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2017 DIGILAW 295 (CAL)

K. K. Saha & Co. Pvt. Ltd. v. Ashok Agarwal

2017-03-16

ASHA ARORA, JYOTIRMAY BHATTACHARYA

body2017
JUDGMENT : 1. The defendant/opposite party is a tenant in respect of a godown alongwith an office and a staff quarter admeasuring 5000 sq. ft., at premises no. 14, Kartick Chandra Dutta Road, Ramkrishnapur, Howrah, at a monthly rental of Rs.18,000/- payable according to English Calendar month. 2. The tenancy of the said defendant was terminated by the plaintiff/petitioner by issuing a notice dated 29th July, 2015 under Section 106 of the Transfer of Property Act. Since the defendant did not hand over the vacant possession thereof to the plaintiff after expiry of the notice period, the plaintiff filed a suit for eviction of the defendant. In the said suit he has also prayed for recovery of arrear rent and also for mesne profit till recovery of possession of the suit premises. Several other incidental reliefs have also been claimed by the plaintiff in the said suit. Immediately after filing the said suit, an application was taken out by the plaintiff/petitioner under Section 151 of the Code of Civil Procedure, interalia, praying for issuance of a direction upon the defendant to pay an amount of Rs.2,00,000/- per month as occupational charges in respect of the suit premises on and from 21st August, 2015 till eviction of the defendant. It is alleged in the said application that since the monthly rent of the suit premises is more than Rs.10,000/-; the tenancy of the defendant is governed by the Transfer of Property Act and as such, the defendant is not entitled to get any protection which is available to the tenant under the West Bengal Premises Tenancy Act, 1997. It was further alleged therein that since the defendant failed and neglected to deliver the vacant and peaceful possession of the suit premises to the plaintiff/petitioner after expiry of the notice period, the defendant became a trespasser and as such he is liable to pay damages for wrongful use and occupation of the suit premises. 3. According to the plaintiff the reasonable rent of the suit premises will be Rs.2,00,000/-per month and since the plaintiff is deprived of enjoying such rental income from the suit premises because of such wrongful use and occupation of the defendant, the plaintiff is entitled to get occupational charges @ Rs.2,00,000/- per month since the time of termination of his tenancy. According to the plaintiff the reasonable rent of the suit premises will be Rs.2,00,000/-per month and since the plaintiff is deprived of enjoying such rental income from the suit premises because of such wrongful use and occupation of the defendant, the plaintiff is entitled to get occupational charges @ Rs.2,00,000/- per month since the time of termination of his tenancy. Such application was filed immediately after filing the suit and that too even before issuance of the summons in the said suit. 4. Writ of summons has not yet been served upon the defendant. The defendant has also not filed any written statement in the said suit disclosing his defence. Even the time for filing the written statement in the said suit has not yet expired. 5. However even at this stage, the defendant on receipt of a notice relating to the plaintiff's said application under Section 151 of the Code of Civil Procedure appeared in the said suit and filed objection against the plaintiff's said application under Section 151 of the Code of Civil Procedure. 6. The learned Trial Judge by the impugned order dated 20th August, 2016 kept the hearing of the plaintiff's said application under Section 151 of the Civil Procedure Code in abeyance as the learned Trial Judge was of the view that such petition of the plaintiff should be decided after taking evidence in connection with the suit. 7. The legality of the said order passed by the learned Trial Judge is under challenge in this revisional application at the instance of the plaintiff/petitioner. 8. In course of hearing of the said revisional application, notice of the learned Single Judge of this Court was drawn to a decision of another learned Single Judge of this Court in the case of Kanak Projects Limited vs. Oil & Natural Gas Corporation Ltd., reported in (2014) 2 CHN Calcutta 405. Relying upon the principles as laid down by the learned Single Judge of this Court in the said Kanak Projects' case, the revisional court was invited to interfere with the impugned order. 9. Relying upon the principles as laid down by the learned Single Judge of this Court in the said Kanak Projects' case, the revisional court was invited to interfere with the impugned order. 9. In Kanak Projects' case it was held that if the Trial Court finds in an eviction suit that there is absolutely no defence of the defendant and that eviction would be a matter of course, the Trial Court by applying the principles as laid down by the Hon'ble Supreme Court in Atma Ram's case can pass an interim award for mesne profit pending passing of the final decree. It was, however, held therein that the Trial Court is entitled to put the defendant on terms for occupation of the property on a provisional estimation of mesne profit as laid down by the Hon'ble Supreme Court in Atma Ram's case, subject to adjudication of final mesne profit at the time of decree. It was, however, observed that the Court should be cautious that the provisional mesne profit should in no case be more than the mesne profit to be awarded to the plaintiff ultimately. 10. Holding as such, direction was given upon the defendant for depositing current occupational charges with the Registrar General, Original Side of this Court, month by month, by 7th of the month till final mesne profit are decreed. 11. The learned Single Judge who was taking up the present revisional application could not agree with the said principles as laid down in Kanak Projects' case. His Lordship was of the view that condition may be imposed by the Appeal Court at the time of passing of an order of stay of eviction decree or at the time of staying the execution proceeding, in an appeal filed by the tenant/appellant, but such direction cannot be passed if the eviction proceeding is dismissed by the Trial Court and the appeal is filed by the dissatisfied landlord. It was also observed by His Lordship that on the same analogy if the suit for eviction is still pending and no decree is passed, it is not open to the Court to direct the tenant to pay the occupational charges till the court passes a decree for eviction. It was also observed by His Lordship that on the same analogy if the suit for eviction is still pending and no decree is passed, it is not open to the Court to direct the tenant to pay the occupational charges till the court passes a decree for eviction. According to His Lordship, passing such a direction upon the defendant for payment of damages and/or mesne profit is opposed to the definition of tenant as defined in different rent control legislation. 12. His Lordship held that Section 2(h) of the West Bengal Premises Tenancy Act clearly provides that tenant even after termination of tenancy, shall enjoy all the protections and the rights as of contractual tenant in which a decree for eviction is not passed. 13. With such disagreement, a reference was sought for on the following point : Where the Civil Court can direct the tenant to pay the occupational charges, damages, mesne profit during the pendency of the eviction proceeding at the provisional maket rate in excess of the contractual rent? 14. The said issue has been referred to this Bench by the Hon'ble Chief Justice by way of reference for answering the question as mentioned above. 15. Let us now try to answer the said question in the light of the provisions of the tenancy laws. 16. It is no doubt true that certain protections are given to the tenant against eviction under the West Bengal Premises Tenancy Act. In view of the definition of tenant engrafted under Section 2(h) of the West Bengal Premises Tenancy Act, 1997; a tenant continues to be a tenant under the landlord in respect of his tenancy until an eviction decree is passed against him. As such, such a tenant whose tenancy is protected under the Premises Tenancy Act is entitled to continue his possession in his tenancy on payment of contractual rent during the pendency of the suit. Certain additional protections are also given to the tenant under the West Bengal Premises Tenancy Act. Even a tenant may deposit the arrear rent in the eviction suit and get protection against eviction when a suit for ejectment is filed under the said Act on the ground of default in payment of rent. 17. However, the concept of tenant under the Transfer of Property Act is not akin to the concept of the tenant under the West Bengal Premises Tenancy Act. 18. 17. However, the concept of tenant under the Transfer of Property Act is not akin to the concept of the tenant under the West Bengal Premises Tenancy Act. 18. Under the Transfer of Property Act, tenancy can be terminated by service of notice by the landlord under Section 106 of the Transfer of Property Act. Once the tenancy of such a tenant is determined by service of notice under Section 106 of the Transfer of Property Act, he will not be regarded as a statutory tenant, rather he will be regarded as a trespasser. In the present case the landlord/petitioner filed the said suit for eviction against the defendant/ opposite party after termination of defendant's tenancy by service of notice under Section 106 of the Transfer of Property Act. 19. According to the plaintiff, since the rent payable by the defendant in respect of the tenancy exceeds a sum of Rs.10,000/- and the tenancy was created for a commercial purpose, the tenancy of the defendant is governed by the Transfer of Property Act. 20. Since the defendant did not vacate the suit premises after expiry of the notice period, the plaintiff filed the said suit for eviction against the defendant after expiry of the notice period. Thus, the suit as framed by the plaintiff is a suit for eviction of the defendant which is governed by the Transfer of Property Act. 21. Now we will have to examine as to whether an interim direction can be passed by the learned Trial Court upon the defendant/tenant for payment of damages during the pendency of such suit. 22. Payment by way of damages is a payment for wrongful use and occupation of the suit premises. So for passing a direction for payment of damages by the defendant, the Court must first of all decide as to the nature of possession and/or occupation of the defendant in the suit premises. Such determination, in our view, depends upon various factors, such as : (i) Existence of relationship of landlord and tenant between the parties in respect of the suit premises, and (ii) legality of termination of such tenancy by the admitted landlord by service of notice upon the admitted tenant under Section 106 of the Transfer of Property Act. 23. Such determination, in our view, depends upon various factors, such as : (i) Existence of relationship of landlord and tenant between the parties in respect of the suit premises, and (ii) legality of termination of such tenancy by the admitted landlord by service of notice upon the admitted tenant under Section 106 of the Transfer of Property Act. 23. If it is found that there was no jural relationship of landlord and tenant between the parties, the termination of tenancy by notice under Section 106 of the Transfer of Property Act will be bad and ineffective. Again, even if the relationship of landlord and tenancy is found to exist between the parties, still then valid termination of such tenancy depends upon the legality, validity and sufficiency of the notice. If it is found that the notice under Section 106 of the Transfer of Property Act is invalid and/or insufficient and/or illegal for any reason whatsoever, the court cannot pass a decree for eviction against the defendant in such suit for eviction. In that event, the tenant will continue to be a tenant under the landlord and his tenancy will remain unaffected even by service of such notice under Section 106 of the Transfer of Property Act upon the tenant. 24. We have already mentioned above that the time for filing written statement by the defendant in the suit has not yet crossed. The defendant has not yet filed any written statement in the said suit. What defence is likely to be advanced by the defendant in the written statement is still unknown to us. 25. However, whatever disputes may be raised by the defendant in his written statement, such disputes are required to be decided by the learned Trial Judge all at a time, as per the provision contained in Order 14 of the Civil Procedure Code. 26. Existence of relationship of landlord and tenant between the parties and/or the legality of service of notice under Section 106 of the Transfer of Property Act upon the tenant are not issues, which are in the nature of preliminary issue as per the provision of Order 14 Rule 2(2) of the Civil Procedure Code, and as such, such issues cannot be decided as preliminary issues in the suit by deferring the decision on the other issues which may be raised in the suit. 27. 27. We have already mentioned above that until and unless service of notice under Section 106 of the Transfer of Property Act upon the defendant is held to be good, valid and sufficient, the character of occupation of the defendant in the suit premises cannot be decided even on prima-facie basis in the suit unless there is admission on the part of the defendant about the existence of relationship of landlord and tenant between the parties and the valid termination of his tenancy by service of notice under Section 106 of the Transfer of Property Act in an earlier suit when the tenancy is governed under the Transfer of Property Act. 28. Such being the position in law, we are unable to agree with the views expressed by the learned Single Judge of this Court in Kanak Projects' case that even the learned Trial Judge can issue direction upon the defendant/tenant to pay occupational charges at the market rent by way of damages in absence of any provision in law. Even direction for deposit of damages with any officer of the Court is not permissible as we have already held above that such direction can only be passed after the issue as to the legality of the possession of the defendant in the suit premises is finally decided in the suit. Though Civil Procedure Code was amended by several States by introducing a new order being Order No. XV Rule 5A in the Civil Procedure Code, dealing with striking of defence of the lessee in the suit for eviction filed by lessor, but such provision is absent in our State. 29. This conclusion we draw for the reason that if ultimately it is found that the tenancy is not governed by the Transfer of Property Act or there exists no relationship of landlord and tenant between the parties or the termination of such tenancy by service of notice under Section 106 of the Transfer of Property Act is illegal and/or invalid and/or insufficient, the Court cannot pass any direction upon the defendant for payment of damages. 30. In Atma Ram's case, the Hon'ble Supreme Court held that condition can be imposed upon the appellant for allowing him to enjoy the benefits of the stay order during the pendency of the appeal. 30. In Atma Ram's case, the Hon'ble Supreme Court held that condition can be imposed upon the appellant for allowing him to enjoy the benefits of the stay order during the pendency of the appeal. Such conditional order can be passed by the Appeal Court in exercise of its jurisdiction under Order 41 Rule 5 of the Civil Procedure Code, where it is provided that the appellate court may for sufficient cause, orders stay of the execution of the decree subject to furnishing security. 31. Order 41 Rule 5(2) of the Civil Procedure Code also authrorises the Court, which passed the decree, to pass an order of stay. Such power can be exercised by the Court after passing the decree, but not before passing the decree. 32. As such, we answer the question under reference in the negative by holding that the Trial Court cannot pass any direction upon the defendant/tenant for payment of damages during the pendency of the suit. 33. The reference is answered. 34. Let this matter be placed before the learned Single Bench of this Court taking up the revisional application for deciding the revisional application on merit.