Union of India v. General Beopar Co. Pvt. Ltd. — 1999 DIGILAW 279 (CAL)

JUDGMENT : - Ruma Pal, J.: Premises No. 10C, Middleton Row, Calcutta was occupied by a post office run by the appellant since 1965-66. The respondent is the superior lessee of the premises. The appellant was a monthly tenant in respect of the premises under the respondent. The initial rent was Rs. 3625.00 per month. Pursuant to negotiations in 1985, the appellant agreed to enhance the monthly rent of the premises to Rs. 20,000/-. Formal approval was given in writing by the office of the Post Master General, West Bengal on 9th April, 1987. A copy of the letter of approval dated 9th April, 1987 was sent to the Senior Superintendent of Post Office, Central Calcutta by the office of the Post Master General requesting him to take effective steps for execution of a Lease Deed on behalf of the President of India incorporating the terms and conditions as recommended by the Circle Fair Rent Assessment Committee in addition to the conditions laid down in the standard lease agreement duly approved by the Ministry of Law, Branch Sectt., Calcutta 700001. Minutes of the Circle Fair Rent Assessment Committee held on 23.2.87 were also enclosed for necessary action and guidance. The payment of the rent at the enhanced rate was to be made subject to execution of the Lease Agreement. 2. The lease was executed on 19th October, 1987 between the respondent and the appellant. The relevant clauses for the purposes of this judgment are set out: "The lessor doth hereby demise to the lessee the southern portion of ground floor and first floor measuring 4132.74 sq.ft. of premises No. 10C, Middleton Row, Calcutta 700 071 together with the proportionate share in the place of land on part whereof they are created and all the easements and appurtenance belonging thereto more particularly described in the schedule below: . To hold the said premises unto the lessee for a period of five years commencing from the 1st day of April 1985 at a monthly rent of Rs. To hold the said premises unto the lessee for a period of five years commencing from the 1st day of April 1985 at a monthly rent of Rs. 20,000/- (Rupees Twenty Thousand) only for each English Calendar month which amount shall cover and include all Government and Municipal taxes including the Urban Immovable Property Tax and all which taxes shall be payable by, the lessors, such rent to be paid to the lessor at 10C, Middleton Row, Calcutta 700 071 or such other place as the lessor may in writing direct, any extra expense to the lessee thereby entailed being deducted from the amount of such instalment of rent and to be paid on or before the fifteenth day of the month following. And further that the lessee shall have the option of renewing the lease of the said premises for a further term of 5 years on giving notice of such intention to the lessor at least 3 months before the expiration of the lease hereby granted and the lessor shall forthwith execute and deliver to the lessee a renewed and duly registered lease of the said premises for such further term of years at the same rent and under the same conditions as are herein contained excepting only this condition as to renewal." 3. On 29th October, 1997 the appellant paid arrears of rent calculated at Rs. 20,000/- for the period April, 1985 to September, 1987 at the agreed rate. The appellant had been duly paying rent under the lease since that date till 31st March, 1990 when a letter was written by the respondent to the appellant saying that the lease deed dated 19th October, 1987 had expired on 31st March, 1990 and asking for vacant possession (Exhibit E). A formal notice dated 8/12th June, 1990 was served by the respondent's advocate calling upon the appellant to vacate the premises. The appellant did not vacate. 4. A suit was filed by the respondent to the appellant for recovery of vacant possession of the premises and for mesne profits. The ground for eviction were two-fold : (1) That by the indenture of lease dated 19th October, 1987 the appellant had agreed in writing to deliver up vacant possession of the demise premises on the expiry of the period of lease subsequent to the creation of the tenancy. The ground for eviction were two-fold : (1) That by the indenture of lease dated 19th October, 1987 the appellant had agreed in writing to deliver up vacant possession of the demise premises on the expiry of the period of lease subsequent to the creation of the tenancy. (2) That the lease had expired by efflux of time on 31st March, 1990. 5. Despite service of the writ of summons, the appellant did not file a written statement. The matter was taken up for hearing ex-parte. The respondents called a witness who proved the several documents referred to earlier in this judgment. The witness stated that the tenancy which was created in 1965-66 was continued except that the rent was enhanced with effect from 1985. He also said that the lease provided that the appellant would hold the premises for a period of five years commencing from 1st April, 1985, and although an option had been granted for lease, the appellant did not exercise the option. Evidence of the market rate of the premises in support of the respondent's claim for the mesne profits was also given. 6. The suit was decreed on 15th June, 1992. The Learned Judge held that by virtue of clause in the lease fixing the period of tenancy, the appellant had agreed to vacate the premises after the agreed date and that this was sufficient ground for eviction under section 13(1)(k) of the West Bengal Premises Tenancy Act, 1956 (hereinafter referred to as the Act). However the Learned Judge did not accept the respondent's submission that there was a continuation of the old tenancy. He held that a lease for five years cannot be equated with tenancy from month to month. But he construed section 13(1)(k) and held that the requirement for an agreement to vacate subsequent to the creation of the tenancy was met because the words "the tenancy" included the previous tenancy. It was said: "The tenant defendant was no doubt a tenant under another tenancy for five years from and after October 1987 or 1st April, 1985. But the agreement to vacate contained in the same lease for five years would be effective because it was entered into subsequent to the creation of the earlier continuing monthly tenancy of the defendant." 7. But the agreement to vacate contained in the same lease for five years would be effective because it was entered into subsequent to the creation of the earlier continuing monthly tenancy of the defendant." 7. The suit was accordingly decreed by granting vacant possession of the premises in favour of the respondent as well as mesne profits from the date of the judgment calculated at Rs.15 per sq. ft. per month. 8. An application was made for recalling the decree by the appellant. The application was dismissed. The appellant preferred an appeal from the order of dismissal. It also preferred a separate appeal from the ex parte decree itself. Because the appellant had preferred an appeal from the decree itself, the first appeal was dismissed: 9. The appellant has contended that the Learned Judge erred in decreeing the suit as no ground had been made out for eviction of the appellant under the Act. 10. Having heard the submissions of the parties we are of the view that the appellant's submission is correct. There is no dispute that the tenancy was governed by the provisions of the Act. Of the two grounds pleaded in the plaint for eviction, the second ground namely, eviction on the ground of efflux of the period of tenancy, is not available as a ground for eviction under the Act. The grounds for eviction under the Act are provided in section 13. Of the several grounds available, the only ground which has been invoked is the one under section 13(1)(k). The relevant extract of section 13 reads as follows : "13. Protection of tenant against eviction.-(1) Notwithstanding anything to the contrary to any other law, no order or decree for the recovery of possession of any premises shall be made by any Court in favour of the landlord against a tenant except on one or more of the following grounds, namely :- (h) 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." 11. The key words are "subsequent" and "the tenancy". In other words, the agreement creating the tenancy cannot also be the agreement to vacate. The agreement to vacate must be subsequently arrived at. The key words are "subsequent" and "the tenancy". In other words, the agreement creating the tenancy cannot also be the agreement to vacate. The agreement to vacate must be subsequently arrived at. Presumably this is to preclude the possibility of a landlord -making the undertaking to vacate a pre-condition for grant of the lease. 12. Neither the appellant nor the respondent have sought to rely upon the construction put by the Learned Judge on section 13(1)(h). The Learned Judge erred in holding that there could be two continuous tenancies one created in 1965 and one created under the lease deed in respect of the same premises. He could have held that the original tenancy created in 1965 continued and that the Lease Deed did not create any new tenancy. But if he held that the lease deed created a new tenancy, he was bound to hold that the earlier tenancy had come to an end. The law has been lucidly set out by the Division Bench of this Court in Mahindra & Mahindra Ltd. vs. Sm. Kohinoor Debi, 1989(1) CLJ 360 at 365 in the following words: "If there is a lease existing between the parties, but nevertheless the parties make a new lease in respect of the same demised property, the earlier lease must and cannot but be taken to have been surrendered by implication, as the new lease cannot come into existence so long the old exists. No authority should be necessary for such an obvious proposition, but even then the Legislature itself has provided us with an authority in the only illustration appended at the foot of section 111 of the Transfer of Properties Act for clause (f), to the effect that if a lease accepts from his lessor a new lease of the property leased, to take effect during the continuance of the existing lease, this is an implied surrender of the former lease and such lease determines thereupon. 13. Indeed even the respondent did not contend that there could two parallel tenancies in respect of the same premises. According to the respondent the lease executed in 1985 did not create any new tenancy. He has relied upon in Gappulal vs. Thakurji Shriji Dwarkadheeshji and Anr., AIR 1969 SC 1291 , Mahindra & Mahindra vs. Sm. Kohinoor Debi (supra) and Smt. Monorama Paul & Ors. According to the respondent the lease executed in 1985 did not create any new tenancy. He has relied upon in Gappulal vs. Thakurji Shriji Dwarkadheeshji and Anr., AIR 1969 SC 1291 , Mahindra & Mahindra vs. Sm. Kohinoor Debi (supra) and Smt. Monorama Paul & Ors. vs. Mata Prasad Poddar & Anr., 1991(1) CLJ 383 in support of the proposition that a mere enhancement of rent would create a fresh tenancy. According to the respondent the question was whether the parties intended to create a new tenancy by entering into the lease agreement in 1987. It is argued that in view of the uncontroverted evidence given in this regard, it was not open to the appellant to claim otherwise. 14. We are unable to accept the submission. Irrespective of what the witness may say as to the intention of the parties, ultimately it is a question of construction of the 1987 lease deed. The Court has to determine the meaning of the date from the words used in the document itself. The parties are "presumed to have intended to say that which they have in fact said. So their words as they stand must be construed. The question is, not what did the parties intend to say?-that is precluded by the presumption that they have said what they intend to say. The question to be solved is, what have they said? What meaning is to be attached to the expressions they have used?" (Odgers' Construction of Deeds and Statutes, 5th Edn. Page 27). 15. The clauses of the lease deed quoted above show that a demise was created by the document itself. The phrase used is "The lessor doth hereby demise". This is not a case of mere enhancement of rent as was situation in the decision cited by the respondent. We endorse the view of the Learned Judge that: "The assurance of property changes if a monthly tenancy is dropped and a lease for five years is taken. It is not merely a change of rent but a change of the tenancy itself." 16. Besides, the terms and conditions of the original 1965 tenancy, except for the rent, have neither been pleaded nor proved. Entirely fresh terms and conditions were agreed to and indeed made a pre-condition to payment of rent is clear from the letter dated 19th April, 1987 (Exhibit B). Besides, the terms and conditions of the original 1965 tenancy, except for the rent, have neither been pleaded nor proved. Entirely fresh terms and conditions were agreed to and indeed made a pre-condition to payment of rent is clear from the letter dated 19th April, 1987 (Exhibit B). That the parties treated the appellant as holding the premises only under the new lease is clear from the letter of the respondent dated 5.4.90 (Exhibit E) which reads as follows: "Dear Sir, Re: Lease dated 19.10.87 in respect of Tenancy of the southern portion of Gr. Floor and 1st Floor measuring 4132.74 sq. ft. at 10C, Middleton Row, Calcutta 700 071. We beg to record that the lessee has failed to make over vacant possession of the premises demised/granted under the above lease, upon the expiry of 31.3.90. We are not treating you as a Lessee/tenant of the said premises from and after 1.4.90, and we refuse to receive rent from 1.4.90. We again call upon you to vacate and give us vacant possession immediately." 17. Having arrived at this conclusion it is clear that the document whereby the tenancy was created cannot itself be construed to be an agreement to vacant under section 13(1)(h). That requires the agreement to be arrived at subsequent to the creation of the tenancy. 18. Assuming that the lease deed did not grant a fresh demise but was a continuation of the original tenancy created in 1965 the question still remains whether mere mentioning of the period of the lease would amount to an agreement to vacate. In our opinion it would not. The Act was intended primarily as a beneficial measure. In Mani Subart Jain vs. Raja Ram Vohra, AIR 1980 SC 299 it was emphasized that: "The rent control legislation in a country of terrible accommodation shortage is a beneficial measure whose construction must be liberal enough to fulfil the statutory purpose and not frustrate it. So construed, the benefit of interpretative doubt belongs to the potential evictee unless the language is plain and provides for eviction. That intendment must by interpretation, be effectuated." 19. So construed, the benefit of interpretative doubt belongs to the potential evictee unless the language is plain and provides for eviction. That intendment must by interpretation, be effectuated." 19. More specifically in connection with the present Act, P.B. Mukharji, J. (as His Lordship then was) in Mathura Mohan Goswami vs. Jyotirmoy Chowdhury, 69 CWN 568 in construing an agreement in which one of the conditions was that the tenant would deliver up possession by 30th November, 1962, said that the agreement in writing in clause (k) is to be construed strictly and that a clause like this deprived the tenant from statutory protection and it must be strictly construed against the landlord and in favour of the tenant. 20. The clause on which reliance has been placed by the respondent has been set out above. It merely specifies the period of the lease. Even the respondents witness did not say that the clause was intended to operate as an agreement to vacate by the appellant. The Division Bench of this Court construed a similar clause where it was said that the tenant "was prepared to take lease of the premises for a period of two years and thereafter on the basis of 1 months' notice" and said that it was clear that there was no undertaking to vacate the premises within the meaning of section 13(1)(k) of the Act [See: M/s. Tide Water Oil Co. (India) vs. K.D. Banerjee, AIR 1982 Cal 127 para 10]. To read a clause setting out the period of the lease as an agreement to vacate would be to bring in the ground of eviction by efflux of time as contained in section 106 of the Transfer of Property Act into the Act by a back door, as it were. 21. In the case before us, the Learned Judge relied upon a Single Bench decision in Santilata Paul vs. Nanda Kishore Mukherjee, 85 CWN 494 to come to the conclusion that the clause in the agreement stating the period of lease amounted to an agreement to vacate. The case relied on is not an authority for the proposition that a clause indicating a period would mean an undertaking to vacate. The issue was never raised before the Learned Single Judge. The particular clause has also not been quoted. The case relied on is not an authority for the proposition that a clause indicating a period would mean an undertaking to vacate. The issue was never raised before the Learned Single Judge. The particular clause has also not been quoted. The only issue in that case was whether it was necessary to serve notice when the ground of eviction was under section 13(1)(k) of the Act. 22. No other ground having been pleaded in respect of the claim of eviction the Learned Judge should have dismissed the suit. 23. For all these reasons we set aside the decree and allow the appeal. This appeal may not have been necessary if the appellant had defended the suit. We, therefore, direct the appellant to pay the costs of the appeal assessed at Rs. 5,000/-. S.K. Tiwari, J.: I agree. Appeal allowed.