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Smt. Ina Kar Vs. Amitava Ghosh - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberA.F.O.D. No. 58 of 1979
Judge
Reported inAIR1982Cal149
ActsCode of Civil Procedure (CPC) , 1908 - Order 6, Rule 2
AppellantSmt. Ina Kar
RespondentAmitava Ghosh
Appellant AdvocateS.C. Mitter, ;N.D. Roy and ;Bhudeb Bhattacharjee, Advs.
Respondent AdvocateBholanath Bhattacharjee, Adv.
DispositionAppeal allowed
Cases ReferredBank v. S. N. Ghosh
Excerpt:
- .....the defendant, amitava ghosh, was her tenant regarding the disputed premises at 2e, kala chand sanyal lane, shyampukur, calcutta, at amonthly rental of rs. 250 payable according to the english calendar. the defendant is a defaulter from november, 1973. he has illegally sublet or transferred a portion of that flat without her permission after the provisions of the west bengal premises tenancy act, 1956, came into force. she requires the said premises for her own use and occupation, the defendant's tenancy was duly determined by a notice to quit, the suit is for ejectment. 2. the defendant filed a written statement denying the plaintiff's allegations and stated that he did not transfer or sublet the premises in question. 3. the learned judge of the city civil court disbelieved the.....
Judgment:

B.N. Maitra, J.

1. The plaintiffhas alleged that the defendant, Amitava Ghosh, was her tenant regarding the disputed premises at 2E, Kala Chand Sanyal Lane, Shyampukur, Calcutta, at amonthly rental of Rs. 250 payable according to the English Calendar. The defendant is a defaulter from November, 1973. He has illegally sublet or transferred a portion of that flat without her permission after the provisions of the West Bengal Premises Tenancy Act, 1956, came into force. She requires the said premises for her own use and occupation, The defendant's tenancy was duly determined by a notice to quit, The suit is for ejectment.

2. The defendant filed a written statement denying the plaintiff's allegations and stated that he did not transfer or sublet the premises in question.

3. The learned Judge of the City Civil Court disbelieved the plaintiff's version, held that the defendant was not a defaulter and the plaintiff did not require the premises in question for her own use and occupation. He also disbelieved the story of subletting to Sadhan Sarkar. The suit was therefore, dismissed Hence this appeal by the appellant.

4. It has been contended on behalf of the plaintiff-appellant that the evidence on record clearly shows that the plaintiff's version is the true one. The documentary evidence has clearly established her case.

5. It has been urged on behalf of the respondent that the plaintiff failed to establish her case. Sadhan Sarkar is a friend of the defendant's family. He occasionally comes to the defendant's flat and stays there. But he is a permanent resident of Kanchrapara. The learned Judge rightly disbelieved the plaintiff's version.

6. The question for consideration is whether the defendant has sublet a portion of the disputed premises without the previous consent in writing of the landlord, as alleged. It is necessary to point out at the outset that the plaintiff's case is that the alleged subletting took place after the provisions of the West Bengal Act XII of 1956 came into operation.

7. The plaintiff's husband, p. W. 1, Samir Kar, was examined to prove her version of subletting by defendant to Sadhan Sarkar. She has also examined P. W. 2, Krishna Chandra Polley, P. W. 3. Amarendra Nath Acharya, and P. W.4. C. S. Venkatesh, to substantiate her allegations. She has also produced anemployee of the State Bank of India viz., P. W. 3, Amarendra Nath Acharya. He works in the Shyambazar branch of the State Bank of India. He says that one Sadhan Chandra Sarkar of 2E. Kala Chand Sanyal Lane opened an account in their branch, p. W. 4, C. S. Venkatesh, proved Sadhan Chandra's signature on the application form of Metal Box Co. of India Ltd. The learned Judge disbelieved this evidence on the ground that the identity of D. W. 2, Sadhan Chandra Sarkar, was not established. In other words, the plaintiff could not prove that the account holder at the Shyambazar branch of the State Bank of India and of the fixed deposit of Metal Box Co. was the same person as D. W. 2, Sadhan Chandra Sarkar, who is claimed by the plaintiff as the subtenant of the defendant.

8. Let us now go to the evidence of the defendant. D. W. 1. Amitava Ghosh, is the defendant. He says that Sadhan Babu occasionally stays in his house. But no such case was made out in the written statement. D. W. 2, Sadhan Sarkar, has made the same version by saying that he occasionally stays at premises No. 2E, Kalachand Sanyal Lane.

9. Law in this respect is clear. In the case of Trojan and Company v. Nagappa, reported in : [1953]4SCR789 it has been stated that the decision of a case cannot be based on grounds outside the parties' pleadings and it is the case pleaded that is to be found by the court. In the case of Venkatramana reported in : [1958]1SCR895 , it has been stated that a case which has not been made out in the pleading should not be considered by the court and evidence to support such case cannot be allowed. This decision of the Supreme Court was followed by a Bench of this Court in the case of West Bengal Co-operative Bank v. S. N. Ghosh reported in (1980) 84 Cal WN 221. Since no such case was pleaded in the written statement, the learned Judge was absolutely wrong in allowing D. W. 1, Amitava, and D. W. 2, Sadhan, to adduce evidence that the latter occasionally stays at premises No. 2E, Kala Chand Sanyal Lane. Mr. Mitter has pointed out that D. W. 1, Amitava Ghosh, has stated that Sadhan does not live in his premises for the last 5 years. He has also drawn our attention to the documentary evidence, Ext. 6, which wasissued by the Metal Box Company of India Limited. It relates to interest of fixed deposits regarding Sadhan Chandra Sarkar of 2E, Kala Chand Sanyal Lane. That document is dated 30th June, 1978. It shows that interest wag due to Sadhan Chandra Sarkar of 2E Kala Chand Sanyal Lane from the 1st April. 1978, to 30th June, 1978.

10. Let us now turn to the evidence given by D. W. 2, Sadhan Chandra Sarkar. He has admitted in his chief that he has an account with the State Bank. The authority wanted for a local address and so he gave the address of Amitava Babu as his address. He further admits in his chief that he also made a fixed deposit with Metal Box describing his address as that of Amitava Babu only to avoid postal difficulties. One fails to understand how after this evidence given by D. W. 2, Sadhan Sarkar, the learned Judge could come to the conclusion that the plaintiff failed to establish her case. In view of this evidence, the learned Judge should have believed the evidence given by P. W. 3, Amarendra Nath Acharya and p. W. 4, C. S, Venkatesh. It cannot be believed that such fixed deposit was made with the Metal Box Company by Sadhan Chandra Sarkar to avoid postal difficulties. This untrue statement should not have been accepted by the trial court. We hold that the trial court was wrong in finding that such identity of D, W. 2, Sadhan Ghosh, was not proved.

11. It has been further contended on behalf of the appellant that the money order coupon, which was marked XI for identification by the learned Judge, shows that one S. C. Sarkar gave his address at 2E, Kala Chand Sanyal Lane, Calcutta-4 and the money order coupon was signed by one Rasik Chandra Sarkar. D. W. 2, Sadhan's deposition shows that he is Rasik Chandra Sarkar's son. It is not the defence case that there is anybody else of the name of Sadhan Chandra Sarkar who stayed at 2E, Kala Chand Sanyal Lane, Shyampukur Lane, Calcutta.

12. Thus, from the aforesaid discussion the submissions made on behalf of the respondent cannot be accepted. We believe the plaintiff's version and find that Sadhan Chandra Sarkar actually lives at 2E Kala Chand Sanyal Lane, Calcutta, the defendant has sublet a portion of the disputed premises toSadhan Chandra Sarkar without the written consent of the landlord and hence, he is liable to be evicted on that ground alone.

13. The appeal is allowed. The judg-ment and decree appealed against be hereby set aside and the suit decreed. The plaintiff do eject the defendant from the disputed premises. There will be no order as to costs.

14. On the prayer made on behalf of the respondent, the operation of this order is stayed for three months from date.

Banerjee, J.

I agree.


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