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2001 DIGILAW 697 (CAL)

Supriti Dutta v. Supriti Dutta

2001-10-19

JOYTOSH BANERJEE

body2001
JUDGMENT The judgment of the Court was as follows :–– The present second appeal is directed against the judgment and decree of dismissal passed by the Additional District Judge, 14th Court, Alipore, in the District of 24-Parganas(S) in T.A. No. 218/88 affirming the finding of trial Court, namely, Assistant District Judge, 1st Court Alipore made in connection with the T.S. No.69/82 to the effect that the letter dated 25.5.1976 (Ext.1) was not an agreement which would bring the suit under Clause 'K' of Section 13(1) of the West Bengal Premises Tenancy Act. With this finding, the learned trial Court dismissed the suit and in appeal, the same was affirmed. 2. The landlord, namely, Abaypada Dutta, the predecessor-in-interest of the present appellants filed the suit being T.S. No. 69/82 before the trial Court mentioned above for ejectment, khas possession and mesne profits in the month of February 1982. The plaintiff prayed for eviction of the tenant on various grounds including one under Section 13(1) (k) of the West Bengal Premises Tenancy Act alleging, inter alia, that the defendant/respondent was inducted in the suit premises as a monthly tenant at a rental of Rs.1500/- on first day of May, 1971. At that time, the defendant agreed to vacate the suit premises on the expiry of the month of April 1976. Then prior to the expiry of the said tenancy, the defendant requested the plaintiff to extend the period of tenancy and to grant a fresh tenancy in respect of the self-same premises commencing from 1st of May, 1976 on fresh terms and conditions. The new tenancy was at a monthly rental of Rs.1700/-. Subsequent to the creation of the tenancy, the defendant wrote a letter to the plaintiff/appellant on 25th of May, 1976 whereby he agreed to vacate the suit premises on the expiry of month of April, 1981. But inspite of the agreement defendant failed to vacate the suit premises in terms of the said letter. The defendant contested the suit by filing a Written Statement alleging, inter alia, that granting of a fresh tenancy from 1st of May, 1976 as alleged by the plaintiff was a myth, the agreement, if any, in this regard was only for enhancement of rent from Rs.1500/- to Rs.1700/- per month. The defendant contested the suit by filing a Written Statement alleging, inter alia, that granting of a fresh tenancy from 1st of May, 1976 as alleged by the plaintiff was a myth, the agreement, if any, in this regard was only for enhancement of rent from Rs.1500/- to Rs.1700/- per month. The defendant/respondent denied that he agreed by the letter dated 25.5.76 to vacate the suit premises on the expiry of the month of April, 1981. 3. On the basis of such pleadings, the learned trial Court raised number of issues including one touching the question whether the plaintiff/appellant was entitled to get a decree as prayed for and by his judgment proceeded to consider whether the plaintiff/appellant was entitled to get a decree for eviction on the ground as contemplated under Section 13(1)(k) of the West Bengal Premises Tenancy Act and came to a firm finding on consideration of relevant evidence and surrounding facts and circumstances that the letter dated 25.5.76 (Ext. 1) was nothing but a document incorporating the terms of tenancy itself and not a document containing an agreement from the side of the tenant to vacate possession of the suit premises in favour of the landlord/plaintiff on a certain date. In appeal, the learned appellate court concurred with the finding of the learned trial Court that in view of the admission in Para-2 of the plaint by the plaintiff/appellant it could not be stated that the tenancy which commenced from the 1st day of May, 1976 was not a fresh tenancy. But continuation of an old tenancy which had commenced from 1st of May, 1971, with only an agreement for enhancement of rent and further that the letter dated 25.5.76, Ext.1 was not an agreement subsequent to creation of any tenancy. But it was the re-production of an agreement itself with a pledge for surrendering the tenancy as one of the terms. 4. At the time of admission, the learned Division Bench of this Court did not specifically indicate the substantial question of law involved in the present second appeal. But it was the re-production of an agreement itself with a pledge for surrendering the tenancy as one of the terms. 4. At the time of admission, the learned Division Bench of this Court did not specifically indicate the substantial question of law involved in the present second appeal. Therefore, at the time of hearing of the appeal, I have gone through the judgments of the courts below and I have also heard the learned Advocate for the appellant and ground No. IV in the Memo of Appeal has been taken up as the substantial question of law involved in the present appeal and it runs as follows:- "For that the learned Courts below erred in law in not holding on interpretation of the letter dated 25.5.76 that even if a second tenancy had been created on a fresh terms and conditions, such fresh tenancy was created on and from 1.5.76 whereas the letter dated 25.5.76 is a document subsequent to the creation of tenancy falling within the scope of ambit of Section 13(1)(k) of the W.B. Premises Tenancy Act and there was no scope for any second interpretation." 5. The learned Advocate for the plaintiff/appellant has argued pointing out to the provisions under Order 15 Rule 4 C. P. Code that the defendant although filed a written statement, he did not adduce any evidence in support of the defence case and therefore, pursuant to such provision, the Court should pronounce judgment on the evidence adduced from the side of the plaintiff. Here it has been submitted in the absence of defence evidence, the courts below considered the defence case, which according to the learned Advocate was not permissible under the law. Secondly, it is argued that the trial Court based its decision on conjectures and surmises over-looking the plaint case and in this way, the said judgment and subsequently the judgment of the appellate Court which affirmed the findings of the trial Court have been tainted with illegality. The learned Advocate for the defendant/respondent on the other hand, has supported the judgments passed by the courts below pointing out that the trial Court extensively dealt with issue touching the question whether the plaintiff in the facts and circumstances of the case was entitled to get a decree as prayed for. The learned Advocate for the defendant/respondent on the other hand, has supported the judgments passed by the courts below pointing out that the trial Court extensively dealt with issue touching the question whether the plaintiff in the facts and circumstances of the case was entitled to get a decree as prayed for. It has been further submitted that the Ext.1 being the letter dated 25th May, 1976 contained only the terms of a fresh agreement of a tenancy commencing on and from 1st May, 1976. Clause 6 of the said letter wherein it was agreed that the tenant would vacate the tenancy upon expiry of April, 1981 was nothing but one of the clauses and/or terms of agreement of tenancy, there was no real intention by the tenant to quit tenancy. 6. Before I proceed further I must point out here that learned Advocates for both sides have cited number of decisions of the Apex Court where the scope of interference with the finding of fact under Section 100 of C.P. Code by the High Court has been discussed from all its aspects. The following cases on the aforesaid point have been referred and relied on by the parties of the present appeal :–– (1) Kulwant Kaur v. Gurdial Singh Mann (dead) by L. Rs. & Ors., reported in AIR 2001 SC 1273 ; (2) Sontoshtosh Hazari v. Purushottam Tiwari (dead) by L. Rs. reported in AIR 2001 SC 965 ; (3) Ishwar Dass Jain (dead) through L.Rs. v. Sohan Lal (dead) by L.Rs. reported in (2000)1 SCC 434 ; (4) Kondiba Dagadu Kadam v. Savitribai Sopan Gujar & Ors. reported in (1999)3 SCC 722 ; (5) Ramanuja Naidu v. Kanniah Naidu & Ors. reported in AIR 1996 SC 3021 ; (6) Satya Gupta (Smt. Alias Madhu Gupta v. Brijesh Kumar reported in (1998)6 SCC 423 ; (7) Hamida & Ors. v. Khalil reported in (2001)5 SCC 30 . 7. From the above reported decisions of the Apex Court, the scope of interference by the High Court in a second appeal has been made very clear that the second appeal should be heard only on the substantial question of law. v. Khalil reported in (2001)5 SCC 30 . 7. From the above reported decisions of the Apex Court, the scope of interference by the High Court in a second appeal has been made very clear that the second appeal should be heard only on the substantial question of law. In such an appeal a finding of fact even if erroneous will generally not be disturbed but where it is found that the findings stand vitiated on wrong test and on the basis of assumptions and conjectures and resultantly there is an element of perversity involved therein. Then the High Court will be within its jurisdiction to deal with issue, but only in the event such Act is brought to light by the High Court explicitly and the judgment should also be categorical as to the issue of perversity vis-a-vis the concept of justice. In this way a pure finding of fact was not open to challenge before the High Court in second appeal even under the old section 100 of the Code (pre 1976 amendment). It is also laid down that there are two situations wherein finding of fact would give rise to a question of law that is to say when material or relevant evidence is not considered which, if considered would have led to an opposite conclusion. Secondly, where a finding has been arrived at by the courts below by placing reliance on inadmissible evidence which if it was omitted an opposite conclusion was possible. 8. In the instant case, it has been seen that the whole question was decided by the courts below on interpretation of a particular document, namely, Ext.1. Both the courts below, as I have seen from before came to a same conclusion after considering the attending circumstances that the said document was not an agreement on the part of the defendant/tenant to vacate the suit premises. But such a condition was there as a mere part of an acknowledgement of terms of tenancy itself. In coming to such conclusion, the learned courts below considered that plaintiff in his evidence as P.W.1 stated that except the letter dated 25.5.76 from the defendant there was no other agreement on this point between the parties. So the terms of condition of the fresh tenancy were not reduced into writing by the parties and Ext. In coming to such conclusion, the learned courts below considered that plaintiff in his evidence as P.W.1 stated that except the letter dated 25.5.76 from the defendant there was no other agreement on this point between the parties. So the terms of condition of the fresh tenancy were not reduced into writing by the parties and Ext. 1, the letter written by the defendant/tenant only acknowledged the terms of tenancy. So, such document was nothing but a document incorporating the terms of tenancy itself and not a document containing an agreement from the side of the tenant to vacate possession. In coming to such a conclusion, the courts below also pointed out to the admitted fact that at the time of creation of the first tenancy in 1971. There was a similar letter written by the defendant/tenant on 7th May, 1971 agreeing to vacate the suit premises on the expiry of 30th April, 1976, but the defendant/tenant cid not vacate the suit premises. Similarly, in case of the second tenancy, the letter was written on 25.5.76 before the landlord could grant one month's rent receipts in favour of the defendant/tenant. In that background, the learned trial Court found that the very contention that a tenant would agree to vacate the suit premises of his own evolution only 7 days after creation of the tenancy. 9. In this way I find that the courts below did not resort to conjectures and surmises or did not base the decision on inadmissible evidence or did not fail to consider relevant evidence in coming to such a conclusion and I also do not find anything to suggest even remotely that such findings stand vitiated on wrong test. In this connection, I may refer to the decision of (8) Jangbir v. Mahavir Prasad Gupta reported in AIR 1977 SC 27 , where in the Apex Court held that unless interpretation of a document involves the question of application of a participle of law mere inferences from on the evidentiary value of a document generally raises only a question of fact. 10. In the light of the above observation, it is clear that the question which has been taken up as the substantial question of law is in fact not a question of law fearless a substantial question of law. 10. In the light of the above observation, it is clear that the question which has been taken up as the substantial question of law is in fact not a question of law fearless a substantial question of law. In that background, I am constrained to hold that I cannot interfere with the concurrent finding of the courts below in this second appeal. 11. In the result, the appeal must fail. The appeal is dismissed but having regard to the circumstances I make no order as to cost. Later––Xerox certified copy of the judgment, if applied for by the parties, the same may be supplied within a reasonable period.