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2019 DIGILAW 627 (CAL)

Goutam Banerjee v. Anil Paul

2019-05-24

BIBEK CHAUDHURI

body2019
JUDGMENT : 1. The landlord plaintiff is the appellant before this court challenging the judgment and decree passed in Ejectment Appeal No.93 of 2011. 2. The appellant as plaintiff filed Ejectment Suit No.5 of 2004 in the 1st Court of the learned Civil Judge (Junior Division), Alipore, 24 Parganas South against the defendant/respondent on the ground of reasonable requirement for his own use and occupation. It is pleaded by the plaintiff/appellant that tenancy of the defendant/respondent was terminated with the expiry of September, 2003 by a valid notice dated 27th August, 2003 issued on behalf of the plaintiff by his learned Advocate. The said notice was duly served upon the defendant/respondent but he failed and neglected to quit, vacate and deliver up peaceful possession of the suit premises in terms of the notice which compelled the plaintiff to file the suit for eviction. 3. The defendant/respondent contested the suit by filing written statement wherein he denied the claim of the plaintiff for his eviction on the ground of reasonable requirement. He also challenged validity, legality and sufficiency of the notice dated 27th August, 2003 as well as the service thereof. According to the defendant, tenancy was not determined by the said notice and the plaintiff was not entitled to a decree for eviction on the basis of termination of tenancy by the said notice. 4. The learned trial judge on the basis of the pleadings of the parties framed as many as seven issues and decided the issues on the basis of the evidence adduced by the parties during trial and ultimately decreed the suit on contest with cost. 5. The defendant/respondent assailed the said judgment and decree passed by the learned trial judge in appeal which was registered as Ejectment Suit No.93 of 2011. The said appeal came up for hearing on 25th February, 2013 before the learned Additional District Judge, 13th Court at Alipore. The learned Judge in 1st Appellate Court held that the notice (Exhibit-5) was invalid, inoperative and insufficient. Tenancy was not lawfully terminated by virtue of the said notice which was defective because of the fact that the tenancy of the defendant was a monthly tenancy determinable after the expiry of a clear English calendar month, but the impugned notice did not contemplate termination of tenancy after the expiry of English calendar month. Tenancy was not lawfully terminated by virtue of the said notice which was defective because of the fact that the tenancy of the defendant was a monthly tenancy determinable after the expiry of a clear English calendar month, but the impugned notice did not contemplate termination of tenancy after the expiry of English calendar month. So, it was held by the learned Additional District Judge, 13th Court at Alipore that the notice was bad. Accordingly he allowed the appeal setting aside the judgment and decree passed by the leaned trial judge. 6. The instant appeal filed by the plaintiff/appellant was admitted for hearing under Order 41 Rule 11 of the Code of Civil Procedure by the Division Bench of this Court by an order dated 17th May 2013. The appeal is directed to be heard on the following substantial questions of law:- "1. Whether the learned judge in the lower appellate court, substantially, erred in law in holding that the tenancy in question has not been legally terminated by giving one month's notice starting from first date to the last date of the month inasmuch as the respondent received the notice being exhibit 6 on September 11, 2003 and the suit has been instituted on May 19, 2004, the purpose of the provision relating to one month's notice prior to institution of suit, has been complied with? 2. Whether the learned judge in the lower appellate court, substantially, erred in law by not holding that though the notice was received on September 11, 2003, but it was issued on August 27, 2003 and suit has been filed in the year 2004 and since substantial compliance of section 6(4) of the West Bengal Premises Tenancy Act, 1997 has been made, the suit could not have been dismissed on the ground that the notice was bad?" 7. Mr. Jiban Ratan Chatterjee, learned Senior Advocate for the appellant submits at the outset that Ejectment Appeal No.93 of 2011 was dismissed on the ground of insufficiency of notice. It was also held that tenancy was not lawfully terminated by virtue of the said notice. The learned Judge in 1st Appellate Court did not make any contradictory observation with regard to the ground of reasonable requirement of the suit premises by the plaintiff/appellant. The respondent also did not file any cross appeal against the judgment passed by the learned 1st Appellate Court. The learned Judge in 1st Appellate Court did not make any contradictory observation with regard to the ground of reasonable requirement of the suit premises by the plaintiff/appellant. The respondent also did not file any cross appeal against the judgment passed by the learned 1st Appellate Court. Therefore, finding of the learned trial judge on the issue of reasonable requirement of the suit premises by the plaintiff/appellant stands. The scope of the instant appeal is very limited to consider as to whether the notice to quit served on behalf of the plaintiff/appellant was legal, valid and sufficient and tenancy was actually terminated on the basis of the said notice or not. 8. Mr. Sanjoy Bajernee, learned Counsel while assisting Mr. Chatterjee, learned Senior Counsel for the appellant submits that tenancy in favour of the respondent was created on the basis of a tenancy agreement executed on 7th April, 1993. As per the said agreement the suit shop room was rented to the respondent at a monthly rental of Rs.250/- and a sum of Rs.25000/- was taken from the defendant/respondent towards advance rent. It was settled by and between the parties that the said advance rent of Rs.25000/- would be liquidated at the rate of Rs.200/- per month from rent and the landlord/appellant would receive the balance amount of Rs.50/- per month from the tenant/respondent within ten of each succeeding month against duly executed rent receipt. Clause 5 of the said Agreement states that if in future, the second party, i.e., the tenant/respondent would fail to carry on his business or decide to close his business down, he would deliver up vacant and peaceful possession in favour of the landlord. Clause 6 of the agreement stipulates that if the respondent failed to continue his business and deliver up possession of the suit shop room, the landlord appellant would repay the balance amount of advance rent which in normal course would liquidate in the month of August, 2003. 9. It is submitted by Mr. Banerjee that the terms and conditions of tenancy agreement suggests that the advance payment of rent would be liquidated after 125 months of inception of tenancy. According to Mr. Banerjee the said term of agreement clearly suggests that the tenancy would come to an end on liquidation of advance payment and in such case tenancy is determined automatically. Banerjee that the terms and conditions of tenancy agreement suggests that the advance payment of rent would be liquidated after 125 months of inception of tenancy. According to Mr. Banerjee the said term of agreement clearly suggests that the tenancy would come to an end on liquidation of advance payment and in such case tenancy is determined automatically. No notice for termination of tenancy under Section 6(4) of the West Bengal Premises Tenancy Act, 1997 (hereafter the said Act) is necessary for the purpose. In support of his contention, Mr. Banerjee refers to Clause (e) of Section 6(1) of the said Act. Section 6(1)(e) runs thus- "Where the tenant has given notice to quit but has failed to deliver vacant possession of the premises to the landlord in accordance with such notice. He also refers to Section 6(4) of the said Act and submits that no notice for termination of tenancy is required if the suit relates to the ground mentioned in Clause (3) of Sub-section 1 of Section 6 of the said Act." 10. It is urged by Mr. Banerjee that the terms of the agreement clearly postulates intention of the parties that as soon as advance amount of rent would be refunded in full, tenancy will come to an end. The tenancy agreement itself should be construed as a notice and on this score, the learned Judge in 1st Appellate Court miserably erred in law having been failed to consider the provisions of Section 6(1)(e) read with Section 6(4) of the said Act. 11. Alternatively, it is argued by Mr. Banerjee that the copy of notice under Section 6(4) of the said Act was marked as 6 during trial of the suit. The said notice was issued on behalf of the plaintiff/appellant on 27th August, 2003 requiring the defendant to quit and vacate the tenanted premises on the expiry of one month from the date of the notice, failing which the landlord would file a suit against the tenant for ejectment and recovery of possession including other consequential reliefs. According to Mr. Chatterjee one month's clear notice was issued to the defendant/respondent. It is clearly pleaded in Paragraph 12 of the plaint that the tenancy of the defendant/respondent was terminated with the expiry of September, 2003 by a valid notice dated 27th August, 2003. According to Mr. Chatterjee one month's clear notice was issued to the defendant/respondent. It is clearly pleaded in Paragraph 12 of the plaint that the tenancy of the defendant/respondent was terminated with the expiry of September, 2003 by a valid notice dated 27th August, 2003. The suit was filed on 19th May, 2004, i.e. after expiry of six months from the date of receipt of the notice. It is submitted by Mr. Chatterjee that purpose of notice before initiation of a proceeding for eviction under various Rent Control Acts is to provide an opportunity to the tenant to deliver possession of the tenanted premises within stipulated period of time mentioned in the statutory notice. In the instant case, though the notice for termination of tenancy was dated 27th August, 2003 and the defendant was directed to evict the tenanted premises on the expiry of the one month from the date of the notice, suit for eviction was filed after expiry of six months and on this score, the defendant/tenant automatically got more than one calendar month time to vacate the suit shop room. It is submitted by Mr. Chatterjee that a notice cannot be construed technically in a narrow conspectus to defeat the purpose of the Rent Act. In support of his contention, Mr.Chatterjee refers to a decision of the Division Bench of this Court in the case of Smt. Gita Devi Shah versus Chandra Moni Karnani and others reported in AIR 1993 Cal 280 . In the aforesaid report, the Court was called upon to describe the scope of notice under Section 13(6) of the West Bengal Premises Tenancy Act, 1956. Question was raised as to whether a notice under Section 13(6) of the West Bengal Premises Tenancy Act, 1956 should be declared bad only because the tenancy was not exactly defined. The Division Bench held that by virtue of Section 13(6), it is a procedure laid and not substantive law and although Indian legal system is not so stringent as an English Law, with regard to the procedural part, yet care must be taken to see that unjustified liberalization with regard to procedural part does not create anomolous position resulting in miscarriage of justice. The notice is a warning to the tenant having a threat to sue in case the tenant fails to comply with the requisition. The notice is a warning to the tenant having a threat to sue in case the tenant fails to comply with the requisition. With such observation the Division Bench of this Court was pleased to hold that no notice under Section 13(6) would be declared bad, only because tenancy has not been exactly defined. The reason being that the tenant knows his own tenancy and the test is whether he had understood the purport of the notice or not. 12. Referring to another decision of this Court in the case of Md. Nissar Versus Md. Anis and Others reported in 83 CWN 601 it is submitted by Mr. Chatterjee that the validity of notice is not to be determined by what that notice would convey to a stranger ignorant of all the relevant facts and circumstances concerning the holding in question, but what it would mean to the tenants who are presumably conversant with all the relevant facts and circumstances. In the said reported decision the extent of tenancy was not properly described in the notice. However, this Court held that when notice is otherwise legal and valid, mis-description of extent of tenancy is not fatal and this will not render the notice for ejectment illegal, insufficient and inoperative. 13. In the instant case, both the plaintiff and defendant knew that the defendant was inducted as a tenant in respect of suit shop room according to English calendar month. In the notice to quit under Section 6(4) of the said Act the defendant was asked to vacate the suit shop room after expiry of one month from the date of notice. It is already mentioned that the notice was dated 27th August, 2003. The said notice cannot be held to be bad in law due to reason that the tenancy was not determined after the expiry of clear one month according to English calendar. It is urged by Mr. Chatterjee that when both the parties knew that the tenancy in question used to run according the English calendar month and the suit was filed after the lapse of about six months of service of notice, the defendant/respondent was given ample opportunity to vacate the suit shop room in compliance with the requisition. The learned Judge in 1st Appellate Court failed to consider this aspect and construed the notice within the narrowest limit. 14. Mr. The learned Judge in 1st Appellate Court failed to consider this aspect and construed the notice within the narrowest limit. 14. Mr. Sourav Sen, learned Advocate for the respondent, on the other hand, submits before me that in the tenancy agreement, there is no stipulation to the effect that the respondent would vacate the suit shop room after liquidation of advance amount of rent in favour of the landlord/appellant. In the absence of such specific terms and conditions, it cannot be held that the tenancy in question came to an end after liquidation of advance rent. Therefore, the agreement for tenancy cannot be construed as a notice and the appellant cannot take the benefit of Section 6(1)(e) of the said Act. In support of his contention, learned Counsel for the respondent refers to a decision of this Court in the case of Union of India vs. The General Beopar Co. Pvt. Ltd. reported in 1999(2) CHN Cal) 4. The aforesaid report has dealt with the scope of Section 13(1)(k) of the West Bengal Premises Tenancy Act, 1956. The relevant extract of Section 13 reads as follows:- "13. Protection of tenant against eviction - (1) Notwithstanding anything to the contrary to any other law, no order or decree for the recovery of possession of any premises shall be made by any court in favour of the landlord against a tenant except on one or more of the following grounds, namely:- (k) Where subsequent to creation of tenancy, the tenants having agreed in writing with the landlord to deliver vacant possession of the premises to the landlord has failed to do so." 15. The Division Bench of this Court interpreted the aforesaid provision in the following words:- "Having arrived at this conclusion it is clear that the document whereby the tenancy was created cannot itself be construed to be an agreement to vacant under Section 13(1)(k). That requires the agreement to be arrived at subsequent to the creation of the tenancy. 16. The ratio of the General Beopar Co. Pvt. Ltd (supra) is not applicable under the facts and circumstances of the instant case mainly because the provision of Section 6(e) of the said Act of 1997 is not pari materia with that of Section 13(1)(k) of the 1956 Act. 16. The ratio of the General Beopar Co. Pvt. Ltd (supra) is not applicable under the facts and circumstances of the instant case mainly because the provision of Section 6(e) of the said Act of 1997 is not pari materia with that of Section 13(1)(k) of the 1956 Act. Section 13(1)(k) of the old Act was applicable in the case of service of notice of delivery of possession of tenanted premises by the tenant having been served upon the landlord subsequent to creation of tenancy. Section 6(1)(e) of 1997 Act, on the contrary, makes a provision for eviction of a tenant where he issued notice to quit, but failed to deliver vacant possession of the premises to the landlord in accordance with such notice. 17. Mr. Sourav Sen, learned Counsel for the respondent next submits that the landlord nowhere pleaded in his plaint that the agreement for tenancy ought to be construed as a notice within the meaning of Section 6(1)(e) of the said Act. If there is no such pleading in the plaint, argument advanced by the learned Counsel for the appellant cannot be accepted. He further submits that pleading is the foundation of the case. Had it been a case for eviction of a tenant under the provision of Section 6(1)(e) of the said Act, question of service of notice upon the tenant/respondent did not arise. On the contrary, the plaintiff/appellant filed the suit on the basis of the notice issued on behalf of him under Section 6(4) of the said Act. In paragraph 12 of the plaint, the appellant clearly pleaded the fact of service of notice dated 27 August, 2003 upon the defendant/tenant. It was also pleaded that the tenancy of the defendant was terminated with the expiry of September, 2003 by a valid notice dated 27th August, 2003. Therefore, contention of the appellant to the effect that the defendant/respondent was liable to be evicted on expiry of the month when payment of advance rent was liquidated in accordance with the provision of Section 6(1)(e) of the said Act cannot be sustained. 18. Learned Counsels for both the appellant and the respondent strenuously argued on the applicability of the provision of Section 6(1)(e) of the said Act under the facts and circumstances of the case. 18. Learned Counsels for both the appellant and the respondent strenuously argued on the applicability of the provision of Section 6(1)(e) of the said Act under the facts and circumstances of the case. It is needless to say that if an agreement for tenancy contains a clause that the tenant would vacate the tenanted premises on expiry of certain period of time and subsequently failed to vacate the tenanted premises in terms of the agreement, this will attract Section 6(1)(e) of the said Act. However, on careful perusal of the agreement for tenancy executed by and between the appellant and respondent, it is ascertained that no such stipulation was made in the said agreement for tenancy that the tenant would vacate the suit shop room after the expiry of August, 2003 on which month payment towards advance rent was scheduled to be liquidated. 19. It was pleaded by the plaintiff/appellant that the defendant was a monthly tenant in respect of suit shop room at a monthly rental of Rs.250. The rate of monthly rent was also mentioned in the agreement for tenancy. 20. However, from the materials on Lower Court record, it is ascertained that the said monthly rent of Rs.250/- was enhanced and before institution of the suit, the rate of rent was Rs.302.50. The defendant/respondent filed an application under Section 7(2) of the said Act for determination of the rate of rent and amount of arrear rent. The said application was disposed of by the learned trial judge on 15th January, 2006 holding, inter alia, that the defendant was a tenant in respect of the suit shop room at a monthly rental of Rs.302.50 according to the English calendar month. The appellant did not challenge the said finding made by the learned trial court while disposing of the application under Section 7(2) of the said Act. Therefore, the finding of the court below regarding the rate of rent and the period of tenancy according to the English calendar month have reached its finality. When the rate of rent was revised and altered from the rate which was fixed as per the agreement for tenancy, the terms and conditions of the agreement for tenancy would cease. Accordingly the appellant cannot claim applicable of Section 6(1)(e) of the said Act for eviction of the respondent. 21. Now comes to the question of legality, validity and sufficiency of the notice. Accordingly the appellant cannot claim applicable of Section 6(1)(e) of the said Act for eviction of the respondent. 21. Now comes to the question of legality, validity and sufficiency of the notice. The copy of the notice was marked as Exhibit-6 in the trial court. The said notice was issued on 27th August, 2003. By the said notice the defendant/respondent was asked to quit and vacate the tenanted premises on the expiry of one month from the date of the notice. It also contents a threat to suo on failure in case the defendant/respondent would fail to vacate and deliver up possession of the suit shop room on the expiry of one month from the date of the said notice. The learned Judge in 1st Appellate Court correctly held that the tenancy of the defendant was determined on the expiry of one month from the date of the notice, i.e., either on 26th September, 2003 or on 27th September, 2003. According to the learned Judge in 1st Appellate Court the said tenancy was not terminated after the expiry of clear one English calendar month. Therefore, the notice was invalid. 22. Section 6(4) of the said Act contains the provision of service of notice and the provision reads thus:- "Notwithstanding anything in any other law for the time being in force, no [suit] for the recovery of possession of any premises on any of the grounds as aforesaid, except on the ground mentioned in clause (e) of sub-section (1), shall be instituted by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy." 23. The above provision states "statutory requirement of giving one months notice expiry with a month of tenancy." A monthly tenancy starts from the date it is created up to the end of the day previous to the anniversary day of the next month. When the tenancy was created according to the English calendar month, it must be determined on the expiry of one clear English calendar month. In Chandicharan Ghosh vs. Susila Sundar Sen and others reported in 1999(2) CHN (Cal) 491, the Division Bench of the Court held in clear and unequivocal terms that when the tenancy is according to English calendar month, notice of ejectment must be of one calendar month according to English calendar. In Chandicharan Ghosh vs. Susila Sundar Sen and others reported in 1999(2) CHN (Cal) 491, the Division Bench of the Court held in clear and unequivocal terms that when the tenancy is according to English calendar month, notice of ejectment must be of one calendar month according to English calendar. A notice asking the tenant to vacate by the middle of the month is totally invalid as it is not a notice of clear one calendar month ending with the month of tenancy. In the aforesaid decision, the tenancy was not terminated with the expiry of the month of tenancy as contemplated under Section 13(6) of the Old Act 1956 and as such the Division Bench of this Court held that the said notice cannot be said to be valid. 24. In the instant case the factual position is almost similar to that of the decision of the Division Bench of this Court in Chandicharan Ghosh (supra). Admittedly, the tenancy in question was according to English calendar month. I have already stated that by giving notice under Section 6(4) of the said Act on 27th August, 2003, the tenancy of the respondent was terminated with the expiry of clear one month thus tenancy was terminated either on 26th September, 2003 or 27th September 2003 and not after the expiry of the month of September, 2003. In view of such circumstances, the ratio of the decision of the Division Bench of this Court in the case of Chandicharan Ghosh (supra) is clearly applicable in the instant appeal. 25. As the tenancy of the defendant/respondent was not terminated by a notice of clear English calendar month, the ejectment notice (Exhibit-6) was illegal, invalid and inoperative and by such notice tenancy of the respondent was not lawfully terminated. 26. It is immaterial if after a lapse of six months or more the plaintiff/respondent filed the suit for eviction against the respondent or not. The main issue is whether the tenancy of the defendant was determined by a legal and valid notice before inspection of the suit. When the tenancy not terminated by a legal and valid notice institution of eviction suit after a laps of six months from the date of service of notice cannot be held to be substantial compliance of Section 6(4) of the said Act. 27. The substantial questions of which answered accordingly against the appellant. 28. When the tenancy not terminated by a legal and valid notice institution of eviction suit after a laps of six months from the date of service of notice cannot be held to be substantial compliance of Section 6(4) of the said Act. 27. The substantial questions of which answered accordingly against the appellant. 28. For the reasons stated above the instant appeal fails and the same is dismissed on contest. The judgment and decree passed by the learned Judge in 1st Appellate Court in Ejectment Appeal No.93 of 2011 is affirmed. 29. In the facts and circumstances, I make no order as to costs. Urgent certified website copies of this judgment, if applied for, be supplied to the parties subject to compliance with all requisite formalities.