Research › Search › Judgment

Calcutta High Court · body

2012 DIGILAW 164 (CAL)

Sarbani Sen v. Tapas Kumar Samanta

2012-02-29

TAPAN KUMAR DUTT

body2012
JUDGMENT Tapan Kumar Dutt, J. 1. When the appeal is called out for hearing, the learned Advocates for the respective parties submit that before proceeding with the hearing of the appeal the substantial questions of law, if any, should be formulated. After having heard the learned Advocate for the appellants, this Court is of the view that this appeal should be heard on the following substantial questions of law: (1) Whether or not the learned Lower Appellate Court erred in not holding that the suit filed by the plaintiff-respondent was a premature one inasmuch as the said suit for eviction was filed within two years from the date of commencement of the West Bengal Premises Tenancy Act, 1997. (2) Whether or not the learned Lower Appellate Court erred in not holding that the eviction notice being Exhibit-9 if read along with the subsequent letter being Exhibit 9(c) cannot be treated as a valid notice of suit. (3) Whether or not the learned Lower Appellate Court committed an error in making the findings in favour of the plaintiff-respondent on some grounds for eviction when the learned Trial Court had not framed proper issues in this regard. (4) Whether or not the learned Lower Appellate Court erred in decreeing the suit for eviction when there is no finding with regard to the question as to whether or not the plaintiff-respondent has any alternative suitable accommodation. 2. After the aforesaid substantial questions of law have been formulated, the learned Advocate for the appellants has proceeded to make his submissions on the merits of the appeal. 3. Learned Advocate for the appellants has completed his submissions. Thereafter the learned Advocate for the respondent has made and completed his submissions and thereafter the learned Advocate for the appellants has also made his submissions in reply. 4. Hearing is concluded. 5. This Court now proceeds to deliver the following judgment. 6. The facts of the case very briefly is that the plaintiff/respondent filed a suit for eviction against the predecessor-in-interest of the present defendants/appellants on various grounds including the ground of default in payment of rent, building and rebuilding, waste, negligence, annoyance having caused to the plaintiff, unauthorized construction and the breach of the provisions of clause (m), (o) and (p) of section 108 of the Transfer of Property Act. 7. The suit was contested by the original defendant by filing written statement. 7. The suit was contested by the original defendant by filing written statement. The said suit being O.S. No. 242 of 2001 came up for hearing before the Learned Second Civil Judge (Junior Division), 2nd Court, Midnapore and the Learned Trial Court by judgment and decree dated 17.02.2006 dismissed the said suit upon holding that the suit is not maintainable as the plaintiff has not been able to prove the relationship of landlord and tenant between the parties and the notice of eviction issued on behalf of the plaintiff was not at all binding upon the defendant and it was not legal. 8. The plaintiff/respondent challenging the said judgment and decree passed by the learned Trial Court preferred an appeal being other Appeal No. 36 of 2006 which was placed before the Learned Additional District Judge, Fast Track Court, Second Court, Paschim Mednipur. 9. The Learned Lower Appellate Court by judgment and decree dated 21st August, 2006 allowed the said appeal and granted a decree for eviction in favour of the plaintiff/respondent and directed the defendants to quit the suit property within a stipulated period of time. 10. Challenging the impugned judgment and decree, the defendants/appellants have preferred the second appeal and the aforesaid substantial questions of law have been formulated in the instant appeal. 11. Learned Advocate appearing on behalf of the defendants/appellants submitted that the eviction suit was filed by the plaintiff/respondent was a premature one in view of the provisions of section 6(5) of the West Bengal Premises Tenancy Act, 1997. He submitted that the said Act of 1997 came into force on 10.07.2001 and the eviction suit was filed on 18th December 2001. He submitted that since the suit was filed within two years from the date of commencement of the Act of 1997, the suit was a premature one and it was not maintainable. 12. The learned Advocate for the defendants/appellants cited a decision reported at AIR 1985 SC 376 and also cited a decision reported at 1999 (6) SCC 632 in support of his contention that since the suit was filed within two years from the date of commencement of the Act of 1997, it should be held that the suit is not maintainable. 13. 13. Section 6(5) of the said Act of 1997 is quoted below: Notwithstanding anything contained in this Act or in any other law for the time being in force, no suit or proceeding shall be instituted by the landlord within two years from the date of commencement of this Act for recovery of possession of any premises to which the provisions of the West Bengal Premises Tenancy Act, 1956 did apply but the provisions of the Act do not apply. 14. From the aforesaid provisions of law, it will appear that the premises concerned must be such to which the provisions of the West Bengal Premises Tenancy Act, 1956 did apply but the provisions of the Act of 1997 do not apply. 15. This Court had asked the learned Advocate for the appellants as to whether the premises in dispute which is under consideration in this case was covered by the Act of 1956 and whether it is also covered under the present Act of 1997. 16. The said learned Advocate submitted that the suit premises was covered by the 1956 Act and it is now covered by the Act of 1997. 17. Learned Advocate appearing on behalf of the plaintiff/respondent submitted that the suit premises is such that the said 1956 Act did apply to the said premises when it, was in force and now the Act of 1997 applies to the suit premises and, therefore, section 6(5) of the said Act of 1997 cannot be invoked in the present case. 18. It appears to this Court that since there is no dispute with regard to the fact that the suit premises was covered by the Act of 1956 when it was in force and is also covered-by the present Act of 1997, there is substance in the submissions made by the learned Advocate appearing on behalf of the plaintiff/respondent. However, this point need not detain us any longer. 19. With regard to the eviction notice, the learned Advocate appearing on behalf of the defendants/appellants submitted that since Exhibit (9) was issued under the provision of section 106 of the Transfer of Property Act and section 13(6) of the West Bengal Premises Tenancy Act, being notice dated 11.09.2001 when the said Act of 1997 had already come into force and it was later on corrected by letter dated 24.9.2001, the said eviction notice is bad in law. 20. 20. The said learned Advocate submitted that the notice dated 11.09.2001 was an invalid notice and, therefore, the notice dated 24.09.2001 was only a continuation, which the learned Advocate for the appellants has stated was a void notice. 21. The learned Advocate appearing on behalf of the plaintiff/respondent submitted that it is not important to find fault with the quoting of the provisions of law mentioned in the notice but it is important to note the substance and the contents of the notice. 22. According to the learned Advocate for the plaintiff/respondent, since the notice contained all the necessary ingredients of an eviction notice, it is immaterial whether in such notice the said Act of 1956 has been mentioned. 23. According to the said learned Advocate for the plaintiff/respondent as already found by the learned Lower Appellate Court, the said notice should be treated to be good notice which was validly served upon the defendants/appellants. 24. This Court is of the view that if the notice dated 11.9.2001 is read along with the, subsequent notice dated 24.09.2001, it will appear that the notice of the suit which was issued to the defendants by the plaintiff should be treated to be a valid one as it contains all the ingredients of a notice of the suit. 25. Learned Advocate for the defendants/appellants next submitted that the learned Lower Appellate Court erred in decreeing the suit for eviction on some of the grounds taken in the plaint when no issue at all was framed by the learned Trial Court in this regard and it will appear that the plaintiff/respondent also did not argue this matter before the learned Lower Appellate Court. He also submitted that the Learned Trial Court did not come to any positive finding that the plaintiff/respondent does not have any alternative suitable accommodation. 26. Learned Advocate appearing on behalf of the plaintiff/respondent submitted, by placing pages 31 and 32 of the paper book, that there are some discussions made in these pages from which it will appear that the learned Lower Appellate Court had considered the evidence of the parties and came to the necessary conclusions with regard to the findings on the ground of eviction taken in the plaint. 27. 27. It will appear at page 23 of the paper book that the learned Lower Appellate Court at the very outset recorded that during the course of hearing before the said learned Court, only two points were deleted by learned lawyers of both sides: one was on the point of relationship between the parties and the other was on the point of validity of notice. 28. It will thus appear that the main argument before the learned Court below was on the above two points. It cannot be disputed that the learned Trial Court did not frame any issue with regard to any of the alleged grounds of eviction alleged in the plaint. Even though it was the duty of the learned Trial Court to frame appropriate issues in this regard and thereafter allowed the parties to adduce evidence on the same, the learned Trial Court failed to do so. 29. It will appear that the said suit was dismissed only on the grounds that the eviction notice was bad in law and there was no relationship of landlord and tenant between the parties. 30. In fact, the learned Lower Appellate court discussed the aforesaid aspects of the matter but only at the time of concluding his judgment, he referred to the alleged grounds for eviction very perfunctorily and without discussing the evidence on record and without examining the same came to the finding that the plaintiff requires the suit premises for his own use and occupation. There is nothing in the judgment to show as to what has been the extent of the occupation of the defendant in the suit premises and as to what has been the extent of the occupation of the plaintiff in the suit premises. 31. It appears that there has been no proper application of mind by the learned Lower Appellate Court when it passed a decree for eviction. Even if the defendants/ appellants have been occupying one room, it should be reflected in the impugned order with regard to the extent of accommodation of the defendant. It is not known as to what is the extent of accommodation available to the plaintiff which the plaintiff has to prove before the plaintiff was available to plaintiff succeed on the ground of reasonable requirement for his own use and occupation. It is not known as to what is the extent of accommodation available to the plaintiff which the plaintiff has to prove before the plaintiff was available to plaintiff succeed on the ground of reasonable requirement for his own use and occupation. The Learned Lower Appellate Court has simply observed that there is nothing to distort the evidence on record and on the basis of such observations, it is granted a decree for eviction. This is not permissible under the law. 32. Learned Lower Appellate Court should have discussed the question as to whether the plaintiff has any requirement of the suit premises for his own use and occupation and also to the question as to whether the plaintiff has any alternative suitable accommodation elsewhere or not There is no such positive finding in the impugned judgment. 33. This Court is of the view that the learned lower Appellate Court has dealt with this aspect of the matter very summarily and, thus, such findings on the alleged ground for eviction as made by the learned lower Appellate Court cannot be sustained in law. 34. In view of the discussions made above, this Court is of the view that the impugned judgment and decree passed by the learned Courts below should be set aside. Accordingly, the impugned judgment and decree passed by the learned Courts below arc set aside and the matter is sent back on remand for adjudication of the suit afresh. 35. The learned Trial Court shall frame appropriate issues considering the pleadings of the parties and also allow the parties to file an appropriate application for local inspection, if necessary, and thereafter proceed with the hearing of the suit in accordance with law. If the application for local inspection, as aforesaid, is filed, the learned Trial Court shall decide the said application as carry as possible and shall also try to dispose of the suit as early as possible in accordance with law. 36. After the aforesaid judgment is delivered, the learned Advocate for the appellants submits that in terms of the order dated 20.2.2008 the appellants have already made the deposits of the arrear of occupation charges @ Rs. 5,000/- P.M. and the current occupation charges @ Rs. 5,000/- P.M. 37. 36. After the aforesaid judgment is delivered, the learned Advocate for the appellants submits that in terms of the order dated 20.2.2008 the appellants have already made the deposits of the arrear of occupation charges @ Rs. 5,000/- P.M. and the current occupation charges @ Rs. 5,000/- P.M. 37. The fact that the defendants/appellants are depositing the said amount and have already deposited arrears amounts have not been disputed by the learned Advocate for the plaintiff/respondent There is no dispute that the contractual rate of rent was Rs. 2,000/- P.M. but the deposit of Rs. 5,000/-, as indicated above, are being made in view of the order dated 20.2.2008 and such deposits are being made before the learned Executing Court concerned. 38. In such circumstances, the defendants may file an appropriate application before the learned Executing Court concerned for withdrawal of the amount deposited on account of arrears of occupation charges to the extent of and calculated on the basis of Rs. 3,000/- P.M. and the defendants shall also be entitled to similarly apply before the learned Executing Court concerned to the extent of and calculated on the basis of Rs. 3.000/- P.M. in respect of the current occupation charges deposit. The plaintiff/respondent shall be entitled to make an application before the learned Executing Court concerned for withdrawal of amounts from the aforesaid deposits made by the defendants/appellants on account of arrears and current occupation charges, as aforesaid, to the extent calculated on the basis of the contractual rate of rent that prevailed between the parties and if such application is made, the learned Executing Court concerned shall dispose of the said application in accordance with law. 39. Let the lower Court records be sent back to the learned Court below concerned by special messenger and the plaintiff/respondent shall put in the special messenger costs for such purpose within one week. 40. The appeal is accordingly disposed of. 41. In view of the order passed above, the application being CAN 10467 of 2009 is also disposed of. 42. There will be no order as to costs. Urgent certified xerox copy of this judgment, if applied for, be given to the parties as expeditiously as possible on compliance of usual formalities.