Research › Browse › Judgment

Calcutta High Court · body

1992 DIGILAW 209 (CAL)

DEBRAJ WADHERA v. ASHRAF ALI

1992-05-28

PARITOSH KUMAR MUKHERJEE

body1992
P. K. MUKHERJEE, J. ( 1 ) THIS is an application for re-calling, modifying and/or rescinding the order dated April 6, 1992, passed by me. By the said judgment dated April 6, 1992, this Court after hearing the submissions of both the sides and after considering the decisions cited from the Bar, was pleased to dismiss the Second Appeal, treating that there was no substance in the Second Appeal, for which the present application has been filed, for re-consideration of the said judgment. ( 2 ) IT appears from the said judgment, that this Court had noted the submissions of Mr. Sourendra Prasad Ghosh, learned Advocate for the tenant-appellant to the effect that "sub-letting" cannot be inferred, and that must be proved, as it has been observed by Supreme Court in the case of Messrs. Delhi Stationers and Printers v. Rajendra Kumar reported in AIR 1990 SC 1208 . ( 3 ) IT further appears from the said judgment that this Court did not follow the said latest judgment of the Supreme Court, but was inclined to follow the earlier judgment of Supreme Court, in the case of Bhairab Chandra Nandan v. Ranadhir Chandra Dutta, reported in 1988 (1) Rent Control Journal, page 143. ( 4 ) BY the said judgment, it has been observed by the Supreme Court that where "a tenant" has permanently shifted his residence to another place and left the tenanted place completely to his brother for his occupation, without obtaining the consent of the landlord, the brother in occupation will be the "sub-tenant" and not "a licensee. " ( 5 ) THIS Court has also considered the facts of the present case, as pleaded in the plaint that "the tenancy" in the suit premises originally stood in the name of the present defendant's brother Dharampal, but subsequently, such tenancy was changed, when Dharampal left for Delhi, leaving the defendant in the premises, for his business purpose. For the convenience of the parties, the landlord changed the tenancy in the name of the present defendant, which was continuing. Exhibit 'a' series are the "rent receipts" showing that at one point of time the tenancy was standing in the name of defendant's brother. There are also another set of "rent receipts", standing in the name of the present defendant, which signify that the tenancy was subsequently changed, in the name of the present defendant. Exhibit 'a' series are the "rent receipts" showing that at one point of time the tenancy was standing in the name of defendant's brother. There are also another set of "rent receipts", standing in the name of the present defendant, which signify that the tenancy was subsequently changed, in the name of the present defendant. ( 6 ) THIS Court had also considered the submission of the tenant appellant that both the courts below erred in law as well as in fact in arriving at the necessary conclusion that the original tenant left the premises leaving the present defendant, as sub-tenant, although the fact of payment of consideration could not be proved by the plaintiff in the suit. ( 7 ) ULTIMATELY, this Court took the view that there was no substance in the second appeal and following the decision of the Supreme Court in the case of Deity Pattabhi Ramaswamy v. S. Hanymayya and others, reported in AIR 1959 SC page 1957, took the view that since the second appeal is arising out of a judgment of affirmance, this Court may not interfere, with the finding the fact of sub-letting. ( 8 ) MR. Bijitendra Mohan Mitra, learned Advocate appearing in support of the application for reconsideration or review submitted that relevant facts not having been considered by this Court, "an error" has been committed by this Court, in dismissing the second appeal. ( 9 ) MR. Mitra submitted that sub-letting means transfer of an exclusive right to enjoy the property in favour of the third patty and the said right must be in lieu of payment of some compensation of rent. Parting of legal possession means possession with the right to include and also a right to exclude others. Mere occupation is not sufficient to infer either sub-tenancy or parting with possession. This fact was not at all considered by this Court. ( 10 ) SO, according to Mr. Mitra, there should be adequate finding to that effect by the Court and the courts below should have taken into consideration the established principle that there has been a new jural relation, between the landlord and the sub-tenant. ( 11 ) IN his connection, Mr. Mitra referred to the latest judgment of Supreme Court, in the case of Delhi Stationers and Printers v. Rajendra Kumar (supra ). ( 11 ) IN his connection, Mr. Mitra referred to the latest judgment of Supreme Court, in the case of Delhi Stationers and Printers v. Rajendra Kumar (supra ). ( 12 ) IN paragraph 5 of the said judgment the Supreme Court, observed as follows :-"under section 13 (1) (e) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, the tenant is liable to be evicted if he has assigned, sublet or otherwise parted with the possession of the whole or in part of the premises without the permission of the landlord. Sub-letting means transfer of an exclusive right to enjoy the property in favour of the third party and the said right must be in lieu of payment of some compensation or rent. Parting of the legal possession means possession with the right to include and also a right to exclude others. Mere occupation is not sufficient to infer either subtenancy or parting with possession. " ( 13 ) IN support of his submission, relating to scope of review under Order 47 Rule 1 of Civil Procedure Code, Mr. Mitra also referred to a Division Bench decision of Mysore High Court, in the case of The Selection Committee for Admission to the Medical and Dental College, Bangalore v. M. P. Nagaraj, reported in AIR 1972 Mysore, page 44. ( 14 ) AT paragraph 24 of the said judgment the Division Bench of Mysore High Court observed as follows :-"article 141 of the Constitution provides that the law declared by the court shall be binding on all courts within the territory of India. Hence, where there is a decision of the Supreme Court bearing on a point and where a court has taken a view on that point, which is not consistent with the law laid down by the Supreme Court, it needs no elaborate argument to point to the error and there could reasonably be no two opinions entertained about such error. Applying the above test laid down by Rajagopala Ayyangar, J. in AIR 1964 SC 1372 , such an error would clearly be an error apparent on the face of the record. The reasoning of Srinavasa Iyenger, J. in AIR 1927 Mad. 998 and of Waller, J. in AIR 1933 Mad. Applying the above test laid down by Rajagopala Ayyangar, J. in AIR 1964 SC 1372 , such an error would clearly be an error apparent on the face of the record. The reasoning of Srinavasa Iyenger, J. in AIR 1927 Mad. 998 and of Waller, J. in AIR 1933 Mad. 731, that a mistake of law apparent from a contrary decision of a superior court, cannot be said to be apparent on the face of the record, cannot prevail in view of the test laid down by the Supreme Court as to what constitutes an error apparent on the face of the record. " ( 15 ) AT paragraph 25 of the said judgment the Division Bench further observed as follows :-"the reasoning of Garth, C. J. , in (1876) IIR I Cal. 184 that a counsel omitting to cite a decided case, ought not to be allowed to demand a second trial and the reasoning of Dawson Miller C. J. , in AIR 1924 Pat. 250 that the ignorance of a party or pleader as to a ruling, ought not to be allowed to be pleaded in support of an application for review cannot prevail against the decision of the Federal Court in Jamna Kuer v. Lal Bahuadur, AIR 1950 FC 131. Mahajan, J. (as he then was), who spoke for the Federal Court said that where there is an error apparent on the face of the record, the question as to how that error occurred, is of no relevance for the purpose of review and that it is immaterial whether such error occurred by reason of the counsel's mistake or had crept in by reason of oversight on the part of the court. " ( 16 ) AFTER placing the aforesaid judgment, Mr. Mitra submitted that the latest judgment of the Supreme Court in the case of Delhi Stationers and Printers v. Rajendra Kumar (supra), is binding upon this Court in view of the provisions of Article 141 of the Constitution and this Court committed an error in not following the said latest judgment of the Supreme Court. ( 17 ) MR. Mitra submitted that the latest judgment of the Supreme Court in the case of Delhi Stationers and Printers v. Rajendra Kumar (supra), is binding upon this Court in view of the provisions of Article 141 of the Constitution and this Court committed an error in not following the said latest judgment of the Supreme Court. ( 17 ) MR. Mitra further submitted that the power of attorney, executed by the petitioner/tenant in favour of his brother, was not considered by both the courts below and this Court also in delivering the impugned judgment, dismissing the second appeal, has not given any evidentiary value to the said power of attorney. ( 18 ) MR. Mitra further submitted that by dismissing the second appeal without considering the relevant fact of the case in the context of family usage and/or custom, this Court fell in error in deciding the question of subletting upon a complete erroneous view resulting a total mis-carriage of justice, surmise and conjecture. He further added that both the courts below and this Hon'ble Court in dismissing the second appeal has committed error of law by not holding that Dharampal being inducted as a tenant in respect of Suite No. 5 as far back in 1952 and the self same tenancy stood transferred in the name of Debraj, being his elder brother, when he started living with him, just by way of courtesy and he having thereafter left for business abroad and leaving his full brother Dharampal, as his constituted attorney, and as such it cannot be suggested by any stretch of imagination that the same is amounting to sub-letting. ( 19 ) HE added that the object and the salient features of the West Bengal Premises Tenancy Act, 1956, being to safeguard the interest of the tenants and to promote their interests from being evicted at the behest of the landlords is a clandestine manner, it may be termed a beneficial piece of legislation towards the tenants. ( 20 ) IT is well settled that in construing the provisions of a Welfare legislation the Courts should adopt what is described as a beneficent rule of construction if the constructions are reasonably, possible to be placed on the sections. It follows that the construction which furthers the policy and object of the Act and more beneficial to the tenants, it has to be preferred. It follows that the construction which furthers the policy and object of the Act and more beneficial to the tenants, it has to be preferred. Another principle to be borne in mind is that the Act in question which intends to improve and safeguard the miseries of tenants, more often at the instance of the landlords, it demands and interpretation liberal enough to achieve the legislative purpose. ( 21 ) THIS being the intendment of the legislature, it is difficult to deviate from the established laws of the land which may find place in decisions on the point. ( 22 ) AS such, there can be no way out than to accept the proposition as laid down in the case of Delhi Stationers and Printers v. Rajendra Kumar (supra), which warrants review or recall of the earlier decision passed by this Court on April 6, 1992. ( 23 ) MR. Bhaskar Bhattacharjee, learned Advocate appearing for the opposite party, on the other hand, submitted that the story of execution of the "power of attorney" has been disbelieved by the courts below and, as such, no reliance can be placed by this Court upon the same, on the hearing of the application for review. ( 24 ) IN reply, Mr. Mitra submitted that the story of sub-letting can be completely ruled out by the fact that, the appellant Debraj Wadhera has been very much living in their native village at Akhnoor in the State of Jammu and Kashmir and has been frequently visiting and living in the concerned premises at 9-A, Lower Range, Calcutta. This fact has been overlooked by this Court in dismissing the second appeal. ( 25 ) THEREFORE, it has become necessary for this Court to consider the merit of this application under Order 47 Rule 1 of the Code of Civil Procedure or the principles analogous thereto, following the decision of the Supreme Court in the case of Moran Mar. Basselios Catholics and Anr. v. Most Rev. Mar. Poulose Athanastus and Ors. , reported in AIR 1954 SC page 526, wherein in interpreting the provisions of Order 47 Rule 1 of the Civil Procedure Code, the Supreme Court relating to "any other sufficient reasons" construed that "any other sufficient reasons" must mean a reason sufficient on grounds, at least analogous to those specified in the rule. Mar. Poulose Athanastus and Ors. , reported in AIR 1954 SC page 526, wherein in interpreting the provisions of Order 47 Rule 1 of the Civil Procedure Code, the Supreme Court relating to "any other sufficient reasons" construed that "any other sufficient reasons" must mean a reason sufficient on grounds, at least analogous to those specified in the rule. ( 26 ) AFTER hearing the rival submissions of both the parties, this Court is of the opinion that following mistakes have been committed by this Court, in dismissing the second appeal by passing a cryptic judgment of four pages, when detailed submissions have been made on behalf of the appellant, relating to sub-letting including reference to the latest judgment of the Supreme Court in the case of Delhi Stationers and Printers v. Rajendra Kumar (supra ). Firstly, in my view, by not following the latest judgment of the Supreme Court in the case of Delhi Stationers and Printers v. Raiendra Kumar (supra), this Court has committed serious error apparent on the face of record. Secondly, this Court is further of the view that the fact of sub-tenancy not having been proved before both the courts below, on the basis of any material evidence, the said sub-tenancy should not have been inferred by the courts below and the appeal should have been allowed on that ground following the aforesaid decisions. Thirdly, when there are two pronouncement of the Supreme Curt on the point of sub-letting, this Court should follow the latest pronouncement, i. e. , the case of Delhi Stationers and Printers v. Rajendra Kumar (supra) and not the earlier judgment, i. e. the case of Bhairab Chandra Nandan v. Ranadhir Chandra Dutta (supra ). ( 27 ) FURTHER, in my view, the power of attorney executed by the present defendant in favour of his full brother, wherein there was unequivocal recital inter alia, to the effect that the Constituted Attorney shall maintain and look after the tenancy on behalf of the present defendant. This being an uncontroverted position, it cannot be said that the present defendant "parted with possession of the tenancy" for ever and for good. This being an uncontroverted position, it cannot be said that the present defendant "parted with possession of the tenancy" for ever and for good. ( 28 ) UNFORTUNATELY, both the courts below did not at all avert to the said factual and legal position and in consequent the finding arrived at cannot be sustained and therefore, the findings of the judgment in the case of Bhairab Chandra Nandan v. Ranadhir Chandra Dutta (supra) cannot be relied upon. ( 29 ) ACCORDINGLY, after considering the rival contentions of both the parties, I am of the view that a strong case has been made out for review and/or rectification of the mistake as committed by this Court by delivery of the earlier judgment dated April 6, 1992. ( 30 ) IN the result, the application for review succeeds and the appeal is accordingly allowed on the ground that sub-tenancy has not been proved before the courts below and in view of the decision of the Supreme Count in the case of Delhi Stationers and Printers v. Rajendra Kumar (supra), sub-tenancy cannot be inferred. The present second appeal accordingly succeeds, and the suit for ejectment, on the ground of sub-letting is dismissed. The judgment and decree passed by the courts below, are set aside. There will be no order as to costs. Application for re-calling and the appeal allowed.