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2009 DIGILAW 953 (CAL)

Anjali Nandy v. P. C. Ghosh

2009-12-24

Pranab Kumar Deb

body2009
JUDGMENT Pranab Kumar Deb, J. 1. THE instant appeal has been directed against the judgment dated 20th January, 2006 and the decree dated 30th March, 2006 passed by the learned Additional District and Sessions Judge, Fast Track Court at Chandannagar in Title Appeal No. 52 of 2005 whereby the judgment and decree dated 23rd February, 2005 and 3rd March, 2005 respectively passed by the learned Civil Judge (Junior Division), 1st Court in Chandannagar in Title Suit No. 257 of 1993 were set aside. 2. THE appellant/landlord filed the Title Suit No. 257 of 1993 against the defendant/respondent in the year 1993 for recovery of the suit premises as well as for recovery of arrears of rent and mesne profit. It was alleged that the defendant made default in payment of rent. It was also alleged that he had made unauthorised and illegal construction in the suit room in violation of the terms of the tenancy. Through amendment of the plaint, the plaintiff also sought for eviction, claiming that the suit premises was registered for building and re-building purposes. Denying the contention of the plaintiff, the defendant filed the written statement. It was contended that he never made default in payment of rent. The allegation of making unauthorised and illegal construction in the suit room had also been challenged in his written statement. It was denied that the plaintiff required the suit premises for building and re-building purposes. He had also challenged the notice to suit and quit. 3. IN decreeing the suit, the learned Court accepted the contention of the plaintiff that the defendant had made unauthorised and illegal construction in the suit room. Considering the dilapidated condition of the suit premises which was more than 100 years old, the Trial Court also accepted the contention of the plaintiff that the suit premises was required for building and re-building purposes. IN view of the defendant complying with the provision of section 17 (1) and 2A of the West Bengal Premises Tenancy Act, 1956, the Court had viewed that the defendant was entitled to get the relief under section 17(4) of the West Bengal Premises Tenancy Act. 4. CHALLENGING the aforesaid judgment and decree, the defendant filed the Title Appeal No. 52 of 2005. 4. CHALLENGING the aforesaid judgment and decree, the defendant filed the Title Appeal No. 52 of 2005. Disbelieving the plea that the construction had been made with the consent of the landlord, the Appellate Court also concurred with the view that the defendant was guilty of making unauthorised and illegal construction in the suit property. The Appellate Court also accepted the contention of the plaintiff that in view of its dilapidated condition, the suit premises was required for building and re-building purposes. The Appellate Court has, however, reasoned that since the tenancy had not been terminated by issuance of a valid notice in terms of the provision of section 13 (6) of the West Bengal Premises Tenancy Act, the suit for recovery of possession was liable to be dismissed. Accordingly, the appeal was allowed by setting aside the judgment and decree passed by the Trial Court. Challenging the aforesaid finding of the Appellate Court, the present appeal which has been numbered as S.A. 383 of 2006 has been filed. 5. IN admitting the appeal, the Court has framed the following questions of law: a. Whether the learned Court of Appeal below committed substantial error of law in reversing the judgment of the Trial Court. b. Whether the learned Court of Appeal below committed substantial error of law in determining the ejectment notice as illegal and bad. c. Whether the learned Court of Appeal below committed substantial error of law by not taking into consideration that in the notice of ejectment the plaintiff has clearly stated that delivery of possession is required to be given by the tenant "ending with the month of tenancy". 6. APPEARING on behalf of the appellant, Mr. Haradhan Banerjee has submitted that the First Appellate Court has failed to appreciate the fact that the notices to quit was received by the tenant on 25th August, 1993 whereby he was asked to vacate the suit premises after 25th October, 1993 with an alternative direction to vacate it after the expiry of one month from the date of notices ending with the month of tenancy. The aforesaid notice having been issued in terms of section 13(6) of the West Bengal Premises Tenancy Act, 1956 and section 106 of the Transfer of Property Act, the learned Court ought to have dismissed the appeal in view of the proper determination of tenancy by issuance of notice. The aforesaid notice having been issued in terms of section 13(6) of the West Bengal Premises Tenancy Act, 1956 and section 106 of the Transfer of Property Act, the learned Court ought to have dismissed the appeal in view of the proper determination of tenancy by issuance of notice. Citing the case of Bhagabandas Agarwalla vs. Bhagwandas Kanu and Ors., reported in AIR 1977 SC 1120 , Mr. Banerjee has submitted that the Apex Court has underlined the proposition that a notice to quit must be construed not with a desire to find faults in it, it must be construed ut res magis valeat quam pereat. It must not be read in a hyper-critical manner, nor must its interpretation be affected by pedagogic pendatism or over refined subtlety, but it must be construed in a common sense way. 7. DRAWING the attention of the Court to the impugned notice, Mr. Banerjee has submitted that the tenant was required to vacate it after October 25, 1993, alternatively after the expiry of one month from the date of receipt of the notice ending with the month of tenancy. The aforesaid notice, as such, cannot be construed to be vague or ambiguous either. It is argued that the tenant/respondent being well aware of the tenure of the tenancy cannot be said to have been misled by the service of the aforesaid notice to quit after October 25, 1993. In this connection, Mr. Banerjee has drawn the attention of the Court to the case of Renuka Mukherjee and Ors, vs. Bhabani Chatterjee and Ors., reported in 1976(1) CLJ 89, to vindicate his stand that a notice to quit either in the alternative form or in a form requiring the tenant to quit at the end of the year or the end of the month of the tenancy which is due to expire next from the date of service of notice is a perfectly valid notice within the meaning of section 106 of the Transfer of Property Act and such a notice can effectively terminate the tenancy of the defendant. 8. THE test of the sufficiency of a notice to quit is not what it would mean to a stranger ignorant of all the facts and circumstances touching the holding but what it would mean to tenants presumably conversant with all the facts. It is contended by Mr. 8. THE test of the sufficiency of a notice to quit is not what it would mean to a stranger ignorant of all the facts and circumstances touching the holding but what it would mean to tenants presumably conversant with all the facts. It is contended by Mr. Banerjee that since the title suit was acquired by the landlord on 26th day of a month, the landlord was under the belief that the monthly tenancy would commence from 26th of the month till 25th of the following month and swayed by such belief, he served the notice upon the tenant with a direction upon him to vacate it after October 25, 1993. It is submitted that even if it is assumed that the tenancy is according to English Calendar month, as held by the First Appellate Court, the aforesaid notice cannot be said to be invalid and defective, inasmuch as the aforesaid notice was received by the tenancy on 25th August, 1993 with a direction upon him to vacate the suit premises after expiry of October 25, 1993. Since she was given more than a month to vacate the suit premises after the expiry of the period of tenancy, the notice cannot be challenged on the ground of vagueness and absurdity. 9. DEFENDING the judgment of the First Appellate Court, Mr. Md. Sofiulla Mondal representing the respondent has submitted that since the tenancy had not been terminated by issuance of a valid notice, the suit had been rightly dismissed by the judgment of the Appellate Court. It is argued that issuance of notice is sine qua non for institution of a suit for recovery of possession from a tenant in terms of the provision of the West Bengal Premises Tenancy Act, 1956. The rent in the original tenancy being payable according to English Calendar month, the position remained unaffected even after the change of ownership of the suit property. The rent in the tenancy continued to be payable according to English Calendar month. Judging all these aspects, the Appellate Court rejected the plea of the plaintiff/landlord that the tenancy was from 26 of the month till 25 of the following month. In view of such position, the termination of notice on the expiry of 25th October, 1993 was rightly considered to be invalid one for the purpose of termination of the monthly tenancy, as contended by Mr. Mondal. 10. In view of such position, the termination of notice on the expiry of 25th October, 1993 was rightly considered to be invalid one for the purpose of termination of the monthly tenancy, as contended by Mr. Mondal. 10. AS provided in sub-section (6) of section 13 of the West Bengal Premises Tenancy Act, 1956: 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 sub-section shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy* As indicated in the notice issued under section 13 of the West Bengal Premises Tenancy Act, 1956 the tenant was directed to vacated the suit premises after October 25, 1993 alternatively after the expiry of one month from the date of receipt of the notice ending with the month of the tenancy. The notice was received by the tenant on August 25, 1993. Even if it is assumed that the rent under the tenancy was payable according to English Calendar month, the notice determining the tenancy after expiry of October 25, 1993 cannot be said to be invalid, as he received more than a month to vacate after the completion of the month of tenancy ending on 31.08.1993. With the issuance of the notice, the tenant was asked to vacate after October 25, 1993 alternatively after the expiry of one month from the date of receipt of the notice ending with the month of tenancy. The validity of the notice can also be justified in view of the alternative form requiring him to quit at the end of the month of the tenancy which is due to expire next from the date of service of the notice. As observed in the case of Renuka Mukherjee and Ors. vs. Bhabani Chatterjee and Ors. (supra), a notice to quit either in the alternative form or in a form requiring him to quit at the end of the month of the tenancy which is due to expire next from the date of service of the notice is a perfectly valid notice in the meaning of section 106 of the Transfer of Property Act and such a notice can effectively terminate the tenancy of the defendant. The tenant was well apprised as to when he was required to vacate the suit premises. No confusion can be said to have been generated by the issuance of the notice. As underlined in the case of Bhagabandas Agarwalla vs. Bhagwandas Kanu and Ors. (supra), a notice to quit must be construed not with a desire to find faults in it, which would render it defective, but it must be construed ut res magis valeat quam pereat. 11. NO particular form of notice is necessary. A notice will be deemed to be proper if the landlord without uncertainty and ambiguity clearly discloses his intention to terminate the tenancy. What is required to be ascertained is whether the notice is quite clear. It is to be ascertained as to what is conveyed to a tenant who is presumably conversant with the relevant facts and circumstances. There being no apparent ambiguity or vagueness in the aforesaid notice whereby the tenant had been given more than a month expiring with the month of tenancy time to vacate the suit premises, the suit should not have been dismissed on the ground of invalidity of the notice by the Appellate Court. The Appellate Court not having been properly construed the validity of the notice, the impugned judgment passed by the Appellate Court is not sustainable in law. 12. THE eviction on the ground of building and re-building purposes as well as on the ground of tenant making illegal and unauthorised construction in the suit premises has been upheld by the Appellate Court. No cross appeal has been filed, challenging such finding of the Appellate Court. On appreciation of the materials on record, the Trial Court as well as the Appellate Court viewed that the plaintiff/landlord was entitled to have suit properly recovered on the aforesaid grounds. THE suit was dismissed only on the grounds of validity of the notice. In interpreting the notice, the Appellate Court has failed to appreciate the provision of section 106 of the Transfer of Property Act and 13(6) of the West Bengal Premises Tenancy Act. THE tenancy has been properly terminated through issuance of notice and there being threat of suit contained in the combined notice under section 13(6) of the West Bengal Premises Tenancy Act and 106 of the Transfer of Property Act, the plaintiff/landlord is entitled to decree for eviction. THE tenancy has been properly terminated through issuance of notice and there being threat of suit contained in the combined notice under section 13(6) of the West Bengal Premises Tenancy Act and 106 of the Transfer of Property Act, the plaintiff/landlord is entitled to decree for eviction. In the result, the instant second appeal is allowed by setting aside the judgment and decree passed by the learned Appellate Court in Title Appeal No. 52 of 2005 and consequently, the judgment and decree passed by the Trial Court in Title Suit No. 257 of 1993 are hereby restored. The defendant/respondent is hereby given 4 (four) months time to vacate the suit premises, failing which the plaintiff would be entitled to pray for execution of the decree for possession before the Court. 13. URGENT xerox certified copies are to be supplied, if applied for. Appeal from Appellate Decree No. 383 of 2006 Appeal preferred on the 12th day of April 2006 against The judgment dated the 20th day of March 2006 and decree dated 30th day of March, 2006 passed by Sri Sanjit Mazumdar, Additional District and Sessions Judge, 1st Fast Track Court at Chandannagore in Title Appeal No. 52 of 2005 reversing the judgment dated 23rd day of February 2005 and decree dated 3rd day of March 2005 passed by Sri Rana Dam, Civil Judge, (Junior Division), 1st Court at Chandannagore, in Title Suit No. 257 of 1993.-- 1. Anjali Nandy, wife of Sri Ramkrishna Nandy. 2. Dipali Basak, Wife of Sri Netai Chandra Basak Both represented by their constituted attorney, Sri Ramkrishna Nandy, Son of Late Bibhuti Bhusan Nandy of Barabazar, Chandannagore, Police Station - Chandannagore, District - Hooghly. ... Plaintiffs/ Respondents/Appellants -Versus- 1. P.C. Ghosh and Company represented by its sole Proprietor and for self Sri Purna Chandra Ghosh, son of Late Jiban Krishna Ghosh of G.T. Road. Barabazar, Chandannagore, Police Station -Chandannagore, District- Hooghly. Notice of appeal upon sole respondent has been waived of vide Court's order dated 23rd June, 2006. ... ... Plaintiffs/ Respondents/Appellants -Versus- 1. P.C. Ghosh and Company represented by its sole Proprietor and for self Sri Purna Chandra Ghosh, son of Late Jiban Krishna Ghosh of G.T. Road. Barabazar, Chandannagore, Police Station -Chandannagore, District- Hooghly. Notice of appeal upon sole respondent has been waived of vide Court's order dated 23rd June, 2006. ... Defendant/Appellant/Respondent Appeal valued at Rupees 543/- (Rupees Five hundred forty three only) Upon this appeal coming up for hearing before The Hon'ble Pranab Kumar Deb one of the Judges of this Court, For hearing on 26th day of November, 2009 and Judgment delivered on the 24th day of December, 2009 It is ordered and decreed that the appeal be and the same is hereby allowed by setting aside the judgment and decree passed by the lower appellate Court in Title Appeal No. 52 of 2005 and restoring the same passed by the trial Court in Title Suit No. 257 of 1993. And It is ordered that the defendant respondent shall and do vacate the suit premises by four months from date, failing which the plaintiffs/appellants would be entitled to put the decree into execution. Dated this the twenty fourth day of December, Two Thousand nine. Submitted.