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Nagendranath Karmakar and anr. Vs. Jotish Chandra Mukherjee - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Case NumberA.F.A.D. No. 869 of 1948
Judge
Reported inAIR1952Cal221
ActsTransfer of Property Act, 1882 - Sections 106 and 108; ;Calcutta House Rent Control Order, 1943 - Section 9A
AppellantNagendranath Karmakar and anr.
RespondentJotish Chandra Mukherjee
Appellant AdvocateAmarendra Nath Bose and ;Hemanta Kumar Bose, Advs.
Respondent AdvocateSitaram Banerji, ;Debabrata Mukherjee and ;Parimal Mukherjee, Advs.
DispositionAppeal dismissed
Cases ReferredRam Charan Naskar v. Hari Charan Ghose
Excerpt:
- .....case, the defendant no. 1 in para. 7 of the written statement disclaimed his interest in the leasehold premises. in his deposition also he affirms the statement made in the written statement. in this view, service of notice, on the defendant no. 1 was wholly unnecessary. if, however, this question fell to be determined, i would be prepared to disagree with the findings of the courts below that the notice on the defendant no. 1 was not served. the defence of the defendant no. 1 is that he was living in the premises to which the registered cover was addressed and where it was taken for service by the postal peon. the endorsement of the postal peon, 'left' is not correct and does not conclude the matter. i would think that in the facts of this case, the notice on the defendant no. 1.....
Judgment:

Gopendra Nath Das, J.

1. This appeal is on behalf of the defendants in a suit for ejectment and for recovery of mesne profits and compensation for damages done to the demised ffremises.

2. The inception of the lease dates back to the year 1942 when the defendant No. 1 wrote a letter to the plaintiff agreeing to hold the demised premises at a monthly rent of Rs. 26/-. The letter recited that the tenancy would be determined by one month's notice. Subsequently thereto, the defendants took a lease of an additional room and agreed to pay additional rent. The terms of the lease continued as before. The plaintiff served a notice to quit on defendants Nos. 1 and 2 requiring them to vacate the premises by the end of September, 1946. The notice recites that the defendant No.1 is the tenant of the premises, that the defendant No. 2 had paid certain sums towards the rent of the premises and that as a matter of abundant caution, the notice to quit was also being served on the defendant No. 2. As the defendants did not vacate, the present suit was instituted. It may be noted that the permission of the Rent Controller to the institution of the. suit was not taken.

3. Two sets of defences were filed to the suit. The defendant No. 1 disclaimed all interest in the demised premises and stated that he had taken the lease on behalf of his uncle, the defendant No. 2. The defendant No. 2 raised several defences which I shall deal with hereafter. Both the Courts below have concurred in decreeing the plff's suit.

4. Mr. Bose appearing for the defendants appellants has raised as many as five contentions in support of the appeal.

5. In the first place, Mr. Bose contends that the Courts below were wrong in allowing the plaintiff to succeed on a case which was not made in the plaint. The argument is based on the following facts. It is submitted that in the plaint, the defendant No. 2 was stated to be a tenant. The notice also proceeded on that footing. Both the Courts below have found that the defendant No. 2 was the real tenant. This case, Mr. Bose contends, ought not to have been allowed to be raised at the hearing. In my opinion, this contention was without any substance. The admitted letters written to the defendants Nos. 1 and 2 by the lessor clearly indicate that the defendant No. 2 was also occupying the premises as a tenant. There can be no question of surprise or prejudice in so far as the Courts below proceeded on the -view that the defendant No. 2 was the real tenant.

6. The second contention raised by Mr. Bose concerns the purpose for which the lease was taken. In the plaint, the plaintiff stated that the lease was taken for the purpose of residence. The defendants, on the other hand, stated that the purpose for which the lease was taken was manufacture. The Courts below have negatived the case of either party and have found that the purpose of the lease was to hold office. Mr. Bose contends that his version is supported by the letters, Exhibits A to A (3) to which the trial Court refers. In my opinion, the letters do not clearly indicate that the object of the lease was manufacture. The actual user to which the premises was put does not also support the contention of Mr. Bose. The findings of the Court below are that in one of the rooms, the defendant had an office; some other rooms were used for repairs of bolts and nuts; some other rooms were in the occupation of the Central Bank of India and in those rooms, heavy materials were stacked by the Bank. In these circumstances, it is difficult for me in second appeal to upset the findings of the Courts below that the object of the lease was not manufacture. The lessee, therefore, would not be entitled to six months' notice, as contended on behalf of the appellants. Moreover, the letter, Exhibit 12, which shows the inception of the lease, clearly states that the lease would be determined by one month's notice. The notice that has been given in the present case exceeds the period of one month. The second contention raised by Mr. Bose must, therefore, fail.

7. The third contention raised by Mr. Bose is that the suit ought to fail on the finding of the Courts below that the notice to quit was not served on defendant No. 1, the ostensible tenant, but that it was served on defendant No. 2. The question whether service of notice on the real tenant would suffice to determine the tenancy taken in the name of another person need not be gone into in the facts of the present case. In the present case, the defendant No. 1 in para. 7 of the written statement disclaimed his interest in the leasehold premises. In his deposition also he affirms the statement made in the written statement. In this view, service of notice, on the defendant No. 1 was wholly unnecessary. If, however, this question fell to be determined, I would be prepared to disagree with the findings of the Courts below that the notice on the defendant No. 1 was not served. The defence of the defendant No. 1 is that he was living in the premises to which the registered cover was addressed and where it was taken for service by the postal peon. The endorsement of the postal peon, 'Left' is not correct and does not conclude the matter. I would think that in the facts of this case, the notice on the defendant No. 1 should be regarded as having been served on the principle enunciated by Biswas J. in 'Sitanath Mondal v. Soleman Molla', 51 Cal W N 650, where on similar facts, His Lordship upheld the view taken by the Courts below that the notice under Section 167 of the Bengal Tenancy Act, where similar endorsement had been made, was proved to have been served. The third contention raised by Mr. Bose, must, therefore, be negatived.

8. The fourth contention raised by Mr. Bose refers to the contents of the notice to quit. As I have indicated, the notice to quit recited that the defendant No. 1 was the tenant; that the defendant No. 2 had merely paid portions of the rent by cheques and that as a matter of abundant caution, the notice to quit was also served on him. In my opinion, the reason given in the notice to quit is not material for determining the question whether he notice under Section 106 of the T. P. Act was sufficient or not. The essential requisite is whether the person intended to be' bound by the notice was asked to vacate the premises in question. Unquestionably, the defendant No, 2 was required by the notice to quit on the expiration of the last day of September, 1946. This is sufficient, in my view, to determine the tenancy of the defendant No. 2 if ultimately such a tenancy is found to be true. This view is supported by the decision in Ram Charan Naskar v. Hari Charan Ghose', 7 Cal L J 107. This contention also fails.

9. The fifth and the last contention raised by Mr. Bose is that the permission of the Rent Controller not having been taken, no decree for ejectment could have been passed. Mr. Bose concedes that the present case fell to be determined not by Ordinance V of 1946, but by the Calcutta House Rent Control Order, 1943. This contention, however must be negatived in view of the finding of the Courts below that the premises in question was used by the lessee in a manner which contravened the, provisions of section 108(o) of the Transfer of Property Act. In fact, the amount of compensation for improper use was assessed at a sum of Rs. 1781/-. If this is so, the provisions of Section 9A of the Calcutta House Rent Control Order would not be attracted. This contention must also be negatived.

10. All the contentions raised on behalf of the defendants appellants fail, and this appeal is dismissed with costs.


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