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2008 DIGILAW 69 (CAL)

Paritosh Chandra Dutta v. Satyabrata Ganguly

2008-01-18

S.P.TALUKDAR

body2008
Judgment S.P. Talukdar, J. The respondent, as plaintiff, filed a suit for eviction and mesne profits. In the said suit, the plaintiff claimed that the appellant/defendant was inducted as a tenant in respect of the suit flat, as described in the schedule of the plaint at a monthly rental of Rs. 400/-payable according to the English calendar month. This was on the basis of an agreement dated 8th March, 1987 and it was for a period of five years commencing from 1st May, 1987. Failing to find out an alternative accommodation, the defendant approached the plaintiff for renewal of the agreement for a further period of four years in terms of clause-3 of the said agreement. The plaintiff, accordingly, entered into an agreement dated 18.6.1992 thereby resulting in renewal of the agreement for a further period of four years. The monthly rent was enhanced to Rs. 750/- payable according to English calendar month. While extending the period from 1.5.1992 to 30.4.1996, it was specifically made clear that there could be no further extension and the defendant would vacate the premises by 30.4.1996. The understanding given by the defendant as reflected from the agreement dated 18.6.1992 was not given due regard as the defendant failed to vacate the suit premises by 30th April, 1996. The plaintiff required the suit premises for own use and occupation and this compelled him to issue a letter asking the defendant, who was nothing but a trespasser, to vacate. Defendant received the letter on 25th March, 1996 but since he did not vacate, the plaintiff filed the suit. The defendant contested the said suit by filing written statement wherein all the material allegations made by the plaintiff were denied. He claimed to be a monthly tenant in respect of the suit premises but denied that the alleged agreement was binding upon him. He further denied that the said agreement could attract the provisions of Section 13(k) of the West Bengal Premises Tenancy Act. The defendant, by virtue of an amendment, further claimed that by agreement dated 18.6.1992, a fresh tenancy was created. In absence of a notice under Section 13(6) of the West Bengal Premises Tenancy Act, the defendant prayed for dismissal of the suit. Upon the pleadings, the learned Trial Court framed as many as four issues. The defendant, by virtue of an amendment, further claimed that by agreement dated 18.6.1992, a fresh tenancy was created. In absence of a notice under Section 13(6) of the West Bengal Premises Tenancy Act, the defendant prayed for dismissal of the suit. Upon the pleadings, the learned Trial Court framed as many as four issues. After due consideration of the relevant facts and circumstances, by judgment dated 18.10.2001, the learned Trial Court decreed the suit on contest. Such judgment dated 18.10.2001 was challenged by the defendant/tenant. The learned 1st Appellate Court by judgment dated 9.6.2003 dismissed the appeal thereby affirming the judgment and decree passed by the learned Trial Court. Thereafter, the venue of the legal battle shifted to this Court in view of filing of the instant second appeal. The learned Division Bench of this Court while admitting the appeal by order dated 25.7.2007 formulated the following grounds:- 1) Whether both the learned Courts below erred in holding that the tenancy agreement dated 18th June, 1992 was a continuing tenancy of the first agreement dated 8th March, 1987 and the said agreements could be taken to be valid and legal notice in terms of Section 13(1)(k) of the West Bengal Premises Tenancy Act. 2) Whether the Courts below applied the established legal tests for determining the termination of a tenancy under Section 13(1)(k) of the West Bengal Premises Tenancy Act. 3) Whether both the Courts below erred in considering the tenancy agreement dated 18th June, 1992 was a continuing tenancy of the first agreement dated 8th of March, 1987 and/or the tenancy which stated from 8th of March, 1987 is a continuing one and whether by giving an eviction notice much after the expiry of the second agreement dated 18th June, 1992 the landlord has waived his right to sue on the basis of the alleged agreement. Mr. S.P. Roy Chowdhury, appearing as learned Counsel for the appellant, submitted that the learned Trial Court as well as the 1st Appellate Court were not justified in holding that the tenancy agreement dated 18th June, 1992 was a continuing tenancy of the first agreement dated 8th March, 1987 and the said agreement could be taken to be valid and legal notice in terms of Section 13(1)(k) of the West Bengal Premises Tenancy Act. It was submitted that the second agreement which was executed on 18.6.1992 resulted in creation of a fresh tenancy and not the continuation of the first one. It was emphatically submitted that in such view of the matter, it could not be said that the subsequent agreement dated 18th June, 1992 could attract the provisions of clause (k) of sub-section (1) of Section 13 of the W.B.P.T. Act. It was then submitted that the agreement of the year 1992 having created a fresh tenancy, the eviction suit could not be proceeded with in absence of a statutory notice determining the tenancy. To this, Mr. Ajit Kumar Panja, appearing as learned Counsel for the respondent referring to the first agreement dated 8th March, 1987, submitted that the intention for renewal of tenancy was there from the very beginning. He categorically submitted that the very use of the word ‘renewal’ in clause (3) of the agreement dated 8.3.1987 negatives the alleged claim of creation of fresh tenancy. Mr. Panja unhesitatingly referred to the fact that in absence of perversity, in a second appeal, that too, against the judgment of affirmation, there is little scope for reassessment or re-appreciation of evidence. Mr. Panja further submitted that it requires to be borne in mind that the scope is limited and that is whether there had been consideration of something which is not there or failure to consider something which is there or there had been wrong appreciation resulting in perversity. It is not in dispute that the first agreement dated 8th March, 1987 whereby the appellant/defendant was inducted as a monthly tenant in respect of the suit flat, was for a period of five years. Clause- 3 of the said agreement may be set out as follows:- ‘3. That this tenancy shall continue for a period of five years. The renewal of the continuance of tenancy with fresh terms and conditions shall be made upon the expiry of the aforesaid period on description of the first party landlord.’ It is the specific stand of the respondent/plaintiff that the appellant/defendant having failed to find out an alternative accommodation approached the landlord/respondent and sought for renewal. Since there was specific scope for accommodating such request in the agreement dated 8.3.1987, the respondent/landlord responded favourably to such request. Since there was specific scope for accommodating such request in the agreement dated 8.3.1987, the respondent/landlord responded favourably to such request. Section 13(1)(k) of the W.B.P.T. Act reads as follows:- “Where subsequent to the creation of the tenancy, the tenant having agreed in writing with the landlord to deliver vacant possession of the premises to the landlord has failed to do so.” The question that arose is whether the subsequent agreement of the year 1992 could at all result in creation of a new tenancy. If the answer is yes, there is no scope for proceeding under Section 13(k) of the W.B.P.T. Act. But as already indicated, in the first agreement of the year 1987, there was categorical mention of the word ‘renewal’ and the expression ‘continuation of tenancy’. Mr. Roy Chowdhury sought to interpret the two agreements under reference from a different perspective. He emphatically submitted that it matters little as to whether such aspect was taken into consideration or not while formulating the points requiring adjudication by this Court. Relying upon the decision in the case of Sir Chunilal V. Mehta & Sons Ltd. Vs. Century Spinning and Manufacturing Co. Ltd., as reported in AIR 1962 Supreme Court 1314, it was contended that the law is well settled that the construction of a document of title or of a document which is the foundation of the rights of parties necessarily raises a question of law. Mr. Panja, deriving inspiration from the decision in the case of Ramdhan Das Vs. Ramkison Das & Ors., as reported in 51 C.W.N. 202, mentioned that substance cannot be ignored and form cannot be preferred to the substance merely for the reason that documents speak for themselves. In the backdrop of the present case, I do not think that there is much scope for raising controversy in this regard. The two agreements, which are the foundation of the case under reference, are so clear and specific that those virtually leave nothing untold. It is true that one cannot afford to miss the wood for the trees and the agreement of 1987 clearly leaves scope for accommodating a renewal of the tenancy and that by way of continuation of the tenancy. It cannot be denied that this being the crux of the entire controversy, it is certainly a substantive point of law, which requires adjudication by this Court. It cannot be denied that this being the crux of the entire controversy, it is certainly a substantive point of law, which requires adjudication by this Court. In the case of Santosh Hazari Vs. Purushottam Tiwari (Deceased) by LRS, as reported in (2001) 3 SCC 179 , the Apex Court held that the High Court is not bound to confine itself to dealing only with the question initially framed by it. This Court may hear the appeal on any other such question so long as it is satisfied that the case involves the question and records its reasons for such satisfaction. Though this sufficiently answers to the question raised in the case on behalf of the respondent, it may be of interest to reproduce the observation of the Apex Court that ‘substantial’ means ‘having substance’, ‘essential’, ‘real’, ‘of sound worth’, ‘important’ or ‘considerable’. It was further held that to be substantial, a question of law must be debatable, one which has not been settled earlier by statute or binding precedent, and must have a material bearing on the outcome of the case. Mr. Roy Chowdhury on behalf of the appellant contended that the agreement of the year 1992 having been given retrospective effect or from a date anterior to the date of execution, the same should be held to be void for contravention of Section 5 of the Transfer of Property Act. In this context, reference was made to the decision in the case of Bazaz Construction & Mining (P) Ltd. Vs. Adhish Chandra Sinha & Ors., as reported in 2001(2) CHN, page-579. Referring to the decision in the case Dipak Sen & Anr. Vs. Smt. Lakshmi Rani Das, as reported in 2000 (1) CHN 365 , it may be relevant to mention that the relationship between the parties in the present case in no way commenced from the date of execution of the subsequent agreement of the year 1992 and thus it’s giving effect to from an anterior date does not really have any impact on the complexion of the case. If in the factual backdrop of the present case, it is held that the agreement of the year 1992 is not a document creating fresh tenancy, there can be little scope for raising controversy regarding date of its execution or the result of giving effect to from a date anterior to the date of execution. If in the factual backdrop of the present case, it is held that the agreement of the year 1992 is not a document creating fresh tenancy, there can be little scope for raising controversy regarding date of its execution or the result of giving effect to from a date anterior to the date of execution. There is no doubt force in the submissions made by Mr. Roy Chowdhury, who, deriving support and strength from the decision in the case of Mathura Mohan Goswami Vs. Jyotirmoy Chowdhury, as reported in 69 C.W.N. 568, submitted that clause like clause (j) or clause (k) of Section 13(1) of the West Bengal Premises Tenancy Act, 1956 deserves to be strictly construed. This is for the simple reason that such a clause deprives the tenant from the statutory protection. It was next submitted on behalf of the appellant that the agreement of the year 1992 does not deserve any consideration as it is void for want of registration. True, there can be no bar in law to a statutory tenant entering into a fresh contract of tenancy with the landlord. But reference to the decision in the case of Biswabani Pvt. Ltd. Vs. Santosh Kumar Dutta & Ors., as reported in (1980) 1 SCC 185 by Mr. Roy Chowdhury, as learned Counsel for the appellant, does not seem to have much relevance in the factual backdrop of the present case. Mr. Panja quite rightly submitted that in the present case as it had been found on a scrutiny of the evidence, the tenancy commenced from the first agreement and the second one was only a continuation. Mr. Roy Chowdhury also referred to the decision in the case of Gosto Behari Roy Vs. Ramesh Chandra Das, as reported in 82 C.W.N. 617, but the factual backdrop of the said case is significantly different from the same of the present case. In the present case there was no letter of termination. Mr. Panja relying upon the decision in the case of Amal Dutta Vs. Ismail Ghulam Hussain Ariff, Receiver, as reported in ILR 1967 (1) Cal. 438, submitted that by the subsequent agreement of the year 1992, the original tenancy was accepted by the tenant as subsisting on the date of the execution of the document and continued and, therefore, there was no creation of a fresh tenancy. Ismail Ghulam Hussain Ariff, Receiver, as reported in ILR 1967 (1) Cal. 438, submitted that by the subsequent agreement of the year 1992, the original tenancy was accepted by the tenant as subsisting on the date of the execution of the document and continued and, therefore, there was no creation of a fresh tenancy. On behalf of the appellant it was contended that the document whereby tenancy is created cannot itself be construed to be an agreement to vacate under the meaning of Section 13(1)(k). Referring to the decision in the case of Union of India Vs. The General Beopar Co. Pvt. Ltd., as reported in 1999(II) CHN 4 , it was submitted by Mr. Roy Chowdhury that Section 13(1)(k) of the W.B.P.T. Act requires the agreement to be arrived at subsequent to the creation of the tenancy. In view of the discussion as made above, the agreement of the year 1992 being not the document whereby tenancy was created, it can very well attract the aforesaid clause (k) of sub-section (1) of Section 13 of the said Act. On behalf of the respondent it was submitted that an agreement in writing executed by and between the parties whereby the defendant/tenant agreed to vacate the suit premises on the expiry of certain period can be treated to be a ground for the defendant/tenant’s eviction from the suit premises under Section 13(1)(k) of the W.B.P.T. Act as the tenant having agreed in writing to the landlord, subsequent to the creation of the tenancy, to vacate the suit premises on the expiry of certain period had failed to do so. It matters little whether it was registered or unregistered, as such document would not change the nature and character of the tenant’s disputed tenancy. This derived support from the decision in the case M/s. Prem Nath Diesels Pvt. Ltd. Vs. Aloka Dam, as reported in AIR 1999 Cal-1. It follows from the aforesaid discussion that the relationship between the parties as that of landlord and tenant was created by virtue of the agreement of the year 1987 and such relationship continued as reflected from the subsequent agreement of the year 1992. The specific clause of the subsequent agreement of 1992 certainly attracts Section 13(1)(k) of the W.B.P.T. Act. It follows from the aforesaid discussion that the relationship between the parties as that of landlord and tenant was created by virtue of the agreement of the year 1987 and such relationship continued as reflected from the subsequent agreement of the year 1992. The specific clause of the subsequent agreement of 1992 certainly attracts Section 13(1)(k) of the W.B.P.T. Act. There can be no reason for not accepting the contention as made on behalf of the respondent/plaintiff that after expiry of the period of agreement of the year 1992, the status of the appellant was that of a trespasser. As such, there could be no scope for ventilating any grievance in regard to the letter directing the appellant/tenant to vacate the disputed premises. This answers to all the points which were formulated for adjudication in the instant second appeal. After due consideration of all relevant facts and materials, this Court finds it difficult to accept the grievances as ventilated on behalf of the appellant. The judgment of the learned 1st Appellate Court in Title Appeal No. 8 of 2002 dated 9th June, 2003 thereby affirming the judgment of the learned Trial Court deserves no interference. Stamp paid correct. The instant second appeal being S.A. No. 429 of 2003 fails and be dismissed.