Shibani Basu vs Sandip Ray

Sandip Ray ...Respondent

JUDGMENT

T.S. THAKUR, J.

1. Leave granted.

2. This appeal by special leave is directed against a

judgment and order dated 16th September, 2009 passed by

a Single Judge of the High Court of Calcutta whereby Second 2

Appeal No.29 of 2006 filed by the appellant herein has been

dismissed and the judgment and order passed by the First

Appellate Court dismissing the suit for eviction filed by the

appellant affirmed.

3. The plaintiff-appellant herein filed a suit for eviction

and recovery of possession and mesne profits against the

respondent. The plaintiff alleged that the suit property

comprising two rooms with an attached verandah consisting

of kitchen space situate on the ground floor of No.6-A

Chandibari Street, Calcutta was let out to the respondent on

month to month basis. The tenancy was, according to the

plaintiff, for a period of five years only and was determined

in terms of a notice dated 14th January, 2000 issued under

Section 13(6) of the West Bengal Premises Tenancy Act and

Section 106 of the Transfer of Property Act. The plaintiff

further alleged that the defendant-respondent was in default

of the payment of rent since the month of November 1995.

The respondent was also accused of committing nuisance

and constructing a pucca wall of permanent nature without 3

her consent. The plaintiff claimed eviction of the respondent-

tenant on the above grounds and on the ground of

reasonable personal requirement of the plaintiff and her

family members who did not have any alternative

accommodation for them. The eviction of the respondent

was also sought on the ground that the suit premises was

required for rebuilding.

4. The suit was contested by the defendant-respondent

who filed a written statement in which the material

averments made by the plaintiff were dealt with. What is

significant is that the defendant-respondent admitted that

he was inducted by the plaintiff in the suit premises in terms

of an agreement of tenancy and that he was holding the

premises as a month to month tenant not only in respect of

the attached verandah comprising kitchen space but the

bath room privy for his exclusive use. The allegation that the

tenant had created nuisance or caused annoyance to the

landlady or made any illegal construction in the suit

premises or that the property was required by the plaintiff 4

for her own use and occupation or re-construction were also

denied.

5. On the pleading of the parties the Trial Court framed as

many as 13 issues besides three additional issues and

decreed the suit with cost by its order dated 22 nd February,

2005. The defendant was given three months time to vacate

the premises in question. Aggrieved by the said order, the

tenant appealed to the First Appellate Court who allowed the

same and set aside the judgment and decree passed by the

Trial Court. A second appeal was then filed by the appellant-

herein before the High Court of Calcutta which appeal

eventually succeeded and was allowed by the High Court by

its order dated 16th May, 2008 whereby the judgment and

decree passed by the Trial Court was affirmed and that

passed by the First Appellate Court set aside. Aggrieved by

the said judgment the respondent-tenant preferred Civil

Appeal by way of special leave petition (No.2637 of 2009)

before this Court which was allowed by this Court by an

order dated 17th April, 2009 and the matter remitted back to 5

the High Court to consider the validity of the notice of

termination having regard to the fact that the agreement of

tenancy executed between the parties was an unregistered

document. The High Court has pursuant to the said order

examined the effect of the unregistered document and come

to the conclusion that the same could be used in evidence

for a collateral purpose and when so used the notice of

termination of tenancy issued on behalf of the landlady fell

short of the requirement stipulated by Section 13(6) of the

West Bengal Premises Tenancy Act. The High Court has

accordingly dismissed the appeal and affirmed the dismissal

of the suit by the First Appellate Court. The present appeal

assails the correctness of the said judgment and order of the

High Court.

6. We have heard learned counsel for the parties. In paras

1 and 2 of the plaint, the plaintiff-appellant had asserted her

being the landlady and the suit premises having been let out

to the defendant-tenant on a month to month tenancy on a

rental of Rs.500/- p.m. payable according to the English 6

Calendar month without any electricity for a period of five

years only. That assertion was made ostensibly because of

Clause 3 of the Agreement of Tenancy which is in the

following terms:

"3. That the monthly rent in respect of the aforesaid tenancy has been fixed at Rs.500/- (Rupees five hundred) payable by the Second Party to the Landlady/First Party within the 15th day of next month according to the English Calendar."

7. Since, however, the Agreement of Tenancy was

unregistered though the same was compulsorily registerable

we cannot make much use of the above stipulation. The

question regarding validity of the notice of termination can

nevertheless be examined by reference to the averments

made in the pleadings of the parties. Paras 1 and 2 of the

plaint are in this regard relevant and may be extracted:

"1. That the Plaintiff is the owner and Land-Lady of the premises No.6A, Chandi Bari Street, Police Station Burtolla, Calcutta 700006.

2. That the Defendant is a monthly tenant under the Plaintiff in respect of two rooms, with attached verandah consisting of kitchen space along with 7

common user of bath room and privy on the Ground Floor at premises No.6-A Chandi Bari Street, Police Station Burtolla, Calcutta 700 006 on monthly rental of Rs.500/- payable according to English Calendar month without any Electricity, only for 5 years."

8. What is noteworthy in the averments made in para 2

above is that the respondent is a month to month tenant

and the rental of Rs.500/- p.m. is payable according to the

English Calendar month. In reply to para 2 the defendant,

inter alia, admitted that he was inducted as a month to

month tenant by the plaintiff. The defendant gave an

explanation as regards the description of the premises let

out to him which is not material for the purpose of the

present appeal. Para 5 of the written statement in which the

defendant-respondent answered the averments made in

paras 1 and 2 of the plaint extracted above is as under:

"5. That with reference to the statements made in paragraphas 1 and 2 of the plaint are the matters of record and as such the plaintiff is to prove the same. The defendant states that he never inspected the title deed in respect of the suit building but several suits and proceedings were/are pending between the plaintiff and her daughter Purnima Roy in different courts. It is a fact that the defendant was inducted by the plaintiff on 11.9.93 at the suit premises by 8

executing an Agreement of tenancy on the terms and conditions are mentioned therein and the said tenancy agreement be treated as a part of the written statement. It is true that at the time of the filing of the suit the defendant is a monthly tenant under the plaintiff but not in respect of the suit premises only. The defendant states that the defendant is a tenant in respect of two rooms with attached verandah consisting of kitchen space along with bath and privy for exclusive use of the defendant but not common. The plaintiff in pursuance of clause 5 of the said agreement of Tenancy could not provide separate bath and privy according to the plaintiff, due to the resistance occasioned by her daughter Purnima Roy and her family members within one year, as a result the plaintiff granted the existing bath and privy to the defendant for his exclusive use and enjoyment but the defendant could not use and enjoy the same exclusively for the said Purnima Roy and her family members who are also using the same bath room and as the Plaintiff is not residing at the suit building and there is a strange relation between the Plaintiff and the said Purnima Roy, the Plaintiff has been residing at 3, Parry Mohan Sur Lane, Calcutta, which is situated near the suit building, she has no personal need of the aid bath and privy."

9. Then comes the averment made by the plaintiff-

appellant in para 3 of the plaint in which the plaintiff

asserted that the tenancy of the defendant had been duly

determined by service of a composite notice issued under

Section 13(6) of the West Bengal Premises Tenancy Act and

Section 106 of the Transfer of Property Act asking the 9

defendant to vacate and deliver the possession of the suit

premises before the expiry of the month of February 2000.

The reply to the said averment is found in para 6 of the

written statement where the defendant has dealt with paras

3, 4 and 5 of the plaint together in the following words:

"6. That with reference to the allegations made in paragraph 3, 4 and 5 of the plaint the defendant denies the same. The defendant specifically denies that the tenancy of the defendant has duly been determined by the ejectment notice dated 14.1.2000 or any such notice. So far as knowledge and the memory of the defendant never received the ejectment notice by putting his signature on the A/D card on 15.1.2000 or any date. The defendant states that the alleged ejectment notice, if any, is not legal, valid and sufficient and the entire tenancy of the defendant never been determined by any such notice dated 14.1.2000 and the relationship of landlord and tenant in between the plaintiff and defendant is still in existence and as such the question of deliver up the vacant possession to the plaintiff does not or cannot arise at all, and the payment of any mesne profits does not arise."

10. It is evident from a plain reading of the assertions in

the plaint and the written statement extracted above that

the defendant did not question the facts material to the

creation of the tenancy nor was it disputed that the tenancy

was a month to month tenancy on payment of a rent of 10

Rs.500/- for every English Calendar month. It is true that

the defendant-respondent had disputed the service of the

notice terminating the tenancy of the defendant as also its

validity and sufficiency but it is equally true that the legality

of the notice was not assailed on the ground that the notice

did not conform to the month of tenancy. As a matter of fact

the assertion made by the appellant that the monthly rental

of Rs.500/- was payable according to the "English Calendar

Month" was not denied by the defendant in the written

statement nor was any suggestion to the contrary made as

was sought to be done at a later stage of the litigation

between the parties. Such being the position it was for all

intents and purposes agreed and accepted between the

parties that the rent settled for the demised premises was

payable according to the English Calendar month. That

incidentally explains the reason why no issue was framed by

the Trial Court as regards the month of tenancy. Issue no.6

only related to the validity of the notice of termination,

which had to be answered on the admitted premise that the 11

tenancy was on a month to month basis and the rent of

Rs.500/- p.m. was payable according to the English

Calendar month.

11. The Trial Court rightly examined the question of legality

of the service of the notice on the basis of the available

material and the pleadings on the subject and came to the

conclusion that the notice in question received by Smt. Malti

Roy wife of defendant-tenant was duly served upon the

defendant on the 15th January, 2000. The Trial Court further

held that the ejectment notice having been served on 15th

January, 2000, the defendant had one month's clear time till

the end of February, 2000 to vacate the premises and to

deliver the possession thereof to the plaintiff. Issue no.6

was accordingly answered in favour of the plaintiff and

against the defendant-respondent. The First Appellate Court,

however, took a contrary view. It held that the notice of

termination of tenancy was not valid as it did not end with

the month of tenancy of the defendant. Relying upon the

stipulation contained in the tenancy agreement the First 12

Appellate Court held that the tenancy in the instant case had

started on the 11th day of the English Calendar month and

that in order to be legally valid the notice of termination

ought to have demanded delivery of possession by the 11th

and not the 29th February, 2000. The notice was accordingly

held to be invalid and the suit filed by the appellant liable to

be dismissed. In taking that view Appellate Court failed to

appreciate that even when the unregistered agreement of

tenancy had been executed on 11th of September, 1993 the

same did not mean that the month of tenancy would

commence from the 11th of every succeeding month, over

the period for which the same was created. The First

Appellate Court also failed to appreciate that even when the

rent note/agreement of tenancy was executed on a date

other than the first of English or any other calendar month

the parties were always free to agree that the month of

tenancy would commence from any other date including the

1st day of the succeeding month. That there was a specific

averment made in the plaint to the effect that the rent for 13

the premises was payable monthly according to the English

Calendar was also overlooked by the First Appellate Court.

That the said averment had not been disputed by the tenant

was also not noticed by the First Appellate Court and even

by the High Court. These facts were important and held the

key to the determination of the question whether the notice

had validly terminated the tenancy. The High Court had in

the first order passed by it correctly held the notice of

termination of tenancy to be legally valid. After the matter

was remanded back to it to consider the effect of non-

registration of the rent note/agreement of tenancy it has

taken a view that has not appealed to us. It is true that the

non-registration of the rent note does not debar the use of a

document that is compulsorily registerable for collateral

purposes but that aspect would in the instant case pale into

insignificance keeping in view the state of pleadings on the

question of month of tenancy and the legal implications

thereof.

14

12. In the result this appeal succeeds and is hereby

allowed. The impugned order passed by the High Court of

Calcutta dated 16th September, 2009 and that passed by the

First Appellate Court dated 30th November, 2005 are hereby

set aside. Consequently, the judgment and decree passed

by the Trial Court shall stand restored. Parties shall bear

their own costs.

13. We further direct that the respondent shall have time

till 30th November, 2011 to vacate the premises in question

and handover the possession of the same to the appellant

subject to the respondent filing an undertaking on usual

terms in this Court within two months from today.

.................................J. (MARKANDEY KATJU)

.................................J. New Delhi (T.S. THAKUR) November 26, 2010