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2016 DIGILAW 516 (CAL)

Niladri Sekhar Dutta v. Maitrayee Dutta

2016-06-28

ISHAN CHANDRA DAS, JYOTIRMAY BHATTACHARYA

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JUDGMENT : Jyotirmay Bhattacharya, J. 1. This second appeal is directed against the judgment and decree dated 14th December, 2015 passed by the learned Judge, 3rd Bench, City Civil Court at Calcutta in Title Appeal No.32 of 2014 affirming the judgment and decree dated 24th February, 2014 passed by the learned Judge, 3rd Bench, Presidency Small Causes Court at Calcutta in Ejectment Suit No. 48 of 2011 at the instance of the defendant/appellant. 2. Let us now consider the merit of the appeal to find out as to whether any substantial question of law is involved in this appeal for which the appeal is required to be admitted for hearing under the provision of Order XLI Rule 11 of the Code of Civil Procedure or not. 3. Here is the case where we find that the plaintiffs as landlords filed a suit for eviction against the defendant on the ground of Section 6(1)(j) of West Bengal Premises Tenancy Act, 1997. Existence of relationship between the plaintiffs and the defendant as that of landlords and tenant is not denied by the defendant. In fact, it is an admitted position that such tenancy was created by the plaintiffs in favour of the defendant on the basis of a written agreement. Service of ejectment notice upon the defendant is also not disputed. The legality of such notice and sufficiency of such notice were also not under challenge in the suit. 4. Learned Trial Judge passed the decree for eviction in favour of the plaintiffs on the ground of Section 13(1)(j) of West Bengal Premises Tenancy Act, 1997. Learned first Appellate Court has also affirmed the said judgment and decree of the learned Trial Judge. 5. Let us now consider as to how far the learned courts below were justified in doing so in the facts of the instant case. 6. As a matter of fact, the legality of the judgment which is impugned in this appeal depends upon the interpretation of explanation added to Section 6(1)(j) of West Bengal Premises Tenancy Act, 1997. For the sake of convenience of understanding, we set out hereunder the provision contained in Section 6(1)(j) of West Bengal Premises Tenancy Act, 1997 :- “6. Protection of tenant against eviction. For the sake of convenience of understanding, we set out hereunder the provision contained in Section 6(1)(j) of West Bengal Premises Tenancy Act, 1997 :- “6. Protection of tenant against eviction. – (1) Notwithstanding anything to the contrary contained in any other law for the time being in force or in any contract, no order or decree for the recovery of the possession of any premises shall be made by the Civil Judge having jurisdiction in favour of the landlord against the tenant, except on a suit being instituted by such landlord on one or more of the following grounds : … … (j) where the tenant has acquired or constructed, or has been allotted, a house or flat, provided a moratorium for one year is allowed for vacating the premises; [Explanation. – This clause shall not apply to premises let out for non residential purpose and used for commercial purpose;]” 7. Mr. Chatterjee, learned advocate appearing for the appellant submits that the appellant is entitled to get protection of the explanation which is added to Section 6(1)(j) of West Bengal Premises Tenancy Act, 1997 as the tenancy was created for non-residential purpose and is also used for commercial purpose. Drawing our attention to the tenancy agreement as well as the pleadings of the parties and their evidence, Mr. Chatterjee contended that tenancy agreement itself provides that “the tenant shall be entitled to use the tenancy for all lawful purpose of residence and profession”. 8. Admittedly the tenant is a doctor by profession. He claims that he has subsequently acquired a residential flat elsewhere and has shifted his residence there and is using the suit premises exclusively for his professional purpose. Such being the position, Mr. Chatterjee claimed that his client is protected under the explanation added to Section 6(1)(j) of the said Act. 9. Let us now consider as to how far such contention of Mr. Chatterjee can be accepted in the facts of the instant case. 10. In this context, we have considered the tenancy agreement itself which is the primary source for creation of the said tenancy. The tenancy consists of two rooms, one kitchen, one bath room and privy situated at the ground floor of premises No. 14A, Kaloo Ghose Lane, Calcutta-9. Chatterjee can be accepted in the facts of the instant case. 10. In this context, we have considered the tenancy agreement itself which is the primary source for creation of the said tenancy. The tenancy consists of two rooms, one kitchen, one bath room and privy situated at the ground floor of premises No. 14A, Kaloo Ghose Lane, Calcutta-9. It is also provided in the said agreement that the tenant shall be entitled to use the tenancy for all lawful purpose of residence and profession. 11. Looking at the description of the tenancy which refers two rooms, one kitchen etc. and by giving special emphasis on the kitchen, we have no hesitation to hold that the predominant purpose for creation of such tenancy was for residential purpose. However, since the tenant was a doctor by profession, he was also allowed to carry on professional work in a part of the said premises. The tenant was using the said premises for combined purpose and he was residing in the said premises as well as he was carrying on his professional work therein. Subsequently he shifted his residence to another self acquired flat and started using the suit premises for carrying on his professional work. 12. Be that as it may, we will have to consider as to what was the purpose for creation of such tenancy. 13. Reading the agreement of tenancy itself, it appears to us that the said tenancy was created for combined purpose i.e. residence and profession. Explanation added to Section 6(1)(j) of the said Act provides that the rigour of the main Section contained in Section 6(1)(j) of the said Act will not apply when the premises is let out for non-residential purpose and is used for commercial purpose. The said explanation does not provide that the rigour of Section 6(1)(j) of the said Act will not apply if the premises is let out for combined purpose i.e. both for residential and non-residential. 14. Here is the case, where we find that the present tenancy was not created purely for non-residential purpose. As such, even if, the said tenancy is now being used by the tenant for commercial purpose as a whole, still then, the tenant is not protected from eviction by virtue of the explanation added to Section 6(1)(j) of the said Act. As such, we find no merit in the contention of Mr. Chatterjee. 15. As such, even if, the said tenancy is now being used by the tenant for commercial purpose as a whole, still then, the tenant is not protected from eviction by virtue of the explanation added to Section 6(1)(j) of the said Act. As such, we find no merit in the contention of Mr. Chatterjee. 15. In the facts and circumstances as stated above, we do not find involvement of any substantial question of law in this appeal for which the appeal is required to be admitted for hearing under the provision of Order XLI Rule 11 of the Code of Civil Procedure. We, thus, decline to admit this appeal. The appeal, thus, stands dismissed. 16. Let it be recorded that deficit court fee has been put in by the appellant on 29th March, 2016 vide filing No. A-5304. Re: CAN 1555 of 2016 (Stay) 17. Since we have not admitted the appeal under the provision of Order XLI Rule 11 of the Code of Civil Procedure, no further order need be passed on the interim application for stay. The said application being CAN 1555 of 2016 is, thus, deemed to be disposed of.