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2010 DIGILAW 820 (CAL)

Abdul Karim v. Jagat Bandhu Kumar

2010-07-16

TARUN KUMAR GUPTA

body2010
Judgment :- Tarun Kumar Gupta, J.:- The second appeal is directed against judgment and decree dated 28th day of February, 1995 passed by R.N. Banerjee, learned Assistant District Judge, Additional Court, Hooghly in Title Appeal No.158 of 1991 affirming the judgment and decree dated 24th April, 1991 passed by Sri Partha Lahiri, learned Munsif, 2nd Court at Hooghly in Title Suit No.4 of 1989. Being aggrieved with said judgment of First Appellate Court the instant Second Appeal has been filed alleging inter alia that learned Court of Appeal erred in law by holding the notice of ejectment as valid as well as for not considering that the suit suffered from want of cause of action and also for not considering the entitlement of a decree of declaration of tenancy right by the present appellant/defendant by way of his counter claim as respondent/plaintiff did not file any written statement denying the same. The fact of this case may be summarized as follows: The respondent No.1 being plaintiff filed the said Title Suit being No. 4 of 1989 claiming that respondent Nos. 2 and 3 being defendant Nos. 1 and 2 were premises tenants under him in respect of suit property at a rental of Rs.80/-per month payable according to Bengali calendar month and that they defaulted in payment of rent since Jaistha 1395 B.S. and were also guilty of subletting the suit property to the present appellant being defendant No.3 without the consent of the plaintiff and accordingly plaintiff caused service of notice of ejectment dated 15.08.1986 through his lawyer Mr. Satyendranath Das upon the defendants determining their tenancy with the expiry of the month of Bhadra 1393 B.S. and that thereafter the present appellant defendant No.3 replied to the said notice and respondent Nos. 2 and 3 (defendant Nos. 1 and 2 ) approached the plaintiff for a settlement which did not materialize and accordingly plaintiff revoked the earlier notice and caused service of notice of ejectment dated 14.11.1988 through his lawyer Keshablal Mukherjee determining the tenancy of the tenants with the expiry of the month of Poush 1395 B.S. As the defendants did not vacate the suit premises in spite of receipt of notice the suit for ejectment was filed on the ground of default and subletting together with a claim for arrears rent and for mesne profit. The defendant No.1 filed a written statement denying the material allegations of the plaint and containing inter alia that he was a tenant under the plaintiff in respect of suit premises till Baisak 1395 B.S. and that thereafter he surrendered the tenancy in favour of the plaintiff but did not contest the suit. The defendant No.2 did not even file W.S. not to speak off contesting the suit. The present appellant /defendant No.3 contested the suit by filing written statement denying material allegations of the plaint and containing inter alia that defendant Nos. 1 and 2 were the premises tenants under the plaintiff prior to Jaistha, 1393 B.S. and since Jaistha 1393 B.S. defendant No.3 became the tenant in respect of the suit premises under the plaintiff and that he also paid ‘selami’ to plaintiff and that on receipt of the said ‘selami’ plaintiff accepted defendant party No.3 as his tenant in the suit premises but as appellant/ defendant No.3 refused to enhance rent from Rs.80/- to Rs.100/- as per demand of the plaintiff the false suit was filed. The appellant/defendant also filed counter claim praying for declaring his tenancy right in the suit premises. On the basis of the pleadings of the parties the Trial Court framed as many as seven issues including legality, validity of the notice and entitlement, if any, of defendant No.3 to get a decree as prayed for his counter claim. On the basis of the evidence on record both oral and documentary he allowed plaintiff’s suit for ejectment as well as for arrears rent after dismissing the counter claim of defendant No.3. It was duly affirmed by the First Appellate Court on consideration of evidence on record both oral and documentary. At the time of admission of the Second Appeal the following substantial question of law was formulated:- Whether the notice dated 14.11.1988 was a valid notice in terms of Section 13(6) of the West Bengal Premises Tenancy Act and, if not, whether the learned Courts below erred in passing the decree for eviction as against the appellant. Regarding validity of the notice to quit dated 14.11.1988 the first question that cropped up was whether this notice dated 14.11.1988 really waived the first notice dated 15.08.1986. Regarding validity of the notice to quit dated 14.11.1988 the first question that cropped up was whether this notice dated 14.11.1988 really waived the first notice dated 15.08.1986. In this connection Hon’ble Apex Court has held that when subsequently another notice is served and the tenant did not act upon the first notice, issuance of the second notice acts as waiver of the first notice, because the tenant not having acted upon the first notice, the second notice acts as a waiver of the first notice { AIR 1971 SC 102 (Tayeb Ali versus Asan and Company)}. This High Court has also followed the above view of Hon’ble Supreme Court in the case of Provash v. Chandmohan 81 CWN page 814 and Arjun v. Brojendro 85 CWN page 651. In the case in hand there is no evidence whatsoever that tenant defendants ever acted upon receipt of the first notice dated 15.08.1986, learned Advocate for the defendant No.3 is fair enough to admit that as there is no material on record to show that defendant tenants acted upon on receipt of first notice dated 15.08.1986, the same stands waived by issuance of subsequent notice dated 14.11.1988. However, he has vehemently challenged the validity of the notice dated 14.11.1988 as by the said notice respondent landlord tried to terminate the tenancy of the defendant tenants on the last day of Poush, 1395 B.S. and not on the expiry of the month of Poush, 1395 B.S. According to him the said notice dated 14.11.1988 did not give required one month’s notice as prescribed under Section 13(6) of the West Bengal Premises Tenancy Act, 1956. According to him as tenancy was sought to be terminated on the last day of Poush, 1395 B.S. clear one month’s notice which was a sine qua non for determining tenancy as per Section 13(6) of the Act, 1956, was not complied and on that score the said notice dated 14.11.1988 was bad in law and accordingly the impugned judgment and decree confirming eviction of tenants on the basis of the said illegal notice vitiated. In this connection, he has referred case laws reported in AIR 1963 Supreme Court page 120 (Bhaiya Punjalal Bhagwanddin v. Dave Bhagwatprasad Prabhuprasad and others), AIR 1965 Supreme Court page 101 (Mangilal v. Sugan Chand Rathi and another), AIR 1967 Supreme Court page 77 (Indian Iron and Steel Company Ltd., v. Biswanath Sonar), AIR 1975 Supreme Court Page 1111 (Dattonpant Gopalvarao Devakate v. Vithalrao Marutinao), 87 CWN page 5 (Saroj De v. Radharani Saha) and 1999 (II) CHN page 491 (Sri Chandi Charan Ghosh v. Sm. Sushila Sundari Sen and Ors.) to impress upon this Court that statutory notice of prescribed period as per concerned statute is the very basis of a suit of ejectment. This proposition of law is not disputed. The main point in issue in the Second Appeal is whether the said notice dated 14.11.1988 terminating the tenancy of respondent Nos. 2 and 3 on the last day of Poush, 1395 B.S. was valid or not. In this connection learned Advocate for the respondent No.1/plaintiff has submitted that the said notice dated 14.11.1988 terminating the tenancy on the last day of Poush, 1395 was legal and valid as the tenancy of the respondent/defendant Nos. 1 and 2 was according to Bengali calendar month. It came out from the evidence on record as well as from the submission of learned Advocates of both sides that admittedly the tenancy of respondent /defendant Nos. 1 and 2 under respondent /plaintiff in the suit premises was according to Bengali calendar month. A similar question arose as to whether a notice asking to give up possession on 31st March, 1975 in a tenancy regulated by English calendar month was valid or not. This Hon’ble Court has decided in the case of Bholanath Das v. Bholanath Boral (AIR 1965 Cal page 387) that the said notice asking to give up possession on 31st March, 1975 was valid as no specific time was mentioned in the notice and the tenant was entitled to deliver possession at last hour of 31st March, 1975. In a Supreme Court Case the tenant was asked to quit and vacate within the month of October failing which he would be treated as trespasser and the Hon’ble Apex Court held that the tenant was given time till the mid night of 31st October and that the notice was valid. In a Supreme Court Case the tenant was asked to quit and vacate within the month of October failing which he would be treated as trespasser and the Hon’ble Apex Court held that the tenant was given time till the mid night of 31st October and that the notice was valid. {Bhogaban Das Agarwal v. Bhogaban Das Kanu (AIR 1977 SC page 1120)}. From the above discussion it is clear and crystal clear that the impugned notice dated 15.08.1986 asking the respondent tenant defendant Nos. 1 and 2 to deliver possession on the last day of Poush 1395 B.S. was legal and valid and fulfilled the requirements of one month’s notice as prescribed under Section 13 (6) of West Bengal Premises Tenancy Act, 1956. During hearing learned Advocate for the appellant /defendant No.3 has further submitted that in the plaint the cause of action was shown to arise on the last day of Poush, 1395 B.S. and as such the suit was liable to be dismissed for want of cause of action. In view of the aforesaid discussion the above contention of learned Advocate for the appellant/defendant No.3 has no leg to stand upon. Apart from that cause of action is a bundle of facts and it was specifically stated in the plaint that the cause of action arose on the last day of the month of Poush, 1395 B.S. as well as on the first day of Magh 1395 B.S. During hearing learned Advocate for the petitioner/defendant No.1 has further submitted that the present petitioner/defendant No.3 made out a counter claim of his tenancy in the suit premises and that respondent / plaintiff did not file any W. S. denying the same, and that the appellant/defendant No.3 was entitled to get a decree declaring his tenancy under Order 8 Rule 5 C.P.C. which was not taken into consideration by both the Lower Courts thereby vitiating their judgments and decrees. Learned Advocate for the contesting respondent/plaintiff has on the other hand submitted that in the plaint the appellant / defendant No.3 was specifically described as a sub-tenant inducted in suit premises without any permission of the plaintiff landlord and that there was no need for filing any W.S. for denying the said claim of tenancy of appellant/defendant No.3. Learned Advocate for the contesting respondent/plaintiff has on the other hand submitted that in the plaint the appellant / defendant No.3 was specifically described as a sub-tenant inducted in suit premises without any permission of the plaintiff landlord and that there was no need for filing any W.S. for denying the said claim of tenancy of appellant/defendant No.3. Admittedly, the respondent/plaintiff has categorically stated in his plaint that the present appellant defendant No.3 was inducted as a sub-tenant in the suit premises by tenants respondent/defendant Nos. 1 and 2. It was also one of the main grounds of the eviction suit filed by the plaintiff landlord. Apart from that it came out from the judgment of the learned Trial Court that a specific issue as to whether defendant No.3 was entitled to get a decree as prayed for in his counter claim (issue No.7) was framed and disposed of in the negative. Under the facts and circumstances it cannot be said that for not filing specific W.S. against the said counter claim appellant defendant No.3 was entitled to get a decree for his counter claim. The last contention of learned Advocate for the appellant defendant No.3 was that the decree of ejectment was not binding upon his client as he was not claimed to be a tenant by the respondent / plaintiff and that he was made a party in the suit unnecessarily. Learned Advocate for the respondent / plaintiff on the other hand has submitted that present appellant defendant No.3 was an illegal sub-tenant in the suit premises which was one of the grounds for filing the ejectment suit by the plaintiff landlord against the defendant Nos. 1 and 2 as tenants and accordingly the said subtenant was a proper party to the suit and is also bound by the decree of ejectment. I find much substance in the aforesaid contention of learned advocate for respondent/plaintiff. It is true that a sub-tenant inducted illegally in the suit premises by the tenants is bound by the decree of ejectment passed against tenants, but it is advisable to make the sub-tenant a party to avoid future complications. I find much substance in the aforesaid contention of learned advocate for respondent/plaintiff. It is true that a sub-tenant inducted illegally in the suit premises by the tenants is bound by the decree of ejectment passed against tenants, but it is advisable to make the sub-tenant a party to avoid future complications. Accordingly, I find and hold that the impugned judgment dated 28th day of February, 1995 of learned First Appellate Court confirming the judgment and decree of eviction passed by learned Trial Court was based on proper appreciation of evidence on record both oral and documentary and does not call for any interference by this Court of Second Appeal. As a result, the Appeal stands dismissed on contest. Send the L.C.R. along with copy of the judgment to the Court of First Appeal for information and necessary action at the earliest. Urgent xerox certified copy of the judgment be supplied to the learned Counsels of the party / parties, if applied for.