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2008 DIGILAW 144 (CAL)

Arun Kumar Mehrotra v. Bhaskar Sen

2008-01-31

BHASKAR BHATTACHARYA, RUDRENDRA NATH BANERJEE

body2008
Judgment Bhaskar Bhattacharya, J. This first appeal is at the instance of the defendants in a suit for eviction on the ground of expiry of lease of 21 years and is directed against the judgment and decree dated March 31, 1999 passed by the learned Judge, 8th Bench, City Civil Court at Calcutta in Title Suit No.1705 of 1983 by which the learned Trial Judge decreed the suit for eviction. The plaintiff-respondents filed the aforesaid suit for eviction of the appellants on the ground that the predecessor-in-interest of the defendants namely, one Sambhu Nath Burman (Mehrotra) took lease of a portion of the premises situated in the third floor on the basis of a registered deed of lease for a period of 21 years commencing from 1st July, 1959 and expiring on 30th June, 1980. According to the plaintiffs, in spite of expiry of the lease and giving notice to the defendants who are the heirs of the original tenant, they refused to vacate the property. Hence the suit. The suit was contested by the appellants by filing written statement thereby denying the material allegations made in the plaint and the defence of the appellants was that even prior to the execution of the registered deed of lease of 21 years, the predecessor-in-interest of the appellants was a tenant governed by the West Bengal Premises Tenancy Act but at the relevant point of time, for the purpose of enhancing the rent from Rs.47/-a month to Rs.100/-a month, a deed of lease was executed lest any proceeding is initiated by the tenant before the Rent Controller for fixation of rent at a lesser rate. It was, however, contended that there was specific understanding between the parties that there would be no change in the character of the tenancy and accordingly, notwithstanding the execution of such registered deed of lease of 21 years, Sambhu Nath Burman continued to hold the tenancy as a monthly premises tenant under the provisions of the West Bengal Premises Tenancy Act, 1956. The learned Trial Judge on consideration of the materials on record came to the conclusion that the execution of the registered deed of lease for the period of 21 years had been established and as such, even if the said Sambhu Nath Burman was a premises tenant governed under the provisions of the West Bengal Premises Tenancy Act, 1956, prior to the execution of old lease-deed, the moment the lease-deed was executed for 21 years, the previous tenancy stood terminated by implied surrender and a new relationship under the registered deed of lease commenced. The learned Trial Judge accordingly decreed the suit. Being dissatisfied, the tenant/defendants have come up with the present first appeal. Mr Tandon, the learned advocate appearing on behalf of the appellants, however, has, raised a pure question of law in support of the claim that the suit filed by the respondents was not maintainable. Mr Tandon points out that it has come in evidence that in the year 1970, on the ground of forfeiture for non-payment of rent, the landlord gave a notice by determining the tenancy and actually filed a suit but the said suit was compromised. According to Mr Tandon, once the lease has been determined on the ground of forfeiture and the landlord has decided to file a suit alleging forfeiture, the determination of the tenancy is irrevocable and, therefore, after the compromise in the suit, a new tenancy has been created and that such new tenancy must be held to be governed under the West Bengal Premises Tenancy Act as there was no fresh lease-deed for 21 years by complying with the formality of registration. Apart from the aforesaid fact, Mr Tandon also tried to convince us that the old tenancy of Sambhu Nath Burman was still continuing as the deed of lease, according to him, was not acted upon. Mr. Roy Chowdhury, the learned senior advocate appearing on behalf of the respondents, has opposed the aforesaid submissions of Mr Tandon and has contended that the witness for the appellants having admitted that in the suit of 1970 he deposited all the arrears and also costs and got the fruit of compromise, it necessarily follows that benefit against eviction was given by consent and in view of such fact, notwithstanding the earlier determination, the lease revived. Mr. Roy Chowdhury, therefore, prays for dismissal of the appeal. Mr. Roy Chowdhury, therefore, prays for dismissal of the appeal. After hearing the learned counsel for the parties and after going through the materials on record we find that in the written statement, there is no allegation of earlier determination of the tenancy or the plea that the earlier determination was irrevocable. In evidence, however, suggestion was given to the plaintiffs that the earlier suit was filed alleging forfeiture and it is also the case of the defendants that by payment of arrears and costs, the suit was compromised. Once we find that arrears at the enhanced rent of Rs.100/- a month as mentioned in the deed of lease has been admitted and that the appellants also paid costs, it necessarily follows that by compromise decree, they got protection against eviction on the ground of forfeiture and, therefore, the moment such relief was granted in the earlier suit, the lease of 21 years revived. We are unable to accept the contention of Mr Tandon that in the absence of the actual compromise decree produced by the landlord, it should be presumed that the appellants did not get any protection. The aforesaid fact also demolishes the case of the appellants that the deed of lease was not acted upon and that the old tenancy was continuing under the provisions of the West Bengal Premises Tenancy Act, 1956. We now propose to deal with the decision cited by Mr Tandon. In the case M. Chengiah vs. Umadai Rajah Raja Damara Kumara Thimma Nayanim reported in Vol. XV Indian Cases page 445, it was held where under the terms of a lease, a right of forfeiture accrues to the lessor, he is put to his election and if he manifests and communicates to the lessee his intention to enforce the forfeiture, that is an election to determine the tenancy and such determination is irrevocable and the parties cannot by a subsequent agreement revive the old tenancy. It was further held that if the landlord elects not to enforce the forfeiture and manifests and communicates to the lessee his intention accordingly, that amounts to election to waive the forfeiture, such election is irrevocable. It was further held that if the landlord elects not to enforce the forfeiture and manifests and communicates to the lessee his intention accordingly, that amounts to election to waive the forfeiture, such election is irrevocable. It was further pointed out that if the lessees are readmitted after the determination of tenancy by exercise of the right of forfeiture, the old tenancy is not revived and the lessees are liable to pay compensation for use and occupation thereafter. We fail to appreciate how the said decision can be of any help in the facts of the present case where the landlord actually filed a suit for eviction but in that suit the defendant having paid the arrears and also costs, the matter was compromised by waiving the forfeiture. Once the right to evict by forfeiture is waived by virtue of a decree in a suit for eviction, the earlier lease revives. The present case is not a case where after determination of tenancy by exercise of the right of forfeiture, the lessees are readmitted by new agreement. In the case cited, there was no suit filed whereas, here, a suit was filed and in such suit, protection against forfeiture was given on consent and therefore, the moment such protection has been given, the last part of Section 114 of the Transfer of Property Act is attracted and “thereupon the lessee shall hold the property leased as if the forfeiture had not occurred”. We, thus, find that the said decision is of no avail to Mr Tandon’s client. In the case of Motilal Daga vs. Pure Jamad Colliery Ltd. reported in 44 CWN 1109, it was held that after giving a notice complaining forfeiture, if the landlord accepts rent before the institution of the suit, such conduct amounts to waiver against forfeiture but if the rent is accepted after the institution of the suit, the same does not amount to waiver. We do not for a moment dispute the aforesaid proposition of law. However, the said decision cannot have any application to a case where the relief against forfeiture has been granted to the tenant in the suit after the payment of arrears and costs as provided in Section 114 of the Transfer of Property Act, may be, by the consent of the parties. However, the said decision cannot have any application to a case where the relief against forfeiture has been granted to the tenant in the suit after the payment of arrears and costs as provided in Section 114 of the Transfer of Property Act, may be, by the consent of the parties. In the case of Upendranath Mukherji and others vs. Dhubeswar Lal Singh and others reported in A.I.R. 1931 Patna 240, it was held that if after the determination of a lease by a valid notice, the lessor sues the lessee for rent for the period of the lease and also for some period subsequent to the determination of the lease, it does not constitute the waiver of the forfeiture, because, after the lessor had once determined the lease, it was not open for him to waive the forfeiture. According to the Division Bench, forfeiture is the result of an act of tenant, which might be waived by the landlord, but instead of waiving the forfeiture, if he determines the lease, then no question of waiving the forfeiture remains. In our view, the principle laid down therein cannot have any application where in a suit filed by the landlord for enforcing forfeiture there is a compromise and relief is granted to the tenant against eviction. We have already pointed out that once the relief has been granted to the tenant, the lease revives. Therefore, the said decision cannot have any application to the facts of the present case. In the case of State of Bihar and another vs. Saubhagya Sundari Devi and others reported in A.I.R. 1972 Patna 200, it was held that inclusion of a claim for arrears of rent accrued even after the date of forfeiture in a suit for ejectment does not amount of waiver of forfeiture as the election to forfeit is complete and irrevocable when the suit for ejectment is instituted. There is no dispute about such proposition of law but if in the suit for ejectment a compromise is affected by which the relief against eviction is granted, the moment such relief is given to the tenant, the old lease revives. We, therefore, find that the decisions cited by Mr Tandon are of no assistance to his client. In view of what have been stated above, we find no merit in this appeal and the same is dismissed accordingly. We, therefore, find that the decisions cited by Mr Tandon are of no assistance to his client. In view of what have been stated above, we find no merit in this appeal and the same is dismissed accordingly. The judgment and decree passed by the learned Trial Judge is affirmed. In the facts and circumstances, there will be, however, no order as to costs.