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2009 DIGILAW 322 (CAL)

Binoy Kumar Majumder v. Gopi Chand Pal

2009-04-22

B.BHATTACHARYA, TAPAN KUMAR DUTT

body2009
JUDGMENT 1. THIS first appeal is at the instance of the defendants in a suit for eviction and is directed against the judgment and decree dated 19th January, 1995, passed by the learned Trial Judge, Eighth Bench, City civil Court at Calcutta, in Ejectment Suit No. 198 of 1980 thereby passing a decree for eviction on the ground of subletting and causing damage and waste to the suit property. 2. BEING dissatisfied, the tenants/defendants have come with the present appeal. The respondent No. 1 before us filed a suit being Ejectment Suit no. 198 of 1980 in the City Civil court at Calcutta against the appellants, his tenants, for their eviction on the grounds of reasonable requirement, subletting, act of waste and negligence resulting in material deterioration of the condition of the premises and also on the ground that the appellants took the premises for residential purpose but they had been using the same for other than that for which the premises were let out for more Irian four months without the consent of the plaintiffs. It was further alleged that the. appellants were guilty of conduct which was a nuisance and annoyance to the neighbours including the plaintiffs. 3. THE suit was contested by the appellants by filing written statement thereby denying all the material allegations made in the plaint regarding the various grounds taken in the plaint. By way of additional written statement, the appellants pointed out that the notice to quit dated 7th December, 1979 which was the basis of the suit for eviction, was waived during the pendency of the suit by issuing a subsequent notice under Section 13 (6) of the West Bengal premises Tenancy Act dated 21st January, 1987 on behalf of the added plaintiff no. 2 and according to the appellants, in view of the said second notice issued by the subsequent purchaser, the added plaintiff, during the pendency of the suit, the present suit based on earlier notice was liable to be dismissed. 4. IT may not be out of place to mention here that during the pendency of the suit the original plaintiff sold away the suit property to one Samar Kumar ghosh and subsequently, on the application of the original plaintiff, the said samar Kumar Ghosh was added as proforma defendant. 4. IT may not be out of place to mention here that during the pendency of the suit the original plaintiff sold away the suit property to one Samar Kumar ghosh and subsequently, on the application of the original plaintiff, the said samar Kumar Ghosh was added as proforma defendant. Afterwards, the said samar Kumar Ghosh came up with an application for transposing him to the category of the plaintiff No. 2 as he had purchased the property and the Court transposed him to the category of the plaintiff by adding him as the plaintiff no. 2. Thereafter, second notice dated 21st January, 1987 was issued on his behalf thereby asking the appellants to vacate the suit property with the expiry of February, 1987 only on the grounds of default of payment of rent and reasonable requirement. At the time of hearing of the suit, the original plaintiff No. 1 deposed as P. W. 1 and the added plaintiff deposed as P. W. 5. On behalf of the defendants both of them figured as witnesses. 5. THE learned Trial Judge by the judgment and decree impugned herein decreed the suit on the grounds of subletting and causing damage to the suit property. 6. BEING dissatisfied, the defendants have come up with the present appeal. Mr. Tandon, the learned Advocate appearing on behalf of the appellants, at the first, tried to impress upon us that the grounds of subletting and causing damage to the property had not been established. After going to the evidence on record, we, however, find that those two grounds have been well established from the evidence on record. The sub-tenant's name, has been incorporated in the voter list in respect of the said property for a long time and at the same time it has been proved that there was addition and alteration of the property causing material deterioration of the suit property. Therefore, we do not find any reason to interfere with the findings of the learned trial Judge on those two issues which are supported by the evidence on record. 7. AT this stage, Mr. Therefore, we do not find any reason to interfere with the findings of the learned trial Judge on those two issues which are supported by the evidence on record. 7. AT this stage, Mr. Tandon vehemently contended before us that the plaintiff No. 2, the present owner of the property, during the pendency of the suit, on 29th January, 1987 having given a fresh notice to his client alleging the ground of default in payment of rent from the month of his purchase and also oh the ground of reasonable requirement of the plaintiff No. 2, the moment such notice was given, the present suit based on earlier notice given by the plaintiff No. 1 cannot any further continue. Mr. Tandon submits that it is true that after the expiry of the period mentioned in the second notice, the plaintiff no. 2 gave another notice withdrawing the second notice but for mere withdrawal of such notice, the suit which became dead in the eye of law cannot revive. Mr. Tandon contends that the moment, the second notice in the month of January, 1987 was given, the suit could not continue any further. Mr. Tandon points out that the plaintiff No. 2 in his notice did not mention the grounds which were incorporated in the first notice and which were the subject-matters of the suit but intended to evict his clients on new grounds, namely, the grounds of default in payment of rent from the month of his purchase and his own reasonable requirement. Therefore, from the aforesaid conduct, Mr. Tandon continues, it is established that the plaintiff No. 2, the present owner, was not interested in the grounds pleaded in the plaint by the plaintiffs No. 1. He, therefore, prays for setting aside the decree only on the ground that after the plaintiff No. 2 had revived the relation of landlord and tenant between the parties from January, 1987 till February, 1987 and without giving fresh notice in terms of Section 13 (6) of the West Bengal Premises Tenancy Act, 1956 and without filing a fresh suit, the plaintiff No. 2 cannot get a decree for eviction through the suit filed by the plaintiff No. 1 on different grounds. 8. MR. Roy Chowdhury, the learned senior Advocate appearing on behalf of the landlords, however, opposed the aforesaid contention advanced by Mr. 8. MR. Roy Chowdhury, the learned senior Advocate appearing on behalf of the landlords, however, opposed the aforesaid contention advanced by Mr. Tandon and contended that in the capacity of a subsequent purchaser, the plaintiff No. 2 was entitled to proceed with the suit filed by the original landlord on all the grounds except the ground of reasonable requirement of the original landlord. According to Mr. Roy Chowdhury, in such circumstances, even if due to misconception, any fresh notice was given, the same having been withdrawn, the suit based on earlier notice should continue at the instance of the plaintiff No. 2 on the grounds other than the reasonable requirement of the plaintiff No. 1, Mr. Roy Chowdhury, therefore, prays for dismissal of the appeal on the ground that the plaintiff No. 2 is entitled to avail of the grounds mentioned in the original plaint except the ground of reasonable requirement of the plaintiff No. 1, He, therefore, prays for dismissal of the appeal and for affirming the decree passed on other grounds by the learned Trial Judge. Therefore, the point that arises for determination in this appeal is whether the suit filed by the plaintiff No. 1 can be proceeded with by the plaintiff no. 2 even after determining the tenancy of the appellants, and giving a fresh notice of threat of a new suit on different grounds not covered by the pending suit filed by the plaintiff No. 1 in terms of Section 13 (6) of the West Bengal premises Tenancy Act, 1956. 9. AT the very outset, we keep on record that we do not for a moment dispute the proposition of law that a subsequent purchaser of a property can proceed with the suit filed by the previous owner against his tenants on all grounds other than the grounds of reasonable requirement and of building or rebuilding set up by previous landlord and can get the benefit of another grounds mentioned in Section 13 of the West Bengal Premises Tenancy Act, 1956 upon which the previous landlord instituted the suit for eviction. But the question before us is quite a different. But the question before us is quite a different. The question is if during the pendency of a suit for eviction, the landlord gives a fresh notice in terms of Section 13 (6) of the act asking the tenant against whom the suit for eviction is already pending, to vacate after the expiry of the period mentioned in the notice with a threat of a suit for eviction on different grounds than the ones on which the suit is pending, whether the pending suit can continue any further. In our view, the answer must be in negative because the moment the landlord gives a fresh notice, if presupposes the revival of the relationship of landlord and tenant over again at least from the date of service of such second notice till the date of termination of tenancy mentioned in the second notice. Therefore, the moment such notice would be given, the pending suit will undergo a natural death. The fact that in this case, the second notice is given by the subsequent purchaser is inconsequential because after his purchase, he stepped into the shoes of the original landlord and got himself substituted as the plaintiff. 10. THE next question is whether by giving another notice intimating withdrawal of the second notice and that too, after the expiry of the period mentioned in the second notice, the position would be changed in anyway. In this case, it is not denied that the second notice was given on the instruction of the plaintiff No. 2, By merely saying that due to misconception such notice was given, the pending suit cannot be revived. What was the misconception had not been explained. A landlord has definitely right to issue as many notices he deems fit and similarly withdraw those notices. But after withdrawal of the notice, the pending suit which has since become in fructuous and suffered a death cannot resurrect. If the landlord withdraws the second notice given in the month of January, 1987, the tenancy which was terminated with effect from February, 1987 Would again revive and the tenancy would continue even after the expiry of February, 1987 but there is no scope of any argument that the position would go back to the situation which existed on the expiry of the first notice on the basis of which the suit was filed. By giving the second notice in the month of January, 1987 the tenancy that was revived up to February 28,1987 cannot be undone. The plaintiff No. 2, if he so likes, must in order to file a suit for eviction, give another notice further determining the tenancy with the threat of filing a suit. We cannot lose sight of the fact that by waiving a notice to quit, the relationship of landlord and tenant between the parties is re-established but by waiving a notice to quit already given, the effect can in no circumstance be "termination of the relationship". 11. WE, therefore, find substance in the contention of Mr. Tandon that the moment the plaintiff No. 2, the present landlord, gave the notice in the month of January, 1987, the earlier suit filed by the plaintiff No. 1 became inoperative and no decree could be passed in that suit as the plaintiff No. 2 had by his conduct revived the relationship at least from the date of giving the notice till February 28,1987 and thereafter, by withdrawing such notice, has merely disclosed his intention to continue the tenancy which he decided to terminate earlier in the month of January, 1987. After reviving the tenancy, the plaintiff No. 2 now cannot ask the Court not to take any notice of the revival of the relationship between the parties which was done at his instance. 12. WE, therefore, set aside the judgment and decree passed by the learned Trial Judge only on the ground that service of a notice given in the month of January, 1987 having been admitted, the suit filed on the basis of an earlier notice cannot continue and no decree can be passed in such a suit which has become infructuous. The appeal is, thus, allowed. In the facts and circumstances, there will be, however, no order as to costs.