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2017 DIGILAW 914 (CAL)

Samir Kumar Talukdar v. Samir Krishna Sinha

2017-11-23

ASHIS KUMAR CHAKRABORTY

body2017
JUDGMENT : ASHIS KUMAR CHAKRABORTY, J. 1. This revisional application, at the instance of the defendant in an ejectment suit is directed against the Order No. 25 dated November 23, 2012 passed by the learned Civil Judge (Junior Division), 1st Court, at Barasat in Title Suit No. 488 of 2009. By the impugned order, the learned Court below rejected the application filed by the defendant petitioner under Order VII Rule 11 read with Section 151 of the Code of Civil Procedure (hereinafter referred to as "the Code"). Shorn of details, the facts relevant for deciding the revisional application are that the opposite parties filed the Title Suit No. 488 of 2009, before the learned Court below claiming a decree for eviction and recovery of possession against the petitioner from the suit property described in the schedule-A to the plaint, being one storied one room (outhouse) with bath and privy and a small electric metre room together with land measuring one bigha, 13 chittacks and 32 square feet (hereinafter referred to as "the suit property"). The case made out by the plaintiffs opposite parties in the plaint, inter alia, are that by a registered deed of lease dated June 28, 1989 they let out the suit property in favour of the defendant to carry on its agency business under Indian Oil Corporation, for a period of twenty years ending on June 13, 2009 and at the time of filing the suit the monthly rent payable. in respect of the suit property was Rs. 1064.80/-. The said lease was renewable for a further period of ten years with effect from July 01, 2009. However, the defendant violated the conditions of the said lease deed dated June 28, 1989 by subletting a portion of the suit property without prior permission of the plaintiffs and as such, by a notice dated April 22, 2006 the plaintiff opposite party No. 1 called upon the defendant petitioner to quit and vacate the suit property on expiry June 30, 2009. In any event, with the expiry of June 30, 2009 the lease of the defendant petitioner in respect of the suit property stood expired by efflux of time and in spite thereof, the latter failed and neglected to vacate and hand over peaceful possession of the suit property to the plaintiffs. In any event, with the expiry of June 30, 2009 the lease of the defendant petitioner in respect of the suit property stood expired by efflux of time and in spite thereof, the latter failed and neglected to vacate and hand over peaceful possession of the suit property to the plaintiffs. In the suit, the defendant, the petitioner herein, filed an application under Order VII Rule 11, read with Section 151 of the Code for rejection of the plaint. According to the defendant/petitioner during the subsistence of the said lease with effect from July 10, 2001 West Bengal Premises Tenancy Act, 1997 (hereinafter referred as "the Act of 1997") came into force and since he became a tenant in respect of the suit property under the said Act, the suit filed by the plaintiffs opposite parties on the ground of expiry of the lease by efflux of time is ex-facie not maintainable. The plaintiffs opposite parties contested the said application and in their written objection asserted that the eviction suit filed against the defendant is governed by the Transfer of Property Act, 1882 (hereinafter referred as "the Act of 1882") and not by the Act of 1997. By the order dated November 23, 2012 the learned Court below held that from a plain reading of the plaint it appears that the plaintiff has filed the suit against the defendant on the basis of the lease agreement executed and registered on June 29, 1989 and the eviction suit does not fall under the provisions of the Act of 1997. The learned Court below further held that the defendant petitioner failed to establish his contention as to the maintainability of the suit under any of the clauses mentioned in Order VII Rule 11 of the Code. With the findings, by the order dated November 23, 2012 the learned Court below rejected the application of the defendant petitioner under Order VII Rule 11 of the Code. As mentioned earlier, it is a said order dated November 23, 2012 which is the subject matter of challenge in this revisional application. 2. On June 5, 2017 the revisional application was dismissed for default. By an order dated August 10, 2017 passed in presence of the learned Advocates appearing for the plaintiffs opposite parties, the revisional application was restored to its original file and number. 2. On June 5, 2017 the revisional application was dismissed for default. By an order dated August 10, 2017 passed in presence of the learned Advocates appearing for the plaintiffs opposite parties, the revisional application was restored to its original file and number. On August 02, 2017 when the revisional application was taken up for hearing none appeared on behalf of the plaintiffs opposite parties. On September 13, 2017 the learned Advocate appearing for the petitioner concluded his submission in the revisional application but none appeared on behalf of the plaintiffs opposite parties. Therefore, the hearing of the revisional application was concluded on September 13, 2017. 3. Assailing the impugned order passed by the learned Court below Mr. Biswajit Basu appearing for the defendant petitioner contended that although in the plaint filed in the ejectment suit it is the case of the plaintiffs opposite parties that the defendant petitioner was a lessee in respect of the suit property under the said indenture of lease dated June 28, 1989 and claimed his eviction from the suit property on the ground that on June 30, 2009 the said lease expired by efflux of time, but in view of the Act of 1997 having come into force with effect from July 10, 2001 and particularly Section 3(c) of the Act of 1997 which came into effect from July 10, 2001 any tenancy under a lease agreement registered before the commencement of the said Act shall be governed by the said Act of 1997 only. It was, therefore, strongly argued that in the instant case, when tenancy of the defendant petitioner in respect of the suit property, is governed by the said Act of 1997, in the absence of any notice under Section 6(4) of the said Act of 1997 the plaint filed by the plaintiff opposite party discloses no cause of action against the defendant petitioner. It was further submitted that the plaintiffs opposite parties in their plaint categorically stated the rent in respect of the suit property, used for non-residential purpose is Rs. 1064:80/-, per month and when the indenture of lease was registered before July 10, 2001, as per Section 3(f) of the Act of 1997 the tenancy of the defendant petitioner in respect of the suit property became to be governed by the Act of 1997. Therefore, according to Mr. 1064:80/-, per month and when the indenture of lease was registered before July 10, 2001, as per Section 3(f) of the Act of 1997 the tenancy of the defendant petitioner in respect of the suit property became to be governed by the Act of 1997. Therefore, according to Mr. Basu, once again in the absence of any notice under Section 6(4) of the Act of 1997 the plaint filed by the plaintiff in the instant case does not disclose any cause of action against the defendant petitioner. Urging these grounds, it was strenuously contended on behalf of the defendant petitioner that the learned Court below fell into an error of law to hold that the suit filed by the plaintiffs opposite parties in the present case does not fall under the provisions of the Act of 1997 and to reject the application of the defendants petitioners under Order VII Rule 11 of the Code. In support of his contention, the learned Counsel for the defendant petitioner relied on an unreported decision dated November 15, 2016 passed by this Court in CO. 3351 of 2016 (Ashwin Desai v. Bijay Kumar Manish Kumar HUF). 4. I have considered the material records and the arguments advanced by learned Counsel appearing for the defendant petitioner. It is the settled law that for deciding an application for rejection of plaint under Order VII Rule 11(a) or (d) of the Code, only the averments made in the plaint are germane, which are to be treated as correct. For the decision in an application under Order VII Rule 11 (a) of the Code for rejection of plaint on the ground that the same does not disclose any cause of action the test is as to whether if the averments made in the plaint are taken to be correct in their entirety, a decree would be passed by the Court. In support of this view profitable reference may be made to the decision of the Supreme Court in the case of Liverpool & London S. P. & I. Association Ltd. v. M.V. Sea Success & I. & Ors. reported in (2004) 9 SCC 512 (para-139). 5. In support of this view profitable reference may be made to the decision of the Supreme Court in the case of Liverpool & London S. P. & I. Association Ltd. v. M.V. Sea Success & I. & Ors. reported in (2004) 9 SCC 512 (para-139). 5. In the present case, in the year 2009 the plaintiff opposite party filed the said suit claiming eviction of the defendant petitioner from the suit property on the ground of expiry of the lease by efflux of time and the lease rent payable by the defendant petitioner was Rs. 1064.80/- per month. In the plaint it is the case of the plaintiffs opposite parties that the defendant is a lessee in respect of the suit property under the Act of 1882 and claimed that the defendant has lost all protections under the relevant provisions of the Act of 1882 and he is liable to be evicted. Now the test is, whether by treating the averments made in the plaint to be true, in view of the provisions contained in clauses (c) and (f) Section 3 of the Act of 1997 which came into force with effect from July 10, 2001 a decree would be passed in the suit in favour of the plaintiff opposite party. As per Section 3(c) of the Act of 1997 any tenancy where the lease has been registered under the Registration Act, 1908, after commencement of the said Act with due consent of the tenant recorded in the registered instrument, the tenancy shall not be governed by the said Act. Therefore, in this case when the said suit was filed in 2009 on the basis of said indenture of lease dated November 28, 1989 which was registered before July 10, 2001, the tenancy of the defendant petitioner comes within the purview of the said Act of 1997 and in the absence of any notice under Section 6(4) of the said Act of 1997, no decree can be passed in favour of the plaintiff opposite party in the suit based on the Act of 1882. 6. Further, from the statements made in the plaint it is dear that the suit property was let out for non residential purpose. 6. Further, from the statements made in the plaint it is dear that the suit property was let out for non residential purpose. As per Section 3(f) of the Act of 1997, as amended with effect from July 10, 2001 any premises situated outside the limits of the Kolkata Municipal Corporation area, let out for non residential purpose and carrying monthly rent of more than Rs. 5,000/- is excluded from the purview of the said Act. In the present case, when the suit property is situate at Barasat, outside the limits of the Kolkata Municipal Corporation and the same was let out for non residential purpose at a monthly rent less than Rs. 5,000/-, the inescapable conclusion is that the defendant petitioner is a monthly tenant in respect of the suit property under the said Act of 1997 and in the absence of any notice under Section 6(4) of the said Act. On the basis of the averments made in the plaint already discussed, no decree can be passed in the eviction suit filed by the plaintiff opposite party on the basis of the Act of 1882. The unreported decision of this Court in the case of Ashwin Desai (supra) is squarely applicable in this case. 7. For all the foregoing reasons, I find substance in the contention raised by the defendant petitioner, before the learned Court below and in this revisional application that the plaint filed by the plaintiff opposite party in the said suit does not disclose any cause of action against him and I accept the same. 8. Accordingly, the impugned order dated November 23, 2012 passed by the learned Court below, in Title Suit No. 2452 of 2007 stands set aside. 9. In this case, not only by the averments made in the plaint the plaintiff has claimed the suit to be based on the Act of 1882, even in the affidavit-in-opposition filed against the application of the defendant, it have asserted that the suit has been rightly filed under the Act of 1882 and the said Act of 1997 has no application. However, as discussed above, when from the averments in plaint it is evident that no decree can be passed in the suit and in view of the assertion of the plaintiff opposite party in its said affidavit-in-opposition that the suit is based on the Act of 1882, it makes no sense to direct the learned Court below to further decide the contention raised by the defendant petitioner in this revisional application. Accordingly, the application filed by the defendant petitioner for rejection of the plaint filed in Title Suit No. 488 of 2009, pending before the learned Civil Judge (Junior Division), 1st Court, at Barasat stands allowed and the plaint filed in the said suit stands rejected. 10. With the above directions the revisional application, being CO. 64 of 2013 stands allowed. There shall, however, be no order as to costs. Let urgent certified copies of this judgment, if applied for, be supplied to the parties subject to compliance with all requisite formalities.