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2006 DIGILAW 18 (CAL)

SOHAM DUTTA v. SUDHANGSHU KUMAR GHOSH

2006-01-13

BHASKAR BHATTACHARYA, PRAVENDU NARAYAN SINHA

body2006
BHASKAR BHATTACHARYA, J. ( 1 ) THIS first appeal is at the instance of a plaintiff in a suit for eviction and is directed against the judgment and decree dated October 1,1996 passed by the learned Judge, Second Bench, City Civil Court at Calcutta in Title Suit No. 1289 of 1985 thereby dismissing the suit only on the ground of want of a valid notice of quit in terms of Section 13 (6) of the West Bengal premises Tenancy Act. ( 2 ) THE appellant herein filed the aforesaid suit for eviction of the respondent on the allegation that the respondent became a tenant under the appellant by virtue of a registered deed of lease dated 13th September, 1982 for 25 years but the respondent having violated the terms of the said lease by making default in payment of rent and also by subletting without the consent of the appellant was liable to be evicted. ( 3 ) THE suit was, therefore, in essence, a suit for eviction on the allegation of forfeiture. There is no dispute that prior to the filing of the suit, a notice to quit was given on behalf of the landlord asking the tenant to vacate the property with the expiry of May, 1985 but such notice was issued on 2nd May, 1985. ( 4 ) THE suit was contested by the respondent by filing written statement thereby disputing the allegations made in the plaint and specific defence taken by the respondent was that the tenancy of the respondent was governed by the west Bengal Premises Tenancy Act and as such, in the absence of a valid notice in terms of Section 13 (6) of the said Act, the suit was not maintainable. ( 5 ) THE learned trial Judge on consideration of the materials-on-record although found that the appellant had proved the allegations of default and subletting, he came to the conclusion that the plaintiff was not entitled to get a decree for eviction for want of a valid notice under Section 13 (6) of the West bengal Premises Tenancy Act. ( 6 ) BEING dissatisfied, the landlord has come up with the present first appeal. ( 7 ) AFTER hearing Mr. ( 6 ) BEING dissatisfied, the landlord has come up with the present first appeal. ( 7 ) AFTER hearing Mr. Chatterjee, the learned Senior Advocate appearing on behalf of the appellant and after going through the materials-on-record we find that in Clause (p) of the deed of lease there is a specific clause authorising the tenant to terminate the tenancy by giving one calendar month's notice before the stipulated period of twenty-five years. The said clause is quoted below: -" (p)That in case of violation of any terms and terms and conditions on the part of the lessees will be treated as branch of the terms and the deed of Lease will automatically be terminated and during the period of the term of the lease if the Lessees want to terminate the lease they can do the same by giving clear one calender month's to the lessor and the lessees will not have any claim for compensation for such vacation, termination and giving peaceful possession. " ( 8 ) IT is, therefore, clear that although the lease was for the period of 25 years, there being a specific clause of earlier determination of the lease at the instance of the lessee and such lease having been executed after August 24, 1965, the date of publication of the West Bengal Ordinance VI of 1965, in view of Section 3 (2) of the West Bengal Premises Tenancy Act, the tenancy in question comes within the purview of the said Act. ( 9 ) ONCE it is established that the tenancy is governed by the provisions of the West Bengal Premises Tenancy Act, in the absence of a valid notice under section 13 (6) of the Act, a suit for eviction of the tenant is not maintainable. ( 10 ) WE, have already pointed out that in this case notice was dated 2nd may, 1985 and by the said notice, the tenant was asked to vacate with the expiry of 31 st May, 1985 which is not in conformity with the provisions contained in Section 13 (6) of the Act. We, therefore, find that the learned trial Judge rightly held that the suit was not maintainable as it was not preceded by a valid notice provided in Section 13 (6) of the Act. We, therefore, find that the learned trial Judge rightly held that the suit was not maintainable as it was not preceded by a valid notice provided in Section 13 (6) of the Act. ( 11 ) WE, thus, affirm the judgment and decree passed by the learned trial judge and hold that in the absence of valid notice under Section 13 (6) of the west Bengal Premises Tenancy Act the suit was not maintainable. ( 12 ) AS we have upheld the findings of the learned trial Judge on the question of applicability of the West Bengal Premises Tenancy Act and also on the question of the service of a valid notice in terms of Section 13 (6) thereof, we have not gone into the other issues involved herein. The appeal is, thus, dismissed. In the facts and circumstances, there will be, however, no order as to costs. .