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2008 DIGILAW 605 (CAL)

Tandar Das v. Ashoke Kumar

2008-06-23

PARTHA SAKHA DATTA

body2008
Judgment :- (1) THIS appeal is against the judgment and decree of the First Appellate court dated 11. 12. 2003 in Title Appeal no. 81 of 2001, since renumbered as 47 of 2002, affirming the judgment and decree of dismissal of the suit in Title Suit No. 232 of 1997 dated 28.02.2001 passed by the learned Civil judge, Junior Division, 1st Court, Assansol. (2) ON 18. 09. 1997 the suit was instituted by the two plaintiffs. The plaintiff No. 1 is the wife of the plaintiff No. 2. There were number of grounds for eviction which included the ground of reasonable requirement of the suit premises. Paragraph-10 and Paragraph11 of the plaint revealed that the reasonable requirement of the suit premises was of the plaintiff No. 2 who admittedly is the owner of the suit premises. The respondent herein filed a written statement denying the plaint narrative and it is not necessary for the purpose of disposal of the appeal to traverse the findings of the learned Trial Court or of Appellate Court to atl the issues framed by the learned Trial Court. (3) THE learned Trial Court by the judgment and decree dated 28. 02. 2001 framed seven issues which included the issue on default in payment of rent, on reasonable requirement of the suit premises by the plaintiffs and the other on legality, validity and sufficiency of the notice under Section 13 (6) of the West Bengal premises Tenancy Act. While the ground of default as was claimed by the plaintiffs was negatived by the learned Trial Court and was answered in favour of the defendant, the ground of reasonable requirement was also decided against the plaintiffs. Also was negatived the legality and validity and sufficiency of the notice against the plaintiffs. (4) IN appeal the learned First Appellate Court decided the question as to legality and validity of the notice against the appellant-plaintiffs but decided the issue on reasonable requirement of the suit premises in their favour and against the respondent-defendant. Also was negatived the legality and validity and sufficiency of the notice against the plaintiffs. (4) IN appeal the learned First Appellate Court decided the question as to legality and validity of the notice against the appellant-plaintiffs but decided the issue on reasonable requirement of the suit premises in their favour and against the respondent-defendant. (5) THE Division Bench of this Court while admitting the appeal framed following points on which the appeal is now to be decided:- (1) "whether between the husband and wife the requirement of the family would be the requirement of the landlady as owner when admittedly the husband is the owner of the premises and the tenant was inducted on behalf of the husband by the wife who was the landlady qua the tenant would suffice to obtain a decree under section 13 (1) (ff) on the strength of a notice issued by the wife landlady in support of the requirement of the owner husband both of whom joined together as plaintiffs in a suit; (2) Whether the definition of tenant under section 2 (d) of the west Bengal Premises Tenancy Act conceived of the nomenclature coined by the learned Judge in the Court below as simply owner landlord in suit for eviction on ground under Section 13 (1) (ff). (3) Whether a notice issued by the wife landlady to the tenant for eviction of the tenant on the requirement of the family of the husband owner under Section 13 (1) (ff)could be said to be invalid since it was not issued by the owner husband when on facts it appears that the husband has joined in the suit and admittedly, the wife was the landlady and the requirement of the husband is the requirement of the family of which the landlady is a member. 4. Whether the suit could be dismissed on the ground of insufficiency or invalidity of the notice issued by the wife landlady seeking eviction dn the ground under Section 13 (1) (ff)for the requirement of the family of her husband owner, of which she herself is a member. " (6) THE four points of appeal as have been formulated by the. Whether the suit could be dismissed on the ground of insufficiency or invalidity of the notice issued by the wife landlady seeking eviction dn the ground under Section 13 (1) (ff)for the requirement of the family of her husband owner, of which she herself is a member. " (6) THE four points of appeal as have been formulated by the. Division bench of this Court, if read together is boiled down to one single point which is, whether a landlord within the meaning of the expression in Section 2 (d) of the West Bengal Premises Tenancy Act can issue a notice of eviction on the ground of reasonable requirement on behalf of the owner. (7) WHILE finding that the notice under Section 13 (6)of the West bengal Premises Tenancy Act was served on the defendant-respondent the learned Trial Court observed that in a suit for ejectment on the ground of reasonable requirement for own use and occupation a landlord must be the owner of the suit property. The defendant No. 2 was the owner of the suit property which of course is not disputed but the notice of ejectment was issued by the plaintiff No. 1, the wife of the plaintiff No. 2 on behalf of the plaintiff No. 2 and according to the learned Trial court such issuance of notice by the plaintiff No. 1 on behalf of the plaintiff No. 2 was not a valid notice and the notice was required to be issued by the owner of the premises as the suit for eviction was on the ground of reasonable requirement of the owner and not of the landlord. (8) LEARNED First Appellate Court confirmed this finding of the learned trial Court on this point holding that section 13 (1) (ff) of the Act provides that in case of reasonable requirement of a tenanted premises by the landlord for his occupation he must be the owner of the suit premises and Section 13 (6)of the Act provides for mandatory service of notice by the landlord upon the tenant and the conjoint reading of section 13 (6) and Section 13 (1) (ff) of the act make it clear that in case of reasonable requirement of the tenanted premises the landlord of the premises must also be the owner of the premises and notice is to be served upon the tenant by the owner/landlord and not by "simple landlord", (the word used by the learned First appellate Court). Since the notice was not issued by the owner-landlord such notice was not legal and accordingly, the appeal was dismissed. (9) TAKING a clue from the expression "simple landlord" as was used by the learned First Appellate Court the division Bench of this court while admitting the appeal formulated the question No. 2 in the way whether the definition of the word landlord under Section 2 (d) conceives of the nomenclature "simple landlord" in a suit for eviction on the ground under Section 13 (1) (ff)of the Act. The question No. 3 follows from the question Nos. 1 and 2 and such question was whether the notice issued by the landlord to the tenant for eviction on the ground under Section 13 (1) (ff) could be said to be invalid since it was not issued by the owner husband and the requirement of the premises was of the husband who is the owner of the premises and whether consequently the suit could be dismissed on the alleged ground of insufficiency or invalidity of the notice. (10) I have heard Mr. A. N. Dhole and Mr. P. Dhole learned advocates appearing for the appellant and mr. S. Mukherjee, Mr. A. K. Boral and Ms. A. Gupta appearing for the respondent. (11) SECTION 2 (d) defines the landlord as such:-"landlord" includes any person who, for the time being, is entitled to receive or but for a special contract, would be entitled to receive the rent of any premises, whether or not on his own action". S. Mukherjee, Mr. A. K. Boral and Ms. A. Gupta appearing for the respondent. (11) SECTION 2 (d) defines the landlord as such:-"landlord" includes any person who, for the time being, is entitled to receive or but for a special contract, would be entitled to receive the rent of any premises, whether or not on his own action". (12) IN the trial it could be sufficiently established that the plaintiff no. 2 entrusted the plaintiff No. 1 in the matter of induction of tenant in the premises and it was the plaintiff No. 1 who inducted the defendant in the premises as a tenant and unquestionably payment of rent was made regularly by the tenant to the plaintiff No, 1. Entitlement of the plaintiff No. 1 to receive rent from the tenant is not in question; and in fact no question was raised challenging the relationship of landlord and tenant between the plaintiff No. 1 and the defendant. The emphasis is on the word entitled and it was held by the Supreme Court in Swadesh ranjan Singh v. Haradev banerjee, 1991 (4) SCC 572 that the definition of the Word landlord in section 2 of the Act shows that even if the rent is received by a person not on his own action but on account of any other person, such as his principal or his ward, he is for the purpose of the Act, a landlord. It is not disputed that to be a landlord within the meaning of the term as is used in Section 2 (d) of the Act the landlord has not to be the owner of the premises though an owner may also become a landlord. Thus, it is not essential for a person to be the owner of the premises so as to become the landlord under the act. Thus, while entitlement of the plaintiff No. 1 to receive rent on behalf of the plaintiff No. 2, her husband did make her landlord qua the tenant, the question is whether such landlord can issue or cause service of notice under Section 13 (6) of the Act for eviction on the ground of reasonable requirement of her husband who is the owner of the premises. Section 13 (1) (ff) of the Act, 1956 reads as follows:-"subject to the provisions of sub-section (3a) where the premises are reasonably required by the landlord for his own occupation if he is the owner or for the occupation of any person for whose benefit the premises are held and the landlord or such person is not in possession of any reasonably suitable accommodation". (13) THIS Clause (ff) has two parts which are disjunctive by the use of the word or. The first part speaks of reasonable requirement of the landlord provided he is the owner and the second part relates to reasonable requirement of any person for whose benefit the premises are held and both the parts are covered by rider that such landlord or such person is not in possession of any reasonably suitable accommodation. In Pushpita v. Dinesh, 1985 CLJ 74, this Court held that the expression his own has to be given a fair and liberal construction and it does not mean a particular individual alone and must include his own members of the family and dependants. This is the view also of the other High Courts in AIR 1954 patna 496 and AIR 1952 Punjab 189. In the plaint it was made clear that the reasonable requirement was for the plaintiff No. 2 and in the conspectus of the relationship between the plaintiff No. 1 and plaintiff No. 2 it can be said that the reasonable requirement of the suit premises was for both the plaintiffs. Therefore, Section 13 (1) (ff)when anatomized would make it apparent that the reasonable requirement may be of the landlord and may not be of the landlord. The definition of the word landlord is what we have seen hitherto before. This provision clearly entails that reasonable requirement may extend to any person, landlord included when such person is the owner of the premises, for whose benefit that premises are held. Therefore, the question is whether for eviction of the tenant on the ground of reasonable requirement notice under Section 13 (6) of the Act has to be issued by the owner of the premises alone and not by the landlord, who is not the owner of the premises. Therefore, the question is whether for eviction of the tenant on the ground of reasonable requirement notice under Section 13 (6) of the Act has to be issued by the owner of the premises alone and not by the landlord, who is not the owner of the premises. In Section 13 there are several clauses and each clause provides a ground for eviction and for eviction of a tenant sub-section (6) of section 13 gives it a mandate to the landlord to issue a notice to the tenant. Sub-section (6) of Section 13 reads as follows:-"notwithstanding anything in any other law for the time being in force no suit or proceeding for the recovery of possession of any premises on any of the grounds mentioned in sub-section (1)except the grounds mentioned in Clauses (j) and (k) of that subsection shall be filed by the landlord unless he has given to the tenant one months notice expiring with a month a month of tenancy". (Emphasis mine). Law is well settled that it is not required that for institution of a suit for eviction the grounds of eviction have to be entered in the notice which is a notice of suit. It is the determination of tenancy that has to be notified in the statutory notice. Had it been tne intention of the legislature that in case of eviction on the ground of reasonable requirement the statutory notice under Section 13 (6) of the Act is required to be issued by the owner of the premises, who may not be the landlord, then language of Section 13 (6) would have been drafted in that way. The provision of sub-section (6) of Section 13 clearly indicates that for eviction on any of the grounds mentioned in sub-section (1) (except the grounds mentioned in Clauses (j) and (k) of that sub-section) notice has to be issued by the landlord of clear one month expiring with the month of the tenancy. When the word landlord is used in this sub-section (6) of Section 13 it necessarily and invariably indicates that concept of the landlord which is expressed in Section 2 (d) of the Act. There cannot be two different meaning of the word landlord for different purposes. The expression "simple landlord is foreign to the Act. When the word landlord is used in this sub-section (6) of Section 13 it necessarily and invariably indicates that concept of the landlord which is expressed in Section 2 (d) of the Act. There cannot be two different meaning of the word landlord for different purposes. The expression "simple landlord is foreign to the Act. A landlord, at the cost of re-petition, may be an owner and may not be owner, but the law does not say that for the purpose of eviction on the ground of reasonable requirement the notice has to be addressed to the tenant only by the owner and not by the landlord who may not be the owner of the premises. (14) LEARNED Advocates, appearing for the respondent refers to a full Bench decision of this Court in ratanlal Bansilal and Ors. v. Kishorilal goenka and Ors. , AIR 1993 Calcutta 144. By this decision many issues were settled. My attention has been drawn to Paragraphs-143, 147, 148 and 151 of the judgment in support of his submission that in case of eviction on the ground of reasonable requirement, the giver of the notice must be the owner and no one else. Having read the judgment I failed to find that such was the ratio of the decision paragraph-143 relates to issuance of notice by two co-owners as plaintiffs. Reference to the decision in Ram pasrecha v. Jagannath, AIR 1976 SC 2335 was made where it was held that jurisprudentially it was not correct to say that a co-owner of the property is not the owner. At Paragraph-147 it was held that it did not matter that one of the co-plaintiffs was a co-owner/landlord but since the other co-plaintiff is not a landlord the suit cannot survive. It was found that the two landlords who were co-plaintiffs are not the landlords with whom the contract of tenancy was entered into. At Paragraph-151 of the judgment it was held that the notice was invalid because one of the notice givers was not entitled to give the notice. Here plaintiff No. 1 who was a co-plaintiff was not found to be the co-owner and co-landlord. The decision was in a different fact situation and does not apply here. The learned Advocate for the appellant refers to a decision of this court in Bhagalakshmi Dey and ors. v. Nandadulal Kundu and Ors. , 77 CWN 817. Here plaintiff No. 1 who was a co-plaintiff was not found to be the co-owner and co-landlord. The decision was in a different fact situation and does not apply here. The learned Advocate for the appellant refers to a decision of this court in Bhagalakshmi Dey and ors. v. Nandadulal Kundu and Ors. , 77 CWN 817. This decision also does not deal with the question which we are confronted with but then the decision will not be absolutely irrelevant, for here Section 13 (1) (ff) has been explained vis-a-vis the expression owner in the Section 13 (1) (ff) of the Act. Therefore, I hold that there could not be any question of illegality or invalidity or insufficiency of the notice under Section 13 (6) of the Act. Both the learned Trial Court and learned first Appellate Court, to my mind, could not appreciate the legal position in proper perspective. (15) NO other point was raised in this appeal. (16) SINCE the ground of reasonable requirement has been upheld by the learned First Appellate Court and this finding has not been agitated by the respondent this Court holds that the notice was legal and valid, the suit, therefore, succeeds. (17) SITUATED thus, the appeal is allowed with costs. The judgment and decree of the First Appellate Court affirming the judgment and decree of the learned Trial Court is set aside. The suit stands decreed on contest with costs. Decree shall be drawn up in the appeal.