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2013 DIGILAW 492 (CAL)

Shibani Rakshit v. Krishna Kumar Banerjee

2013-07-23

TAPAN KUMAR DUTT

body2013
JUDGMENT : Tapan Kumar Dutt, J. This Court has heard the learned Advocates for the respective parties and has considered the relevant materials on record. 2. The facts of the case, briefly, are as follows: The plaintiffs/appellants filed a suit being Ejectment Suit No. 6 of 2003, which was placed before the learned 3rd Court of the Small Causes Court at Calcutta. In the said suit the plaintiffs/appellants prayed for a decree for recovery of khas possession of the suit premises. The said suit was brought by the plaintiffs/appellants on the grounds that the defendant/respondent committed default in payment of rent since July, 2001 and, therefore, the defendant/respondent was a defaulter in payment of rent, the defendant/respondent owns the property at 60, Simla Road, Kolkata-700 006 and, therefore, the defendant/respondent is liable to be evicted on the ground contemplated under Section 6(1)(j) of the West Bengal Premises Tenancy Act, 1997 and the defendant/respondent has caused nuisance and annoyance to the plaintiffs/appellants. 3. The defendant/respondent contested the said suit by filing a written statement denying the material allegations made in the plaint. It may be noted here that in paragraph 8 of the plaint, the plaintiffs/appellants have alleged that the defendant/respondent did not pay rents since July, 2001 to the plaintiffs/appellants. In paragraph 15 of the plaint, the plaintiffs/appellants have alleged that the defendant/respondent and his wife Smt. Mita Karmakar (Banerjee) have another permanent suitable accommodation at 60, Simla Road, Calcutta - 700 06 of which the defendant's wife is the owner and as such the defendant does not require the suit premises for any purpose whatsoever. In paragraph 9 of the written statement, the defendant/respondent has alleged that the defendant/respondent duly tendered rent by money order and since the plaintiffs/appellants have refused to accept the same, the defendant/respondent has been paying rent regularly to the Rent Controller Office since the month of July, 2001. The defendant/respondent further pleaded that the plaintiffs/appellants have refused to accept rent in the month of July, 2001. In paragraph 13 of the written statement, the defendant/respondent has alleged, inter alia, that the wife of the defendant/respondent is the owner of premises No. 60, Simla Road, Kolkata-700 006 but the entire premises is in occupation of tenant and there is not a single vacant room in the said premises. 4. In paragraph 13 of the written statement, the defendant/respondent has alleged, inter alia, that the wife of the defendant/respondent is the owner of premises No. 60, Simla Road, Kolkata-700 006 but the entire premises is in occupation of tenant and there is not a single vacant room in the said premises. 4. The suit came up for hearing when the parties adduced their respective evidence and the learned Trial Court by its judgment and decree dated 26th July, 2004 dismissed the said suit upon a finding that the notice of suit was valid and sufficient and it was duly served upon the defendant/respondent but the plaintiffs/appellants have failed to prove any of the grounds taken in the plaint. The learned Trial Court found that the defendant/respondent did not file any application under Section 7(2) of the said Act, 1997 and the D.W.1 did not depose in examination-in-chief that he is not a defaulter in payment of rent but from the Exhibits 'A' and 'B' series it appears that the defendant/respondent has been paying rent since the month of July, 2001 and, therefore, it can be held that there are no arrears of rent. The learned Trial Court also found that the ground of nuisance and annoyance could not be proved by the plaintiffs/appellants. The learned Trial Court also found that it has been admitted by the D.W.1 in his evidence that his wife is the owner of the premises No. 60, Simla Road, Kolkata-700 006 but such premises is under occupation of tenant and there is no vacant room in the said premises. The learned Trial Court also found that the plaintiffs/appellants attempted to make out a third case while trying to prove that the defendant/respondent has accommodation at the said premises No. 60, Simla Road, Kolkata-700 006. 5. Challenging the said judgment and decree passed by the learned Trial Court, the plaintiffs/appellants preferred Title Appeal No. 18 of 2005 which was placed before the learned 6th Bench, City Civil Court at Calcutta. 5. Challenging the said judgment and decree passed by the learned Trial Court, the plaintiffs/appellants preferred Title Appeal No. 18 of 2005 which was placed before the learned 6th Bench, City Civil Court at Calcutta. The learned 1st Appellate Court by its judgment and decree dated 12th February, 2007 dismissed the said appeal being Title Appeal No. 18 of 2005 upon a finding that it cannot be said that the plaintiffs/appellants have tried to make out any third case while trying to prove that the defendant has accommodation at the said premises No. 60, Simla Road, Kolkata-700 006 but the learned 1st Appellate Court found that the learned Trial Court was justified in finding that the defendant/respondent was not a defaulter in payment of rent and the plaintiffs/appellants have failed to adduce any cogent evidence to show that the defendant's wife has actually got vacant possession at the said Premises No. 60, Simla Road, Kolkata-700 006 and, therefore, the provisions of Section 6(1)(j) of the said Act, 1997 cannot be applied to the facts of the instant case. The learned 1st Appellate Court did not upset the findings of the learned Trial Court in respect of the ground of nuisance and annoyance. The learned 1st Appellate Court dismissed the said Title Appeal. 6. Challenging the said judgment and decree dated 12th February, 2007 passed by the learned 1st Appellate Court, the plaintiffs/appellants have preferred the instant appeal in this Court and an Hon'ble Division Bench of this Court by order dated 22.08.2007 formulated the following substantial questions of law: (a) Whether the learned court of appeal below committed substantial error of law in not passing a decree on the ground mentioned in Section 6(j) of the West Bengal Premises Tenancy Act, 1997, by wrongly placing the onus was upon the plaintiff to show that premises no. 60, Simla Road, Kolkata-6 was a vacant one; (b) Whether the learned court of appeal below committed substantial error of law in ignoring the fact that once the plaintiff proved that the wife of defendant acquired title to premises no. 60, Simla Road, Kolkata-6 was a vacant one; (b) Whether the learned court of appeal below committed substantial error of law in ignoring the fact that once the plaintiff proved that the wife of defendant acquired title to premises no. 60, Simla Road, Kolkata-6 during the subsistence of the tenancy, it was for the defendant to show that the suit premises was fully tenanted and in the absence of any evidence to that effect, plaintiff was entitled to get a decree for eviction; (c) Whether the learned court of appeal below committed substantial error of law in not passing a decree for eviction on the ground of default in the absence of any evidence showing that plaintiff refused the money order and that the deposit with the rent controller was preceded by refusal of the appellant. 7. The learned senior Advocate appearing on behalf of the plaintiffs/appellants contended that an application under Order 41, Rule 27 of the Civil Procedure Code was filed by the plaintiffs/appellants before the learned 1st Appellate Court whereby the plaintiffs/appellants intended to adduce additional evidence to show that the defendant's wife is in possession of the said premises No. 60, Simla Road, Kolkata-700 006. By way of such additional evidence the plaintiffs/appellants intended to adduce in evidence, certain documents like electricity bill, electoral roll of the year 2005. The said learned Advocate submitted that even though such application was filed and was noted by the learned 1st Appellate Court, such application was not subsequently disposed of and the appeal itself was disposed of without considering the application under Order 41, Rule 27 of the C.P.C. The said learned Advocate further submitted that an application under Order 41, Rule 27 C.P.C. has also been filed in the present second appeal and such application is numbered as C.A.N. 6473 of 2007 whereby the plaintiffs/appellants intended to adduce in evidence the meter reading return prepared by the Calcutta Telephone Authorities, electricity bills standing in the name of the wife of the defendant in respect of the said premises No. 60, Simla Road, Kolkata-700 006 and other documents. 8. The learned senior Advocate for the plaintiffs/appellants submitted that the learned 1st Appellate Court erred in not disposing of the application under Order 41, Rule 27 C.P.C. while disposing of the Title Appeal itself. 8. The learned senior Advocate for the plaintiffs/appellants submitted that the learned 1st Appellate Court erred in not disposing of the application under Order 41, Rule 27 C.P.C. while disposing of the Title Appeal itself. The said learned Advocate submitted that if the documents intended to be adduced as additional evidence by the plaintiffs/appellants is taken into consideration, it will be established that the defendant and his wife are in possession of the said Premises No. 60, Simla Road, Kolkata-700 006. Of course, he also submitted that the defendant/respondent has not disputed but has rather admitted the fact that his wife is an owner of the Premises No. 60, Simla Road, Kolkata-700 006 and, therefore, it can be said that the defendant/respondent has an accommodation at the said premises No. 60, Simla Road, Kolkata-700 006. He referred to Section 6(1)(j) of the said Act of 1997 and submitted that it is enough if the plaintiffs/appellants proved that the tenant has acquired or constructed or has been allotted, a house or flat, provide a moratorium for one year is allowed for vacating the premises. He cited a decision reported at (2002) 3 S.C.C. 299 : [2002 (1) RLR (S.C.) 644] (Padmavati Devadatta Kamat (Smt) and Ors. v. Vijaykumar Narayan Mehandale and Anr.) and submitted that in the facts of the said reports also the original tenant took the plea that he did not acquire the flat concerned but the said flat was exclusively owned by one of his sons. He submitted that on a suit filed by the landlord for recovery of possession, the learned Trial Court decreed the said suit and held that the original tenant was in possession of a separate accommodation. The learned 1st Appellate Court also agreed with the findings of the learned Trial Court and dismissed the appeal and subsequently a writ petition was filed before the Hon'ble High Court concerned and the Hon'ble High Court also dismissed the said writ petition. Thereafter, the Hon'ble Supreme Court ultimately dismissed the appeal preferred by the aggrieved party by holding, inter alia, that the respondents/landlords were entitled to the possession of the suit premises for their own use and occupation. 9. Thereafter, the Hon'ble Supreme Court ultimately dismissed the appeal preferred by the aggrieved party by holding, inter alia, that the respondents/landlords were entitled to the possession of the suit premises for their own use and occupation. 9. The learned Advocate for the plaintiffs/appellants, thus, submitted that the very fact that the defendant's wife has admitted to be the owner of the said Premises No. 60, Simla Road, Kolkata-700 006 satisfies the grounds contemplated under Section 6(j) of the said Act, 1997. 10. It appears from the record that the learned 1st Appellate Court did not consider the application under Order 41, Rule 27 C.P.C. and the said application remains undisposed of. The second point which the learned senior Advocate for the plaintiffs/appellants argued was that the suit ought to have been decreed on the ground of default in payment of rent in view of the fact that the defendant/respondent did not prove that the plaintiffs/appellants at any point of time particularly in July, 2001 had refused to accept rent from the defendant/respondent. The said learned senior Advocate submitted that since there is nothing on record to show that the plaintiffs/appellants have refused to accept the rent from the defendant/respondent the subsequent deposits by the defendant/respondent before the Rent Controller's Office are invalid deposits. He further submitted that the defendant/respondent did not file any application under Section 7(2) of the said Act of 1997 and thus, it clearly proves that the defendant/respondent is a defaulter in payment of rent since July, 2001, at least upto the point of time when the defendant/respondent was asked to deposit current rent under Section 7 (1) of the said Act, 1997. The said learned senior Advocate submitted that the suit ought to have been decreed on the ground of default in payment of rent. 11. The learned Advocate appearing on behalf of the defendant/respondent submitted that the plaintiffs/appellants did not adduce any evidence to show that the defendant is residing at Premises No. 60, Simla Road, Kolkata-700 006 and the plaintiffs/appellants could not prove that the defendant has a suitable accommodation at Premises No. 60, Simla Road, Kolkata-700 006. 11. The learned Advocate appearing on behalf of the defendant/respondent submitted that the plaintiffs/appellants did not adduce any evidence to show that the defendant is residing at Premises No. 60, Simla Road, Kolkata-700 006 and the plaintiffs/appellants could not prove that the defendant has a suitable accommodation at Premises No. 60, Simla Road, Kolkata-700 006. It appears that the learned 1st Appellate Court also found that there is no dispute with regard to the ownership of the defendant's wife in respect of the said Premises No. 60, Simla Road, Kolkata-700 006 but no relief could be granted to the plaintiffs/appellants as because the entire premises No. 60, Simla Road, Kolkata-700 006 is tenanted. It further appears that the learned 1st Appellate Court came to such findings without considering the application under Order 41, Rule 27 C.P.C. One cannot remain oblivious of the fact that the plaintiffs/appellants had intended to adduce additional evidence by way of producing certain relevant documents while trying to prove that the defendant/respondent and his family are in occupation of premises No. 60, Simla Road, Kolkata-700 006. Considering the decision reported at (2002) 3 S.C.C. 299 and the provisions of Section 6(1)(j) of the said Act, 1997, this Court would have remanded the matter back to the learned 1st Appellate Court for a fresh disposal of the Title Appeal after considering the application under Order 41, Rule 27 C.P.C. which remains pending but on consideration of the point on the ground of default in payment of rent this Court is not willing to remand the matter back to the learned 1st Appellate Court. Pleadings of the parties on the question of default in payment of rent have been indicated earlier. 12. It is plaintiffs'/appellants' specific case that the defendant/respondent is a defaulter in payment of rent since July, 2001 but the defendant/respondent has taken the stand in his pleadings that the defendant/respondent was compelled to deposit rent before the Rent Controller only after the plaintiffs/appellants refused to accept the rent for the month of July, 2001. The learned senior Advocate appearing on behalf of the plaintiffs/appellants has submitted, as noted earlier, that there is nothing on record to show that the defendant had tendered rent in due time to the plaintiffs/appellants and the plaintiffs/appellants have refused to accept such rent. The learned senior Advocate appearing on behalf of the plaintiffs/appellants has submitted, as noted earlier, that there is nothing on record to show that the defendant had tendered rent in due time to the plaintiffs/appellants and the plaintiffs/appellants have refused to accept such rent. He submitted that in the absence of any such proof of refusal of such rent, all the subsequent deposits are invalid deposits. 13. The learned Advocate appearing on behalf of the defendant/respondent could not show anything from the materials on record that the defendant/respondent had offered rent to the plaintiffs/appellants and the plaintiffs/appellants have refused to accept such rent and only because of such refusal the defendant/respondent was compelled to deposit rent with the Rent Controller. 14. There is also no dispute with regard to the fact that the defendant/respondent did not file any application under Section 7(2) of the said Act, 1997 and thus there cannot be any difficulty in coming to a finding that the defendant/respondent is a defaulter in payment of rent. 15. In the instant case, the learned Advocate for the defendant/respondent submitted that the protection can be given under Section 7(4) of the said Act, 1997 to the defendant/respondent. 16. This Court is of the view that the defendant/respondent is not entitled to any such protection in the facts and circumstances of the instant case. 17. Section 7(4) of the said Act, 1997 stipulates that if the tenant makes deposit or payment as required by sub-section (1) or sub-section (2), no order for delivery of possession of the premises to the landlord on the ground of default in payment of rent by the tenant, shall be made by the learned Civil Judge concerned, but the learned Court below may allow such costs as he may deem fit to the landlord. 18. In the present case, the defendant/respondent did not even make any application under Section 7(2) of the said Act, 1997 and, therefore, the Court did not have any occasion to pass any order in such application. Thus, the ultimate result is that the deposits made by the defendant/respondent since July, 2001 before the Rent Controller Office remained to be invalid deposits and the defendant/respondent did not avail of the opportunity to get the protection under Section 7(4) by not filing an application under Section 7(2) of the said Act, 1997. 19. Thus, the ultimate result is that the deposits made by the defendant/respondent since July, 2001 before the Rent Controller Office remained to be invalid deposits and the defendant/respondent did not avail of the opportunity to get the protection under Section 7(4) by not filing an application under Section 7(2) of the said Act, 1997. 19. Thus, this Court is of the view that the plaintiffs/appellants are entitled to a decree for eviction. 20. In view of the discussions made above, the judgments and decrees of both the learned Courts below are set aside and the aforesaid Ejectment Suit No. 6 of 2003 is decreed and the plaintiffs/appellants do get a decree for recovery of khas and vacant possession of the suit premises against the defendant/respondent and the defendant/respondent is hereby directed to vacate and deliver up khas and vacant possession of the suit premises in favour of the plaintiffs/appellants within 31st December, 2013. In case the defendant/respondent fails to vacate and deliver up khas and vacant possession of the suit premises in favour of the plaintiffs/appellants within the time stipulated above, the plaintiffs/appellants will be at liberty to execute the decree for eviction in accordance with law. 21. The appeal is disposed of. 22. There will, however, be no order as to costs. 23. Let the lower court records be sent back to the learned Court concerned immediately. 24. In view of the judgment delivered above, the application being C.A.N. 6473 of 2007 stands disposed of. Urgent certified xerox copy of this judgment, if applied for, shall be given to the parties as expeditiously as possible on compliance of necessary formalities.