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2000 DIGILAW 84 (CAL)

Santosh Kumar Mitra v. Snehalata Roy

2000-02-17

Amit Talukdar, Tarun Chatterjee

body2000
Judgment Tarun Chatterjee, J. This appeal is by the defendants/appellants and directed against a judgment and decree passed by Sri N.C. Chakraborty, Judge, 8th Bench, City Civil Court at Calcutta in Ejectment Suit No. 163 of 1987. 2. The suit was instituted against the appellants for eviction form the suit premises on the ground of sub-letting, reasonable requirement and default. 3. So far as the grounds relating to default and sub-letting are concerned, the trial court held that since the defendants-appellants had complied with the provisions of section 17(2)(2A) of the West Bengal Premises Tenancy Act (hereinafter referred to as "the Act") the defendants/appellants were entitled to be protected under section 17(4) of the Act and that there was no sub-letting for which a decree for eviction could be passed against the defendants/appellants. No argument was advanced by the learned counsel for the parties before us on the aforesaid grounds for eviction. The suit was therefore, decreed only on the ground of reasonable requirement. 4. Before we proceed further, we must keep it on record that Mr. Bagchi, learned advocate, appearing on behalf of the defendants-appellants, did not make any submission as to the ownership and number of family members of the plaintiff and also their requirement of the suit premises excepting that Mr. Bagchi argued that the plaintiffs-respondents having inducted a tenant in the suit premises in the year 1978 and subsequently, in the year 1984 and a writ for eviction on the ground of reasonable requirement was filed and withdrawn later, the requirement of the plaintiffs of the suit premises under section 13(1)(ff) of the Act, ought not to have been granted by the trial court, as, according to Mr. Bagchi, the requirement of the suit premises could not be held to be bona fide. The main thrust of his argument was, however, in respect of the maintainability of the suit for defect of parties and also on the question to legality and validity of the notice to quit served on all the heirs and legal representatives of the deceased tenant excepting Smt. Anita Mitra who was the widow of one of the heirs of the original tenant (deceased). Therefore, we first take up the question whether the suit was bad for defect of parties and whether the notice to quit ought to have been served also on Smt. Anita Mitra. Therefore, we first take up the question whether the suit was bad for defect of parties and whether the notice to quit ought to have been served also on Smt. Anita Mitra. There is no dispute that originally Shri Surendra Krishna Mitra, since deceased, was a tenant under Kumar Promotha Nath Roy Public Charitable Trust. The original tenant Surendra Krishan Mitra died intestate in the year 1943 leaving behind the following persons as his heirs and legal representatives: 1. Smt. Sudhira Mitra (since deceased). 2. Sri Balai Mitra. 3. Kanailal Mitra. 4. Sisir Kumar Mitra (since deceased). 5. Sudhangshu Kr. Mitra. 6. Sailendra Kr. Mitra. 7. Shri Santosh Kumar Mitra and 8. Shri Sarat Kumar Mitra. 5. Smt. Sudhira Mitra, widow of the original tenant Surendra Krishna Mitra also died intestate in the month of October, 1962 leaving behind her the names as indicated above as her only heirs and legal representatives. Before the death of the widow Sudhira Mitra, one of the sons of the original tenant Shri Sisir Kumar Mitra also died intestate in the month of June, 1954 leaving behind him the following persons as his heirs and legal representatives: 1. Smt. Anita Mitra, widow and 2. Shri Siddharta Mitra (appellant No. 2) 6. The notice to quit was served on all the heirs and legal representatives of the deceased Surendra Krishna Mitra excepting Smt. Anita Mitra. Similarly, the suit for eviction was also filed against the aforesaid heirs of the deceased tenant excepting Smt. Anita Mitra. 7. From the record, it appears that only defendant No.5 and defendant No.7, namely Santosh Kumar Mitra and Siddharta Kumar Mitra filed written statement. So far as the remaining heirs of the deceased tenant are concerned, it is also an admitted position that they did not contest the suit nor had they preferred this appeal. It is also an admitted position that only Shri Santosh Kumar Mitra and Sarat Mitra were residing in the suit premises. All others including Shri Siddharta Kumar Mitra defendant No.7 had already left the suit premises and are residing elsewhere leaving the suit premises in possession of the aforesaid two persons. 8. It is also an admitted position that only Shri Santosh Kumar Mitra and Sarat Mitra were residing in the suit premises. All others including Shri Siddharta Kumar Mitra defendant No.7 had already left the suit premises and are residing elsewhere leaving the suit premises in possession of the aforesaid two persons. 8. Be that as it may, as noted hereinearlier, we may note that originally one Surendra Krishna Mitra was a tenant in respect of the suit premises under Promotha Nath Roy Public Charitable Trust and after his demise, the tenancy was inherited by all the heirs of the deceased Surendra Krishna Mitra. But the rent receipts were issued only in the name of defendant No. 1 by the Promotha Nath Roy Charitable Trust, the previous landlord. After purchase, by the respondent from Promotha Nath Roy Public Charitable Trust, the said trust issued a letter of attornment in favour of Sri Sudhangshu Kumar Mitra defendant No.1 only and accordingly, Sudhangshu Kr. Mitra on behalf of the heirs and legal representatives of the deceased tenant paid rent to the plaintiffs/respondents and the plaintiffs/respondents also granted rent receipt in the name of the defendant No.1 Sudhangshu Kr. Mitra. In the year 1984, an ejectment suit was filed by the respondents for eviction against the defendant No. 1 only but the said suit was subsequently withdrawn after finding that an application for addition of party was filed by the defendant Nos. 5 and 7 on the ground that on the death of the original tenant Surendra Krishna Mitra, all the heirs and legal representatives of the deceased original tenant became monthly tenants under the plaintiffs/respondents. In order to shorten the litigation, the plaintiffs/respondents thought it fit to withdraw the suit which was filed against defendant No.1 alone and accordingly the present suit was filed for eviction on the ground of reasonable requirement against all the heirs and legal representatives of the deceased tenant excepting Smt. Anita Mitra. Now the question is whether without making Smt. Anita Mitra a party to the suit, the suit could be decreed by the Trial Court. In our view, the Trial Court was, in the facts and circumstances of this case, fully justified in decreeing the suit of the plaintiffs/respondents even in the absence of Smt. Anita Mitra. Now the question is whether without making Smt. Anita Mitra a party to the suit, the suit could be decreed by the Trial Court. In our view, the Trial Court was, in the facts and circumstances of this case, fully justified in decreeing the suit of the plaintiffs/respondents even in the absence of Smt. Anita Mitra. It is true that on the death of one of the heirs and legal representatives of the deceased original tenant Sisir Mitra, his widow Smt. Anita Mitra was not made a party in the suit although his son who is appellant No. 2 before us was made a party to the same. It is not in dispute in this case that Smt. Anita Mitra has not been living in the suit premises for a long time and in fact has now become practically a permanent resident of Delhi. As noted hereinearlier, the admitted position is that on the death of the original tenant, the tenancy was made in the name of the defendant No. 1 only and the rent receipts which were issued by the plaintiffs/respondents also stood in the name of the defendant No.1 only. It is also an admitted position that one of the heirs and legal representatives of Sisir Kr. Mitra who was also one of the heirs and legal representatives of the deceased original tenant was made a party to the suit. The appellants also duly contested the suit by filing a written statement and denied the requirement of the plaintiffs/respondents of the suit premises. They also adduced evidence in support of their case in defence. Therefore, the question is whether the estate of the original deceased tenant was duly represented in the suit or not. In our view, in the facts and circumstances of the case as noted hereinabove, the principles relating to doctrine of representation would operate or at least in its number inasmuch as when from the record, it appears that Smt. Anita Mitra was residing elsewhere and all the heirs and legal representatives of the deceased tenant made arrangement that rent was to be paid by the defendant No.1 alone, the question of filing the suit also against Smt. Anita Mitra cannot arise as it has to be presumed that the defendants had represented Smt. Anita Mitra also by the application of the principles of doctrine of representation. 9. 9. From the discussions made hereinabove, it is pellucid that since the defendants who had contested the suit and filed this appeal have amply represented Smt. Anita Mitra and in view of the fact that the defendant No. 1, as noted hereinabove had paid rent for the suit premises to the landlord for and on behalf of all the joint tenants of the suit premises, in our view, the principles relating to doctrine of representation would be squarely applicable to the facts and circumstances of this case, and any action taken by the plaintiffs/respondents against the defendants would be deemed to be representing the other tenants. In the case of H.C. Pandey vs. G.C. Paul, AIR 1989 SC 1470 , the Apex Court of our country also laid down the principle that when one of the joint tenants acted on behalf of the other joint tenants that he paid rent on behalf of all and he accepted the notice to quit, the notice served on the defendants in the suit premises must be found to be sufficient. 10. Therefore, we are unable to agree with Mr. Bagchi that the Trial Court ought to have held that the suit was bad for defect of parties. 11. There is yet another aspect of this matter. It is an admitted position in this case that Smt. Anita Mitra had never exercised any right of tenancy in the disputed premises after the death of the original tenant or after the death of her husband Sisir Kr. Mitra. On the contrary, only the defendant No.1 on the death of the original tenant paid rent to the plaintiffs/respondents on behalf of all the heirs and legal representatives of the deceased tenant. Only the defendant Nos. 5 and 7 by contesting the suit claimed to have acquired .right of tenancy by inheritance in respect of the suit property. The defendant No.1, in whose name, the rent receipts were issued by the landlords also did not choose to contest the suit. It is an admitted position that at any point of time that is to say during the pendency of the earlier suit for eviction which was filed only against the defendant No.1, although the defendant Nos. The defendant No.1, in whose name, the rent receipts were issued by the landlords also did not choose to contest the suit. It is an admitted position that at any point of time that is to say during the pendency of the earlier suit for eviction which was filed only against the defendant No.1, although the defendant Nos. 5 and 7 asserted their tenancy right by filing an application under Order 1 Rule 10 of the Code of Civil Procedure even then at that stage, Smt. Anita Mitra did not come forward to assert her right of tenancy in the suit premises. Either in the written statement or in the evidence it has not been stated that Smt. Anita Mitra has ever exercised any right of tenancy after the death of the original tenant or after the death of her husband. It is also not evident from the records that there was evidence that Smt. Anita Mitra paid rent either to the plaintiffs or to the defendant No.1 after the death of the original tenant or after the death of her husband. It is also not evident from record that Smt. Anita Mitra did ever deposit any rent in the office of the Rent Controller, in respect of the suit premises. Therefore, all the above facts, in our view, would lead us to conclude that Smt. Anita Mitra had relinquished her right of tenancy in the suit premises by her conduct as aforesaid more so when there is no evidence that Smt. Anita Mitra has been residing in the suit premises nor she visits the suit premises regularly and on the other hand she has been living in Delhi permanently. In the case of Pusparani and Ors. vs. Bhagwanti Devi and Anr., 1994 (Suppl.)3 SCC 76, in Paragraph 9 the Supreme Court observed as follows:- "On a consideration of the evidence, the High Court concurring with the findings of fact on the point recorded by the Rent Controller and the Tribunal, held that after the death of Chaman Lal it was Sushil Kumar alone who continued in occupation of and was carrying on the business in the premises and that in the circumstances of the case the other heirs must be held to have surrendered their rights to tenancy. This implied surrender was inferred from the evidence as to the conduct of the other heirs. This implied surrender was inferred from the evidence as to the conduct of the other heirs. The principle in Gian Devi case as to the heritability of a non-residential tenancy relied upon by Shri Gupta does not detract from and is not inconsistent with the principle of implied surrender. The finding on implied surrender, in our opinion, is supported by the evidence on record. Both the Rent Control Tribunal 'and High Court, in our opinion, were right in not countenancing the claim of the heirs which incidentally came through the challenge on the executing side. So for as the appeal of Sushi! Kumar is concerned, there is hardly anything that can be said in support of it." (Emphasis added) 12. From the aforesaid decision of the Supreme Court, it can be concluded that since in this case admittedly Smt. Anita Mitra is not residing in the suit premises for a long time and in fact has been living in Delhi permanently, a case of implied surrender can easily be inferred from the evidence and the conduct of other defendants. Therefore, we are unable to hold that in the facts and circumstances of the case either the suit is bad for defect of parties or the notice was illegal and invalid as it was not addressed to or served upon Smt. Anita Mitra. Before parting with the submissions regarding the point of dismissal of the suit for defect of parties and illegality of the notice to quit as the same was not served upon Smt. Anita Mitra, we may note that both the aforesaid submissions of Mr. Bagchi were not urged before the Trial Court and, therefore, they may not be permitted to raise such submissions for the first time in appeal. [See 1995(VI) SCC 45, Union of India vs. N.V. Phoneedran.) 13. Accordingly, there is no merit in this appeal. 14. Before parting with this judgment, we may deal with the decisions cited at the instance of the appellants before us. So far as the decision reported in 1995(1) SCC 1 (Kumar Jagdish Chandra Sinha vs. Eileen K. Patricia), as cited by Mr. Accordingly, there is no merit in this appeal. 14. Before parting with this judgment, we may deal with the decisions cited at the instance of the appellants before us. So far as the decision reported in 1995(1) SCC 1 (Kumar Jagdish Chandra Sinha vs. Eileen K. Patricia), as cited by Mr. Bagchi for the appellant is concerned, in view of our discussions made hereinabove and as we have already held that in the facts and circumstances of this case, the principles of doctrine of representation can be applied to the present case, the aforesaid decision of the Supreme Court is clearly distinguishable on facts. Similarly the decisions cited by Mr. Bagchi for the proposition that notice to quit not having been served on Smt. Anita Mitra, it must be held that the notice to quit is invalid in law, cannot at all be applied to the facts and circumstances of this case and in view of our discussions made hereinabove. Therefore, there is no need to deal with the decisions cited or the instance of the appellants. 15. The only other submission that needs to be considered is the submission of Mr. Bagchi by which he argued that since a tenant was inducted in the year 1978 and the suit for eviction on the ground of reasonable recruitment was filed in the year 1984 which was subsequently withdrawn, the requirement of the plaintiff/landlord of the suit premises could not be held to be bona fide one. It is well settled that only because a tenant was inducted before the filing of the suit for eviction, it cannot straightway be held that the requirement of the plaintiff/respondent of the suit premises was not bona fide one. It is not the case of the defendants that tenants were inducted during the pendency of the suit for eviction which was filed on the ground of reasonable requirement. In our view, the fact that a tenant was inducted a few years prior to the institution of the suit for eviction for reasonable requirement, is not by itself a ground for holding that the action of the landlord was mala fide with the intention to defeat the claim of the tenant. In our view, the fact that a tenant was inducted a few years prior to the institution of the suit for eviction for reasonable requirement, is not by itself a ground for holding that the action of the landlord was mala fide with the intention to defeat the claim of the tenant. It is equally well settled that the bona fide requirement must be considered with reference to the time when a suit is filed and it cannot be assumed for a moment that once the question of necessity has been decided against the landlord, it cannot be held that landlord cannot have any bona fide and genuine requirement in future. 16. Therefore, even if a tenant was inducted before the filing of this suit, it cannot be held that the requirement of the plaintiff/respondent of the suit premises was not a bona fide one. 17. Before we part with this judgment, we may state certain facts which were brought by the plaintiff/respondent to our notice at the stage of hearing of application for stay. An affidavit has been filed by the landlord/respondent to the extent that even the present appellants are not in possession of the suit premises as they are now living in different places and the suit premises has been kept without any use and this fact however, has been denied by the appellants. To find out as to whether any of the tenants is really in occupation of the suit premises, we appointed a Special Officer. The Special Officer visited the place and submitted a report, which has been kept on record. From a perusal of the said report against which no objection was raised by the defendants/appellants, we are of the view that in fact, the appellants are not using the suit premises at present. Mr. Bagchi the learned counsel for the appellants, however, submitted before us that the appellants are not living in the suit premises, excepting that one of the appellants who is a medical practitioner is running a chamber in one of the rooms of the suit premises and another defendant who has not filed the appeal against the judgment and decree of the Trial Court is residing in the suit premises. We have carefully examined the Special Officers' report and on a careful examination of the same, we are of the view that in fact no one is using the suit premises at the present moment. During the course of hearing, the landlord agreed to give tenancy of one of the appellants who is a medical practitioner to run his chamber in one of the rooms of the suit premises, but the learned advocate after taking instruction from the appellants refused to take such tenancy from the plaintiff/respondent. Such being the position and the conduct of the appellants and in view of the fact that the appellants are not using the suit premises at all we do not find any reason to protect such tenant who are not using the suit premises and have been living elsewhere. 18. No other point was raised by the appellants before us. 19. Accordingly, the appeal stands dismissed. 20. There will be no order as to costs. 21. Let the Lower Court records be sent down as early as possible preferably within four months from this date. Amit Talukdar, J.: I agree. Appeal dismissed.