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2005 DIGILAW 544 (CAL)

ANJALI SAHA v. AJIT KUMAR DATTA

2005-08-18

JYOTIRMAY BHATTACHARYA

body2005
Jyotirmay Bhattacharya, J. ( 1 ) THIS second appeal is directed against the judgment and decree dated 7th August, 1998 passed by the learned Additional District Judge, 2nd Court at Siliguri in O. C. Appeal No. 12 of 1997 reversing the judgment and decree dated 16th June, 1997 passed by the learned Civil Judge (Junior Division), siliguri, in O. C. Suit No. 86 of 1991. ( 2 ) THE plaintiff in such a suit is the appellant before this Court in this appeal. ( 3 ) THE plaintiff/appellant filed a suit for declaration of her tenancy right in respect of the suit property with a further declaration that the plaintiff/ appellant cannot be evicted from the suit property without due process of law. A decree for perpetual injunction was also prayed for against the defendant/respondent for restraining him from entering into the suit property during the continuation of the tenancy of the plaintiff/appellant and also for restraining the defendant from disturbing the continuity of the business of the plaintiff in the suit premises. ( 4 ) IN the said suit, the plaintiff/appellant alleged that the tenancy of the plaintiff/appellant in the suit premises was created in the month of september, 1998 on the basis of a written agreement. Since the inception of the said tenancy the plaintiff/appellant has been carrying on wholesale medicine business therein under the name and style of P. K. Enterprise through her husband being her constituted attorney. The plaintiff/appellant invested several lakhs of rupees for the said business. ( 5 ) SUBSEQUENTLY with the growing development of the locality, the defendant/respondent started creating various types of disturbances for evicting the plaintiff/appellant therefrom with an idea of getting high premium and for getting high rental return by way of further letting the said premises. ( 6 ) ACCORDINGLY, on 23rd July, 1991, the defendant/respondent by assembling a good number of social parasites compelled the husband of the plaintiff/ appellant to sign a written paper under threat of physical assault. In the said document, it was written that the plaintiff/appellant would vacate the suit property on 31s* July, 1991. Again on 31st July, 1991, under the threat of the defendant/respondent, the husband of the plaintiff/appellant was constrained to write on a stamp paper brought by the defendant admitting delivery of possession of the suit property on 31st July, 1991. In the said document, it was written that the plaintiff/appellant would vacate the suit property on 31s* July, 1991. Again on 31st July, 1991, under the threat of the defendant/respondent, the husband of the plaintiff/appellant was constrained to write on a stamp paper brought by the defendant admitting delivery of possession of the suit property on 31st July, 1991. ( 7 ) THE plaintiff further claimed that her husband had no authority to execute those documents and as such, the tenancy right of the plaintiff remains unaffected notwithstanding the execution of such documents by her husband which are nothing but mere scrap of papers. ( 8 ) THE plaintiff/appellant further claimed that she has not surrendered the tenancy and in fact she is still carrying on business in the suit premises as a lawful tenant thereof which cannot be terminated without following the due process of law. ( 9 ) SINCE the defendant/respondent started creating various types of problems in peaceful running of the said business since August, 1991, the instant suit was filed by the plaintiff/appellant for the aforesaid reliefs. ( 10 ) THE defendant/respondent contested the said suit of the plaintiff/ appellant by filing written statement denying the material allegation therein. A counter-claim for recovery of possession of the suit property from the plaintiff/appellant, was also prayed for by the defendant/respondent in the said suit. ( 11 ) IN the said written statement, the defendant/respondent asserted that pursuant to a settlement arrived at between the parties, the plaintiff/ appellant and her husband voluntarily agreed to surrender their tenancy and to deliver vacant possession thereof on 31st July, 1991 in consideration of relinquishment of the defendant's claim towards huge accumulated arrears electricity bills on account of the consumption of electricity by the plaintiff/appellant. ( 12 ) ACCORDINGLY, an undertaking was given by the plaintiff/appellant through her husband being the constituted attorney of the plaintiff/appellant on the written document dated 23rd July, 1991 which was captioned as bond. Subsequently the surrender of tenancy and handing over the possession of the suit premises by the plaintiff/appellant were duly acknowledged by the husband of the plaintiff/appellant in his writing on the stamp paper on 31st july, 1991. Subsequently the surrender of tenancy and handing over the possession of the suit premises by the plaintiff/appellant were duly acknowledged by the husband of the plaintiff/appellant in his writing on the stamp paper on 31st july, 1991. After removing all the articles and belongings from the suit premises, the key of the suit premises was also handed over to the defendant by the husband of the plaintiff in the presence of several respectable persons of the locality. ( 13 ) SINCE then, the defendant/ respondent was using the suit premises as living room but ultimately the defendant was dispossessed therefrom with the help of police on 1st October, 1991 pursuant to the ex parte orders passed by the learned Trial Judge on 23rd September, 1991 and 27th September, 1991, respectively. ( 14 ) THE defendant's claimed that such dispossession is illegal and unlawful, as the legal right of the plaintiff to possess the suit premises stood terminated with the surrender of her tenancy in the suit property. As such, the plaintiff is nothing but a trespasser in the suit property. Accordingly, a prayer for recovery of possession was made by the defendant/ respondent in the said suit by way of counter-claim. ( 15 ) AFTER a contested hearing, the said suit was decreed by the learned trial Judge on 16th June, 1997 by declaring the plaintiff's tenancy in the suit premises and also by passing a decree for permanent injunction restraining the defendant from interfering with and/or disturbing the tenancy right of the plaintiff in the suit premises unless the plaintiff is evicted in accordance with law. Consequently, the counter-claim filed by the defendant/respondent in the said suit was dismissed with costs. ( 16 ) THE learned Trial Judge held that the tenancy of the plaintiff/appellant cannot be extinguished by way of surrender on the basis of the documents, viz. , the Bond dated 23rd July, 1991 and the document dated 31st July, 1991 showing handing over possession of the suit premises to the defendant being exhibits 'a' and 'b' respectively, as those were executed by the husband of the plaintiff without any authority to execute such document on her behalf. , the Bond dated 23rd July, 1991 and the document dated 31st July, 1991 showing handing over possession of the suit premises to the defendant being exhibits 'a' and 'b' respectively, as those were executed by the husband of the plaintiff without any authority to execute such document on her behalf. The learned Trial Judge held that it is settled law that surrender is a voluntary action of the tenant and as such, the tenancy of the plaintiff/ appellant in the suit premises cannot be held to have been surrendered, as the plaintiff never consented to such surrender voluntarily. The learned trial Judge ultimately found that since the plaintiff/appellant was wrongfully dispossessed from her tenancy during the pendency of the suit, the restoration of her possession in respect of the suit premises with the police help pursuant to the ex parte order, was absolutely legal and justified. ( 17 ) HOLDING as such, the learned Trial Judge decreed the said suit of the plaintiff and dismissed the counter-claim filed by the defendant in such a suit. ( 18 ) BEING aggrieved by the said judgment and decree of the learned Trial judge, the defendant/respondent filed an appeal before the Court of the learned Additional District Judge, 2nd Court at Siliguri. The learned Appellate court by its judgment and decree dated 7th August, 1998 reversed the said judgment and decree of the learned Trial Judge on contest by holding, inter alia, that handing over of possession of the tenancy of the plaintiff/appellant pursuant to the document dated 23rd July, 1991 captioned as Bond being exhibit 'a' was duly acknowledged by the plaintiff through her husband being the constituted attorney of the plaintiff/appellant who acknowledged such delivery of possession of the plaintiffs tenancy vide Exhibit 'b'. ( 19 ) WHILE coming to the said finding, the learned First Appellate Court reacted sharply for non-examination of the plaintiff/appellant in such a suit. The learned First Appellate Court also found that the allegation regarding obtaining the document of surrender and/or the document containing acknowledgement of delivery of possession being Exhibits 'a' and 'b' by the defendant from the husband of the plaintiff under threat and/or coercion, has not been proved at all by the husband of the plaintiff/appellant, the p. W. 1. The learned First Appellate Court also found that the allegation regarding obtaining the document of surrender and/or the document containing acknowledgement of delivery of possession being Exhibits 'a' and 'b' by the defendant from the husband of the plaintiff under threat and/or coercion, has not been proved at all by the husband of the plaintiff/appellant, the p. W. 1. The learned First Appellate Court held that the surrender of tenancy of the plaintiff in the suit property and delivery of possession thereof were duly acknowledged by the plaintiff vide the Exhibits 'a' and 'b' which were validly executed by the husband, as constituted attorney of the plaintiff/ appellant. ( 20 ) THE learned Appellate Court further held that even if it is found that the plaintiff/ appellant did not execute the Bond being Exhibit 'a' voluntarily, still then the tenancy of the plaintiff/appellant stood terminated by way of implied surrender by way of delivery of actual possession thereof to the defendant (landlord ). ( 21 ) THUS, the learned Court below held that the dispossession of the defendant/respondent from the suit premises by the plaintiff, after surrender of her tenancy with the help of police pursuant to the ex parte orders of the trial Court at the instance of the plaintiff/appellant, is illegal. Accordingly, the learned First Appellate Court reversed the judgment and decree of the learned Trial Judge and allowed the defendant's prayer for recovery of possession in the suit. The reliefs which were prayed for by the plaintiff/ appellant in the said suit, were denied by the learned First Appellate Court. ( 22 ) THE instant second appeal is directed against such a decree of the learned First Appellate Court at the instance of the plaintiff/appellant. ( 23 ) AT the time of admission of this second appeal, no substantial question of law was formulated by the Division Bench of this Court. However, in course of hearing of this appeal this Court found that the following substantial question of law is involved in this appeal: "whether by the documents exhibited by the parties and the other materials-on-record, the admitted tenancy of the plaintiff/appellant can be held as legally terminated?" ( 24 ) THE said formulation of the substantial question of law was made by this Court with the assistance of the learned Advocates of the respective parties. ( 25 ) LET me now consider the respective submissions of the learned advocates of the parties with reference to the aforesaid substantial question of law in the facts of the instant case. ( 26 ) MR. S. P. Roychowdhury, learned Senior Advocate, appearing on behalf of the plaintiff/appellant, submitted that when a particular mode has been prescribed for surrender of tenancy by the tenant under section 19 of the west Bengal Premises Tenancy Act, surrender must be done in accordance with the mode as prescribed therein. In other words, Mr. Roychowdhury submitted that if surrender is not made in accordance with the prescribed mode, such surrender cannot be legal and valid. ( 27 ) ACCORDING to Mr. Roychowdhury, if the documents of surrender being exhibits 'a' and 'b' are considered carefully then no Court can come to the conclusion that surrender of her tenancy was made by the plaintiff/appellant in accordance with the mode as prescribed under the Act. ( 28 ) MR. Roychowdhury further contended that here in the instant case, the tenancy agreement does not provide for service of any notice for giving up possession of the tenancy and as such in view of the provision as contained in sub-section (2) of section 19 of the said Act the tenant may give up the possession of the premises on giving not less than one month's notice expiring with a month of tenancy. ( 29 ) BY referring to Exhibit 'a' being the Bond dated 23rd July, 1991, Mr. Roychowdhury pointed out that the said notice whereby the husband of the plaintiff expressed his intention to deliver possession of the suit premises to the defendant / respondent on 31st July, 1991, cannot be construed as a valid notice within the meaning of sub-section (2) of section 19 of the said Act, as the said notice was less than one month's notice expiring with a month of tenancy. ( 30 ) MR. Roychowdhury further submitted that in spite of the said notice, the plaintiff/appellant never surrendered her tenancy which she can enjoy until her tenancy is terminated in any of the modes as prescribed under the west Bengal Premises Tenancy Act. ( 31 ) MR. Roychowdhury further submitted that there are four modes by which a tenancy of a premises tenant can be extinguished. ( 31 ) MR. Roychowdhury further submitted that there are four modes by which a tenancy of a premises tenant can be extinguished. Those modes are- (i) by delivery of possession of the tenancy pursuant to a notice to quit given by the tenant to the landlord [section 13 (1) (j)]; (ii) by delivery of possession of the tenancy pursuant to the agreement created subsequent to the creation of the tenancy whereby the tenant agreed in writing to deliver vacant possession of the premises to the landlord [section 13 (l) (k)]; (iii) by a decree for eviction passed by the Court against the tenant on any of the grounds under section 13 (1) of the said Act and (iv) by delivery of possession by way of surrender of tenancy upon service of notice by the tenant to the landlord in the mode as prescribed under section 19 of the said Act. ( 32 ) MR. Roychowdhury contended that since there is no evidence-on-record that tenancy of the plaintiff was extinguished in any of the modes, as mentioned above, the learned First Appellate Court ought not to have held that the tenancy of the plaintiff was extinguished by surrender. ( 33 ) ACCORDINGLY, Mr. Roychowdhury submitted that the judgment and decree of the learned Court below cannot be sustained, as the possession of the defendant/respondent cannot be disturbed otherwise than in due process of law. ( 34 ) MR. Jiban Ratan Chatterjee, learned Senior Advocate, appearing on behalf of the defendant/respondent refuted the said submission of Mr. Roychowdhury by contending, inter alia, that when possession has been delivered by the constituted attorney of the tenant by acknowledging such delivery of possession in writing vide Exhibit 'b', the tenancy stood extinguished by way of implied surrender notwithstanding any defect in the notice issued by the constituted attorney of the plaintiff vide Exhibit 'a'. ( 35 ) MR. Chatterjee submitted that the surrender of a tenancy is a finding of fact and since the ultimate Court of facts, on consideration of the pleadings and evidence of the respective parties came to a positive finding that the tenancy was surrendered, such finding of fact arrived at by the learned first Appellate Court cannot be disturbed in second appeal unless such findings are perverse. Mr. Mr. Chatterjee further contended that perversity in such finding having not been challenged by the appellant in the instant appeal, such finding of the learned First Appellate Court cannot be disturbed in the second appeal. ( 36 ) THUS, Mr. Chatterjee submitted that, in fact, no substantial question of law is involved in this second appeal which is required to be answered by this Court. ( 37 ) LET me now consider the merit of such submissions of the learned counsel of the respective parties. ( 38 ) IT appears from the pleadings of the plaint that the plaintiff challenged the authority of her husband to surrender her tenancy on her behalf. The plaintiff claimed that the power and/or authority which was given to the husband by the plaintiff by the power-of-attorney, is limited only to the conduct and/or supervise her business in the tenancy. As such, by virtue of such power, the husband of the plaintiff cannot surrender the plaintiff's said tenancy. It was further claimed by the plaintiff that the documents being exhibits 'a' and 'b' were procured by the defendant from the husband of the plaintiff under threat and coercion and as such, those documents cannot be treated as a document of voluntary surrender of tenancy. The plaintiff, in fact, claimed that those documents are mere pieces of papers which cannot be regarded as evidence of surrender. The plaintiff claimed that possession was never surrendered and the instant suit was filed, as the defendant created various types of obstructions in the use and enjoyment of the plaintiff's tenancy since August, 1991 following the execution of those documents. ( 39 ) ON the basis of this cause of action, the aforesaid suit was filed by the plaintiff. ( 40 ) THE plaintiff herself did not come forward to prove her plaint case. Her husband, of course, deposed as P. W. 1 to prove the plaint case of the plaintiff. No other witness was examined on behalf of the plaintiff. ( 41 ) ON perusal of the entire evidence of the P. W. I, it appears that even the essential part of the cause of action for which the instant suit was filed has not been proved by evidence by the P. W. 1. Admittedly the husband of the plaintiff is the constituted attorney of the plaintiff. ( 41 ) ON perusal of the entire evidence of the P. W. I, it appears that even the essential part of the cause of action for which the instant suit was filed has not been proved by evidence by the P. W. 1. Admittedly the husband of the plaintiff is the constituted attorney of the plaintiff. Though the plaintiff claimed that the authorization to act on behalf of the plaintiff was given to her husband for a limited purpose which is restricted to the looking after of the business, but still then the power-of-attorney has not been produced to substantiate such claim of the plaintiff. ( 42 ) IN such circumstances, by drawing adverse presumption against the plaintiff for withholding the best piece of evidence in her custody, the Court can very well conclude that the husband of the plaintiff was holding general power-of-attorney by which he could represent the plaintiff in respect of any affair relating to the plaintiff. Admittedly those documents were executed by the husband of the plaintiff/appellant as her constituted attorney. As such, in the absence of proof regarding the limited extent of authorisation to act on behalf of the plaintiff by her constituted attorney, this Court holds that the plaintiff/appellant has miserably failed to prove her said contention, particularly when the defendant categorically claimed about the existence of the general power-of-attorney in his written statement. ( 43 ) IT is no doubt true that various modes have been prescribed for termination of the tenancy of a premises tenant under the West Bengal premises Tenancy Act. One of such modes is by way of surrender of tenancy. Surrender of tenancy has been prescribed under section 19 of the said Act which is as follows: "19. Provisions regarding notice of giving up possession by tenants under contracts.- (1) A tenant who is in possession of any premises to which this Act applies shall observe all the terms and conditions of the contract creating the tenancy and shall be entitled to the benefits thereof so far as these terms and conditions are consistent with the provisions of this Act. (2) Notwithstanding anything in any other law for the time being in force, a tenant may give up possession of the premises on giving such notice as is required under the contract creating the tenancy. (2) Notwithstanding anything in any other law for the time being in force, a tenant may give up possession of the premises on giving such notice as is required under the contract creating the tenancy. In the absence of any provision in the contract relating to notice or when there is no contract, the tenant may give up possession of the premises on giving not less than one month's notice expiring with a month of the tenancy. " ( 44 ) NO doubt the provision contained in sub-section (2) of section 19 of the said Act starts with non-obstante clause but still then the expression of word "may" in the said provision clearly indicates that the mode as prescribed in the said provision is not the only mode by which tenant may give up possession. If that be so, then the tenant's right to surrender the tenancy either by express or by implied surrender, as provided in clauses (e) and (f)of section 111 of the Transfer of Property Act has not been abrogated by non-obstante clause contained in section 19 (2) of the said Act. Though the express surrender requires surrender of tenancy by mutual agreement but implied surrender may occur either by relinquishment of possession or by creation of new relationship of landlord and tenant between the parties. ( 45 ) THE concept of implied surrender under the West Bengal Premises tenancy Act is not unknown to this Court, as this Court finds recognition of the said concept in the Division Bench decision of this Court in the case of martin Harris (P) Ltd. vs. E. Properties, reported in 86 CWN 588. ( 46 ) ADMISSION is the best piece of evidence, unless it is explained away by the author of such document. On perusal of the entire evidence of the plaintiff it appears that not a single word has been whispered by the plaintiff about the effect of such admission of the constituted attorney of the plaintiff in Exhibits 'a' and 'b'. On perusal of the entire evidence of the plaintiff it appears that not a single word has been whispered by the plaintiff about the effect of such admission of the constituted attorney of the plaintiff in Exhibits 'a' and 'b'. ( 47 ) IN fact, though the plaintiff/appellant claimed in the plaint that such documents being Exhibits 'a' and 'b' were procured by the defendant from the husband of the plaintiff by force and/or coercion, but still then the P. W. 1 who is the author of those documents was totally silent about the execution of such documents under threat or coercion in spite of the fact that the defendant denied such allegation in his written statement. ( 48 ) ON the contrary, the defendant proved that the said documents were executed by the duly constituted attorney of the plaintiff voluntarily in his own evidence which was corroborated by the other witnesses who were not only present at the time of execution of those documents but also witnessed such surrender. One of such witnesses happened to be the brother of the plaintiff's husband who along with the other witnesses in uniform tone proved voluntary surrender of tenancy and delivery of possession by the husband of the plaintiff to the defendant. ( 49 ) HERE in the instant case, this Court finds that possession was delivered after admitting surrender in writing. As such the tenancy of the plaintiff/ appellant stood terminated by express surrender by the mutual agreement between the parties pursuant to which the defendant/respondent relinquished his claim for arrear dues towards electricity bills of the plaintiff/ appellant. Even assuming that the notice being Exhibit 'a' is not a valid notice within the purview of section 19 (2) of the said Act and the tenancy was not terminated by express surrender, still then it can be held that the tenancy of the plaintiff was surrendered impliedly by taking note of the admission of the constituted attorney of the plaintiff made in Exhibit 'b' herein regarding delivery of possession of the tenancy to the defendant/ respondent. ( 50 ) THUS, when on consideration of the entire evidence-on-record, the learned First Appellate Court being the final Court of facts came to the finding that the tenancy of the plaintiff stood terminated by way of surrender, this Court sitting in this jurisdiction declines to interfere with such finding of facts arrived at by the learned First Appellate Court, particularly when the plaintiff failed to prove either by oral or documentary evidences that she was in possession of the suit premises during the period from 1st August, 1991, i. e. , the day following such surrender upto 1st October, 1991, i. e. , the date of recovery of possession of the suit property by the plaintiff by police help pursuant to the ex parte order passed by the learned Trial Judge. ( 51 ) THAT apart, the plaintiff was aware of the execution of those documents being Exhibits 'a' and 'b' in July, 1991. According to the plaint case, such documents were procured by the defendant by force and coercion in July, 1991. Exhibit 'a' also speaks in clear term about the voluntary surrender of her tenancy and her intention to delivery possession on 31st July, 1991. ( 52 ) EVEN in spite of exercise of alleged threat and coercion, the plaintiff did not file any suit prior to 31st July, 1991 to defuse the threat and for avoiding the involuntary execution of such document. Plaintiff waited till 23rd September, 1991 for filing such a suit and thereafter obtained ex parte order for recovery of possession by police help from the learned Trial Court. If all these sequences of events are considered carefully, then this Court has no hesitation to hold that the said suit was filed on speculative cause of action. ( 53 ) THUS, if the findings regarding the surrender of tenancy as arrived at by the Court below cannot be disturbed by this Court, then this Court has no hesitation to hold that the defendant/respondent was illegally dispossessed from the suit premises by the plaintiff/appellant with the help of police during pendency of the suit in terms of an ex parte order passed by the learned Trial Judge. ( 54 ) SUCH being the position, this Court finds no justification in interfering with the judgment and decree of the learned First Appellate Court. The judgment and decree of the learned First Appellate Court stands affirmed. ( 54 ) SUCH being the position, this Court finds no justification in interfering with the judgment and decree of the learned First Appellate Court. The judgment and decree of the learned First Appellate Court stands affirmed. ( 55 ) THE appeal thus stands dismissed on contest without, however, any order as to costs. ( 56 ) LET the Lower Court Records be sent down to the learned Court below forthwith. ( 57 ) URGENT xerox certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible. Later: ( 58 ) AFTER delivering the judgment, a prayer is made by the learned advocate for the appellant for stay of operation of this judgment for a period of four weeks. ( 59 ) CONSIDERING such prayer of the learned Advocate for the appellant, the operation of this judgment is stayed for a period of four weeks from date. Appeal dismissed.