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2006 DIGILAW 472 (CAL)

SITA DEVI HARALALKA v. T. M. AND M. C. PVT. LTD.

2006-07-31

ARUN KUMAR BHATTACHARYA

body2006
Arun Kumar Bhattacharya, JJ. ( 1 ) THE present suit for eviction, realization of rents and taxes to the tune of rs. 1,03,962/-, mesne profits and other reliefs was instituted by the plaintiff Sita devi Haralalka, since deceased and substituted by her husband and three sons being her heirs and legal representatives, on the grounds of default and reasonable requirement for own use and occupation. ( 2 ) A thumbnail sketch of the plaintiff's case is that she is the owner of flat no. 1c on the first floor of Russel Apartment at 12b, Russel Street, calcutta -16, and the defendant-company was a tenant in respect of the same at a rental of Rs. 2,000/- including service charges of Rs. 500/- plus Rs. 250/- as occupier's share of Corporation taxes, payable according to English calendar month till april, 1979. Upon grant of a superior lease/tenancy by her in favour of her daughter-in-law Smt. Sangeeta Haralalka for a period of two years three months i. e. from May 1979 till August 1981, the defendant paid rent and service charges to the said Smt. Sangeeta Haralalka. The said lease in favour of Sangeeta was determined by efflux of time and Sangeeta surrendered the lease from september 1981. The defendant failed to pay rents and service charges from september, 1980 and occupier's share from 20th December, 1977 and after adjustment of rents for October and November 1980, the dues including statutory interest computed upto December, 1983 is Rs. 1,03,962/ -. The plaintiff's family consists of her husband, two married sons, one unmarried son and one minor grandson. She has undivided 1/5th share in 33, Ashutosh Mukherjee Road in jagubazar Phulpatty, Calcutta, which is under family dispute. Her husband naranarayan Haralalka has disputed 1/4th share in 36, Brabourne Road, calcutta which is a commercial area and the building is fully tenanted. She resides at 118b, Ashutosh Mukherjee road, Calcutta which belongs to her husband's cousin brother Thakur prasad Haralalka, as a licensee, and the owner of the premises has asked her to vacate the premises within a reasonable time. In such circumstances, her stay in the said premises is beneath her dignity and self-respect. She has no other reasonably suitable accommodation except the disputed premises which she reasonably requires for her own use and occupation. In such circumstances, her stay in the said premises is beneath her dignity and self-respect. She has no other reasonably suitable accommodation except the disputed premises which she reasonably requires for her own use and occupation. By a notice dated october 27, 1983 she determined the tenancy of the defendant and called upon it to vacate the flat on the expiry of December, 1983, but the notice came back with the postal remark "refused". The mesne profits for wrongful occupation of the flat may be reasonably assessed at rs. 500/- per diem. As the defendant failed to comply with the terms of the said notice, hence the suit. ( 3 ) THE suit was contested by the defendant by filing a written statement inter alia denying the material allegations of the plaint and contending that it had been and still is a tenant since 1979 under Smt. Sangeeta Devi Haralalka who acquired the flat. Tenancy was attorned in her favour and ever since she has been and still continues to be the landlady of the defendant. The said sangeeta Devi Haralalka refused to accept rents for October to December, 1980. The defendant continued to tender rents, and sometimes she accepted cheques but granted no receipt. She insisted upon enhancing the rent to rs. 5,000/- p. m. and on the pretext of negotiation she continued to avoid granting receipt. In August, 1982 the defendant insisted upon her for accepting rent, but she refused, for which the rent was deposited with the Rent Controller from August 1982. She again approached the defendant for settlement with a request not to deposit the rent but went on postponing the settlement month by month. Sangeeta Devi failed to pay ever since April, 1980 to the Russel apartment Society, the agency responsible for managing and maintaining the said premises, the maintenance service charges of Rs. 250/- per month in order to force the said Society to cut off the essential supplies to the said flat so that the defendant may be forced to agree to the illegal demand of increase of rent. After the said flat was transferred to Sangeeta Devi, the same fell into despair for want of repair and maintenance as she failed to pay the management and repair charges. In March, 1980 the electricity and water supply was stopped to the flat, for which the defendant by its letter dated 20. 03. After the said flat was transferred to Sangeeta Devi, the same fell into despair for want of repair and maintenance as she failed to pay the management and repair charges. In March, 1980 the electricity and water supply was stopped to the flat, for which the defendant by its letter dated 20. 03. 80 informed Sangeeta devi that if she failed to pay maintenance and ensure resumption of water and electricity supply to the flat, the defendant would pay the same and deduct the same from the monthly rent. In response, m/s. B. M. Bagaria and Co. , Advocates for Sita Devi, informed the Advocate of the Russel Apartment Society through a letter dated 25,04. 80 about no objection to the payment of maintenance charges but the Society should also agree to discharge its obligations and responsibilities in the matter of maintaining the flat. The Society by letter dated 01. 11. 80 to Smt. Sita Devi demanded the due maintenance charges from May, 1980 with a threat to disconnect electricity to the flat. On the request of the defendant by letter dated 12. 11. 80 the landlady consented to the paying of maintenance charges from May, 1980 by the defendant and deduction of the said amount from the rent. The defendant has accordingly been paying the maintenance charges which was increased to Rs. 300/- per month from January, 1982 to the Society on behalf of the landlady and thus paid a total sum of rs. 12,800/- till February, 1984. The defendant was never aware about the alleged surrender of lease by Smt. Sita Devi to the plaintiff. No notice was ever served upon the defendant nor the alleged notice is legal and valid nor the plaintiff has any locus standi to determine the tenancy of the defendant. That the plaintiff is a licensee in respect of premises no. 118b, Ashutosh Mukherjee Road and she has been asked by her husband's cousin brother to vacate the said premises is concocted. Hence, the suit merits dismissal. ( 4 ) UPON the above pleadings, the following issues were framed: - (1) Is the suit maintainable? (2) Was the notice to quit served upon the defendant ? If so, is it legal, valid and sufficient ? (3) Is there any relationship of landlord and tenant between the parties? (4) Is the defendant a defaulter in payment of rents? ( 4 ) UPON the above pleadings, the following issues were framed: - (1) Is the suit maintainable? (2) Was the notice to quit served upon the defendant ? If so, is it legal, valid and sufficient ? (3) Is there any relationship of landlord and tenant between the parties? (4) Is the defendant a defaulter in payment of rents? (5) Does the plaintiff reasonably require the disputed premises for her own use and occupation? (6) Is the plaintiff entitled to get a decree, as prayed for? (7) To what relief, if any, is the plaintiff entitled? ( 5 ) ISSUES 1 to 7 : All the issues are taken up together for the sake of convenience and brevity and in order to avoid repetition. ( 6 ) THE plaintiff Sita Devi, since deceased and substituted by her husband and three sons being her heirs and legal representatives, has brought the suit for eviction, recovery of arrear rents, mesne profits and other reliefs, on the grounds of default and reasonable requirement for own use and occupation. ( 7 ) THE defendant-company after entering appearance on 19. 03. 84 filed an application under Section 17 (2) and 17 (2a) of the West Bengal Premises tenancy Act, hereinafter referred to as the said Act, praying for determination of due amount of rent which was dismissed for default on 03. 08. 84, and the defendant's prayer for setting aside or recalling the said order was dismissed by this Court by an order dated 18. 06. 85 (Annexure 'd' to the affidavit of evidence ). The appeal being No. 346 of 1985 was allowed by the learned Division bench of this Court by order dated 19. 06. 98 with cost of Rs. 1,000/- G. Ms, payable within four weeks from that date, in default the appeal will stand dismissed and the said order dated 18. 06. 85 was set aside (Annexure 'e' ). As the defendant failed to pay or deposit the amount within the stipulated period, the substituted plaintiffs filed an application under Section 17 (3) of the Act which was allowed by this Court by order dated 11. 01. 05 and the defence against delivery of possession was struck out (Annexure 'f' ). ( 8 ) A glance to the above would reveal that there is no dispute of relationship of landlord and tenant between the parties. Mr. 01. 05 and the defence against delivery of possession was struck out (Annexure 'f' ). ( 8 ) A glance to the above would reveal that there is no dispute of relationship of landlord and tenant between the parties. Mr. Chowdhury, learned counsel for the plaintiffs, on referring to a challan submitted that the defendant deposited rent in the name of original plaintiff Sita Devi Haralalka for March, 1996. ( 9 ) NEVERTHELESS, Mr. Chowdhury, relying upon the cases of Gurudas biswas v. C. P. Seal, reported in AIR 1977 Cal 110 (F. B.) and Kamakkhya Singh v. Modula India, reported in 87 CWN 405 (F. B.)contended that when the defence against delivery of possession has been struck out, the tenant defendant can contest only on the point of legality and validity of the notice to quit. Mr. Chowdhury appears to have overlooked that kamakkhya Singh's case was reversed in appeal being Modula India v. Kamakkhya singh, reported in AIR 1989 SC 162 holding that even in a case where the defence against delivery of possession of a tenant has been struck off under Section 17 (3)the defendant tenant, subject to the exercise of an appropriate discretion by the Court on the facts of a particular case, would generally be entitled (a)to cross-examine plaintiff's witnesses; and (b) to address argument on the basis of the plaintiff's case. However, when the defendant is afforded the aforesaid night, he would not be entitled to lead any evidence of his own nor can his cross-examination be permitted to travel beyond the very limited objective of pointing out the falsity or weakness of the plaintiffs case. In no circumstances the cross-examination be permitted to travel beyond this legitimate scope and to convert itself virtually into a presentation of the defendant's case either directly or in the form of suggestions put to the plaintiff's witnesses. There is nothing in law to preclude him from demonstrating to the court that the plaintiff's witnesses are not speaking the truth or that the evidence put forward by the plaintiff is not sufficient to fulfil the terms of the statute. There is nothing in law to preclude him from demonstrating to the court that the plaintiff's witnesses are not speaking the truth or that the evidence put forward by the plaintiff is not sufficient to fulfil the terms of the statute. Merely, because the defence has been struck out, it will not automatically imply that the relevant grounds have been established and the Court before exercising jurisdiction by passing the order or decree for possession must be satisfied that one of the grounds has been established, as was held in the case of Maharam v. Dinanath, reported in 77 CWN 202. ( 10 ) SO far as the ground of default is concerned, it is the evidence of sanjoy Haralalka (substituted plaintiff No. 4)that they last received rent from the defendant for September 1980 which remains uncontroverted in his cross-examination. The defendant failed to produce necessary documents showing payment or deposit of the due rent, as claimed. That apart, the very dismissal of his application under sections 17 (2) and 17 (2a) speaks of non-payment or non-deposit of rent resulting in allowing the application under Section 17 (3) of the Act. ( 11 ) AS regards the ground of reasonable requirement, in order to succeed the plaintiff must not only prove that he requires the disputed premises for his own occupation but also that he is not in possession of any reasonably suitable accommodation elsewhere. Here, it is the evidence of said Sanjoy Haralalka that his elder brother Chandra Prakash Haralalka has one son, aged 26 years, a daughter, aged about 29 years and he himself has a daughter, aged about 1. 8 years and they stay at 118b, Ashutosh Mukherjee Road which belongs to his uncle Thakur Prasad Haralalka, since deceased. He further stated that Thakur prasad left behind seven sons who have asked them to vacate the premises as there is a family dispute. There are four rooms in the said premises which are in occupation of his father, elder brother, middle brother Joyprakash Haralalka and himself, said he. He further stated that it is becoming impossible for them to reside there as his cousin brother are always asking them to leave the premises, and excepting a commercial building in Jagubazar they have no other property for their residential purpose. He further stated that it is becoming impossible for them to reside there as his cousin brother are always asking them to leave the premises, and excepting a commercial building in Jagubazar they have no other property for their residential purpose. ( 12 ) IN the present case, there is no contrary evidence that the said premises 118b, Ashutosh Mujkherjee Road in occupation of the original plaintiff sita Devi and thereafter substituted plaintiffs, belongs to Thakur Prasad haralalka, since deceased. Where possession of the landlord as a licensee or tenant is somewhat vulnerable and the licensee or tenant is in potential danger of being evicted from the premises and that such possession as a licensee/ tenant cannot be equated with the possession as a landlord, accommodation held in ownership has an edge over the accommodation available as a licensee/tenant. Accommodation of the plaintiff as a licensee cannot be viewed as a reasonably suitable accommodation, and as such the requirement of the plaintiffs of the premises occupied by tenant can be held to be reasonable as the plaintiffs do not have any reasonably suitable accommodation elsewhere. ( 13 ) IN regard to the contention of Mr. Bhattacharya that on the death of the original landlady, requirement for "her own occupation" ceased to exist, the expression "his own occupation" has to be given a fair and liberal interpretation, the expression does not mean the occupation of the landlord alone and must include the members of his family and dependants. As such, the requirement of the original plaintiff includes the requirement of the substituted plaintiffs and their dependants being members of the same family. ( 14 ) THE next limb of argument of Mr. Bhattacharya is that though the original plaintiff Sita Devi claimed to be owner of the disputed premises, no document in this regard has been produced. The "landlord" within definition of section 2 (d) of the Act includes any person who, but for a special contract, would be entitled to receive the rent of any premises on his own account. The person contemplated here may not be the owner of the premises but may be one who has inducted the tenant and given him possession, a person whose title as landlord the tenant is estopped from denying. In other words, a person need not be the owner of the premises to become a landlord thereof. The person contemplated here may not be the owner of the premises but may be one who has inducted the tenant and given him possession, a person whose title as landlord the tenant is estopped from denying. In other words, a person need not be the owner of the premises to become a landlord thereof. All that is necessary is that the landlord should be entitled to receive rent and the tenant should be bound to pay it to the landlord. Under Section 116 of the Evidence Act a tenant, is estopped from denying the title of the landlord to the premises at the inception of the tenancy, and as such as regards tenant, the landlord is deemed to be the owner of the premises whether his title to the premises is legally complete or not. In the case on hand, as the original plaintiff Sita Devi undoubtedly inducted the defendant in the premises and the defendant had been paying rents to her and in reply to the plaintiff's notice to quit proceeding the. eviction suit, the defendant had accepted her title, the ownership of the said plaintiff can be said to have been duly proved. In this connection, reference may be made to the case of Dilbagrai punjabi v. Sharad Chandra, reported in air 1988 SC 1858 . In the case of swadesh Ranjan Sinha v. H. Banerjee, reported in AIR 1992 SC 159 it was held that the ownership denotes the relation between the person and an object forming the subject-matter of his ownership, that it consists of complex of rights, all of which are rights in rem, being good against all the world and not merely against the specific persons and that there are various rights or incidents of ownership but all of them need not be necessarily present in all the cases. In the light of the provisions of Section 13 (1) (ff) of the act which deals with the right of an owner landlord tp evict a tenant on the ground of reasonable requirement, all that the plaintiff needs to prove that he has a better title than the defendant tenant and he has no burden to show that he has the best of all possible titles, that his ownership is good as against the whole world except the true owner, that the rights of the owner seldom become absolute and often are in many respects controlled and regulated by statute and that the question is whether he has superior right or interest vis-a-vis the persons challenging it. The plaintiff being owner of the premises having a superior right in relation to the defendant tenant and that so far as the defendant tenant is concerned the plaintiff is the landlord, he is the owner of the premises for all purposes under the provisions of the Act. ( 15 ) CONSIDERING all the above aspects, both the grounds appear to have been duly established. ( 16 ) IN regard to the notice to quit dated 27. 10. 83 (Ext. 'c') asking the defendant to vacate the premises on the expiry of December 1983, the same was sent to the defendant by registered post with acknowledgment due and it returned with the postal remark "refused" on 10. 11. 83 (Ext. 'b' (coll. ). When a notice is sent by registered post to the proper address and it returns with the postal remark "refused", that by itself until explained, is prima facie good enough evidence that the addressee had an opportunity to accept it. Here, no witness was examined on behalf of the defendant to deny the tender and refusal to rebut the presumption under Section 27 of the General Clauses Act read with section 114 of the Evidence Act. ( 17 ) REFERRING to the evidence of mr. Sanjoy Haralalka, Mr. Bhattacharya assailed the notice on the ground that it was given under the instruction of his father and not of the original plaintiff Sita devi. As a matter of law, under whose instruction the notice was drafted or issued is quite irrelevant. ( 17 ) REFERRING to the evidence of mr. Sanjoy Haralalka, Mr. Bhattacharya assailed the notice on the ground that it was given under the instruction of his father and not of the original plaintiff Sita devi. As a matter of law, under whose instruction the notice was drafted or issued is quite irrelevant. The determinant factor is whether there was due service of notice under Section 13 (6) of the Act determining the tenancy and asking the tenant to vacate the premises on expiry of a month of tenancy, and if it is done there cannot be any valid complaint in respect of the notice. A notice should not be interpreted in a way to find fault with it but only in a way to ascertain whether the defendant understood it. It is to be construed not with desire to find faults with it which would render it defective but to be construed "ut res magis valent quam pereat". Reference may be made to the case of Bhagabandas v, Bhagwandas, reported in AIR 1977 SC 1120 . So, the above contention of the learned counsel for the defendant appears to be more captious than substantial. Accordingly, the notice can be held to have been duly served upon the defendant and it is legal, valid and sufficient. ( 18 ) RELYING upon the case of Amna Khatun v. Zahir Hussain, reported in air 1981 Pat 1 (F. B.) Mr. Bhattacharya next argued that since the amount of rent deposited by the defendant upto January, 2005 in Court was withdrawn by the plaintiffs, it constituted waiver of striking out the defence against delivery of possession. The short answer is that the order striking out the defence against delivery of possession was passed on 11. 01. 2005 and so, if the plaintiffs withdrew the rental amount deposited upto January, 2005 it was obviously after passing of the said order, and accordingly the question of waiver of the right of striking out the defence is out of the way, since such right was already exercised. ( 19 ) IN the premises, in the light of the above discussion, all the issues are answered in favour of the plaintiffs. ( 20 ) ACCORDINGLY, the suit succeeds. ( 21 ) THE plaintiffs do get a decree for ejectment in terms of prayer (a) of the plaint and cost of the suit. ( 19 ) IN the premises, in the light of the above discussion, all the issues are answered in favour of the plaintiffs. ( 20 ) ACCORDINGLY, the suit succeeds. ( 21 ) THE plaintiffs do get a decree for ejectment in terms of prayer (a) of the plaint and cost of the suit. The plaintiffs also do get a decree for arrear rents in terms of prayer (b) of the plaint minus the amount already paid or deposited which the plaintiffs are at liberty to withdraw. The plaintiffs do further get a decree for mesne profits at the rate equivalent to the rate of rent and service charges per month from 01. 01. 84 till recovery of possession of the premises which is to be assessed in a separate proceeding on the plaintiffs' filing an application under Order XX Rule 12 C. P. Code subject to payment of requisite Court fees.