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Bal Kissen Shaw Vs. Kanupada Bhowmick and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberA.F.O.D. No. 485 of 1978
Judge
Reported inAIR1985Cal129
ActsTransfer of Property Act, 1882 - Sections 102 and 106; ;West Bengal Premises Tenancy Act, 1956 - Section 13(6)
AppellantBal Kissen Shaw
RespondentKanupada Bhowmick and ors.
Appellant AdvocateSatyasanti Mukherjee and ;Bibhabasu Mukherjee, Advs.
Respondent AdvocateSarda Parmer, Adv.
DispositionAppeal dismissed
Cases ReferredBhagwandas Agarwalla v. Bhagwandas Kanu
Excerpt:
- .....for the reasons stated hereinbelow.10. the defendant-appellant is a tenant in respect of one shop room in premises no. 38/2, shibnarayan das lane. this room, as appears from the evidence on record, is adjacent to the chamber and library of the plaintiff no. 1. it is also in evidence that the plaintiff no. 1 for want of proper accommodation has to keep many of his files, papers etc. in his garage where his car is kept and the room where his typist and clerk sit is also small and as such his clients could not be accommodated therein and mostly they stand outside the chamber. a pleader commissioner was appointed for the purpose of holding 'a local inspection to ascertain (a) the total accommodation available to the plaintiff at premises no. 38/2, shibnarayan das lane; (b) the number of.....
Judgment:

B.C. Ray, J.

1. The plaintiffs-landlords filed ejectment suit No. 794 of 1972 in the City Civil Court, Calcutta for eviction of the tenant-defendant from one shop room in the premises No. 38/2, Shibnarayan Das Lane, P.S. Amherst Street, Calcutta on the ground of default in payment of rent from Nov., 1968 to May, 1972 and for reasonable requirement for their own use and occupation as plaintiff No. 1, who is a Chartered Accountant cum income-tax practitioner, requires it for his chamber and library. It has been stated in the plaint that the notice of ejectment was duly sent to the defendant terminating his monthly tenancy with effect from the date of expiry of the month of April 1972. This notice was sent under registered cover with acknowledgment due. The notice was duly received by the defendant. After, the filing of the plaint, an application under Order 6, Rule 17 C.P.C. for amendment of the plaint was filed and it was prayed in that application that the plaintiffs may be permitted to amend the plaint by inserting para 4A in the plaint which is as follows : --

'The plaintiff No. 1 is a Chartered Accountant and an Income-tax practitioner and has his chamber and library in the room adjoining to the defendant's tenancy. The plaintiffs state that the room, where the chamber and library of the plaintiff No. 1 is situated, is very small and is insufficient for the purpose of his practice and as such the plaintiffs require the said premises for the purpose of chamber and library of the plaintiff No. 1 and the plaintiffs are not in possession of any reasonably suitable accommodation'.

2. This application was allowed and the plaint was permitted to be amended accordingly. An additional written statement was also permitted to be filed by the defendant. In the written statement filed by the defendant it was specifically pleaded that the plaintiffs did not require the suit room for their own use and occupation and it has been further stated that the defendant was not a defaulter in payment of rent and it has also been stated that the notice of ejectment was not legally valid and was not sufficient to terminate the tenancy of the defendant.

3. Five issues were framed. They are as follows : --

1. Is there any relationship of landlord and tenant between the parties?

2. Is the defendanta defaulter since Nov., 1968?

3. Whether the plaintiffs reasonably require the suit premises for their own use and occupation?

4. Whether the ejectment notice served on the defendant is valid, legal and sufficient?

5. To what reliefs are the plaintiffs entitled?

4. As regards issue No. 1, which was not pressed, was decided in favour of the plaintiffs. Issue No. 2 was decided in favour of the defendant. As regards issue No. 4, namely, whether the ejectment notice was valid, legal and sufficient, an application was filed on behalf of the defendant to hear this issue as a preliminary one. Issue No. 4 was taken up by the learned Judge for decision on 14th Mar., 1978 and by Order No. 79 it was held that though in the notice of ejectment, it was mentioned that the notice was issued under Section 102 of the T. P. Act read with section 13(6) of the West Bengal Premises Tenancy Act 1956, the mentioning of Section 102 of the T. P. Act was a typographical mistake. It was in fact a notice under Section 106 of the T. P. Act read with Section 13(6) of Act XII of 1956. It was also held that the said notice is a valid notice and the same is binding upon the defendant. It was further held that the defendant also treated the said notice as a combined notice under Section 106 of the T. P. Act read with Section 13(6) of Act XII of 1956. This issue No. 4was, therefore, held in favour of the plaintiffs.

5. On 24th Apl., 1978, P. K. Roy, Judge, City Civil Court, 11th Bench, Calcutta, decreed the suit holding that the plaintiffs proved their claim for reasonable requirement of the premises in question for the purpose of plaintiff No. 1's chamber. It was further held that the defendant's case that he was carrying on biri manufacturing business in the suit room was an afterthought. It has been further held that the plaintiffs satisfactorily proved that the plaintiff No. 1 needs the premises in question as additional accommodation. The suit was accordingly decreed and the defendant was directed to quit and vacate the suit premises and to deliver possession of the same to the plaintiffs on the expiry of the last date of the month of May, 1978.

6. Against this judgment and decree the instant appeal has been preferred. Mr. Satyasanti Mukherjee, learned Advocate appearing on behalf of the appellant has urged with great persuasion that the notice is a bad and invalid notice inasmuch as in the notice it has been specifically mentioned that it was issued under Section 102 of the T. P. Act. It has been submitted by Mr. Mukherjee that Section 102 T. P. Act does not envisage to terminate the contract between the parties. His second attack is that it has been stated by D.W. 1, the wife of the defendant in her deposition that the shop room is used for biri manufacturing purpose which is a manufacturing purpose and as such six months' notice and not one month's notice is necessary to terminate the contract of tenancy. In support of this submission, Mr. Mukherjee has cited before us some decisions of the Supreme Court. Mr. Mukherjee also criticised the finding of the Court below on the ground that the Court below was wrong in holding that mention of Section 102 of T. P. Act was mere typographical error without any material on record. It has, therefore, been submitted by Mr. Mukherjee that on this notice the instant suit is not at all maintainable. The second submission of Mr. Mukherjee was that the alleged ground of reasonable requirement for which the suit has been brought has also not been proved, inasmuch as, it is evident from the deposition of P.W. 2, the plaintiff No. 1, Kanupada Bhowmick that he has got a chamber at 10, Kiran Sankar Roy Road. There is nothing on record to show what is the area of this chamber and no commission has been taken for measurement of this chamber in order to ascertain whether this chamber is an alternative suitable accommodation for the plaintiffs' purpose or not. It has, therefore, been submitted that the findings on the ground of reasonable requirement arrived at by the Court below is also not a proper finding. It has been lastly submitted by referring to some decisions that the finding of the Court below is also not a proper finding in accordance with the provisions of Section 13(l)(ff) as there is no clear finding that the plaintiff has got no other suitable alternative accommodation and in this respect, Mr. Mukherjee has referred to some decisions before us.

7. Mr. Mukherjee lastly submitted that he has already brought an additional fact to the notice of the Court that the mother of the plaintiffs died and as such the room that was in the occupation of the mother fell vacant and that requires to be considered whether in such circumstances, plaintiffs will need further accommodation or not.

8. Miss Sarda Farmer, learned Advocate appearing on behalf of the respondents, has, on the other hand, submitted that the notice of ejectment that has been duly served on the defendant is a valid, legal and sufficient notice, inasmuch as, the notice was meant for both the purposes, to be one issued under Section 106 of the T. P. Act as well as under Section 13(6) of the West Bengal Premises Tenancy Act, 1956. The tenancy of the defendant-appellant has been legally terminated by the said notice. It has been next submitted in this connection by Miss Parmer by referring to some of the decisions of the Supreme Court as well as of the Privy Council that the notices are to be interpreted not with the purpose of finding fault with them but with the purpose of giving them their proper meaning. It has been submitted that viewed from that angle of vision, the notice (Ext. 1) is a legal and valid notice which terminates the tenancy of the defendant legally. Miss. Farmer also submitted in this connection that the story that the purpose of the tenancy was a manufacturing purpose, namely, manufacturing of biri, was a get-up story. This story was voiced for the first time in the deposition of D.W. I, wife of the defendant. She further submitted by drawing the attention of the Court that the reply dated 4th Mar., 1972 that was given by the defendant lawyer immediately after receiving the notice of eviction, nowhere states that the purpose of the tenancy was for manufacturing biri in the suit premises. It has, therefore, been submitted that the notice cannot be challenged as insufficient on this ground. It has been next submitted by Miss Parmer by referring to the deposition of the plaintiff that the plaintiff has proved that they need the premises in question reasonably for the purpose of the chamber and library at his residence where he entertains his clients relating to Income-tax matters while in his chamber at 10, Kiran Sankar Roy Road, he maintains his office for different works. It has also been said that it has been specifically stated by the plaintiff No. 1 that that office is held at Kiran Sankar Roy Road from 10.30 a.m. to 5 p.m. It has, therefore, been submitted that the plaintiff has proved beyond doubt his reasonable requirement of the suit premises for the purpose of his chamber and library.

9. After hearing learned Advocates for both the parties and after appraisement of the evidence on record including the commissioner's report and the commissioner's evidence, we do not find any infirmity in the findings arrived at by the Court below for the reasons stated hereinbelow.

10. The defendant-appellant is a tenant in respect of one shop room in premises No. 38/2, Shibnarayan Das Lane. This room, as appears from the evidence on record, is adjacent to the chamber and library of the plaintiff No. 1. It is also in evidence that the plaintiff No. 1 for want of proper accommodation has to keep many of his files, papers etc. in his garage where his car is kept and the room where his typist and clerk sit is also small and as such his clients could not be accommodated therein and mostly they stand outside the chamber. A Pleader Commissioner was appointed for the purpose of holding 'a local inspection to ascertain (a) the total accommodation available to the plaintiff at premises No. 38/2, Shibnarayan Das Lane; (b) the number of rooms in possession of the plaintiffs and their present mode of user; (c) accommodation available to the defendant at premises No. 38/2, Shibnarayan Das Lane, Calcutta; and the Commissioner was directed to take measurement of the room, open spaces and covered verandahs and to prepare a sketch map showing the positions of accommodations in possession of the plaintiffs and the defendant. The Commissioner as appears from her report served notices on both the defendant as well as on his lawyer and she inspected the disputed premises twice. The defendant did not attend on any of these occasions of the inspections held by the Commissioner and the room in question was also under lock and key. As such the Commissioner could not get any opportunity to see and to take exact measurement of the shop room in question. However, the Commissioner after local inspections and after seeing the room from the adjoining room submitted her report giving details of the accommodations in possession of the plaintiffs. There is no application objecting to the Commissioner's report filed by the defendant. The Commissioner's report was accepted. The Commissioner has also deposed as P.W. 1 and she also in her deposition confirmed the statement made in her report. P.W. 2, the plaintiff No. 1, specifically stated that his chamber to the east of the disputed room was very small and as such he required additional accommodation for the purpose of his chamber and library. He has also stated in a very straightforward way that he has another chamber at 10, Kiran Sankar Roy Road where he attends from 10.30 a.m. to 5 p.m. He also stated that he entertains his clients as Income-tax Practitioner in his chamber at his residence and there are also two telephones in his chamber. He denied that the tenancy of the defendant in respect of the shop room was for the purpose of manufacturing biris. On the other hand he stated that the shop room remains under lock and key for some time. Against this evidence, D.W.1 the wife of the defendant deposed. She simply stated in her examination-in-chief that the suit room is used for bin manufacturing purpose. She further stated in her evidence that in the rent receipt there is no mention that the shop room was let out to her husband for manufacturing biri. She also admitted that she does not know whether to manufacture biri any licence is necessary. She further stated in cross-examination that it was not a fact that she had deposed falsely that she runs a biri manufacturing business in the disputed room. Her further case in her deposition is that one Agnu Shah was the wholesale dealer to whom she used to sell biris. This Agnu Shah was examined as D.W. 2. It was his evidence that he had a grocer shop at Kankinara, Naihati. He further admitted that he had no document to show that he had purchased biris from the defendant.

11. On a consideration and appraisement of these evidences it is quite clear and apparent that the alleged story that the tenancy of the shop was for manufacturing purpose has got no basis. Moreover, if actually tenancy was for manufacturing purpose, then it would have been mentioned in the rent receipt which is conspicuous by its absence. Moreover in the reply given by the defendant's Advocate (Ext. A) to the ejectment notice, there is no whisper that the notice of ejectment was bad being one month's notice instead of six months' notice as the tenancy was for manufacturing purpose. Considering all these things, we cannot but hold that the story tried to be set up by the defendant regarding the purpose of the tenancy as one for manufacturing purpose is a myth and has got no basis at all. We, therefore, shun to enter into the question whether biri manufacturing does come within manufacturing purpose or not and for that purpose, we think it unnecessary to discuss the decisions cited before us in this respect.

12. The next question is regarding the validity and sufficiency of the notice. 1Undoubtedly the notice (Ext. 1) mentioned that the notice was given both under Section 102 of T. P. Act and also under Section 13(6) of the West Bengal Premises Tenancy Act, 1956. The defendant knew very well what was meant by the notice and what was the purport of the notice. In Ext A nothing has been stated about the invalidity of the notice on this score and it has been rightly held by the Court below that both the plaintiffs and the defendant knew that the notice was a combined notice under Section 106 of the T. P. Act read with Section 13(6) of West Bengal Premises Tenancy Act, 1956. Apart from this, even assuming for arguments' sake that the notice is not under Section 106 of T. P. Act still then let us consider whether that invalidates the notice. It is pertinent to mention here the lucid observation of the Supreme Court in : [1980]1SCR334 V. Dhanpal Chettiar v. Yesodai Ammal, where Mr. Justice Untwalia has observed as follows : --

'To get a decree or order for eviction against a tenant under any State Rent Control Act it is not necessary to give notice under Section 106 T. P. Act. Determination of lease in accordance with the Transfer of Property Act is unnecessary and a mere surplusage because the landlord cannot get eviction of the tenant even after such determination. The tenant continues to be so even thereafter. That being so, making out a case under the Rent Act for eviction of the tenant by itself is sufficient and it is not obligatory to found the proceeding on the basis of determination of lease by issue of notice in accordance with Section 106 of the T. P. Act. It is not correct to say that Section 106, T. P. Act merely providing for determination of a lease either by a lessor or the lessee by giving the requisite notice is an extra protection for eviction. The purpose of the provision is merely to terminate the contract which the overriding Rent Acts do not permit to be terminated. The tenant becomes liable to be evicted and forfeiture conies into play only if he has incurred the liability to be evicted under the State Rent Act, not otherwise.'

This observation of the Supreme Court has been followed in the later cases reported in : [1981]1SCR139 and AIR 1982 SC 783 (1). It is also relevant to mention in this connection that even if the notice mentioned in Section 106 of the T. P. Act, which according to the above, observation of the Supreme Court is surplusage, has not been given the notice cannot be regarded as a bad notice as the notice specifically mentioned that it is a notice given under Section 13(6) of the West Bengal Premises Tenancy Act, 1956.

13. Even if the notice is taken as it is, still then the notice cannot be held to be legally invalid or insufficient. As it has been held that a notice is to be viewed not with the purpose of giving it a meaning which will invalidate it but with the purpose of seeing that the notice be properly interpreted as valid. Reference may be made in this connection to the observation of the Supreme Court in : [1977]3SCR75 , where Bhagawati J. in the case of Bhagwandas Agarwalla v. Bhagwandas Kanu : --

'Now it is settled law that a notice to quit must be construed not with a desire to find faults in it, which would render it defective, but it must be construed at res magis valiat quasi pereat. The validity of a notice to quit as pointed out by Lindsay L. J. in Side botham v. Holland, (1895) 1 QB 378 'ought not to turn on the splitting of a straw'. It must not be read in a hyper-critical manner, nor must its interpretation be affected by pedagogic pedantis or overrefined subtlety, but it mast be construed in a commonsense way'.

Viewed from this angle of vision, we think the Court below is perfectly justified in holding that the notice is a perfectly valid, legal and sufficient notice.

14. For the reasons aforesaid, the irresistible conclusion follows that the appeal fails and is dismissed with costs. The judgment and decree of the Court below are hereby affirmed.

S. K. Mookherjee, J.

15. I agree.


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