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Calcutta High Court · body

2012 DIGILAW 800 (CAL)

Kamakhya Singh Deo v. Modula India

2012-08-24

Prasenjit Mandal

body2012
The judgment of the Court was as follows:- This is a suit for ejectment, recovery of possession, a decree of money of Rs. 40,950/- as damages, mesne profits and other reliefs. 2. The plaint case, in short, is that the plaintiff is the owner of the premises in suit as described in the Annexure 'A' to the plaint and henceforth shall be described as the premises in suit being the Flat No.3 situated on the ground floor of the premises No. 3-E, Camac Street, Kolkata-16. On or about December 28, 1977, the plaintiff, at the request of the defendant in writing, agreed to allow the defendant to immediately occupy the premises in suit till January 31, 1978 as a tenant on payment of Rs.1,000/- as rent. By the said letter of request, the defendant also gave a notice to the plaintiff to quit and vacate the premises in suit on February 1, 1978. The plaintiff accepted the said letter and notice dated December 28, 1977. Accordingly, the defendant got possession of the premises in suit and paid a sum of Rs.1,000/- in cash to the plaintiff. But the defendant failed and neglected to deliver the vacant possession of the premises in suit in accordance with the letter and notice dated December 28, 1977. Thus, since February 1978, the defendant has been wrongfully occupying the said premises in suit as a trespasser. 3. The plaintiff was out of India and the defendant forwarded 4 cheques of Rs.1,000/- each to the plaintiff describing the money on account of rent for the months of March, 1978 to June, 1978 and the plaintiff did not en cash the said cheques. Thereafter, the defendant sent Rs.1,000/- as rent in or about September/October, 1978 for one month and the plaintiff refused to accept the said amount. 4. In spite of the letter and notice dated December 28, 1977, the defendant did not deliver vacant possession of the premises in suit in favour of the plaintiff. So, the plaintiff has filed the suit for the reliefs already stated. 5. The defendant is contesting the said suit by filing a written statement denying the material allegations contained in the plaint. It is pertinent to mention here that the defence against delivery of possession had been struck out by allowing the application under Section 17(3) of the West Bengal Premises Tenancy Act, 1956. 5. The defendant is contesting the said suit by filing a written statement denying the material allegations contained in the plaint. It is pertinent to mention here that the defence against delivery of possession had been struck out by allowing the application under Section 17(3) of the West Bengal Premises Tenancy Act, 1956. Under the aforesaid circumstances, the following issues have been framed for decision in the suit. 1. Does this Hon'ble Court have jurisdiction to receive, try and determine the suit? 2. Is the written request of the defendant dated December 28, 1977, also a notice to the plaintiff to quit and vacate the said flat on February 1, 1978 as alleged in paragraph 4 of the plaint? 3. Is the plaintiff entitled to get a decree for delivery of possession? 4. Is the plaintiff entitled to damages and mesne profits or an enquiry thereto as alleged in paragraph nos. 10, 11 & 12 of the plaint? 5. What other relief, if any, is the plaintiff entitled to ? Decision with reasons 6. All the issues are taken up together for the sake of brevity and avoiding repetition. 7. As per evidence of the P.W.1 and the document marked *Ext.A', the defendant got the possession of the premises in suit in the last part of the December, 1977 and at the time of getting the possession, a letter dated December 28, 1977 was written and the said letter is the main factor in deciding the suit. Accordingly, the said letter (Ext.A) is quoted below: MODULA m INDIA PDG/MI/1.2.11/12-77/ December 28, 1977. Mr. Kamak Singhdeo 3 Camac Street Calcutta 700 016. Dear Sir, We shall occupy the Ground Floor flat on your premises immediately and shall pay a rental of Rs. 1000/- till 31st January 1978. We shall vacate the flat on the 1st of February 1978. Thanking you, Yours faithfully, For MODULA INDIA SD/- PRABIR RANJAN DASGUPTA PARTNER KT/PRD 8. Thus, the letter clearly indicates that the defendant would occupy the premises in suit till January 31, 1978 and would pay a sum of Rs.1,000/- only as rent to the plaintiff. The defendant also gave an undertaking that the premises in suit would be vacated on February 1, 1978. Thus, the letter clearly indicates that the defendant would occupy the premises in suit till January 31, 1978 and would pay a sum of Rs.1,000/- only as rent to the plaintiff. The defendant also gave an undertaking that the premises in suit would be vacated on February 1, 1978. When such an undertaking was given at the time of induction, the provisions regarding notice of giving up possession by tenants under contracts are very much relevant and as such, Section 19 of the West Bengal Premises Tenancy Act, 1956 is quoted below: 19. Provisions regarding notice of giving up possession by tenants under contracts.-(1) A tenant who is in possession of any premises to which this Act applies shall observe all the terms and conditions of the contract creating the tenancy and shall be entitled to the benefits thereof so far as these terms and conditions are consistent with the provisions of this Act. (2) Notwithstanding anything in any other law for the time being in force, a tenant may give up possession of the premises on giving such notice as is required under the contract creating the tenancy. In the absence of any provision in the contract relating to notice or when there is no contract, the tenant may give up possession of the premises on giving not less than one month's notice expiring with a month of the tenancy, 9. It is pertinent to mention here that the defence against the delivery of possession had been struck out under Section 17 (3) of the West Bengal Premises Tenancy Act, 1956 and as such, the defendant was not in possession to adduce any evidence on behalf of its own. But it was allowed to cross-examine the P.W.1, the only witness for the plaintiff, in details and it was done so. During cross-examination, several questions were put to the witness to show that the tenancy was not for a month from January 1, 1978 to January 31, 1978 but for a period of more than 1 month and as such, the defendant cannot be evicted save under any of the grounds under Section 13(1) of the 1956 Act. 10. It is also pertinent to mention that the defendant is still in possession of the premises in suit and that it did not deliver the vacant possession of the premises in suit to the landlord (vide answer to question Nos. 10. It is also pertinent to mention that the defendant is still in possession of the premises in suit and that it did not deliver the vacant possession of the premises in suit to the landlord (vide answer to question Nos. 31 and 32) . The P.W. 1 has clearly stated that the said tenancy was for one month only and it is his consistent statement during his entire deposition that the tenancy commenced from January 1, 1978 to the last date of January, 1978. But in consideration of the urgency of the situation and as the request for delivery of possession came through a common friend, the possession was actually given on December 28, 1977 for rent of Rs.1,000/- only, though the tenancy was from January 1, 1978 to January 31, 1978. During examination in chief in answer to the question Nos. 15 to 19, such fact has been elaborately stated by the P. W.1 and he did not deviate at all from such consistent statement. The question No. 70 clearly lays down the rent for the said month was fixed at Rs.1,000/- only and the quantum of rent was not at all a matter of consideration but the request of the plaintiff's friend, namely, Prabir Mahapatra was the matter of consideration. He has also asserted his statement by answering to the question No. 73 that rent for the premises in suit in December, 1977 would have been Rs. 2,000/- per month but the request of the friend of the plaintiff was the matter of consideration and as such, the delivery of possession was given on December 28, 1977 for a month for rent of Rs.1,000/- only. During cross-examination, in answer to such queries, the P.W.1 has also corroborated the same fact and he did not deviate from his earlier statement. 11. The P.W.1 has proved the Letter of Undertaking (Ext.A) which clearly lays down that the defendant would vacate the flat on the 1st of February, 1978. The contents of Ext. A are corroborated by the evidence of the P.W. 1 and the P. W. 1 has elaborately stated the other facts which are not mentioned in Ext.A. The evidence of the P.W.1, I hold, inspires confidence and on scrutiny of his evidence, I do not find anything for which his evidence may be discarded. 12. In answer to the question Nos. 12. In answer to the question Nos. 105 and 114, the P. W. 1 has lent support to the plaint case that the defendant had assured of giving back the possession by his letter marked 'Ext. A'. He has also clarified that before the induction, the defendant inspected and agreed to take the flat for a month only (vide answer to the question No. 39) and that too for the residential purpose (as appearing from the answer to question No. 66). 13. Mr. Surajit Nath Mitra, learned Senior Advocate appearing for the plaintiff, has contended that the defence against the delivery of possession being struck out, the P. W.1 has stated in unequivocal statement that the tenancy was created for one month starting from January, 1978 to the end of January 1978 and such tenancy for residential purpose was created in consideration of the urgency at the request of Mr. Prabir Mahapatra, a common friend. He has drawn my attention to the question Nos. 6 to 8, 10, 11, question Nos. 65 to 70 and answers given in the cross-examination of the P.W.1 in question Nos. 73 to 76, 77, 83 to 93 and 95. He has also contended that no contrary suggestion was given. Accordingly, in view of the answers given by the P. W.1, in question Nos. 105 to 114, 119 to 123, 159, 171, 193, 194, the P. W.1 has corroborated the statement made in the document Ext. A and as such, as per undertaking of the defendant subsequent to the creation of tenancy, the grounds for recovery of possession as laid down in Section 13(1)(j) and (k) of the 1956 Act have been proved and under the circumstances, no notice to quit is required under Section 13(6) of the 1956 Act. So, the plaintiff is entitled to get decrees as prayed for. 14. Mr. Mitra has also contended that so far as the claim for mesne profits and damages are concerned, the plaintiff is entitled to such claims according to the provisions of Order 2 Rule 4 of the CPC in the suit for ejectment and no permission is required according to the provisions of Order 2 Rule 4 of the CPC. He has also contended that the damages have been claimed from February 1, 1978 to July 31, 1979 at the rate of Rs. 75/-per diem. 15. Mr. He has also contended that the damages have been claimed from February 1, 1978 to July 31, 1979 at the rate of Rs. 75/-per diem. 15. Mr. Mitra has submitted that no suggestion was put to the P.W.1 as to the valuation of the suit. He has also contended that there is no conflict between Section 19 of the 1956 Act and the Ext. A and so, according to the first part of Section 19(2) of the said Act, Ext. A could well be described as notice to quit by a tenant after creation of the tenancy. 16. As regards valuation, Mr. Mitra has contended that the plaintiff is entitled to claim damages and mesne profits in the suit for recovery of possession. The valuation of the suit as given by the plaintiff in Paragraph No.13 could well be accepted for the purpose of jurisdiction of this Hon'ble Court. He has also contended since no suggestion as to the valuation as given by the plaintiff was given, the valuation as made in the plaint should be accepted. Thus, Mr. Mitra submits that the suit should be decreed. 17. Mr. Arindam Sinha, learned Advocate appearing for the defendant, has contended that the meaning of the letter Ext. A is to be seen and if the said letter Ext. A is not construed as a notice to quit and since the tenant is still in possession of the premises in suit, the defendant shall be considered as a tenant as no notice to quit has yet been served upon the tenant. 18. Mr. Sinha has also contended that as per Paragraph No.5 of the plaint, the plaintiff himself did not consider Ext. A at all a notice to quit and if it were a notice since no action was taken for a long time, it must presumed that the plaintiff had waived his right after lapse of one month expiring with the end of January, 1978. He has also contended that Ext. A should be treated as the terms of agreement only and not a notice under Section 13(1)(j) of the 1956 Act. 19. Mr. Sinha has tried to convince by drawing attention of the statement of the P.W. 1 to the effect that since the possession was delivered w.e.f. December 28, 1977, the tenancy was not created for one month only but for more than one month. 19. Mr. Sinha has tried to convince by drawing attention of the statement of the P.W. 1 to the effect that since the possession was delivered w.e.f. December 28, 1977, the tenancy was not created for one month only but for more than one month. Not only that, he has contended that when the rent for February, 1978 was tendered, it was accepted but no rent receipt was granted. But, with due respect to him, I do not find any convincing material in support of such contention of the defendant. 20. Mr. Sinha has next argued as to the valuation of the suit and the jurisdiction of this Hon'ble Court to try and determine the suit. In this regard, I find that by the Order dated June 25, 2008, the then learned Trial Judge rejected the prayer of the defendant as to valuation and against such order of rejection of the prayer of the defendant, the defendant moved an appeal being APOT No. 309 of 2008 and the Hon'ble Division Bench did not find any merit in the appeal and held that the Order dated June 25, 2008 did not suffer from any irregularity or illegality. So, the appeal was dismissed. However, it has been observed that prima facie the question should be left open to the learned trial Court for decision at the time of hearing of the suit. The plaintiff has valued the suit at Rs. 52,950/- taking in account as Rs. 1, 000/- per month as rent for 12 months and mesne profits at the rate of Rs. 75/- per diem for 546 days. 21. Mr. Sinha has also contended that the plaintiff is entitled to claim either damages or rent and in support of his contention, he has referred to the decision of AIR 1987 Supreme Court 1947 (Smt. Nandita Bose v. Ratanlal Nahata) and thus, he has submitted that if the suit valuation is taken by treating the rent at the rate of Rs.1,000/- per month for 12 months, City Civil Court, Calcutta had the jurisdiction and not the Original Side of the High Court as indicated above. 22. Relying on the decision of (Nellimarla Jute Mills Company Ltd. v. Rampuria Industries & Investments Ltd. reported in 2000 (2) CLJ 70, Mr. Sinha has contended that the valuation of the suit should have been taken as Rs. 22. Relying on the decision of (Nellimarla Jute Mills Company Ltd. v. Rampuria Industries & Investments Ltd. reported in 2000 (2) CLJ 70, Mr. Sinha has contended that the valuation of the suit should have been taken as Rs. 12,000/- in view of the fact that there was initial relationship of landlord and tenant between the parties and it is not a suit against the trespasser. So, this Hon'ble Court has no jurisdiction to entertain the suit. 23. Mr. Sinha has also contended that since the petitioner did not obtain any leave as per Order 2 Rule 4 of the CPC, the damages as claimed in the suit is not permissible. The plaintiff may claim either rent or damages. There is a clear distinction between damages and mesne profits. 24. Mr. Sinha has contended that the notice to quit under Section 13(1)(j) or Clause (k) of the 1956 Act is to be scrutinized in details to understand the meaning. He has also contended that the Clause must be strictly construed against the landlord and in favour of the tenant. 25. Mr. Sinha has also contended that the document Ext. A cannot be considered at all a notice under Section 13(1)(K) because of the fact that in order to construe a ground under Section 13(1)(k) , there must be a bilateral agreement. In the instant case, the tenant having signed on the document Ext. A, the question may come whether it should be taken as. unilateral document executed by the tenant and if it should come within the provisions of Clause (j) of Section 13(1) of the said Act. 26. In support of his contention, he has referred to the decision of Mathura Mohan Goswami v. Jyotirmoy Chowdhury reported in 69 CWN 568. On consideration of Ext. A and the oral evidence of the P.W.1 as discussed below, I find that if the Ext. A is construed strictly, it will be nothing but a notice to quit after the creation of the tenancy. It cannot be described as the terms of tenancy created subsequent to taking possession of the premises in suit. 27. On perusal of the materials-on-record, I find that the total claim in the suit was to the tune of Rs. 52,950/-. At that time of filing of the suit, this Hon'ble Court had the jurisdiction to entertain, try and determine the suit which was valued at Rs. 27. On perusal of the materials-on-record, I find that the total claim in the suit was to the tune of Rs. 52,950/-. At that time of filing of the suit, this Hon'ble Court had the jurisdiction to entertain, try and determine the suit which was valued at Rs. 50,000/- and above. Accordingly, the Hon'ble Division Bench held that the appeal was not maintainable against the order dated June 25,2008 and as such, the appeal was dismissed. Therefore, it was observed that this Hon'ble Court had jurisdiction to try the suit. Against such order of the Hon'ble Division Bench, a Special Leave Petition was filed and that Special Leave Petition was dismissed holding that there was no merit. So, the question of jurisdiction has been set at rest. It is held that this Hon'ble Court has jurisdiction to receive, try and determine the suit. The Issue No.1 is thus, answered. 28. In the instant case, the tenant having signed on the document Ext. A, the question may come whether it should be taken as unilateral document executed by the tenant and if it should come within the provisions of Clause (j) of Section 13(1) of the said Act. 29. Upon hearing the submissions of the learned Counsel of both the parties and on perusal of the evidence on record, I find that as per mater ials-on-record, particularly the answers to the question Nos. 179, 180, 187 and 190, the P .W.1 has clarified that the four cheques were sent as rent for the month of March, 1977 to June, 1977. The P.W.1 has stated unequivocally that those cheques were returned to the defendant. Not only that rent for one month was sent by the M.O. in or about September/October, 1977 and the plaintiff had refused to accept the same. These facts clearly indicate that the premises in suit was let out for one month only. The P.W.1 has stated that he was in Kolkata in February, 1977 and then he went to England and returned there from in December, 1978 and he filed the suit for recovery of possession in the month of August, 1979. As to delay, he has clearly stated that he did not file the suit earlier but he started negotiation to have the recovery of possession of the premises in suit. As to delay, he has clearly stated that he did not file the suit earlier but he started negotiation to have the recovery of possession of the premises in suit. Such conduct of the P.w.1 cannot be said to be unbelievable or it is a weak evidence on the part of the P. W.1. There may be many factors for making delay in instituting the suit but such delay does not amount to waiver of rights or that the tenancy was created for a period of more than one month. In answer to the question No. 214, the P.W.1 has clearly stated that there was no waiver of right at all. In answer the question No.186, the P.W.1 has stated unequivocally that after several requests to vacate the premises in suit in vain, he had no other alternative but to file the suit. Such conduct of the P.W.1, I hold, is reasonable and does not at all a weak point on the part of the plaintiff. Therefore, the contention of Mr. Sinha that the tenancy was for more than 1 month and beyond January, 1978, I hold, cannot be accepted at all. I hold that the tenancy was created for one month only. 30. In answer to question Nos. 28 to 30, the P.W.1 has clarified that after taking the possession of the premises in suit, the defendant expressed to vacate the premises on the 1st day of February, 1978. He has stated in unequivocal language in answer to the question Nos. 129, 130 and 137 to the effect that the possession was taken first and thereafter, the undertaking was given and these question Nos. 129 to 137 were put during the cross-examination of the P. W.1 and thus, I find that the P. W.1 has reiterated his version as stated in the plaint case to the effect that the tenancy was for one month only in consideration of the urgency and the request having come through a common friend. By the said letter (Ext. A), the defendant expressed to vacate the premises in question on the 1st Day of February, 1978. Therefore, such letter (Ext. A) having been unilateral in character, I hold, clearly comes within the mischief of the provisions of the Section 13(1)(j) of the 1956 Act. Therefore, I hold that the ground of recovery of possession under Section 13(1)(j) of the 1956 Act stands proved. Therefore, such letter (Ext. A) having been unilateral in character, I hold, clearly comes within the mischief of the provisions of the Section 13(1)(j) of the 1956 Act. Therefore, I hold that the ground of recovery of possession under Section 13(1)(j) of the 1956 Act stands proved. Since the tenant had given notice to quit by Ext. A after taking the possession, notice to quit under Section 13(6) of the 1956 Act need not be served by the landlord to the tenant. 31. So far as the claim of damages of Rs. 40,950/- as claimed in Paragraph No.10 of the plaint is concerned, I find that the P.W.1 has stated in answer to question Nos. 36, 38 and 62 that damages would be at the rate of Rs.75/- per diem and against such statement of the P.W.1, no contrary evidence could be forwarded by the defendant in view of the fact that defence against the delivery of possession had been struck out. So, the said statement as to damages at the rate of Rs. 75/- per diem should be accepted and the plaintiff is entitled to get a decree of Rs. 40,950/- as damages as claimed in Paragraph No.10 of the plaint. 32. For the reasons stated above, the contentions of Mr. Sinha in support of the defence stance, I hold, cannot be accepted. The plaint case has been made out. 33. In that view of the matter, the plaintiff is entitled to get a decree for recovery of possession against the defendant/tenant in respect of the premises in suit as described in Annexure 'A' to the plaint. The plaintiff is entitled to get damages at the rate of Rs. 75/- per diem from February 1, 1978 to July 31, 1979 amounting to Rs. 40,950/- as claimed in paragraph No.10 of the plaint. The plaintiff is also entitled to get mesne profits under Order 20 Rule 12 of the CPC. At the time of filing of the suit, the plaintiff claimed mesne profits at the rate of Rs. 75/- per diem. During the deposition the P. W.1 has claimed mesne profits at the same rate (vide answer to the question Nos. 36, 38 and 62). At the time of filing of the suit, the plaintiff claimed mesne profits at the rate of Rs. 75/- per diem. During the deposition the P. W.1 has claimed mesne profits at the same rate (vide answer to the question Nos. 36, 38 and 62). So many years have passed since the year of filing of the suit and so, I hold that the quantum of mesne profits from the date of institution of the suit till the date of the delivery of possession of the premises in suit in favour of the decree-holder shall be decided in a separate proceeding under Order 20 Rule 12 of the CPC. 34. The issues framed are, thus, answered in the affirmative in favour of the plaintiff. The plaintiff succeeds. 35. Court-fees paid are correct. 36. Hence, it is, ordered That the suit be and the same is decreed on contests with costs against the defendant. The plaintiff do get a decree for recovery of possession against the defendant by evicting the defendant from the premises in suit as described in Annexure 'A' to the plaint. The defendant is directed to deliver khas possession of the premises in suit in favour of the plaintiff within 30 days from date failing which the plaintiff will be at liberty to execute the decree through the Court. 37. The plaintiff do also get a decree for recovery of Rs. 40,950/-against the defendant as claimed in paragraph No. 10 of the plaint as damages and the defendant is directed to pay the same to the plaintiff within a period of 30 days from date, failing which the plaintiff will be at liberty to recover the said amount by executing the decree through the Court. 38. The plaintiff do also get a decree of mesne profits against the defendant from the date of institution of the suit till the date of delivery of khas possession of the premises in suit in favour of the plaintiff, the quantum of which shall be determined in a separate proceeding under Order 20 Rule 12 of the CPC. Urgent xerox certified copy of this judgment, if applied for, be supplied to the learned Advocates for the parties upon compliance of all formalities.