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2000 DIGILAW 565 (CAL)

Pandit Kanahyalal Punj v. Jewish Girls School

2000-11-17

Subhro Kamal Mukherjee, Tarun Chatterjee

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JUDGMENT Tarun Chatterjee, J. This appeal is preferred by the defendants against a judgment and decree passed by a learned Judge of this Court in a suit for eviction filed on the ground of expiry oflease for 21 years and for mesne profits and other incidental reliefs in respect of the ground floor of a godown/shop situate in and forming part of the premises being Municipal Premises No. 63, Park Street, Calcutta (hereinafter referred to as "the suit premises"). 2. As noted hereinabove, according to the plaintiffs/respondents, the defendants/appellants were liable to be evicted from the suit premises on the ground of expiry of lease for 21 years in which the defendants had agreed to pay Rs. 1075/- per month as rent to the plaintiffs/respondents which was, according to them, subsequently enhanced to Rs. 1375/- per month. The lease was executed by the parties on 19th of March, 1963. 3. In defence, the defendants/appellants alleged that in view of the admitted fact that during the currency of the lease, the parties themselves had given a go-bye to the same and by an oral agreement, the rate of rent was enhanced from Rs. 1075/- to Rs. 1375/- per month and as the defendants/appellants were permitted to construct a mezzanine floor in the suit premises by the plaintiffs/ respondents, the defendants/ appellants became a premises tenant under the West Bengal Premises Tenancy Act, 1956 (hereinafter referred to as "the Act") and accordingly, the suit filed under the provisions of Transfer of Property Act was not maintainable and, therefore, the same should be dismissed. 4. Both the parties adduced evidence in support of their respective cases and issues were framed. The Trial Court, after considering the entire materials on record and evidence thereof, came to the conclusion that the original lease continued by the conduct of the parties and only by increase of rate of rent, it could not be said that the original lease was given a go-bye and accordingly, decreed the suit directing the defendants/appellants to vacate the suit premises. 5. It is this judgment and decree of the Trial Court which is under appeal before us. 6. We have heard Mr.Nirmal Mitra, learned Advocate, appearing for the defendants/appellants with Mr.Dhruba Ghose and Mr. Shyam Sarkar, learned Advocate, appearing for the plaintiffs/respondents ably assisted by Mr. Surojit Mitra. 7. On behalf of the defendants/appellants, Mr. 5. It is this judgment and decree of the Trial Court which is under appeal before us. 6. We have heard Mr.Nirmal Mitra, learned Advocate, appearing for the defendants/appellants with Mr.Dhruba Ghose and Mr. Shyam Sarkar, learned Advocate, appearing for the plaintiffs/respondents ably assisted by Mr. Surojit Mitra. 7. On behalf of the defendants/appellants, Mr. Nirmal Mitra, at the first instance urged that in view of the admitted fact that after the execution of the lease in question that is after 19th March, 1963, the parties themselves agreed to vary the rate of rent from Rs. 1075/- to Rs. 1375/- per month and that the plaintiffs/respondents permitted the defendants/ appellants to construct a mezzanine floor in the suit premises, the trial Court ought to have held that by increase of rate of rent and by permitting the defendants/appellants to construct a mezzanine floor in the suit premises during the continuance of the lease, the existing lease was surrendered and a new tenancy was created. Therefore, Mr. Nirmal Mitra, learned Counsel for the defendants/appellants contended that since the existing lease was surrendered and a new tenancy was created, no decree for eviction could be passed against the defendants/appellants as the defendants/appellants became a premises tenant under the Act and accordingly, the suit filed under the Transfer of Property Act must fail. 8. This submission of Mr. Nirmal Mitra was hotly contested by Mr. Surojit Mitra, who appeared on behalf of the plaintiffs/respondents. 9. Having heard the learned Advocates, appearing for the parties on the aforesaid question and after giving our anxious consideration to the same, we are of the view that the submission advanced by Mr. Nirmal Mitra cannot at all be accepted and accordingly, it is rejected. It is now well settled by various decisions of the Supreme Court that only by reduction or increase in the rate of rent, no inference can be reached by the Court that the existing lease was surrendered and a new tenancy was created. It is equally settled that in order to come to the conclusion as to whether the original lease was surrendered and a new tenancy was created, the Court must consider the real intention of the parties. In this connection, reference may be made to a decision of the Supreme Court in the case of N.M. Penniah Nadar vs. Kamalakshmi Ammal, AIR 1989 SC 467 . In this connection, reference may be made to a decision of the Supreme Court in the case of N.M. Penniah Nadar vs. Kamalakshmi Ammal, AIR 1989 SC 467 . The Apex Court in this decision, accepting the principles laid down by the Supreme Court in its earlier decision in the case of Gappulal vs. Shriji Dwarkadheshji, AIR 1969 SC 1291 ,laid down the principle that in deciding whether an existing lease was surrendered and a new tenancy was created, the Court must consider the real intention of the parties. In paragraph 9 of the said decision of the Supreme Court reported in AIR 1989 SC 467 (supra), the Supreme Court observed as follows :- "If the parties had really intended to bring about a new tenancy they would not have invited the Rent Controller to pass an order in terms of the joint endorsement made by them. It is therefore. reasonable in conclude that the parties should have only proceeded on the footing that the old lease was to continue but in so far as the rent was concerned it should be paid at the enhanced rate of Rs. 45/- per month. In such circumstances it is impossible to hold that solely because there was a change in the periodicity of payment of rent at the enhanced rate the parties had intended that the appellant should surrender his rights under the old lease and be granted leasehold rights afresh under a new tenancy: nor can it be said that de hors the intention of the parties: a new tenancy had come into existence by operation of law." (Emphasis added) (1) Therefore, keeping the aforesaid principles laid down by the Supreme Court in the aforesaid two decisions on the question of surrender of lease and creation of new tenancy, in our mind, we are now to consider, what was the intention of the parties in this case. Was it to surrender the existing lease and to create a new tenancy because of increase in the rate of rent during the currency of the lease and on account of permission granted to the defendants to construct a mezzanine floor in the suit premises or the original lease continued even after the increase in the rate of rent and permission to construct a mezzanine floor in the suit premises? (2) In our view, the answer to this question is that the original lease continued even after the increase in the rate of rent during the currency of the lease and permission to construct a mezzanine floor in the suit premises. In order to come to a proper conclusion on the question of real intention of the parties, we are to look into the conduct of the parties. (3) As noted here-in-earlier, the lease in question was executed on 19th March, 1963. From the lease deed, it appears that the rate of rent was fixed at Rs. 1075/- per month which was enhanced in the year 1966 from Rs. 1075/- to Rs. 1375/-. The rate of rent was necessitated to be increased because permission was granted to the defendants/appellants to construct a mezzanine floor in the suit premises. 10. Exhibit 'c' is a letter written by one of the defendants/appellants to the Secretary of the Board of Management of the plaintiffs/respondents on 24th June, 1978. Second paragraph of the said letter, in our view, is important and, therefore, should be extracted. "We would request you to please let us know the basis of your claim regarding the alleged surcharge so that we could consider the same. We find from the Lease Agreement dated 19th March. 1963 that there is no clause whereunder we could be obliged to pay any such increase in the corporation rate in the form of surcharge or otherwise." (Emphasis added) 11. This letter was written 15 years after the execution of the lease deed and about 12 years after the rate of rent was increased. From the above, it is evident that even in the year 1978, the defendants/appellants acted in terms of the lease deed and if the defendants/appellants had really intended to discontinue with the lease and to create a new tenancy by such increase of rent, they would not have at all written a letter as aforesaid (Exhibit 'C'). Prior to the aforesaid letter being Exhibit 'C', a letter dated 14th August, 1973 was written by one of the defendants/appellants to the Secretary of the Board of Management of the plaintiffs/respondents from which it also appears that the parties had acted in terms of the original lease and had really intended to act as such. Prior to the aforesaid letter being Exhibit 'C', a letter dated 14th August, 1973 was written by one of the defendants/appellants to the Secretary of the Board of Management of the plaintiffs/respondents from which it also appears that the parties had acted in terms of the original lease and had really intended to act as such. The letter dated 14th August, 1973 runs as under:- "We are your tenants and our rights and liabilities as tenant Bill governed by the Lease Agreement dated 19th March. 1963. It will appear that the rent payable by us under the said agreement was inclusive of all taxes and as such we are not liable to make payment of any surcharge as desired by you." (Emphasis added) 12. From this letter also, it is pellucid that even in the year 1973, the defendants/appellants were relying on the terms and conditions of the lease deed and had taken a defence that they would not be liable to pay any occupier's share of corporation taxes and surcharge in view of the different clauses in the lease deed. Exhibit 'F' being a letter which was dated 19th November, 1979 was written by the plaintiffs/respondents to the defendants/appellants. We have carefully perused the contents of this letter and after examining the same, we find that the plaintiffs/respondents invited the defendants/appellants to clause 2 of the lease deed and relying on such a clause claimed a proportionate municipal occupier's rates and taxes in respect of the suit premises. Again on 12th March, 1981 a letter was written on behalf of the plaintiffs/respondents in which the defendants/appellants were also invited to look into clause 2 of the lease deed for the purpose of payment of municipal rates and taxes in respect of the suit premises. This letter was exhibited as Exhibit 'G'. Although the letter which was written by the plaintiffs/respondents to the defendants/ appellants on 19th November, 1979 was not replied to by the defendants/ appellants, but the letter dated 12th March, 1981 being Exhibit 'G' was duly replied to by the defendants/appellants on 8th April, 1981. This letter of the defendants/appellants was exhibited as Exhibit 'H'. This letter runs as under: "We have for reference your letter dated 12th March. 1981. We have been advised that upon a true construction of the relevant terms of the lease deed. This letter of the defendants/appellants was exhibited as Exhibit 'H'. This letter runs as under: "We have for reference your letter dated 12th March. 1981. We have been advised that upon a true construction of the relevant terms of the lease deed. we are not liable to pay to you the occupier's share of taxes amounting to Rs. 519/- per quarter as claimed by you. However, for the purpose of getting further clarification in the matter, we are referring your demand to our Advocates for their views in the matter and shall revert to you as soon as we get their opinion." (Emphasis added) 13. Exhibit 'K' is another letter written by the defendants/appellants to the Secretary of the Board of Management of the plaintiffs/respondents. This letter was written on 19th May, 1980 i.e. a few years before the expiry of the period of the lease. This letter also, in our view, is important to find out the real intention of the parties. For that reason we quote the same which is as follows: "We are surprised to note your contention in your letter dated 12th May, 1980 stating that no one has or had any authority to discuss and/or agree to any proposal relating to the tenancy excepting the Board of Management of the Jewish Girls' School. On the contrary the indenture of lease dated 19th March. 1963 shows that the said lease was entered into by the Official Trustee of West Bengal on your behalf as the Trustees of the premises No. 63. Park Street. The said agreement being entered into between the said Trustees and us you have in law and in fact no authority regarding the amendments to the terms of the lease. However, we had so far addressed our correspondent to you in your capacity as the beneficiary of the said trust. In so far your claim for the occupier's share of taxes and your demand for Rs. 519/- per quarter, please satisfy us that the said payments have been made by you in respect of the portion of the premises occupied by us before we could review the position." (Emphasis is ours) 14. In so far your claim for the occupier's share of taxes and your demand for Rs. 519/- per quarter, please satisfy us that the said payments have been made by you in respect of the portion of the premises occupied by us before we could review the position." (Emphasis is ours) 14. From the conduct of the parties, as discussed hereinabove, we have, therefore, no hesitation in our mind to hold that the real intention of the parties was to continue with the lease and not to create any tenancy due to increase in the rate of rent. If the defendants/appellants had any intention to discontinue with the lease, there was no reason for them to say and write that they were not liable to pay any corporation rates and taxes or surcharge in respect of the suit premises as the lease deed contained no such clause for payment of such taxes and/or surcharge. Therefore, we are of the opinion that the real intention of the parties was to continue with the lease and not to create any tenancy in favour of the defendants/appellants. 15. Let us now consider the other submission of Mr. Nirmal Kumar Mitra that the rent, fixed in the lease which was subsequently increased from Rs. 1075/- to 1375/- by an oral agreement cannot be increased without a registered document to be executed by the parties that is to say, the rent cannot be increased and/or varied without having a registered document to that effect. In support of this contention, Mr. Nirmal Kumar-Mitra, relied on three decisions, one of which is of the Supreme Court in the case of Sunil Kumar Roy vs. M/s. Bhowra Kankanee Collieries Ltd. & Ors., AIR 1971 SC 751 and the other two decisions are of this Court viz. in the case of Lalit Mohan Ghosh vs. The Gopali Chuck Coal Co. Ltd., 16 C.W.N. 55 and in the case of Parbati Charan vs. Bande Ali, 40 C.W.N. 638. 16. This submission of Mr. Nirmal Kumar Mitra was also contested by Mr. Surojit Mitra, appearing for the plaintiffs/respondents. Mr. Surojit Mitra argued that when the only rate of rent as shown in the lease deed was varied mutually, the question of registering a document for such variation was not compulsory although such variation of the rate of rent could be effected by a registered document. 17. Surojit Mitra, appearing for the plaintiffs/respondents. Mr. Surojit Mitra argued that when the only rate of rent as shown in the lease deed was varied mutually, the question of registering a document for such variation was not compulsory although such variation of the rate of rent could be effected by a registered document. 17. We have carefully considered the submission of the learned Counsel for the parties. After carefully examining the submissions and the materials on record and after considering the conclusion that we have already arrived at that the intention of the parties was to continue with the lease even after variation of the rate of rent, we are of the view that the submission of Mr. Nirmal Kumar Mitra is not acceptable to us. It is true that the rate of rent was increased during the existence of the lease. It has been found earlier that in spite of such variation and/or increase in the rate of rent, parties proceeded to act on the basis of the lease. Only because during the existence of the lease, the rate of rent was mutually increased by the parties, it cannot be said that such variation in the rate of rent from the rate of rent fixed in the lease would require a document to be registered. From the discussions made hereinabove, we find that, although the rents were increased but the parties intended to continue with the original lease, that being the position, there was no reason why by such increase of rate of rent, a registered document would be required to be executed. In the case of M/s. D.S. Commercial Pvt. Ltd. vs. Shree S.S. Jain Sabha, AIR 1984 Cal 194 , a Division Bench of this Court clearly hold that 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, it cannot be held that there was implied surrender of the registered deed of lease. Even in this decision, although no one had even argued that such variation of rate of rent in the deed of lease could only be made by executing a registered document. Even in this decision, although no one had even argued that such variation of rate of rent in the deed of lease could only be made by executing a registered document. In the case of Sabita Dey vs. Nageswar Majumder, (1995) 6 SCC 274 , a similar question arose whether there was an implied surrender of lease in view of change of rate of rent payable under the registered deed. In that decision, the Supreme Court clearly hold that a change in the rate of rent payable under the registered deed of lease, does not invariably amount to implied surrender or creation of a new tenancy. No question could be raised by the parties in that decision that if the rate of rent was varied, such variation could be effected by a registered document. In any view of the matter, in our view, only a change in the rate of rent cannot invite the Court to hold that such a change can only be made by a registered document. We are, therefore, of the firm opinion that by such change in the rate of rent, the terms and conditions of the lease would still continue to operate excepting the change of the rate of rent. Therefore, Mr. Nirmal Kumar Mitra was not correct in submitting that the change of rate of rent from the rate indicated in the registered deed could only be done by a registered document. 18. Let us consider the decisions cited by Mr. Nirmal Kumar Mitra. The first of such decisions is a decision reported in 16 CWN 55 (supra). In our view, this decision of the Full Bench of this Court is clearly distinguishable on facts. In that case, there was a registered deed of lease as in this case. But, subsequently a document was executed in respect of some terms viz. the date of payment, consequences of default of payment and also the variation of rate of rent as provided in the lease deed. This document was not registered and a point was raised before the Full Bench of this Court that this document required to be registered under the provisions of Registration Act. In that context, the Full Bench held that a document which varied the amount of rent to be paid under an existing registered lease required registration under section 17(d) of the Registration Act. This is not the case here. In that context, the Full Bench held that a document which varied the amount of rent to be paid under an existing registered lease required registration under section 17(d) of the Registration Act. This is not the case here. In this case, there was an existing registered lease and by consent of parties, only the rate of rent was increased. Therefore, if such rate of rent was only increased by consent of parties, such an act, in our view, did not require a document to be registered and accordingly this decision has no manner of application to the facts of this case. The next decision is a decision reported in 40 CWN 638 (supra). Again this decision has no manner of application to the facts of this case. In that decision, admittedly a permanent tenancy was created after the Transfer of Property Act came into force and there was no registered document or any document showing creation of tenancy. In that context, the Single Bench of this case Court in the aforesaid decision, 40 CWN 638, (supra) following the decision reported in 16 CWN 55 (supra) hold that if there was a change in the rate of rent, such change must be noted by a registered document only. On two scores, this decision, in our view, cannot be applied to the facts of the present case. At the first instance, in that case permanent tenancy was created before the Transfer of Property Act had come into force. Secondly, there was no registered document existing at the time such variation was made. In that background, the aforesaid decision was rendered by this Court. Accordingly, this decision, in our view, has no manner of application to the facts and circumstances of this case. Reliance was also placed to a decision of the Supreme Court reported in AIR 1971 SC 751 (supra). In that decision, admittedly, an agreement was entered into in writing which followed the essential terms of the existing lease such as amount of rent. In that decision, on fact it was found that the person who sought to raise the question about the admissibility of an agreement for want of registration, had failed to prove that the reduction in the rate of royalty had been given effect to from July, 1952. In that decision, on fact it was found that the person who sought to raise the question about the admissibility of an agreement for want of registration, had failed to prove that the reduction in the rate of royalty had been given effect to from July, 1952. It was also found on fact that the question about the admissibility of an agreement for want of registration in that case, could not be entertained so long as the finding of the High Court on the only point which was canvassed before it about the reduction of the rate of royalty was not set aside. In that decision, the Supreme Court also held that the High Court had held after an examination of the evidence that it had not been proved that there was any change in the market condition in July or in December, 1953 to call for a reduction in the rate of royalty or that there was any mutual arrangement or agreement between the lessor or the lessee for such a reduction which was to become effective from July, 1952. In coming to this conclusion, the Supreme Court made only an observatie that even on the assumption that the mutual arrangement or agreement as evidenced by the agreement arrived at between the appellants and the Easteren Coal Co. Ltd. any reduction in the rate of royalty could not have been effective by means of such agreement which was not registered under the provisions of the Indian Registration Act. In this case, admittedly no agreement was entered into by the parties in writing. In view of our discussions made hereinabove that the real intention of the parties was to continue with the existing lease even after the variation of rent and in view of our finding that such variation was made by consent of parties and the parties had proceeded to act on the basis of the original lease, we are of the view that this decision of the Supreme Court is not applicable to the facts and circumstances of this case. Before parting with this question, we may, however, remind ourselves that the Supreme Court in the case of Sabita Dey vs. Nageswar Majumder, (1995) 6 SCC 274 , has considered this aspect of the matter and it was never urged before the Supreme Court that if any change in the rate of rent was effected by the parties, such change or variation must be made by a registered document. Accordingly, there is no merit in this submission of Mr. Nirmal Kumar Mitra. 19. A further submission was made by Mr. Nirmal Kumar Mitra on the question of admissibility of the oral evidence under section 92 of the Evidence Act. In our view, this question does not at all need to be considered in the facts of the present case. In this case, only the rate of rent was varied by consent of parties that is to say the tenant had agreed to pay the increased rent to the plaintiffs/respondents. All the other terms and conditions remained the same. That being the position and in view of our discussions made hereinabove, we are of the view that section 92 of the Evidence Act cannot be applied to the facts and circumstances of the present case. 20. The next question that was raised by Mr. Nirmal Kr. Mitra is that since no notice was issued or served upon the defendants/appellants, the suit must fail. In this connection, Mr. Nirmal Kumar Mitra relied on the provisions of section 111(h) of the Transfer of Property Act. In our view, we need not dwell in this matter in view of the fact that law is well settled that in a suit for eviction on the ground of expiry of lease, no notice is required to be served. Reliance can be placed in this connection to three decisions of the Supreme Court, viz. AIR 1969 SC 1291 (Gappulal vs. Shirji Dwarkadheshji), AIR 1989 SC 467 (N.M. Penniah Nadar vs. Kamalakshmi Ammal) and (1995) 6 SCC 274 (Sabita Dey vs. Nageswar Majumder). 21. There is another aspect of the matter. It is admitted fact that M/s. Kanhyalal Punj were the lessees under the plaintiffs/respondents. Admittedly, in this case, no one was made available on their behalf to adduce evidence in support of the defence taken by them. 21. There is another aspect of the matter. It is admitted fact that M/s. Kanhyalal Punj were the lessees under the plaintiffs/respondents. Admittedly, in this case, no one was made available on their behalf to adduce evidence in support of the defence taken by them. From the records it appears to us that all the defendants were residing in Delhi and still have been residing in Delhi and the witness who was examined on behalf of the defendants/appellants clearly admitted in evidence that the firm was closed down in the year 1970 and since then, the defendants/appellants had gone to Delhi and had been residing there and they did not come to Calcutta thereafter. From his evidence, it is also clear that the witness who was examined on behalf of the defendants/appellants was only a mechanic and in fact he has been running the factory now. Such being the position, we are unable to give any protection to the defendants/appellants, who were out of possession of the suit premises since the year 1970. 22. Accordingly, the appeal is dismissed. 23. There will be no order as to costs. 24. A prayer for stay of operation of this judgment was made by the learned Counsel for the defendants/appellants. In view of the fact that this is a case where a lease had expired in the year 1984 and the defendants/appellants had permanently left Calcutta and are residing in Delhi permanently since 1970, and as we do not find any substantial question of law to be decided, the prayer for stay is refused. 25. All parties concerned are to act on a xerox certified copy of the operative portion of this judgment on the usual undertaking. Prayer for stay refused.