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2017 DIGILAW 677 (CAL)

Mira Ghosh v. Arup Kumar Jana

2017-08-11

ASHIS KUMAR CHAKRABORTY

body2017
JUDGMENT : 1. These appeals, at the instance of the landlord are directed against a common judgment and decree dated February 15, 2005 passed by the learned Additional District Judge, 4th Court at Midnapore (West) in Other Appeal No. 112 of 2003 and Title Appeal No. 113 of 2003 thereby reversing the judgment and decree dated July 13, 2003 passed by the learned Civil Judge (Junior Division), 1st Court at Midnapore in Other Suit No. 8 of 1993 and Title Suit No. 189 of 1992, respectively. 2. The brief facts which are essential for deciding the present appeal that the respondent was a monthly tenant in respect of the suit property under the sole appellant in both the appeals (hereinafter referred to as “the landlord’). In October 1992, the respondent filed a suit being O.S. No. 189 of 1992 against the landlord and her husband before the 1st Court of the Munsif, Midnapore (hereinafter referred to as “the first suit”), claiming a declaration that his tenancy in respect of the suit property is subsisting, a decree for permanent injunction restraining the defendants in the suit from disturbing his peaceful possession of the suit property and not to evict him from the suit property without due course of law. In the said suit, the plaint case of the present respondent was that he was occupying the suit property as a tenant thereof under the defendant landlord at a monthly rental of Rs. 395/-; in April, 1991 the defendant no. 1 and her husband, the defendant no. 2 demanded delivery of possession of the suit property from him which gave rise to certain disputes between them, the parties sought interference of the concerned Ward Municipal Commissioner and on the request and pressure of the local people, on August 08, 1991 he entered into an agreement with the defendant no. 1 landlord that he would vacate the suit property by October 31, 1992 which was illegal, invalid and not enforceable in law against him. He further alleged that in the last week of the month of September, 1992 defendant no. 1 landlord and the defendant no. 2 called upon him to vacate the suit property on the expiry of October 31, 1992 as per the said agreement dated August 08, 1991 and thereafter started to create illegal pressure on him to vacate the suit property. 1 landlord and the defendant no. 2 called upon him to vacate the suit property on the expiry of October 31, 1992 as per the said agreement dated August 08, 1991 and thereafter started to create illegal pressure on him to vacate the suit property. Both the landlord and her husband contested the first suit filed by the respondent. They jointly filed the written statement in the first suit alleging that subsequent to the creation of his tenancy, by the said agreement dated August 08, 1991 the plaintiff tenant agreed in writing with the landlord to deliver vacant possession of the suit property on October 31, 1992 and the said agreement is enforceable in law. They further alleged that the landlord also reasonably require the suit property for herself and her family members and after service of a notice and ejectment upon the plaintiff tenant, she has also filed the ejectment suit against the plaintiff tenant. In fact, before filing the written statement in the first suit, the landlord had filed a suit being O.S. 3 of 1993, before the learned 1st Court Munsif, Midnapore (hereinafter referred to as “the second suit”) against the respondent tenant, claiming a decree for his eviction and recovery of khas possession of the suit property. The first ground of eviction of the respondent tenant in the said second suit was founded on Section 13(1)(k) of the Act of 1956, that is, in spite of the respondent, subsequent to the creation of his tenancy, by said agreement dated August 08, 1991 entered into he failed and refused to vacate the suit property within October 31, 1992. The second ground of eviction of the respondent tenant was founded by the landlord on Section 13(1)(ff) of the Act of 1956, that is, she reasonably requires the suit property for the business of her son and the appellant no. 2, her husband. The landlord further claimed to have filed the suit after service of a notice under Section 13(6) of the Act of 1956. The respondent in these appeals, as the defendant filed his written statement in the said second suit denying all material allegations made in the plaint. 3. Both the suits were heard by the learned Civil Judge, (Junior Division), 1st Court at Midnapore, District-Midnapore (West) by way of analogous hearing. The respondent in these appeals, as the defendant filed his written statement in the said second suit denying all material allegations made in the plaint. 3. Both the suits were heard by the learned Civil Judge, (Junior Division), 1st Court at Midnapore, District-Midnapore (West) by way of analogous hearing. The learned trial Judge held that the issues involved for deciding both the suits are more or less identical and, as such, if the issues framed in the second suit filed by the landlord claiming eviction of the tenant from the suit property are discussed then, at the same time the issues of the first suit filed by the tenant, claiming a decree for declaration that his tenancy in respect of the suit property is still subsisting may be decided within those issues framed in the second suit. Accordingly, the learned trial Judge framed the following issues in the second suit. “1. Is the suit maintainable in its present form and prayers? 2. Has the plaintiff any cause of action to file the instant suit? 3. Is the notice of eviction legal, valid and duly served upon the defendant? 4. Is the plaintiff owner of the suit property? 5. Does the plaintiff reasonably require the suit premises for her own uses and occupation? 6. Has the plaintiff any other reasonable suitable accommodation elsewhere? 7. Has the defendant agreed to vacate the suit premises, by way of a written document, within 31.10.1992? Is the written document valid? Is the plaintiff liable to be evicted on the basis of that document? 8. Is the plaintiff entitled to get relief, as prayed for? 9. To what other relief, if any, is the plaintiff entitled?” 4. Before the learned trial Judge the landlord, as well as the tenant adduced, both oral and documentary evidence. The agreement dated August 08, 1991 signed by the tenant and the landlord was proved and marked as (Ext-2), the notice issued by the landlord under Section 13(6) of the Act of 1956 and receipt of the same by the tenant was proved and the said notice was marked as (Ext-3). Since, the tenant did not dispute the ownership of the landlord in respect of the suit property, the aforesaid Issue no. 4 was decided by the learned trial Judge in favour of the landlord. Since, the tenant did not dispute the ownership of the landlord in respect of the suit property, the aforesaid Issue no. 4 was decided by the learned trial Judge in favour of the landlord. The learned trial Judge also found that the notice under Section 13(6) of the Act of 1956 issued by the landlord was valid and the same was duly received by the tenant and, as such, the aforementioned first and third issues were decided in favour of the landlord. After considering the evidence adduced by the respective witnesses of the landlord and the tenant, the learned trial Judge found that by the written agreement dated August 8, 1991 (Ext-2), the tenant had agreed to vacate the suit property and make over vacant and peaceful possession thereof to the landlord within October 31, 1992. Accordingly, the learned trial Judge decided the Issue no. 7 in favour of the landlord. The learned trial Judge further held that in the present case, the landlord was not required to issue any notice under Section 13(6) of the Act of 1956 for the eviction of the tenant on the ground of Section 13(1)(k) of the Act of 1956, but as he founded the claim for eviction of the tenant on the additional ground of her reasonable requirement of the suit property under Section 13(1)(ff) of the Act of 1956, she was required to serve a notice under Section 13(6) of the Act of 1956 on the respondent tenant. The learned trial Judge further found that in paragraph 15 of her plaint filed in the second suit the plaintiff landlord stated that the tenancy of the defendant tenant stood terminated with the expiry of December, 1992 and the cause of action of her suit arose on and from November 1, 1992 and January 01, 1993. With these findings, the learned trial Judge repelled the contention raised on behalf of the tenant that with the issuance of the notice dated November 4, 1992, under Section 13(6) of the Act of 1956, the landlord accepted his tenancy to be continuing even after October, 1992. The learned trial Judge held that the said agreement dated August 08, 1991 (Ext-2) is a valid document and the tenant was liable to be evicted on the basis of the said written agreement. Thus, the learned trial Judge decided the aforementioned issue no. 7 in favour of the landlord. The learned trial Judge held that the said agreement dated August 08, 1991 (Ext-2) is a valid document and the tenant was liable to be evicted on the basis of the said written agreement. Thus, the learned trial Judge decided the aforementioned issue no. 7 in favour of the landlord. After appreciating the evidence adduced by the landlord and the respondent tenant, the learned trial Judge also held that the landlord reasonably requires the suit property and she has no other suitable accommodation elsewhere. The learned trial Judge, therefore, also answered the aforementioned issue nos. 5 and 6 in the affirmative in favour of the landlord. By judgment dated July 13, 2003 the learned trial Judge decreed the said second suit filed by the landlord directing the defendant tenant to handover vacant khas possession of the suit property to the landlord within three months from the date of the decree and dismissing the first suit filed by the respondent. 5. Against the judgments and decrees dated July 13, 2003 passed by the learned trial Judge in the first and the second suit respectively, the tenant filed two separate appeals being other Appeal No. 112 of 2003 and Title Appeal No. 113 of 2003 before the learned Additional District Judge, 4th Court at Midnapore (West) who heard both the said appeals analogously. By a common judgment and decree dated February 15, 2005 the learned appellate Court below allowed both the appeals and set aside the judgments and decrees dated July 13, 2003 passed by the learned trial Judge in the first, as well as the second suit. The learned appellant Court below held that under the said agreement dated August 8, 1991 the tenant agreed in writing with the landlord that he would deliver vacant possession of the suit property within October 31, 1992 and the landlord had an accrued right to sue the tenant for his eviction under Section 13(1)(k) of the Act of 1956 without any necessity to serve a notice under Section 13(6) of the Act of 1956, but when the landlord served a fresh notice dated November 4, 1992 (Ext-3), she treated and admitted the tenancy of the tenant to be subsisting and continuing beyond October, 1992. With these findings, the learned appellate Court below held that the decree passed by the learned trial Judge founded on the ground of eviction under Section 13(k) of the Act of 1956 to be vitiated by illegality. After considering the evidence adduced by the respective parties, the learned appellate Court below further held that the learned trial Judge failed to make proper appreciation of the entire evidence followed by the subsequent event with reference to the ingredients of Section 13(1)(ff) and, as such, the decree for eviction passed on the ground of reasonable requirement cannot be upheld. With these findings, by the judgment and decree dated February 15, 2005 the learned appellate Court below set aside the judgment and decrees passed by the learned trial Judge. 6. Against the aforesaid judgment and decrees dated February 15, 2005 passed by the learned appellate Court below, the landlord filed these two second appeals before this Court. By two separate orders, both dated August 30, 2007 the Division Bench of this Court admitted both the appeals by framing the following substantial questions of law. (a) Whether the learned court of appeal below committed substantial error of law in reversing the judgment and decree passed by the learned Judge on the ground of Section 13(1)(k) of the West Bengal Premises Tenancy Act on the ground that in view of subsequent notice given under Section 13(6) of the said Act, the earlier notice given under Section 13(1)(k) of the Act has been waived; (b) Whether the learned court of appeal below committed substantial error of law in over looking the fact that the suit having been filed also on the ground of reasonable requirement, the landlord was under compulsion to give a notice under Section 13(6) of the West Bengal Premises Tenancy Act notwithstanding the fact that the tenant had already given notice in terms of Section 13(1)(k) of the said Act. 7. Mr. Ashis Chandra Bagchi, learned Senior Advocate appearing for the appellant in both the appeals submitted that when the tenancy of the respondent in these appeals in respect of the suit property was governed by the Act of 1956, the landlord could file the suit for eviction by invoking both the grounds mentioned in clauses (k) and (ff) of sub-Section (1) of Section 13 of the Act of 1956. According to him, although for filing an eviction suit under Section 13(1)(k) of the Act of 1956, the landlord is not required to issue any notice under Section 13(6) of the Act upon the tenant but in the instant case, since the landlord sought eviction of the tenant on the additional ground of reasonable requirement of the suit property she had to issue the notice under Section 13(6) of the Act of 1956 on the tenant. It was strenuously urged by Mr. Bagchi that it is now trite law that a notice issued by the landlord to his tenant under Section 13(6) of the Act of 1956 is only a notice of suit and the same does not determine the tenancy of the tenant. In this regard, he relied on the decision of the Supreme Court in the case of Associated Hotels of India Ltd. vs. S.B. Sardar Ranjit Singh reported in AIR 1968 SC 933 and the Division Bench decision of this Court in the case of Geeta Bose & Anr. vs. Machine Tools of India Ltd. reported in (1990) 1 CHN 526 . It was further submitted that from a reading of the notice dated November 04, 1992 issued by the landlord under Section 13(6) of the Act of 1956 it is clear that she was seeking eviction of the tenant on both the grounds under clauses (k) and (ff) of sub-Section (1) of Section 13 of the Act. The learned counsel for the appellants strongly contended that when a notice under Section 13(6) of the Act of 1956 does not terminate the tenancy of a tenant, the learned appellate Court below committed an error of law in accepting the contention of the tenant that by issuance of the notice dated November 4, 1992 under Section 13(6) of the Act of 1956, the landlord had waived his right to claim eviction of the tenant under Section 13(k) of the 1956 Act on the basis of the said agreement dated August 08, 1991 and thereby setting aside the judgment and decree passed by the learned Court below. 8. However, Mr. 8. However, Mr. Asit Baran Rout, learned advocate appearing for the respondent tenant in both the appeals contended that by issuing the notice dated November 04, 1992 under Section 13(6) of the Act of 1956 the landlord, treated the tenancy of the tenant as subsisting beyond October 31, 1992 and, as such, she waived the ground of eviction of the respondent tenant under Section 13(1)(k) of the Act of 1956. In support of such contention, he cited the decision of a learned Single Judge of this Court in the case of Gosto Behari Roy vs. Ramesh Chandra Das reported in (1978) 1 CLJ 186. He also cited the decision of a learned Single Judge of this Court in the case of C.K. Sukla vs. Renuka Ballav reported in 84 CWN 324 where it was held that where the landlord gives a notice to quit and the tenant disputes its validity and thereafter, the landlord issues a second notice treating the lease as subsisting, there is an implied waiver of the first notice to suit, when the tenant continues in possession after the first notice. According to Mr. Rout in the facts of the present case, the judgment and the decree passed by the learned appellate Court below setting aside the decree for eviction passed by the learned trial Judge is not vitiated by any error of law. 9. I have carefully considered the materials on record, as well as the arguments advanced by the learned counsel appearing for the respective parties to these appeals. In these appeals, the landlord restricted the challenge to the judgment and decrees passed by the learned appellate Court below with regard to the finding that by the issuance of the notice under Section 13(6) of the Act of 1956, the landlord treated the tenancy of the tenant to be subsisting beyond October 31, 1992 and set aside the decree dated July 30, 2003 passed by the learned trial Judge directing eviction of the defendant tenant in the second suit. In this case, the tenancy of the respondent tenant in respect of the suit property was governed by the Act of 1956 and the landlord filed the eviction suit against the respondent tenant on two grounds, viz., under clauses (k) and (ff) of sub-Section (1) of Section 13 of the Act of 1956. In this case, the tenancy of the respondent tenant in respect of the suit property was governed by the Act of 1956 and the landlord filed the eviction suit against the respondent tenant on two grounds, viz., under clauses (k) and (ff) of sub-Section (1) of Section 13 of the Act of 1956. It is true that except the grounds mentioned in clauses (j) and (k) of Section 13(1) of the Act, in order to maintain a suit for eviction on any other ground, the landlord must issue to the tenant a notice under Section 13(6) of the Act expiring on the month of the tenancy. It is now well settled law that a notice under Section 13(6) of the Act of 1956 is only a notice of suit and the same does not determine the tenancy. This is for the reason that in view of the definition of “tenant” in Section 2(h) of the Act of 1956, the tenancy of a statutory tenant stands determined only with the passing of a decree for eviction against him. The authority for this view can be found in the decision of the Supreme Court in the case of V. Dhanapal Chettier vs. Yesodai Ammal reported in AIR 1979 SC 1745 and the decision of the Division Bench of this Court in the case of Geeta Bose (supra) cited by the appellants. Further, from a reading of the notice dated November 4, 1992 (Ext-3) issued by the landlord it is clear that even in the said notice the landlord stated the grounds of eviction of the tenant to be the said agreement dated August 8, 1991, as also that she reasonably requires the suit property for her own occupation. In these facts, I find when the notice dated November 4, 1992 (Ext-3) issued by the landlord to the tenant was only a notice of suit, the learned appellate court below committed an error of law in holding that by issuing the said notice the landlord treated the tenancy of the respondent to be continuing after November, 1992 and waived the ground of eviction under Section 13(1)(k) of the Act of 1956. 10. 10. In view of the decision of the Supreme Court in the case of V. Dhanapal Chettier (supra) and the decision of the Division Bench of this Court in the case of Geeta Bose (supra), the Single Bench decision of this Court in the case of Gosto Behari Dey (supra) cited on behalf of the respondent tenant is no longer the good law. Further, the decision of a learned Single Judge of this Court, in the case of C.K. Sukla was in a case where by issuing a second notice to quit to the tenant, the landlord waived the first notice to quit and the said decision has no application in this case. 11. For all the foregoing reasons, both the aforementioned substantial questions of law framed in these appeals are decided in the affirmative and the appeals of the landlord are allowed. 12. The impugned judgment and decree dated February 15, 2005 passed by the learned Additional District Judge, 4th Court at Paschim Midnapore in other Appeal No. 112 of 2003 and Title Appeal No.113 of 2003 stand set aside and the judgment and decree dated July 13, 2003 passed by the learned Civil Judge (Junior Division), 1st Court at Midnapore in other Suit No. 8 of 1993 and Title Suit No. 189 of 1992 stand restored. The respondent in the appeals is directed to vacate and handover vacant and peaceful possession of the suit property described in the schedule to the plaint filed in Other Suit No. 2 of 1993, within November 30, 2017. 13. However, there shall be no order as to costs. 14. Let the decree be drawn up expeditiously. 15. The department is directed to forthwith send down the lower Courts’ records to the learned Court below. 16. Urgent certified copies of this judgment, if applied for, be supplied to the parties, subject to compliance with all requisite formalities.