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2008 DIGILAW 432 (CAL)

Subrata Kumar Roy v. Outram Club

2008-04-23

Sanjib Banerjee

body2008
JUDGMENT 1. THIS is an application under Chapter XIIIA of the Rules on the Original Side of this Court being heard on remand. This application was dismissed as one not covered by the provisions found in Chapter XIIIA of the Rules, but in the appeal arising out of the petition for special leave to appeal therefrom, the Supreme court has set aside the judgment and order earlier passed on this application. 2. IT is necessary that the Supreme Court order of March 7, 2007 be seen in its material part: "by the impugned order the High Court has held that the summary procedure under Chapter 13a of the Original Side Rules of the Calcutta high Court does not apply to the case of a licencee and would apply only to case where the relationship is that of landlord and tenant. Counsel for the Respondent Nos. 1 to 12 states before us that the respondent Club is the tenant of the appellant and is not a licencee. He relies upon an agreement entered into between the appellant and respondent Club. Since the Respondent Club admits that it is a tenant of subrata Kumar Roy, the landlord, the orders of the High Court cannot be sustained. As we have observed earlier, the High Court itself has found that summary procedure under Chapter 13a of the Original Side Rules will apply in an action for recovery of immovable property by a landlord against a tenant whose term has expired or duly determined by notice to quit. Accordingly, this appeal is allowed. The judgment and order of the high Court is set aside. The High Court shall now proceed to decide the application filed under Chapter 13a of the Original Side Rules of the Calcutta High Court in accordance with law. It will be open to the appellant and the proforma respondents, who also claim to be landlords, to seek appropriate interim relief against the illegal constructions alleged to have been raised, or being raised, by the respondent." The plaintiff's basis for seeking the decree for eviction in this suit is that the deed of lease of July 25, 1982 is void and cannot be relied upon by the defendants in view of Section 5 of the Transfer of Property Act, 1882. The plaintiff says that since the first defendant club is an unregistered society and the other defendants are members of an association which is not registered, the first paragraph of Section 5 of the said Act would not apply. The plaintiff contends that notwithstanding the document that appears at page 111 of the affidavit in support of the summons, the defendants have no right to retain possession of the premises. 3. SECTION 5 of the said Act of 1882 defines transfer of property for the purpose of the said Act: "5. "transfer of property" defined. - In the following sections "transfer of property" means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself, or to himself and one or more other living persons; and "to transfer property" is to perform such act. In this section "living person" includes a company or association or body of individuals, whether incorporated or not, but nothing herein contained shall affect any law for the time being in force relating to transfer of property to or by companies, associations or bodies of individuals." 4. THE plaintiff has relied on a letter of termination dated June 9, 2004 to the club of which the other defendants are members or office bearers on the committee that runs the club. The plaintiff claimed in such letter that the club had been allowed to have permissive possession to occupy the suit premises and that the permission was being withdrawn. On this application being heard out earlier, it was held that since it was a licence that the plaintiff claimed to have granted in favour of the club, the plaintiff could not obtain the benefit of procedure under Chapter XIIIA of the Rules. Chapter XIIIA of the Rules which is similar to the summary procedure in order XXXVII of the Code of Civil Procedure, 1908, provides the cases in which the benefit of such procedure can be obtained by a suitor in this Court: "1. Nature of cases in which applicable. The provisions of this Chapter shall not be applicable save to suits. Chapter XIIIA of the Rules which is similar to the summary procedure in order XXXVII of the Code of Civil Procedure, 1908, provides the cases in which the benefit of such procedure can be obtained by a suitor in this Court: "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 immoveable 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." The defendants' objection that the plaintiff cannot invoke the provisions of chapter XIIIA has now to be disregarded in view of the Supreme Court order. However, just as in Order XXXVII of the Code, the Court taking up a matter under Chapter XIIIA of the Rules will not make a judgment for the plaintiff or a decree that it seeks, if the defendants are able to raise any triable issue. 5. THE plaintiff relies on the judgments reported at 2006 (3) CHN 77 (Usha rani Kundu v. Agradut Sangha and ors.) and AIR 1980 Bom 369 (Tejoomal lakhmichand v. M. J. Telegaonkar and ors.). At paragraph 41 of the Usha Rani kundu case, the view taken by a Division Bench of this Court is that the position in law as to the status of a club is that of a society and if it is an unregistered society it cannot claim the benefits otherwise available to a registered society. The effect of the judgment is that an unregistered society cannot enter into an agreement for lease of an immovable property. In the Bombay case a similar view has been expressed at paragraph 8 of the report. The effect of the judgment is that an unregistered society cannot enter into an agreement for lease of an immovable property. In the Bombay case a similar view has been expressed at paragraph 8 of the report. It has been held that for a transferee to enjoy the rights in respect of an immovable property it has to accept certain obligations and the transferee must, per force, be one who is capable of contracting. An unregistered association is not a legal entity and is, thus, not capable of contracting. 6. THE plaintiff has the law on its side when it urges the ground, but the defendants say that the defendants have to be recognised as tenants in view of the order passed by the Supreme Court. The defendants insist that in view of section 3 of the West Bengal Premises Tenancy Act, 1997 and as the rent reserved is Rs. 1,100/- per month, no suit for eviction will lie and the landlord will have to approach the controller under the said Act of 1997. The defendants also refer to the notice to quit and say that the basis thereof is that the defendants are licencees and not tenants and as such the plaintiff cannot rely thereon. Section 3 of the Act of 1997, in its material part, provides as follows: "3. Exemption.- Nothing contained in this Act shall apply to -- (f) any premises let out for non-residential purpose, which carries more than -- (i) ten thousand rupees as monthly rent in the areas included within the limits of the Calcutta Municipal Corporation or the howrah Municipal Corporation, or (ii) five thousand rupees as monthly rent in other areas to which this Act extends; explanation. -- Where any premises is let out partly for residential purpose and partly for non-residential purpose, the provisions of clause (f) shall apply to such premises in proportion to respective areas." There is an arguable case made out by the defendants. If the defendants are tenants as the Supreme Court order finds them to be, the defendants are apparently covered by the protection accorded unto them by the said Act of 1997. The test in summary proceedings of such nature is not as to whether the defendant affirmatively establishes the case that it runs in defence. If the defendants are tenants as the Supreme Court order finds them to be, the defendants are apparently covered by the protection accorded unto them by the said Act of 1997. The test in summary proceedings of such nature is not as to whether the defendant affirmatively establishes the case that it runs in defence. The test is whether an arguable case is made out for the defendant to be afforded a chance to urge the defence at the more protracted trial. 7. THE defendants rely on an order passed on their application for dismissal of the suit where the defendants have been permitted to urge their grounds for dismissal before matters of substance can be taken up at the trial. Since there is a serious doubt as to the maintainability of the suit, the plaintiff's immediate demand for eviction has to await the result of the defendants' challenge to the propriety of the suit. The defendants will have unconditional leave to defend the suit and urge all the grounds taken in their application for dismissal. GA No. 2800 of 2005 is disposed of without any order as to costs.