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2001 DIGILAW 39 (CAL)

Gouri Chakraborty v. Nilima Bose

2001-01-25

Bhaskar Bhattacharya

body2001
JUDGMENT Bhaskar Bhattacharya, J. This second appeal is at the instance of a tenant/defendant in a suit for eviction and is directed against judgment and decree dated January 27, 1995 passed by the learned Additional District Judge, 2nd Court, Alipore in Title Appeal No. 269 of 1993 thereby setting aside those dated June 28, 1993 passed by the learned Munsif, 6th Court, Alipore in Title Suit No. 179 of 1989. 2. The respondent herein filed the aforesaid Title Suit No. 179 of 1989 on various grounds including a ground that although the tenancy was given for residential purpose, the appellant was using the same for business purpose. 3. The aforesaid suit was contested by the appellant by filing written statement thereby denying the material allegations made in the plaint. 4. Ultimately, the learned Trial Judge dismissed the suit on contested hearing thereby holding that none of the grounds taken by the plaintiff could be proved. 5. Being dissatisfied, the plaintiff preferred an appeal being Title Appeal No. 269 of 1993 which was ultimately heard by the learned Additional District Judge, 2nd Court, Alipore and by the judgment and decree impugned herein, the said court has set aside those passed by the learned Trial Judge and has passed a decree for eviction only on the ground that the tenant/defendant had used the property for business purpose although the same was let out for residential purpose. 6. Being dissatisfied, the defendant has come up with the instant second appeal. At the time of hearing under Order 41 Rule 11 of the Code of Civil Procedure, the following substantial questions of law were formulated by the Division Bench: "Whether the criterion of predominance of user in a case of change of purpose of tenancy was applied properly in the present case and also whether the decree is sustainable without finding about the period during which such user has continued in the present case?" 7. The Division Bench also admitted the appeal on ground No.4 which is to the following effect: "For that both the courts below erred in holding that the notice of ejectment was not waived even though admittedly the plaintiff/ respondent waived such notice by accepting rent for the month of May, 1989." 8. Mr. The Division Bench also admitted the appeal on ground No.4 which is to the following effect: "For that both the courts below erred in holding that the notice of ejectment was not waived even though admittedly the plaintiff/ respondent waived such notice by accepting rent for the month of May, 1989." 8. Mr. Bhattacharyya, the learned counsel appearing on behalf of the appellant has first contended that in the absence of any averment made in the plaint as well as of evidence in terms of section 13(1) (h) of the West Bengal Premises Tenancy Act ("Act"), the learned court of appeal below erred in law in passing a decree for eviction. According to Mr. Bhattacharyya, it must be averred and proved that the appellant had been using the property for business purpose for more than four months without the consent in writing of the landlord. Mr. Bhattacharyya contends that no such averment was either made in the plaint nor was any evidence adduced proving the aforesaid fact. Even, the learned court of appeal below has not arrived 'at any finding that the defendant had been using the property for business purpose for more than four months. Mr. Bhattacharyya further contends that by Exhibit 7 series', user of the property for business purpose has not been proved, According to him the admission made by the husband of the plaintiff demolishes the genuineness of Exhibit 7 series'. 9. Mr. Bhattacharyya further contends that by the notice for eviction on the basis of which the defendant was asked to vacate the premises, she was asked to quit the same by March, 1989 but it is admitted pu.3ition that the plaintiff accepted rent up to May, 1989. Thus, Mr.Bhattacharyya contends that the notice under section 13(6) of the Act has been waived. 10. Mr. Banerjee, the learned counsel appearing on behalf of the respondent has on the other hand, supported the finding recorded by the learned court of appeal below and has contended that the learned first appellate court below being the final court of fact having held that the appellant used the property for business purpose, this court sitting in a second appeal should not interfere with such finding of fact. 11. Mr. 11. Mr. Banerjee further submits that after the decision of the Apex Court in the case of V. Dhanpal Chettiar vs. Yesodai Ammal, reported in AIR 1979 SC page 1745, the concept of determination of tenancy is no longer in existence. Thus, merely because his client had accepted rent up to May, 1989 that fact cannot lead to any conclusion that there has been waiver of notice to quit. Mr. Banerjee contends that notwithstanding acceptance of rent, a notice to quit may be enforced. Mr. Banerjee thus prays for dismissal of the instant appeal. 12. For the purpose of appreciation of the first point taken by Mr. Bhattacharyya, the provisions contained in section 13(1) (h) of the Act are quoted hereunder: "Notwithstanding anything to the contrary in any other law no order or decree for the recovery of possession of any premises shall be made by any court in favour of landlord against a tenant except on one or more of the following grounds viz. a) ................................ b) ..................................... c) .................................... d) ..................................... e) ................................ D ..................................... g) .................................... h) Where the premises let out for residential purpose have been used for any other purpose for more than four months without the 'consent in writing of the landlord." 13. In the instant case the respondent in paragraph 4 of the plaint made the following averment :- "That the defendant has been carrying on business on the suit premises which was given to her for residential purposes only." 14. The defendant/appellant has disputed the aforesaid fact by filing written statement and has asked the plaintiff to prove the said fact. 15. At the time of hearing, the husband of the plaintiff in his deposition made the following allegations in examination-in-chief:- "The defendant is carrying on business of security guard and catering business in the suit premises. These are two pay bills of two security guards marked exhibit 7 series.' " 16. In cross-examination Exhibit 7 series' were tendered to the said witness and at that time he stated that those documents were not in his name, that he got those documents in the post box, that the envelope came in the address of Royal Security and that he kept those documents as a proof of his case without giving the same to the addressee. He further admitted that he had not filed the envelope. He further admitted that he had not filed the envelope. He also admitted that he could not say who wrote Exhibit 7 series'. He further stated that he came to know the name of the business from those documents. 17. Exhibits 7 and 7A' upon which reliance has been placed by the court of appeal below are printed vouchers both dated September 20, 1989 showing that payment of Rs. 1,500/- each has been made to Md. H. Mallick and Suchand Mondal on account of salary for the month of August, 1989 for 31 days. Those vouchers are also signed by Hasmat Ali Mallick and Suchand Mondal respectively on revenue stamps. 18. As indicated above, the witness for the plaintiff at whose instance the documents were marked exhibit himself having admitted that he did not know in whose hand writing those vouchers were written and who signed those vouchers, in my opinion, by production of those documents it is only proved that there existed printed vouchers in the name of Royal Security having its office at 11A, H.S. Road, Ground Floor, Calcutta-23. But by such exhibits, the veracity of the statement made in the vouchers is not at all proved unless the author of those documents are examined and the defendant is given opportunity to cross-examine the author. Even, whether really such a business existed at the said premises is not proved. Moreover, the husband of the plaintiff has admitted that those receipts were in an envelope which he had stolen from the post box of tenant. Under such circumstances, the said envelope ought to have been proved. Moreover, those documents acknowledge receipt on revenue stamp by the persons mentioned therein of their salary for the month of August, 1989. Such document is expected to be in the custody of the Royal Security, the employer. When the signature has been put on the voucher, how the same can be sent to the suit address by post is not explained. Be that as it may, I have already indicated that by production of those exhibits the veracity of the statement made in the vouchers is no at all proved and the same is worst piece of hearsay evidence of the contents. 19. Be that as it may, I have already indicated that by production of those exhibits the veracity of the statement made in the vouchers is no at all proved and the same is worst piece of hearsay evidence of the contents. 19. The learned court of appeal below as it appears from the record solely relied on such documents in arriving at a conclusion-that the plaintiff is entitled to evict the tenant on the ground mentioned in section 13(1) (h) of the Act. Even by the said document it is not proved that any business of security guard had been continuing in the building for more than four months as required under law. No statement to that effect even has been made by the witness for the plaintiff. Under such circumstances, I fund substance in the contention of Mr. Bhattacharyya that the ground required under section 13(1) (h) of the Act has not been proved and the learned court of appeal below erred in law in passing a decree in the absence of any averment in the plaint and of any evidence and also in the absence of any finding to that effect in the body of the judgment. 20. As regards the second point advanced by Mr. Bhattacharyya, it appears that the suit was filed on May 6, 1989. The rent for the month of May, 1989 was accepted on May 29, 1989 during the pendency of the suit. Even under section 17(1) of the Act, a liability is cast upon the defendant to pay arrears of rent and current rent by paying those directly to landlord or depositing in Rent Controller or depositing the same in the Court. Thus, in the instant case, rent having been accepted by landlord after the filing of the suit, the same cannot amount waiver of notice under section 13(6) of the Act which is merely a notice of threat of suit. Suit already having been filed at the time of acceptance of rent, by such acceptance, the notice under section 13(6) is not waived. I thus find no substance in the second contention of Mr. Bhattacharyya. 21. However, in view of my finding on the first point mentioned above, no decree for eviction can be passed against the defendant and as such the learned first appellate court below committed a gross error of law in passing a decree for eviction. I thus find no substance in the second contention of Mr. Bhattacharyya. 21. However, in view of my finding on the first point mentioned above, no decree for eviction can be passed against the defendant and as such the learned first appellate court below committed a gross error of law in passing a decree for eviction. I thus set aside the judgment and decree passed by the learned court of appeal below. The suit for eviction filed by the respondent is thus dismissed. 22. In the facts and circumstances there will be however no order as to costs. Appeal dismissed.