Kamala Kant Roy v. Radheshyam Agarwalla — 1998 DIGILAW 183 (CAL)

JUDGMENT K.J. Sengupta, J.: The appellant approached this Court in this appeal impugning eviction decree passed against her in the capacity of the Secretary of an unregistered association and/or body of the Managing Committee of Sri Basistha Bal Vidyalaya. The eviction suit was filed by the respondent no. 1 in the capacity of the sole executor to the estate of late Suraj Bai. The suit was filed originally on the ground of default in paying monthly rent by the tenant to the landlord and reasonable requirement. Following determination of tenancy under section 13(6) of the West Bengal Premises Tenancy Act, 1956 the suit was filed. Subsequently on the changed circumstances the plaint was amended by adding additional grounds relating to illegal transfer and/or subletting and/or assignment of the suit premises and also for unauthorised and masonry construction in contravention of clauses (m), (o) and (p) of section 108 of the Transfer of Property Act. In the plaint it was stated that the tenancy was granted in the name of the said school which was and still is being run and/or managed and/or administered by an unregistered association consisting of several members and secretary thereof. Since the said association is an unregistered and fluctuating body and consisting of numerous unidentified persons, the plaintiff filed the aforesaid suit after obtaining leave under Order 1 rule 8 of the Code of Civil Procedure. It appears from the records that leave under Order 1 Rule 8 of the C.P.C., was granted and an advertisement was issued in the daily newspaper “Biswamitra”. Having noticed such advertisement and/or public notice the appellant before us made an application for adding herself as a party defendant and such addition was allowed. Thereafter none appeared to contest the said suit excepting the appellant. It further appears from the records that the present appellant made an application under section 17(2A)(b) of the West Bengal Premises Tenancy Act, 1956. Subsequently the said application was dismissed on contest and the said order of dismissal was not challenged before any higher forum. 2. The appellant before us filed her written statement to contest the suit claiming herself to, be the present secretary of the said unregistered association. In the written statement she took a plea to the effect that school being an admitted tenant has not been served with the eviction notice nor the school has been made a party to the suit. The appellant before us filed her written statement to contest the suit claiming herself to, be the present secretary of the said unregistered association. In the written statement she took a plea to the effect that school being an admitted tenant has not been served with the eviction notice nor the school has been made a party to the suit. As there is no lawful determination of the tenancy upon service of the above notice on the school being the recorded tenant, the suit is not maintainable. In the written statement the ground of default in paying rent has not been denied rather it has by necessary implication admitted. The other grounds, viz. reasonable requirement, subletting and illegal construction have, however, been denied. A specific plea was taken as to the locus standi of the respondent-plaintiff to file the suit was an executor seeking for eviction on the ground of reasonable requirement. It was alleged that the executor not being an owner cannot claim decree for eviction on the ground of reasonable requirement. 3. On the above backgrounds, the learned Trial Judge after having witness action, and appreciation and analysis of evidence passed a decree for eviction on all the grounds and the learned Trial Judge negatived all the contentions raised by the defendant. 4. In the appeal, grounds of attack against the said decree are summarized hereunder : (i) Statutory notice as required under section 13(6) was not served upon the school who was the recorded tenant as such the suit was bad must be dismissed; (ii) Since the school was not made a party to the suit rather the Secretary of the unregistered association had been made defendant, the suit must fail; (iii) The learned Trial Judge has wrongly and erroneously held that there was subletting and/or transfer of the suit premises to the third party without consent in writing of the landlord. (iv) Similar error in law had been committed by the learned Trial Judge by mis-appreciating the evidence while holding that the defendants had made addition and alteration and thereby committed breach of section 108 (m). (o) (p) of the Transfer of Property Act and that the plaintiff/respondent no. 1 reasonably required the suit premises for her own use and occupation as she was not in possession of any reasonable suitable accommodation. (v) The plaintiff/respondent no. (o) (p) of the Transfer of Property Act and that the plaintiff/respondent no. 1 reasonably required the suit premises for her own use and occupation as she was not in possession of any reasonable suitable accommodation. (v) The plaintiff/respondent no. 1 being only an executor cannot maintain the suit for eviction filed on the ground of reasonable requirement; (vi) Alternatively after the probate having been granted the plaintiff/respondent no. 1 qua executor became functus officio and could not proceed with the suit and could not obtain the decree. 5. Mr. Biman Kanti Bose, the learned Senior Advocate appearing for the appellant, submits at the very outset in his usual fairness that his client does not' want to press this appeal excepting on the ground of maintainability of the suit for the following reasons. 6. It is an admitted position that tenancy was created in favour of the primary school, viz., Sri Basistha Bal Vidyalaya which at the time of creation of tenancy was run and administered by an unregistered body and/or association but after recognition of the said school by the State of West Bengal under the West Bengal Urban Primary Education Act, 1963 and under the West Bengal Primary Education Act. 1963 the said school acquired the legal status and/or entity and as such is a sui juris. So according to him neither the erstwhile secretary, viz., Sukdey Rai nor the appellant herein is the necessary party. He submits school is the necessary party. He also emphasized that in view of recognition, the State of West Bengal has become the necessary party. As, admittedly notice was not served either upon the said school or upon the State of West Bengal, the notice is invalid and illegal. So the suit based on such illegal and invalid notice is non est apart from the same being defective of non-joinder of necessary party. In support of his submission, Mr. Bose has relied on AIF 1959 SC page 249 (Paragraph-9), AIR 1998 SC page 295 (paragraph-4), 79 CWN 189. So the suit must fail and the decree should be set aside on those grounds only. 7. Mr. Sudhis Dasgupta, Senior Advocate, appearing with Mr. In support of his submission, Mr. Bose has relied on AIF 1959 SC page 249 (Paragraph-9), AIR 1998 SC page 295 (paragraph-4), 79 CWN 189. So the suit must fail and the decree should be set aside on those grounds only. 7. Mr. Sudhis Dasgupta, Senior Advocate, appearing with Mr. Shyama Prasanna Roy Chowdhury, Seniot Advocate, Subhra Kamal Mukherjee and Debasis Roy, Advocates for the respondent no 1/plaintiff" submits that on the point of maintainability the appellant is estopped from contending that the suit is not maintainable as the school has not been made a party or school should be served with a notice of eviction. Mr. Dasgupta draws our attention to the averment made in paragraph-9 of the written statement wherein the appellant admitted that the said school is an unregistered association and having its Managing Committee, member whereof are elected every three years. It is further admitted in the said paragraph that the appellant herself has been elected as a secretary and she is also one of the members of the Managing Committee. Mr. Dasgupta submits that on the face of the aforesaid unequivocal admission the school cannot have any legal entity nor it can be termed as sui juris. The school is run and administered by an unregistered Managing Committee and/or association. Accordingly, this suit was filed after obtaining leave under Order 1 Rule 8 of the Code of Civil Procedure as there are numerous persons having interest in the management and administration and affairs of the said school. Necessary public notice was given in terms of the order of the learned Trial Judge. In response to such public notice circulated in the daily local newspaper the appellant has come forward to contest the suit. Mr. Dasgupta has drawn our attention to an old decision of this Court, reported in 1974 CLJ page 436. He submits that suit in view of the decision as above, a suit can be filed against a member of the unregistered Managing Committee of the school after obtaining leave under Order 1 Rule 8 of the C.P.C. It has been held in the said decision that secretary of the Managing Committee is to be in-charge of the management and the affairs of the school. Mr. Mr. Dasgupta has drawn' our attention to a decision of the Supreme Court on the applicability of the provisions of Order 1 Rule 8 of the C.P.C. reported in AIR 1990 SC page 642. So Mr. Dasgupta says that it was not at all necessary under the law to serve any eviction notice upon the said school nor the said school ought to have been made a party. 8. Mr. Dasgupta submits that so far service of eviction notice is concerned the same has been sent by Registered Post with Acknowledgement due and upon pre-paid fees through usual postal communication. The acknowledgement card has been returned and a person has received on behalf of the appellant respondent no. 2. So under the law it is a good and valid service and the Court will also presume such notice has been served the moment a person on behalf of the addressee has been received. He relies on and cites three decisions on this point viz. (i) AIR 1977 SC 1120 (ii) AIR 1982 Cal 127 and (iii) 23 CWN 77. He urges that the defendant/appellant has not even denied about such service nor any suggestion put to the witness of the plaintiffs on the point of service of the notice. The defendant/appellant even has not proved that such notice was not served upon her nor she has stated that she has not given any authority to any person to receive such notice. So this argument of Mr. Bose advanced on behalf of the appellant is fallacious and there is no reason to upset the decree on the above ground. 9. We have heard the respective submission of the learned Lawyers. Mr. Bose though pressed the appeal urging on the point of maintainability but we have decided to consider and examine the rest of the grounds taken in the memorandum of appeal in order to decide the sustainability of the decree. We shall decide the question of maintainability first. It is an admitted position that tenancy has been granted in the name of the school and the rent receipt issued by the landlord plaintiff as produced by the defendant/appellant proves so. It is an admitted position that at the time of grant of tenancy the school was being run and was administered by an unregistered Managing Committee consisting of members and secretary. It is an admitted position that at the time of grant of tenancy the school was being run and was administered by an unregistered Managing Committee consisting of members and secretary. School is not a legal entity nor it is a sui juris unless of course it is recognised and/or accepted by any statute. In the memorandum of appeal, as well as, Mr. Bose has urged that since the school has been recognised by the Government under the provisions of West Bengal Urban Primary Education Act. 1963 and West Bengal Primary Education Act, 1963 the school acquired a legal entity and/or status. So the school is the tenant and juristic body. This argument might have required our thoughtful consideration but the aforesaid two Acts have now been repealed by the present Act. viz., West Bengal Primary Education Act. 1973 section 105 of the aforesaid Act. Unless averment is made on the commencement of the new 1973 Act although at the time of the institution of the suit the present Act had come into force. It has not been stated and/or averred in the written statement as to the effect and implication of the said 1973 Act vis-a-vis the said school. So we hold that the school did not acquire any legal entity as it has been emphasized by Mr. Bose on the face of the pleading, viz., written statement. Therefore, the judgement cited by Mr. Bose in support of his submission do not apply in this case unless such case is pleaded in the written statement. So far the question of non-joinder of necessary party by not bringing the State of West Bengal as a party defendant is concerned the same has not been pleaded nor on the facts and circumstances as above State of West Bengal is not necessary. So we cannot embark upon enquiry into the same nor it would be proper for us without having any pleading to scrutinize the decree on that point. 10. It is an admitted position that the school was and still is being run by unregistered association and/or Managing Committee that is being represented by the appellant herein and previously by the proforma respondent/defendant no. 1. 10. It is an admitted position that the school was and still is being run by unregistered association and/or Managing Committee that is being represented by the appellant herein and previously by the proforma respondent/defendant no. 1. Even the appellant after having been notified by the advertisement in terms of the leave granted by the trial Court under Order 1 Rule 8 of C.P.C. had come forward and got herself to be added as party defendant to contest the suit claiming herself to be an interested person in the suit itself. She had filed an application under section 17 rule 2(A) (b) of West Bengal Premises Tenancy Act and holding herself out to be the secretary of the Managing Committee of the said school. So we hold that the suit is perfectly maintainable. So far the question of service of the ejectment notice is concerned it has been duly received for and on behalf of the secretary of the Managing Committee and said notice has been served by Registered Post with Acknowledgement due. The appellant herein has neither proved nor any suggestion was put to the witness of the plaintiff/respondent that the said ejectment notice was not served upon the addressee. In the premises, relying on the principle decided and laid down in the decisions AIR 1982 Cal 127 , 23 CWN 77 cited by Mr. Dasgupta we hold that the statutory notice has been served upon the defendant/appellant. We hold the notice is good, valid and the same has been properly served. We have read and examined the contents of the notice in its entirety. We found therein that the notice is of dated 24th March, 1975 and the defendant/tenant was required to quit and vacate the suit premises on the expiry of last day of April, 1975 or on the expiry of the last day of your month of tenancy which will expire next after the expiry of thirty days from the date of receipt of this notice. We are of the view that the relevant portion of the notice is clear and without any ambiguity. The appellant admitted in his written statement in paragraph 10 that the tenancy was according to English Calendar month. We are of the view that the relevant portion of the notice is clear and without any ambiguity. The appellant admitted in his written statement in paragraph 10 that the tenancy was according to English Calendar month. Mere addition of further sentence to the effect “or on the expiry of the last day of your month of tenancy which will expire next after the expiry of thirty days from the date of receipt of this notice" does not render the notice invalid. The decision of Supreme Court cited by Mr. Dasgupta reported in AIR 1977 SC 1120 has laid down the law that a notice to quit must be construed not with a desire to find faults in it, which would render it defective, but it must be construed ut res magis valeat quam pereat. We apply the above principle and hold that the notice is good and valid. 11. The suit is based mainly on four grounds, viz., (i) default in paying rents more than 3 months, (ii) illegal and unlawful subletting and (iii) reasonable requirement and (iii) addition and alteration. The default in paying rent has been admitted in the written statement. Still then the learned Trial Judge has found on evidence and further on dismissal of the 17(2)(b) of the said Act, the ground of default has been proved conclusively. The suit should have been decreed on that ground alone, None the less the learned Trial Judge has taken the pain of enquiry into the other grounds. We have perused the evidence of both sides and further gone through the reasoning and judgment and further appreciation of the evidence of the learned Trial Judge. We found that the reasonable requirement has been proved not only by the plaintiffs witness, viz., PW-2 but it has also been proved by the report of the learned Pleader Commissioner that the plaintiff has not other alternative accommodation. Unauthorised subletting and transfer of tenancy right and erection of permanent structure have been proved both by the evidence of the plaintiff, as well as, the learned Pleader Commissioner. Therefore all the grounds have been proved in order to obtain the decree in the suit. 12. So far the question of maintainability of the suit for eviction on the ground of reasonable requirement is concerned we hold that the suit is maintainable. 13. Therefore all the grounds have been proved in order to obtain the decree in the suit. 12. So far the question of maintainability of the suit for eviction on the ground of reasonable requirement is concerned we hold that the suit is maintainable. 13. The language of the section 13(1) (ft) of the West Bengal Premises Tenancy Act, 1956 is explicitly clear to enable us to hold so. We conveniently quote the portion of the aforesaid section herein below: “13 (ff). Subject to the provisions of sub-section 3A, where the premises are reasonably required by the landlord for his own occupation if he is owner or for the occupation of any person for whose benefit the premises are held and the landlord or such person is not in possession of any reasonably suitable accommodation.” 14. Here the plaintiff/respondent no. 1 admittedly has filed the instant suit as executor to the estate of the original landlord/owner. Under the provisions of the Indian Succession Act, 1925 the powers and duties of the executors whether probate granted or not, if the probate has been granted, till assent to legacy is given to the named legatee and/or beneficiaries of the will, remains as of a trustee and he holds the said estate for the benefit of the named legatee and/or beneficiaries. Since the present suit admittedly having been filed by the plaintiff in the capacity of the executor the suit is quite lawful and valid as we have already observed. 15. Next point whether after probate having been granted executor has got any locus standi to file a suit or not. Under the provision of the section 211 of the• Indian Succession Act, 1925 on death of the testator the properties vest unto and in favour of the named executor in terms of the will. He continues to hold the same until the assent to legacies is given by executing a proper instrument to the named legatee and/or beneficiary. In this case nobody has said whether assent to legacy has been given or not. So the presumption is the plaintiff still continues as an executor. So we hold that the suit is perfectly maintainable at the instance of the plaintiff as an executor even after probate has been granted. 16. On the discussion and observation and findings as above we have no hesitation to affirm the decree passed by the learned Court below. So the presumption is the plaintiff still continues as an executor. So we hold that the suit is perfectly maintainable at the instance of the plaintiff as an executor even after probate has been granted. 16. On the discussion and observation and findings as above we have no hesitation to affirm the decree passed by the learned Court below. The learned Trial Judge has painstakingly taken into consideration of all the evidence and discussed all the law points properly while passing the decree. Thus the appeal fails and the same is hereby dismissed with costs assessed at 30 G.ms. All interim orders stand vacated. T. Chatterjee, : I agree. Appeal dismissed.