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2006 DIGILAW 512 (CAL)

PRAKASHWATI CHOPRA v. SIBAJI MITRA

2006-08-17

GIRISH CHANDRA GUPTA, MANIK MOHAN SARKAR

body2006
( 1 ) BY a registered lease dated 5th January, 1973 the Premises No. 24/1 and 25 Gangadhar Babu Lane, Bowbazar, Kolkata - 700 012 was demised to the defendant by the plaintiff for a term of 21 years commencing from 1st january, 1973 and ending on 31st December, 1994 at a monthly rental of rs. 850/- payable in advance on the 7th day of every month. ( 2 ) THE lessee deposited a sum of Rs. 10,200/- as and by way of advance for which the lessor agreed to grant rebate of Rs. 75 per month on account of rent and further agreed to adjust the said sum of Rs. 10,200/- against rent payable for the year commencing from 1st January, 1994. Clause 13 of the lease provides as follows : -"at the expiration of the term of this lease or sooner determination thereof the lessee shall quit and vacate and give peaceful vacant possession of the demised premises to the lessor. " ( 3 ) THE lease came to an end on 31st December, 1994. Suit for recovery of possession together with mesne profits at the rate of rs. 5,000/- per day after expiry of the lease was filed on or about 9th october, 2002 on the sole ground that the lease had expired by efflux of time. The plaintiff claimed a decree for vacant and peaceful possession and also claimed a sum of Rs. 1,21,90,000/- as and by way of mesne profits and future mesne profits together with interest at the rate of 12 per cent per annum. In the aforesaid suit an application for summary judgment under chapter-XIIIA was filed which was allowed, by the learned trial Court by a judgment and order dated 17th February, 2006 in so far as the prayer for recovery of possession was concerned. However, the prayer for a decree on account of mesne profits has been relegated to trial. The contention, of the defendant, that the provisions of the West Bengal Premises Tenancy Act, 1997 (hereinafter referred to as the Act) applied to the lease was negative by the learned trial Court on the basis that under Section 3 of the Act a registered lease executed before and after the act came into operation was specifically excluded. The contention, of the defendant, that the provisions of the West Bengal Premises Tenancy Act, 1997 (hereinafter referred to as the Act) applied to the lease was negative by the learned trial Court on the basis that under Section 3 of the Act a registered lease executed before and after the act came into operation was specifically excluded. The trial Court further held that the defendant after expiry of the lease was in wrongful occupation of the premises and was a trespasser having no protection whatsoever in law. ( 4 ) AGGRIEVED by the decree for delivery of possession, the defendant has preferred the appeal. ( 5 ) MR. Thorat, learned Senior Advocate appearing in support of the appeal drew our attention to Section 2 (g) of the Act, 1997 which, in so far as the same is material for our purpose, is set out below : -"tenant means any person by whom or on whose account or behalf the rent of any premises is or, but for a special contract, would be payable, and includes any person continuing in possession after termination of his tenancy and, in the event of death of any tenant, also includes, for a period not exceeding five years from the date of death of such tenant or from the date of coming into force of this Act, whichever is later, his spouse, son, daughter, parent and the widow of his predeceased son, who were ordinarily living with the tenant up to the date of death of the tenant as the members of his family and were dependent on him and who do not, own or occupy any residential premises, and in respect of premises let out for non-residential purpose his spouse, son, daughter and parent who were ordinarily living with the tenant up to the date of his death as members of his family and were dependent on him 1 [or a person authorised by the tenant who is in possession of such premises. ] but shall not include any person against whom any decree or order for eviction has been made by a Court of competent jurisdiction". ] but shall not include any person against whom any decree or order for eviction has been made by a Court of competent jurisdiction". ( 6 ) HE submitted that "any person continuing in possession after the termination of his tenancy" would naturally include a lessee whose lease has expired by efflux of time and therefore he would come within the meaning of definition of the term 'tenant' as per the aforesaid Act and once that position is accepted a suit for recovery of possession from such a tenant will only lie under Section 44 of the Act before the Rent Controller because the jurisdiction to the Civil Court has specially been barred. Section 44 of the act provides as follows : - "jurisdiction of Civil Courts barred in respect of certain matters save as otherwise expressly provided in the Act.- No Civil Court shall entertain any suit or proceedings in so far as it relates to fixation of fair rent in relation to any premises to which this Act applies or to eviction of any tenant therefrom or to any other matter which the Controller is empowered by or under this Act to decide and no injunction in respect-of any action taken or to be taken by the Controller under this Act shall be granted by any Civil Court" . ( 7 ) THEREFORE, his first submission was that the suit is not maintainable in this Court. ( 8 ) HIS second submission was that a lease created by a registered document and a lease created by an oral agreement coupled with possession are both contractual in nature. For determination of a lease various modes have been provided under Section 111 of the Transfer of Property Act. Determination by efflux of time is one of such modes of determination under clause (a) of Section 111 whereas Clause (h) of Section 111 provides for determination of lease consequent to a notice to quit. According to him what is material is determination and not the mode of determination. When a tenant is continuing in possession after termination of the tenancy, he is bound to come within the definition of the term 'tenant' as defined in Section 2 (g) of the act, 1997 and the bar with regard to jurisdiction contemplated under Section 44 of the Act, 1997 shall naturally apply. When a tenant is continuing in possession after termination of the tenancy, he is bound to come within the definition of the term 'tenant' as defined in Section 2 (g) of the act, 1997 and the bar with regard to jurisdiction contemplated under Section 44 of the Act, 1997 shall naturally apply. The legal position according to him would have been different had the suit been filed immediately after expiry of the lease or at any rate before the Act of 1997 was made effective for in the west Bengal Premises Tenancy Act, 1956 such a lease was outside the purview of that Act except for application of a few provisions. ( 9 ) IN support of his submission he relied on a judgment of the Apex court in the case of Shyam Charan v. Sheoji Bhai and Anr. , reported in AIR 1977 SC 2270 wherein the lease had expired by efflux of time. He placed strong leliance on Paragraph-6 of the said judgment and in particular he drew our attention to the sentence wherein Their Lordships gave an illustration which is as follows : - "suppose in this case after the termination of the tenancy in the year 1960 the suit for eviction would have been filed in 1962 the appellant could come under the definition of the term "tenant" even though the termination of the contractual tenancy was before the commencement of the Act. " ( 10 ) THE Act of 1961 had come into force in that case after the suit had been filed. The Act of 1961 defined the expression tenant as follows : -"tenant' means a person by whom or on whose account or behalf the rent of any accommodation is, or, but, for a contract express or implied, would be payable for any accommodation and includes any person occupying the accommodation as a sub-tenant and also, any person continuing in possession after the termination of his tenancy whether before or after the commencement of this Act; but shall not include any person against whom any order or decree for eviction has been made. " ( 11 ) HE submitted that the definition of tenant provided by the Act of 1997 is the same as that given by the Act of 1961 of Madhya Pradesh. " ( 11 ) HE submitted that the definition of tenant provided by the Act of 1997 is the same as that given by the Act of 1961 of Madhya Pradesh. He, therefore, contended that Shyam Charan v. Sheoji Bhai is an authority for the proposition that the tenant continuing in possession after expiry of lease shall come within the definition of tenant provided by the Act of 1997 when the suit was in fact filed after the Act of 1997 came into operation. Thus, the bar contemplated under Section 44 is inescapable. ( 12 ) THE third submission made by Mr. Thorat was that the learned trial court misinterpreted Section 3 of the Act. He as a matter of fact applied the unamended law when he held that a registered lease executed before or after the Act came into existence was outside the purview of the Act. ( 13 ) THE fourth submission made by Mr. Thorat was that the learned trial court proceeded on the basis that after expiry of the lease the lessee became a trespasser. He submitted that this is a self annihilating reasoning because if the defendant were to be treated to be a trespasser, then the benefit of Chapter-13a would not be available to the plaintiff because Chapter-ISA can be resorted to only in the following cases : - "rule 1. Nature of cases in which applicable.- The provisions of this chapter shall not be applicable save to suits.- (A) in which the plaintiff seeks to recover a debt or liquidated demand in money payable by the defendant with or without interest arising: (i) on a contract express or implied; or (ii) on an enactment where the sum sought to be recovered is a fixed sum of money or in the nature of a debt other than a penalty; or (iii) on a guarantee where the claim against the principal is in respect of a debt or a liquidated demand only; or (iv) on a trust; or (B) for the recovery of immovable property with or without a claim for rent or mesne profits by a landlord against a tenant whose term has expired or has been duly determined by notice to quit or has become liable to forfeiture for non-payment of rent or against persons claiming under such tenant. " ( 14 ) HE submitted that the fact that the plaintiff has resorted to Chapter-13a of the Original Side Rules is ample proof of the fact that the plaintiff has all throughout been treating the defendant as a tenant and not as a trespasser and the learned Judge fell into serious error in proceeding on the basis that the defendant was a trespasser. ( 15 ) LASTLY, he submitted that in any event leave should have been granted to the defendant to defend regard being had to the fact that definite case of the defendant was that there has been implied assent on the part of the plaintiff to the continuous possession of the defendant which would make him a tenant holding over under Section 116 of the Transfer of Property Act. He submitted that the particulars of such assent are as follows : - " (a) The deposit of a sum of Rs. 10,200/- made by the defendant which was adjustable against the rent for the period between 1 st January, 1994 to 31st December, 1994 was not adjusted. The plaintiff retained that amount. (b) Although a notice to quit was given but the amount was never refunded. When an objection to that effect was taken an attempt to refund the same was made only in the year 2005. (c) The defendant has been making payment of the rates and taxes to the Municipal Corporation to the knowledge of the plaintiff to which he never has objected. (d) The defendant has been depositing rent with the Rent controller pursuant to Section 21 of the West Bengal Premises Tenancy act, 1956 and the plaintiff is deemed to have notice of such deposit because there is a presumption under Section 114 of the Evidence act that all official acts were done in the regular course of business. The deposit was made under Section 21. Then it is only fair to presume that the plaintiff must have been informed by the Rent Controller about such deposit and the plaintiff has never objected to that and, therefore, there was sufficient reason why leave to defend should have been given. (e) Eight years' delay in filing the suit is also an indication of assent on the part of the plaintiff to the defendant continuing in possession. ( 16 ) MR. (e) Eight years' delay in filing the suit is also an indication of assent on the part of the plaintiff to the defendant continuing in possession. ( 16 ) MR. Mitra, learned Senior Advocate appearing for the plaintiff submitted that the question of any bar under Section 44 would arise provided the defendant comes within the definition of a tenant under Section 2 (g) of the act of 1997. He submitted that the section provides for those cases where a person is continuing in possession after termination of his tenancy and not to the cases where a person is continuing in possession after expiry of the lease. He submitted that the Apex Court in a series of judgments has held that a person continuing in possession after expiry of the lease is akin to a trespasser and in one of the judgments has held that he is a trespasser indeed. He added that the question of a trespasser being treated as a tenant would not arise and that is also not the intention of the legislature. There is no reason why this court should extend termination of tenancy to the cases of expiry of a lease by efflux of time. According to him the defendant does not come within the definition of a tenant and, therefore, the question of any bar under Section 44 does not arise at all. ( 17 ) WITH regard to the judgment in the case of Shyam Charan v. Sheoji bhai (supra) our attention has been drawn to the sentence found in Paragraph-6 itself wherein Their Lordships held that - "but, we are unable to accept the argument that the mere fact that the definition of tenant is retrospective will make the appellant a tenant within the meaning of the Act". He submitted that this sentence clearly reveals the intention of the learned Judges of the Apex court. ( 18 ) MR. Mitra submitted that status of a lessee whose term has expired is that of a trespasser. Chapter-13a Rule 1 specifically allows the plaintiff to apply for summary judgment in a suit seeking recovery of possession from a person whose term of lease has expired and there is, therefore, nothing wrong in applying under the aforesaid provision. ( 19 ) WITH regard to the applicability of Section 116 of the Transfer of property Act Mr. Chapter-13a Rule 1 specifically allows the plaintiff to apply for summary judgment in a suit seeking recovery of possession from a person whose term of lease has expired and there is, therefore, nothing wrong in applying under the aforesaid provision. ( 19 ) WITH regard to the applicability of Section 116 of the Transfer of property Act Mr. Mitra submitted that there is nothing to show that any assent was given, by the plaintiff to the defendant continuing in possession. The plaintiff has not accepted any rent. The plaintiff has not by its word or deed evinced any intention to allow the defendant to continue in possession. It is true that the suit could not be filed earlier because the suit had to be filed by the executor. The original lessor died testate. The executor had to obtain a probate and that is why there was delay in filing the suit. But mere delay in filing the suit cannot amount to assent on the part of the landlord. ( 20 ) THE question of implying any assent of the plaintiff to the defendant enjoying the property at a pittance of monthly rent of Rs. 850/-is not only unreal but also unjust when the claim for mesne profits is assessed at Rs. 5,000/- per day. In so far as the payment of Corporation rates and taxes are concerned, he submitted that the plaintiff has never asked the defendant to make such deposit. If he has deposited he has deposited of its own and may be in order to avoid the civic amenities being withdrawn and, therefore, the question of there being any assent on the part of the plaintiff does not arise. Until and unless the defendant can show that he has some reasonable basis to show assent on the part of the plaintiff, the question of granting him leave to defend should not arise. ( 21 ) HE finally submitted that there is no scope for interference with the judgment and the appeal should be dismissed. ( 22 ) WE have considered the submissions made by the learned Counsel appearing for the parties. ( 21 ) HE finally submitted that there is no scope for interference with the judgment and the appeal should be dismissed. ( 22 ) WE have considered the submissions made by the learned Counsel appearing for the parties. We are of the view that the questions which fall for consideration are : - (a) "whether the defendant is a tenant within the meaning of the provisions of Section 2 (g) of the West Bengal Premises Tenancy Act, 1997?" (b) Whether application for summary judgment was entertainable? and (c) "whether leave should have been granted to defend in the facts and circumstances of the case?" ( 23 ) WE already have set out the provision of the Act in extenso hereinabove. Before we proceed to answer the first question it would be advisable in our view to notice the provisions of the repealed law and the objects sought to be achieved by the new legislation of 1997. Section 3 of the old Act of 1956 provided as follows : -"3. Certain provisions of the Act not to apply to certain leases.- " (1) The provisions relating to rent and the provisions of Sections 31 and 36 shall apply to any premises held under a lease for residential purpose of the lessee himself and registered under the Indian registration Act, 1908 (XVI of 1908), where- (a) such lease has been entered into on or after the 1 st December, 1948 and (b) such lease is for a period of not more than 20 years, and save as aforesaid nothing in this Act shall apply to any premises held under a lease for a period of not less than 15 years. (2) Notwithstanding anything to the contrary contained in sub-section (1) but subject to sub-section (3) of Section 1 this Act shall apply to all premises held under a lease which has been entered into after the commencement of the West Bengal Premises Tenancy (Amendment)Ordinance, 1965 : provided that if any such lease is for a period of not less than 20 years and the period limited by such lease is not expressed to be terminable before its expiration at the option either of the landlord or of the tenant, nothing in this Act, other than the provisions relating to rent and the provisions of Sections 31 and 36, shall apply to any premises held under such lease. " ( 24 ) THE 1956 the Act thus applied : - " (a) to all leases for less than 15 years; (b) to leases for 15 years or more, if for residential purpose and entered into after 1st December, 1948 but before 24th August, 1965 in so far as the provisions regarding rent and the Sections 31 and 36 were concerned; (c) to all leases executed after 24th August, 1965 terminable before its expiration at the behest of the lessor or lessee and (d) to all leases executed after 1965 for a period of less than 20 years whether terminable or not before the expiry of the period at the behest of the landlord or the tenant. " ( 25 ) IT would thus appear that great emphasis was given by the earlier act on the terminability of the lease. If a long lease for more than 20 years was terminable before expiration of its term it would be covered under the Act and all the provisions thereof would apply as indicated hereinabove irrespective of whether such a lease was in fact terminated before expiry of its term. We are of the considered opinion that this situation was sought to be remedied by the new Act when it provided that a person continuing in possession after termination of his tenancy shall be within the definition of a tenant. Mere terminability of the lease is no longer the criteria. In order to bring a pre Act registered lease within the fold of the tenancy Act of 1997 one has to show that the lease has in fact been terminated prematurely only then it would come within the mischief of the Act but it would not come within the mischief of the act after the lease has been allowed to have a run of its normal life, in other words a lease will not come within the purview of the Act of 1997, if it expires by efflux of time. It is also worth noticing that under Section 3 of the Act a registered lease executed after the Act came into operation is specifically excluded from the purview of the Act of 1997. Therefore the legislature has rationalised the old Act in that mere terminability is no longer material. It is actual termination before expiry of lease is what is material. Therefore the legislature has rationalised the old Act in that mere terminability is no longer material. It is actual termination before expiry of lease is what is material. And in the case of new registered leases parties have been given absolute freedom. This interpretation subserves the object sought to be achieved by the new legislation. It would at this stage be profitable to notice the objects of the Act 1997 : -"the present Bill viz. "the West Bengal Premises Tenancy Bill, 1996" is meant to replace the West Bengal Premises Tenancy Act, 1956, with the object of regulating the incidence of tenancies of premises and relationship between the landlords and tenants of the premises in the changed circumstances. The National Housing Policy approved by the Central Government recommended that appropriate amendment in existing laws and regulations be carried out for creating enabling atmosphere for housing activities in the country. A number of expert bodies such as the Economic administration Reform Commission and the National Commission on urbanisation have recommended reforming the rent legislation in a way that balances the interests of both the landlords and the tenants and also that stimulates future construction to meet the growing demands for housing. On the basis of the various recommendations of the experts and also after a series of consultations with the State Governments, the ministry of Urban Development, Government of India prepared a Model rent Control Legislation, and sent to the States for consideration. The Land and Land Reforms Department set up a Committee under the Chairmanship of the Land Reforms Commissioner. The committee considered the salient features of the 'model' and obtained the views of Tenants' Associations and Houseowners' Associations on these features, heard them and suggested a new enactment by replacing the old one. The Department accepted the suggestion and has prepared the "the West Bengal Premises Tenancy Bill, 1996" to replace the existing 'act i. e. "the West Bengal Premises Tenancy Act, 1956". ( 26 ) THE legislature intended to create environment which stimulates future construction and with this end in view the applicability of the act to post legislation registered leases was abolished altogether. And in order to strike a balance between interests of landlords and tenants the factor of bringing a pre-Act registered lease within the purview of rent legislation the criteria was shifted from mere terminability to actual termination. And in order to strike a balance between interests of landlords and tenants the factor of bringing a pre-Act registered lease within the purview of rent legislation the criteria was shifted from mere terminability to actual termination. This also explains why Clause (c) of Section 3 of the Act of 1997 was amended and the expression "before" was deleted. Originally the Clause (c) of Section 3 was enacted follows : -"3. Exemption.- Nothing contained in this Act shall apply to- (a ). . . . . . . . . . . . . . . . . . . . . . . . . . (b ). . . . . . . . . . . . . . . . . . . . . . . . . . (c) any tenancy where the lease has been registered under the registration Act,. 1908, before or after the commencement of this Act;" ( 27 ) SHORTLY after the Act was given effect to, Clause (c) was amended to read as follows : - "3. Amendment of Section 3.-ln Section 3 of the Principal Act,- (1) for clause (c), the following clause shall be substituted : -" (c) any tenancy where the lease with due consent of the tenant has been registered under the Registration Act, 1908 ( 16 of 1908), after the commencement of this Act, and the fact of such consent has been recorded in the instrument so registered. " ( 28 ) THIS interpretation, in our view, is also in harmony with the provisions contained in Section 108 (Q) of the Transfer of Property Act which obliges the lessee to make over possession upon expiry of the lease. The said Section 108 (Q) reads as follows : -" (q) on the determination of the lease, the lessee is bound to put the lessor into possession of the property. " this interpretation is also in our opinion in consonance with reason, fair play and justice. ( 29 ) WE, therefore, are of the opinion that in those cases where the lease expired by efflux of time but the lessee is continuing in possession he/ she would not come within the purview of the definition of a "tenant" under section 2 (g) of the Act of 1997. ( 29 ) WE, therefore, are of the opinion that in those cases where the lease expired by efflux of time but the lessee is continuing in possession he/ she would not come within the purview of the definition of a "tenant" under section 2 (g) of the Act of 1997. The judgment in the case of Shyam Charan (supra) does not really lend any assistance in resolving the controversy involved in the present case because the Act of 1997 has to be construed in its own background and not in a syllogistical manner as suggested by Mr. Thorat. The first point is thus answered in the negative. Once the first question formulated above is answered the principal contention of Mr. Thorat is taken care of, there is thus no question of any bar being applicable to the entertainability of the present suit and this Court was naturally competent to receive, try and determine the suit. ( 30 ) THE submission of Mr. Thorat that the learned Judge was wrong in proceeding on the basis that the defendant is a trespasser after expiry of the lease is not in our view significant because that is a question of legal status of the defendant/appellant after expiry of the lease. What was significant is whether the case comes within the purview of Chapter-13a of the Original side Rules. We already have quoted Rule 1 of Chapter- XIIIA of the Original side Rules. It would appear that a suit for recovery of immovable property with or without a claim for mesne profit by a landlord against tenant whose term has expired is specifically provided for. The second question formulated above is thus answered in the affirmative ( 31 ) WE are not impressed by the submission that leave should have been granted to the defendant to defend the suit both as regards mesne profits and the prayer for recovery of possession. Section 116 of the Transfer of property Act provides as follows : - "116. The second question formulated above is thus answered in the affirmative ( 31 ) WE are not impressed by the submission that leave should have been granted to the defendant to defend the suit both as regards mesne profits and the prayer for recovery of possession. Section 116 of the Transfer of property Act provides as follows : - "116. Effect of holding over.- If a lessee or under-lessee of property remains in possession thereof after the determination of the lease granted to the lessee, and the lessor or his legal representative accepts rent from the lessee or under-lessee, or otherwise assents to his continuing in possession, the lease is, in the absence of an agreement to the contrary, renewed from year to year, or from month to month, according to the purpose for which the property is leased, as specified in Section 106. " ( 32 ) OMISSION to adjust the deposit against the rent for the year 1994 can never, in our view, be an indication of the fact that the plaintiff intended to allow the defendant to continue in possession. This fact on its own cannot lead to any such inference. Payment of rates and taxes by the defendant to the Municipal Corporation again, in our view, is not a circumstance which can lead us to infer assent on the part of the plaintiff to the defendant continuing in possession. May be such payment was made in order to avoid any step being taken by the Municipal Corporation for withdrawal of civic amenities like withdrawing supply of water in exercise of statutory power. Similarly, deposit of rent with the Rent Controller by the defendant cannot lead to an inference that the plaintiff by not objecting or preventing the defendant from doing so assented to the continuance of the defendant. There is no way the defendant could have been stopped from depositing rent with the Rent Controller. That the suit was filed after 8 years of expiry of the lease, no doubt goes to show some slackness on the part of the plaintiff but then there is a reasonable explanation that the original lessor died testate and the Will left by him had to be probated and in those circumstances, the suit could not be filed earlier. ( 33 ) MR. ( 33 ) MR. Thorat is justified in commenting that the probate was obtained sometime in the years 2004-2005 whereas the suit was filed in 2002, Therefore, the suit could have been filed earlier by the executor. There is no gainsaying that the plaintiff could have filed the suit earlier but the fact that the plaintiff did not do so, that alone will not go to show that the plaintiff assented to the continuance of the defendant's tenancy. Court cannot be oblivious of the fact that huge property in the heart of the city let out for Rs. 850/- per month cannot be allowed to be continued by anyone if he can help it. It is, therefore, all the more difficult to infer that the plaintiff assented to the continuance of the possession of the defendant. The requirement of Section 116 of the Transfer of Property Act is actual acceptance of rent or otherwise assent. Therefore, what is required is a bilateral transaction. Unilaterally the defendant/tenant cannot make this to happen nor is sufferance the same as an assent. There has to be meeting of minds on the same point which was not even alleged by the defendant in her affidavit-in-opposition on the basis whereof leave to defend could have been granted. The third question is thus answered in the negative. ( 34 ) IN the result the appeal is dismissed. There shall, however, no order as to costs.