Corporation tax, the Lessee would be liable for proportionate increase in rent in the occupier's share of tax, that Bonbehari on being fully satisfied about the enhancement of Corporation tax agreed to enhance the rent to Rs. 55/- per month, that the suit in the Small Causes Court was a valid suit filed by the defendants and the decree by them is also valid and binding upon the present plaintiffs. It is also denied that because of the enhancement of rent from Rs. 50/- to Rs. 55/- per month a new tenancy has been created under the provision of the W. B. Premises Tenancy Act. It is further contended that as the Lease has been terminated by efflux of time, the plaintiffs are bound to deliver the vacant possession on the strength of the decree passed in Suit No. 1476/76. ( 4 ) THE Ld. 55/- per month a new tenancy has been created under the provision of the W. B. Premises Tenancy Act. It is further contended that as the Lease has been terminated by efflux of time, the plaintiffs are bound to deliver the vacant possession on the strength of the decree passed in Suit No. 1476/76. ( 4 ) THE Ld. Trial Judge on considering the evidence adduced by the parties has held that the decree passed in S. C. C. Suit No. 1476/76 is valid, that the rent was enhanced as there was increase in the Municipal tax from the 3rd Quarters of 1963-64 and consequently in accordance with the Clause 2 of the Deed of Lease there was enhancement of rent and there was no question of termination of tenancy as a result of such enhancement of rent and the case of the plaintiffs that the new tenancy was created which is governed by the provision of the W. B. Premises Tenancy Act is not correct. In the result, the Ld. Trial Judge has dismissed the suit. ( 5 ) BEING aggrieved the plaintiffs have preferred this appeal. It is contended by the appellants that on a proper construction of the registered Deed of Lease dated 5. 9. 59 between the respondents and their mother, since deceased and Late Bonbehari Paul, the predecessor-in-interest of the appellants and having regard to the fact that the rent of the suit room was enhanced from Rs. 50/- to Rs. 55/- in the year 1964 without any increase whatsoever in the Corporation tax, the Court belowerred in law in not holding that the unilateral enhancement of rent from Rs. 50/- to Rs. 50/- to Rs. 55/- in the year 1964 without any increase whatsoever in the Corporation tax, the Court belowerred in law in not holding that the unilateral enhancement of rent from Rs. 50/- to Rs. 55/- in the year 1964 without any increase in the amount of Municipal tax the respondents acted dehors the registered Deed of Lease and contrary to the covenants thereof thus giving go-by to the said Deed and creating a new tenancy in favour of the predecessor-in-interest of the appellants and on his death in favour of the appellants themselves, that the Deed of Lease thus became defunct and extinguished by the voluntary acts of the respondents and this created a new tenancy within the meaning of W. B. Premises Tenancy Acts and that consequently the suit for ejectment filed by the present respondents in the Court of Presidency Small Causes for eviction is without jurisdiction and the impugned decree of order being null and void is not enforceable in law. ( 6 ) IT is also contended that the respondents have failed to prove that in 1963-64 there was any enhancement of Municipal taxes and consequently the enhancement not being authorised by the Agreement stood extinguished as soon as such enhancement was made and the Ld. Trial Judge erred in law in not holding that there was no Municipal tax during the period and that the payment of receipt of the enhanced rent @ Rs. 55/- per month was contrary to the terms of the registered Deed of Lease amounting to the extinguishment of the Deed and creation of a new tenancy between the parties. ( 7 ) THE appeal has been contested by the respondents. At the time of the hearing, however, the Ld. Advocate for the appellants has urged a new legal ground contending, inter alia, that the Lease Deed even though for 21 years did not attract sec. 3 (1) of the W. B. Premises Tenancy Act being a Lease for business purposes and, therefore, to such Lease for business purposes even if it was for a fixed period of 21 years, the provision of the W. B. Premises Tenancy Act was attracted to the Lease and the appellants have protection against eviction even after the expiry of the Deed of Lease. ( 8 ) THIS contention of the appellants has been seriously disputed by the Ld. Advocate for the respondents. ( 8 ) THIS contention of the appellants has been seriously disputed by the Ld. Advocate for the respondents. Section 3 of the W. B. Premises Tenancy Act is re-produced below :-"s. 3. Certain provision of the Act not to apply to certain leases.- (1) The provisions relating to rent and the provisions of sections 31 and 36 shall apply to any premises held under a lease for residential purpose of the lessee himself and registered under the Indian Registration Act, 1908 (XVI of 1908) where- (a) such lease has been entered into on or after the 1st December, 1948, and (b) such lease is for a period of not more than 20 years, and save as aforesaid nothing in this Act shall apply to any premises held under a lease for a period of not less than 15 years. Not withstanding anything to the contrary contained in sub-section (1) but subject to sub-section (3) of section 1 this Act shall apply to all premises held under a lease which has been entered into after the commencement of the West Bengal Premises Tenancy (Amendment) Ordinance, 1965 : provided that if any such lease is for a period of not less than 20 years and the period limited by such lease is not expressed to be terminable before its expiration at the option either of the landlord or of the tenant, nothing in this Act, other than the provisions relating to rent and the provisions of sections 31 and 36, shall apply to any premises held under such lease. " ( 9 ) THE Deed of Lease entered into between Bonbehari Paul and the present respondents and their mother dated 5. 8. 59 was admittedly for a business purpose and for a term of 21 years. But on careful perusal of the above provision of section 3 we are satisfied that even if the Lease Deed is not for residential purpose but for business purpose, the provisions of W. B. Premises Tenancy Act are clearly excluded to such registered Deed of Lease. Therefore, the first contention of the appellants cannot be accepted and must be rejected. ( 10 ) THE main contention of the appellants is that the enhancement of rents in 1964 by the respondents from Rs. 50/- to Rs. Therefore, the first contention of the appellants cannot be accepted and must be rejected. ( 10 ) THE main contention of the appellants is that the enhancement of rents in 1964 by the respondents from Rs. 50/- to Rs. 55/- had the effect of extinguishment of the registered Deed of Lease as such enhancement was made dehors the expressed term of the registered Deed of Lease and it must be deemed that because of such enhancement of rent the registered Deed of Lease was extinguished and is with effect from the date of such enhancement of rent a new tenancy governed by the W. B. Premises Tenancy Act has been created and the respondents had, therefore, no right to file a suit for recovery of possession before the Presidency Small Causes Court, Calcutta alleging that there was breach of the terms of the Lease or that the said Deed of Lease had expired and when the tenancy is governed by the W. B. Premises Tenancy Act, a suit for ejectment could not be filed before the Presidency Small Causes Court and such a suit would have to be filed in the City Civil Court at Calcutta. On behalf of the respondents the above contention has been seriously disputed. It is contended that Late Bonbehari Paul who died during the pendency of the S. C. C. Suit No. 1476/76 filed a written statement, a copy of which is annexed in the Part II of the Paper Book and from a perusal of the same it is clear that he did not take such a plea before the S. C. C. Court that the Deed of Lease had been extinguished because of the enhancement of rent from Rs. 50/- to Rs. 55/- contrary to the provision of the registered Deed of Lease. But on the contrary he supported the Lease and only denied that he committed any breach of any of the terms of the Lease and that it is the present appellants on being substituted took up this plea in the written statement filed, but the substituted defendants cannot take a defence in consistent with the defence filed by the original defendants and, therefore, such defence was not entertainable by any Court of Law. ( 11 ) IT is further contended that there is a specific provision in the Deed of Lease for enhancement of rent consequent upon the enhancement of Municipal tax that Bonbehari Paul on being satisfied about such enhancement agreed to enhance rent from Rs. 50/- to Rs. 55/-, that by such enhancement of rent specifically provided in the Lease Deed the parties did not act dehors the registered Deed of Lease and there was no scope of the parties abandoning the registered Deed of Lease and creating a fresh tenancy governed by the provision of the W. B. Premises Tenancy Act. ( 12 ) WE have carefully considered the submissions made by the Ld. Advocates of both the parties. It is a fact that Bonbehari Paul in his written statement filed before the S. C. C. Court, Calcutta in para 5 he denied that the rent was enhanced but relied on the registered Deed of Lease. In other paragraphs he denied that he committed any breach of the covenants of the registered Deed of Lease. Therefore, it is a fact that the original defendants did not take the plea that the Deed of Lease has been extinguished by the enhancement of rent from Rs. 50/- to Rs. 55/ -. It is also a fact that the present appellants on being substituted took that plea for the first time. It is well-settled that the substituted defendants cannot take a defence in consistent with that taken by the original defendants. ( 13 ) LET us now see as to whether the case of the present appellants that there was either express or implied surrender of the registered Deed of Lease only by the enhancement of rent from Rs. 50/- to Rs. 55/- with effect from 1964 is true on merits or not. Even though in the plaint the plaintiff / appellants denied that in the Deed of Lease there was any provision for enhancement of rent but Clause 2 of the Deed of Lease clearly stipulates that there would be an enhancement of rent consequent upon the enhancement of Municipal tax. Before the Ld. Even though in the plaint the plaintiff / appellants denied that in the Deed of Lease there was any provision for enhancement of rent but Clause 2 of the Deed of Lease clearly stipulates that there would be an enhancement of rent consequent upon the enhancement of Municipal tax. Before the Ld. Trial Judge some assessments copies of assessment register and the certified copy of the order passed in Appeal against the order of assessment passed by the Calcutta Municipal Corporation were produced to justify the respondents' case that at about the time when there was enhancement of rent from Rs. 50/- to Rs. 55/- there was actually the enhancement of the Municipal taxes. ( 14 ) THE Ld. Advocate for the appellants has taken great pains to point out from those documents that there was no satisfactory evidence before the Ld. Trial Judge that there was actually such an enhancement of Municipal Taxes justifying the enhancement of rent from Rs. 50/- to Rs. 55/ -. It is contended that the respondents had several tenants and they are unable to justify as to how there could be enhancement of Rs. 50/- to Rs. 55/- when sufficient evidence was not produced to justify such enhancement. ( 15 ) THE appellants do not dispute that Bonbehari Paul agreed to enhancement of rent. That is also the case of the respondents. The respondents had several tenants. It must be presumed that they approached the tenants for enhancement and tenants on being satisfied might have agreed to such enhancement and have been paying rent at the enhanced rate. When the Lease Deed clearly provided for enhancement of rent and if in terms of such Lease Deed the Lessors asked for enhancement and that the Lessee agreed to such enhancement, we are unable to hold that such enhancement is dehors the terms of the Lease for the Court to come to the conclusion that there was either express or implied surrender of the registered Deed of Lease and a new tenancy at the enhanced rate governed by the W. B. Premises Tenancy Act was created. ( 16 ) ON behalf of the respondents a decision of Division Bench of our High Court reported in AIR 1984, Cal 194 M/s. D. S. Commercial (P) Ltd. v. S. S. Jain Sabha have been referred to us. The same decision was also referred to before the Ld. ( 16 ) ON behalf of the respondents a decision of Division Bench of our High Court reported in AIR 1984, Cal 194 M/s. D. S. Commercial (P) Ltd. v. S. S. Jain Sabha have been referred to us. The same decision was also referred to before the Ld. Trial Judge. In the said decision the Division Bench of our High Court even in respect of a registered Lease where there was no express provision for enhancement of rent on the finding that the rent was enhanced during the currency of the Lease refused to hold that there was implied surrender of the registered Deed of Lease only because of such enhancement of rent. The Division Bench has observed that in an even in such case the Lessor and the Lessee might purport only to alter the amount of rent payable under registered Deed of Lease without further intending to create a fresh Lease and in such a case there being no intention on the part of the Lessor and the Lessee to create a new relationship there would be no implied surrender of the previous registered lease merely because the rate of rent had been altered. It has further been observed that where the parties intend to create a new relationship and in pursuance thereof altered the rate of rent previously payable by operation of law, the previous Lease is determined and, therefore, when the rate of rent is altered the cardinal question will be whether thereby the parties had intended to create new relationship between them or merely agreed to alter the rate of rent. ( 17 ) WE have already indicated that the above Division Bench decision has been rendered to in a case where there was no agreement for enhancement of rent. In this case we find that there was a specific provision for enhancement of rent on the ground of enhancement of Municipal taxes. Therefore, the parties could enhance the rent keeping Lease Deed effective and operative. In this case we find that there was a specific provision for enhancement of rent on the ground of enhancement of Municipal taxes. Therefore, the parties could enhance the rent keeping Lease Deed effective and operative. We are of the view this was exactly what was done by the parties and even if we could take the view that the appellants-respondents before us could not produce sufficient evidence justifying the enhancement of rent on the ground of enhancement of Municipal taxes yet when on the ground of enhancement of Municipal taxes the Lessee agreed to enhance the rent and paid at the enhanced rate from that circumstance alone it cannot be held that the parties intended to surrender the registered Deed of Lease and to create a new relationship. When the enhancement of rent was clearly stipulated in the Deed of Lease, then such a situation would not arise and the enhancement could be deemed to be in accordance with the provision of the Lease Deed. So, in this case there would be no scope for raising a presumption that the parties having enhanced the rent from Rs. 50/- to Rs. 55/- a new tenancy relationship has been created after surrendering the registered Deed of Lease. ( 18 ) IN view of the above, we are unable to hold that the contention of the appellants that the tenancy of the appellants is governed by the W. B. Premises Tenancy Act or that there was a surrender of the registered Deed of Lease because of the enhancement of rent from Rs. 50/- to Rs. 55/- is at all acceptable. The Presidency Small Causes Court had a sufficient jurisdiction to entertain the suit and regard being had to the fact that the registered Deed of Lease had expired prior to the date of the filing of the suit, the decree for eviction passed by the Presidency Small Causes Court was a valid decree and cannot be interfered with. The appeal is, therefore, dismissed on contest with cost. Three months time is given to the appellant to vacate the suit premises failing which the decree shall be executable. M. N. Roy, J. , I agree. Application dismissed.