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Essjay Ericsson Pvt. Ltd. Vs. Dilip Kumar Khandelwal - Court Judgment

LegalCrystal Citation
CourtKolkata High Court
Decided On
Judge
AppellantEssjay Ericsson Pvt. Ltd.
RespondentDilip Kumar Khandelwal
Excerpt:
.....including the issue as to whether the plaintiffs are entitled to recovery of possession of the suit premises, but for application of section 10 of the code, the entire subject-matter of the two suits must be the same. this provision will not apply where few of the matters in issue are common and will apply only when the entire subject matter in controvers.is same. in other words, the matter in issue is not equivalent to any of the questions in issue. as stated earlier, the eviction in the third suit has been sought on the ground of non-user for six months prior to the institution of that suit. it has also been sought in the earlier two suits on the same ground of non-user but for a different period. though the ground of eviction in the two suits was similar, the same were based on.....
Judgment:

IN THE HIGH COURT AT CALCUTTA CIVIL APPELLATE JURISDICTION ORIGINAL SIDE G.A.No.2475 of 2015 G.A.No.3353 of 2015 A.P.D.T.No.29 of 2015 C.S.No.372 of 2014 Essjay Ericsson PVT.LTD.versus Dilip Kumar Khandelwal B E F O R E: The Hon’ble Justice INDIRA BANERJEE And The Hon’ble Justice SAHIDULLAH MUNSHI For the Appellant : Mr.Mr.Mr.Mr.Mr.Mr.Samit Talukdar, Senior Advocate, Dhruba Ghosh, Advocate, Satadeep Bhattacharya, Advocate, Saunak Mitra, Advocate, Sonia Sharma, Advocate, Uttam Sharma, Advocate.

For the Respondent : Mr.Mr.Mr.Mr.Mr.Abhrajit Mitra, Senior Advocate, Pranit Bag, Advocate, Soumabho Ghose, Advocate, Swati Agarwal, Advocate, N.Roy, Advocate.

Heard on Judgment on : 01.09.2015, 15.09.2015, 16.09.2015, 29.09.2015 : 15.10.2015.

INDIRA BANERJEE, J.: This appeal is against a final judgment and decree dated 16 th July, 2015, passed by the Hon’ble Single Bench, in favour of the plaintiff respondent inter alia for khas, peaceful and vacant possession of premises No.5, Commissariat Road, Kolkata – 700 022, hereinafter referred to as the demised premises, in an application under Chapter XIIIA of the Original Side Rules of this Court being G.A.No.288 of 2015 in the suit being C.S.No.372 of 2014.

The plaintiff respondent was initially a co-owner of the demised premises.

The plaintiff respondent purchased the shares of the co-owners of the demised premises by four several registered deeds of conveyance all dated 2nd May, 2014, and is now its sole owner.

The appellant defendant is a tenant at the demised premises, as the successor in interest of Ericsson Telephone Sales Corporation AB, inducted as a monthly tenant of the demised premises about 52/53 years ago.

An agreement dated 29 th March, 1963 was executed between the then owners of the demised premises and the said Ericsson Telephone Sales Corporation AB.

The agreement executed on 29 th March, 1963 has, however, expired, but the appellant defendant has remained at the demised premises, upon payment of monthly rent which has been revised from time to time, the last rent paid by the defendant appellant to the plaintiff respondent being Rs.24,000/- per month.

According to the plaintiff respondent, immediately after, acquisition of the shares of the co-owneRs.a letter of attornment was issued.

The said letter of attornment had been acted upon by the appellant defendant.

The appellant defendant has tendered rent to the plaintiff respondent.

It is not in dispute that the tenancy was governed by the provisions of the Transfer of Property Act, 1882.

The plaintiff respondent issued a notice dated 12 th July, 2014 under Section 106 of the Transfer of the Property Act, 1882, through his Advocate, terminating the tenancy of the said premises on expiry of 15 days from the date of receipt of the said notice and calling upon the appellant defendant to vacate and deliver peaceful possession of the demised premises to the plaintiff respondent.

The notice under Section 106 of the Transfer of Property Act, 1882 was apparently served on the defendant appellant on 15 th July, 2014 at its office in Kolkata and on 17 th July, 2014 at its office in New Delhi.

According to the plaintiff respondent, the period mentioned in the notice expired on 31 st July, 2014.

In the plaint, as also the Chapter XIIIA of the application, it is contended that the plaintiff defendant continued in occupation of the demised premises as a trespasser on and from 1 st August, 2014.

The learned Single Bench held:- “In deciding an application for summary judgment the Court is required to find out if the defence disclosed by the defendant raises any triable issue.

In the instant case it is not in dispute nor it can be disputed that the said tenancy is determinable by serving a notice under Section 106 of the Transfer of Property Act.

Although a submission is made that the said notice is defective but the learned Counsel is unable to substantiate such defence.

The only ground on which the said notice is impinged is that the plaintiff could not have unilaterally determined the said tenancy.

The defendant does not dispute that they have received the letter of attornment and the plaintiff by reason of such communication became the absolute owner of the said property.

In fact, the defendant during the pendency of this proceeding had attempted to tender rent to the plaintiff treating the plaintiff as the owner of the said property.

Moreover, a tenant is not entitled to deny the title of the plaintiff in view of Section 116 of the Indian Evidence Act.

In so far as the objection as to Order 2 Rule 4 is concerned in my view the suit cannot fail.

Under such circumstances, there shall be an order in terms of prayers (a) and (b) of the Master’s Summons.

Mr.Samrat Sen, Senior Advocate, a member of the Bar Library Club is appointed as Special Referee in terms of prayer (b).The Special Referee shall be entitled to a remuneration of 600 GMs for each sitting.

The Special Referee shall conclude the proceeding within six months from the date of entering the reference.

The other claims are relegated to trial.

Accordingly, G.A.288 of 2015 stands disposed of.” Mr.Samit Talukdar, Senior Advocate, appearing on behalf of the appellant defendant submitted that the property in this case was let out to the petitioner for manufacturing purpose.

The lease was, therefore, deemed to be a yearly lease, terminable upon notice of six months.

Mr.Talukdar argued that the notice dated 12th July, 2014 was bad, since the same did not conform to Section 106 of the Transfer of Property Act, set out hereinbelow: “106.

Duration of certain leases in absence of written contract or local usage.— (1) In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months' notice; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days' notice.

(2) Notwithstanding anything contained in any other law for the time being in force, the period mentioned in sub-section (1) shall commence from the date of receipt of notice.

(3) A notice under sub-section (1) shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under that sub-section, where a suit or proceeding is filed after the expiry of the period mentioned in that sub-section.

(4) Every notice under sub-section (1) must be in writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property.” A lease of immovable property, from year to year, or for any term exceeding one-year, or reserving early rent, can only be made by a registered instrument.

However, Section 106(1) creates a legal fiction in respect of lease of immovable property, let out for the purpose of agriculture or manufacture.

Under Section 106(1).in the absence of contract or local law or usage to the contrary, immovable property let out for the purpose of agriculture or manufacture is deemed to be a yearly lease with a reserved yearly rent, even though the lease may not have been created by a registered instrument.

The deeming provision of Section 106(1) will not, however, be attracted when there is contract or local law or usage to the contrary.

In this case, there was a contract between the parties.

A copy of the contract has been brought on record by the appellant by filing an application under Order XL1 Rule 27 being G.A.No.2476 of 2015 which was disposed of by an Order dated 1st September, 2015.

The contract clearly shows that the lease was monthly and the lease was terminable by three months notice on either side.

This lease, as observed above, expired with effect from 1st January, 1975.

It could have at best be renewed for a further period of six yeaRs.Even that period has expired.

The question is whether the plaintiff respondent was liable to give six months’ notice for termination of the lease only because the agreement of 1963 had expired and there is no valid lease agreement in writing between the parities.

In Ram Kumar Das versus Jagadish Chandra Deb Dhabal Deband Another reported in (1952) 1 SCR269 cited by Mr.Talukdar, the Supreme Court held that if the document of tenancy was not validly registered, then the tenancy must be presumed to be month to month tenancy or yearly tenancy in accordance with the purpose of the tenancy.

Mr.Talukdar argued that in this case, there was no subsisting contract.

The purpose of the tenancy was manufacture and, therefore, the tenancy should be taken to be a tenancy from year to year terminable upon notice of six months.

A judgment is a precedent for the proposition of law that it lays down.

It is one thing to say that in the absence of a valid agreement the rights of the parties would be regulated by law in the same manner as if no agreement existed at all.

It is quite another thing to suggest that upon expiry of an agreement in writing, which created a monthly lease, terminable by notice of three months, the lease would become a yearly lease, terminable by notice of six months as provided in Section 106(1) of the Transfer of Property Act.

The judgment in Ram Kumar Das versus Jagadish Chandra Deb Dhabal Deband Another (supra).rendered in the context of the facts of that case, is not an authority for such a proposition.

In this case, the agreement, which has expired, clearly reveals intention to create a monthly lease.

Rent was payable from month to month.

The lease agreement expressly provided for termination upon notice of three months.

A monthly lease is not required to be registered.

The lease agreement was thus a valid lease agreement, which created a month to month tenancy.

The expiry of the initial agreement would not in itself change nature and character of the demise.

Section 106(1) could only be attracted if there was no contract to the contrary.

After expiry of the lease agreement, the appellant defendant remained in possession as a monthly tenant and paid rent from month to month.

Had there been no agreement at all, it may have been possible to infer that the lease would be deemed to be a yearly lease terminable upon six months notice, if the purpose of the lease were manufacture or agriculture.

However, when there was a clear contract to the contrary which clearly stipulated that the lease would be a monthly lease, terminable by notice of three months, the deeming provision of Section 106(1) would not be attracted.

The agreement having expired, there is no need to give notice of three months.

Notice of 15 days as stipulated in Section 106 would suffice.

After hearing of the appeal had been concluded and the appeal listed for judgment, the appellants filed another application under Order XL1 Rule 27 of the Civil Procedure Code for leave to produce and rely upon further documents.

The appellants have in the aforesaid application annexed a copy of a plaint in Ejectment Suit No.342 of 1996 filed by the plaintiff respondent Dilip Kumar Khandelwal along with Harish Kumar Khandelwal, Girish Kumar Khandelwal, Ravi Kumar Khandelwal and Udai Khandelwal against the appellant and/or its predecessor-in-interest.

It was argued on behalf of the appellant, that the suit in the City Civil Court seeking the same relief of eviction having been filed earlier, the suit in which the final judgment and decree under appeal has been passed, was barred by principles of res judicata as enunciated in Section 10 of the Civil Procedure Code.

Section 10 of the Code reads as follows: “10.

Stay of suit.- No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in India having jurisdiction to grant the relief claimed, or in any Court beyond the limits of India established or continued by the Central Government and having like jurisdiction, or before the Supreme Court.

Explanation.- The pendency of a suit in a foreign Court does not preclude the Courts in India from trying a suit founded on the same cause of action.” A subsequent suit is liable to be stayed only when the suit is between the same parties and the issues in the subsequent suit are directly and substantially in issue in the earlier suit.

Moreover, if the issues in a subsequent suit were directly and substantially in issue in an earlier suit but the subsequent suit were to be decreed, the decree cannot be set aside on the ground of pendency of an earlier suit, more so when there was no application for stay under Section 10 of the subsequent suit.

As held by the Supreme Court in Aspi Jal And Anr.

versus Khushroo Rustom Dadyburjor reported in (2013) 4 SCC333 “The basic purpose and the underlying object of Section 10 of the Code is to prevent the Courts of concurrent jurisdiction from simultaneously entertaining and adjudicating upon two parallel litigations in respect of same cause of action, same subject matter and the same relief.

This is to pin down the plaintiff to one litigation so as to avoid the possibility of contradictory verdicts by two courts in respect of the same relief and is aimed to protect the defendant from multiplicity of proceeding.

In National Institute of Mental Health & Neuro Sciences vRs.C.Parameshwara reported in (2005) 2 SCC256the Supreme Court held as follows: “8.

The object underlying Section 10 is to prevent courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the same matter in issue.

The object underlying Section 10 is to avoid two parallel trials on the same issue by two courts and to avoid recording of conflicting findings on issues which are directly and substantially in issue in previously instituted suit.

The language of Section 10 suggests that it is referable to a suit instituted in the civil court and it cannot apply to proceedings of other nature instituted under any other statute.

The object of Section 10 is to prevent courts of concurrent jurisdiction from simultaneously trying two parallel suits between the same parties in respect of the same matter in issue.

The fundamental test to attract Section 10 is, whether on final decision being reached in the previous suit, such decision would operate as res-judicata in the subsequent suit.

Section 10 applies only in cases where the whole of the subject-matter in both the suits is identical.

The key words in Section 10 are “the matter in issue is directly and substantially in issue” in the previous instituted suit.

The words “directly and substantially in issue” are used in contradistinction to the words “incidentally or collaterally in issue”.

Therefore, Section 10 would apply only if there is identity of the matter in issue in both the suits, meaning thereby, that the whole of the subject-matter in both the proceedings is identical.” In Aspi Jal and Anr.

versus Khushroo (supra) the Supreme Court found that the parties in all the three suits were the same and the court in which the fiRs.two suits had been instituted was competent to grant the relief claimed in the third suit.

The question for adjudication of the Supreme Court was whether the matter in issue was also directly and substantially in issue in previously instituted suits.

The Supreme Court held: “The key words in Section 10 are “the matter in issue is directly and substantially in issue in the previously instituted suit”.

The test for applicability of Section 10 of the Code is whether on a final decision being reached in the previously instituted suit, such decision would operate as res-judicata in the subsequent suit…….12.

As observed earlier, for application of Section 10 of the Code, the matter in issue in both the suits have to be directly and substantially in issue in the previous suit but the question is what “the matter in issue” exactly means?.

As in the present case, many of the matters in issue are common, including the issue as to whether the plaintiffs are entitled to recovery of possession of the suit premises, but for application of Section 10 of the Code, the entire subject-matter of the two suits must be the same.

This provision will not apply where few of the matters in issue are common and will apply only when the entire subject matter in controveRs.is same.

In other words, the matter in issue is not equivalent to any of the questions in issue.

As stated earlier, the eviction in the third suit has been sought on the ground of non-user for six months prior to the institution of that suit.

It has also been sought in the earlier two suits on the same ground of non-user but for a different period.

Though the ground of eviction in the two suits was similar, the same were based on different causes.

The plaintiffs may or may not be able to establish the ground of non-user in the earlier two suits, but if they establish the ground of non-user for a period of six months prior to the institution of the third suit that may entitle them the decree for eviction.

Therefore, in our opinion, the provisions of Section 10 of the Code is not attracted in the facts and circumstances of the case.” In this case it cannot be said that the matter in issue in this suit which has given rise to the final judgement and decree under appeal was directly and substantially in issue in the earlier suit filed in the City Civil Court.

A decree of eviction may have been claimed in the earlier suit filed by the plaintiff respondent along with his predecessor-in-interest.

At that time the plaintiff respondent was a co-owner of the demised premises.

However, as observed above, the plaintiff respondent purchased the shares of the co-owners by registered deeds of conveyance dated 2nd May, 2004, and has now become the sole owner of the demised premises.

The plaintiff respondent has terminated the tenancy of the appellant by a notice dated 12th July, 2014.

The cause of action in this suit is the failure and/or refusal of the appellant to vacate notwithstanding the notice dated 12th July, 2014 terminating the tenancy of the appellant.

It cannot be said that the matter in issue in this suit was directly and substantially in issue in the earlier suit, even assuming that there may have been some common issues.

The dismissal of the earlier suit would not bar the present suit by res judicata.

Mr.Talukdar also argued that the suit premises had not properly been described in the schedule to the plaint where the property being the subject matter of the suit has been described.

It was further argued that the schedule to the plaint in the instant suit does not match the schedule to the plaint in the earlier suit.

The question is whether the suit premises as described in the schedule to the plaint is sufficiently identifiable.

If the suit premises is identifiable, minor discrepancies are not material.

The suit premises has properly been delineated in a sketc.map.

The number of the premises has also been mentioned in the schedule and correctly.

There is no ambiguity with regard to the suit premises.

Minor errors in the description are of no consequence.

This ground of error and/or discrepancy in description of the suit premises raised at the appellate stage is hypertechnical and frivolous.

In our view, the learned Single Bench rightly pronounced final Judgment and decree in favour of the plaintiff respondent.

The appeal is, therefore, dismissed.

Urgent Photostat certified copy, if applied for, be delivered to the learned counsel for the parties, upon compliance of all usual formalities.

( INDIRA BANERJEE, J.

) I Agree ( SAHIDULLAH MUNSHI, J.

) LATER Counsel appearing on behalf of the appellant prays for stay of operation of the order under appeal.

The Prayer is considered and refused.

It will be open to the parties to the parties to apply for leave before the learned Single Bench for extension of time granted to the special referee to submit his report.

( INDIRA BANERJEE, J.

) I Agree ( SAHIDULLAH MUNSHI, J.

)


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