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Gosto Behari Roy Vs. Ramesh Chandra Das - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberA.F.A. No. 1425 of 1971
Judge
Reported inAIR1978Cal235,82CWN617
ActsContract Act, 1872 - Section 19; ;Transfer of Property Act, 1882 - Section 111
AppellantGosto Behari Roy
RespondentRamesh Chandra Das
Appellant AdvocateRanjit Kumar Banerjee, ;Manindra Nath Chakraborti, ;Rajat Kumar Basu and ;Durgadas Roy, Advs.
Respondent AdvocateBijitendra Mohan Mitra, Adv.
DispositionAppeal dismissed
Cases ReferredCalcutta Credit Corporation Ltd v. Happy Homes
Excerpt:
- .....the west bengal premises tenancy act? issue no. 7. was the defendant a free agent in writing the letter of agreement? issue no. 8 -- has the tenancy of the defendant been determined by a valid notice to that effect 6. during trial the plaintiff did not examine himself but his brother bash behari roy alone gave evidence in support of the plaintiff's case while the defendant examined himself as also madan gopal chakraborty and suresh chaudra das in support of his case. the learned munsif held that the notice was valid and operative in law as it gave the tenant defendant requisite time to vacate terminating the tenancy on the expiry of the english calendar month and there was also a threat of suit in case of non-compliance. 7. in regard to the letter on sept. 12, 1965 the learned munsif.....
Judgment:

Salil Kumar Datta, J.

1. This is an appeal by the plaintiff from a judgment of affirmance. The plaintiff appellant instituted the suit on Dec. 14, 1965 for recovery of possession of the suit premises being the first floor and a portion of the ground floor and a tiled shed of premises No. 3/1A, Mahendra Road. Calcutta which the defendant respondent held as a monthly tenant under him at a monthly rent of Rs. 110/- according to English Calendar, The material allegations were that file defendant who was inducted in the suit premises prior to 1954 agreed by a letter in writing dated Sept. 12, 1962 to deliver vacant possession thereof on the expiry of threeyears from the date. The said letter written by the defendant by his own hand, is as follows :--

' Sri G. B. Roy, LL. B.,

Advocate,

16A, Nandan Road,

Calcutta-25.

Dear Sir,

Re: Portion of 3/1A, Mahendra Road, Calcutta-25 occupied by me as a tenant.

I understand from Sri Jitendra Nath Mukherjee that you require vacancy of your house as aforesaid and you will be happy if I vacate it on the expiry of three years from date. As a gesture of good relation with you, 1 shall accordingly act. 3/1A, Mahendra Road.,

Calcutta-25. 12th September, 1962.

Yours faithfully,

Hamesh Chandra Das',

2. The plaintiff sent a letter on July 31, 1965 to the defendant reminding him about the said agreement, which, it appears, was duly received but no reply was given. The defendant failed to deliver possession of the premises as aforesaid and was also guilty of acts of waste in the meantime in respect of the premises acting contrary to provisions of Clause (m) of Section 108 of the T. P. Act, 1882.

3. The plaintiff served a notice to quit dated Oct. 6, 1965 directing the defendant to deliver vacant possession of the premises with the expiry of the month of Nov. 1965-This notice, as it reads, was one under Section 13 (6) of the West Bengal Premises Tenancy Act, 1956 as also under Section 106 of the T. P. Act, 1882 and thereafter the suit was filed as stated above.

4. The defendant in his written statement denied the allegations of waste and in regard to his letter of Sept. 12, 1962 stated that as there was a mortgage suit in respect of the suit property being T. S. No, 48 of 1958 of the Fourth Court of the Subordinate Judge at Alipore, there was a proposal for sale of the property to him through the plaintiff's friend and the defendant's acquaintance Shri Jitendra Nath Mukherjee. As the sale price of Rs. 50,000/- was too high the proposal was not acceptable to him, Then the plaintiff stated that as it would be difficult to get the purchaser for a tenanted house, he requested the defendant importunately to give a letter to the effect that the defendant would vacatethe suit premises on the expiry of three years. The plaintiff assured the defendant that he would be able to put off the disposal of the suit T. S. No. 48 of 1958 of the Fourth Court of the said Subordinate Judge and to get a purchaser of the house. He further assured the defendant that the said letter would never be treated as a notice to quit by him. The defendant could not disoblige the plaintiff and in good faith wrote the said letter at the dictation of the plaintiff in the presence of three gentlemen, two of whom were Sri Suresh Chandra Das and Sri Shudhanshu Majumdar while he had forgotten the name of the third gentleman. The written statement further proceeded to say that he was not a free agent in writing the said letter and the plaintiff practised fraud on him. In view of house scarcity particularly in respect of a house suitable to his pocket for the purpose of residence and practice as Chartered Accountant, he would not have set his foot on the trap laid by the plaintiff for him if he had any glimpse of the working of the mind of the plaintiff. It was further stated that the said letter, even if treated as a surrender of tenancy, in any event was not accepted by the plaintiff. The defendant also denied the allegations of committing acts of waste as contained in the provisions of Clause (m) Section 108 of the T. P. Act. It was accordingly submitted that the suit should be dismissed.

5. In the trial the learned Munsif framed amongst others the following issues. 'Issue No. 3. Is the plaintiff entitled to decree for ejectment against the defendant under Section 13 (1) (b) and Section 13 (1) (k) of the West Bengal Premises Tenancy Act? Issue No. 7. Was the defendant a free agent in writing the letter of agreement? Issue No. 8 -- Has the tenancy of the defendant been determined by a valid notice to that effect

6. During trial the plaintiff did not examine himself but his brother Bash Behari Roy alone gave evidence in support of the plaintiff's case while the defendant examined himself as also Madan Gopal Chakraborty and Suresh Chaudra Das in support of his case. The learned Munsif held that the notice was valid and operative in law as it gave the tenant defendant requisite time to vacate terminating the tenancy on the expiry of the English Calendar month and there was also a threat of suit in case of non-compliance.

7. In regard to the letter on Sept. 12, 1965 the learned Munsif held that the letter could Dot be treated as an agreement between theparties as it was not signed by both the parties. Further the letter was not acted upon as the plaintiff gave a notice of ejectment terminating the tenancy with the expiry of the month of November 1965. Accordingly it was held that the plaintiff was not entitled to get the decree for eviction under Section 13 (1) (k) of the Act. It was further held that the allegations of the acts of waste were too vague and the evidence failed short to give the plaintiff the decree on this ground. The suit was accordingly dismissed.

8. On appeal the learned Judge held that though the letter of 12th Sept., 1962 Ext. 2 embodied express agreement on the part of the defendant to vacate the suit premises on the expiry of three years thereof, the finding of the trial Court that the letter was not an agreement not having been bilaterally executed was wrong. The learned Judge was, however, of opinion that in view of the allegations made by the defendant in respect of Ext. 2 that the plaintiff persuaded the defendant to write the letter on false assurances there was no satisfactory explanation why the plaintiff did not come to the witness box and deny on oath that he obtained from the defendant the Ext. 2 on false assurances. The Court was entitled to draw an adverse inference against the plaintiff and the learned Judge also accepted the evidence of the defendant and of Madan Chakraborty and Suresh Chandra Das who being then present knew the circumstances in which the letter Ext. 2 was written. It was accordingly held that the plaintiff obtained from the defendant the letter Ext. 2 by exercising fraud as alleged in the written statement and he could not take advantage of his own fraud nor could the defendant be evicted on that ground. The learned Judge concurred with the finding of the trial court that no case under Section 13 (1) (b) of the Act was made out. The appeal was accordingly dismissed.

9. Mr. Ranjit Kumar Banerjee learned Advocate for the appellant contended that the appellate court's finding that there was fraud on the part of the appellant was unwarranted in law, as no issue was framed in respect thereof nor were the required particulars set out in the plaint. He referred to the decision in Bal Gangadhar Tilak v. Shriniwas Pandit, 42 Ind App 135 : (AIR 1915 PC 7) in which the Privy Council observed that general allegations however strong are insufficient even to amount to an averment of fraud of which any court ought to take notice.

10. He further referred to the decision in Ningawwa v. Byrappa, : [1968]2SCR797 in which the Court restated the established proposition of law that a contract or other transaction induced or tainted by fraud is not void, but only voidable at the option, of the party defrauded but until avoided the transaction is valid. Mr. Banerjee submitted that the defendant did not take any step to avoid the contract and he could not be permitted collaterally to challenge the agreement as tainted by fraud.

11. The latter submission need not detain us long, as in the said decision it has been further stated that if it can be shown that the party defrauded has at any time after knowledge of the fraud either by express words or by unequivocal acts affirmed the contract, his election is determined for ever, but the party defrauded may keep the question open so long as he does nothing to affirm the contract, Further the limitation for bringing a suit under Article 95 (of 1908 Act) is three years from date of knowledge of fraud by the wronged party. In this case the plaintiff's action to take the benefit of the letter of Sept. 12, 1962 was disclosed as it appears in June 1965 as also by his letter of July 6, 1965 and the suit for eviction was filed by him on Dec. 14, 1965. The Defendant sought to avoid the contract in his written statement filed on May 24, 1966, well within the period of limitation, in answering the plaintiff's claim based on the impugned contract, In view of the suit filed by the plaintiff on a contract based on alleged fraud it is not necessary for the defendant to file a suit for avoidance of the contract as would otherwise be necessary.

12. Section 19 of the Indian Contract Act, 1872 provides that a contract is voidable at the option of the party when his consent to an agreement is not free but is caused by coercion, fraud or misrepresentation. The averments in the written statement if true clearly indicate that the consent of the defendant to the agreement for vacating the suit premises was not free but caused by fraud. The issue on such averments that the defendant was not a free agent in writing the letter of agreement was comprehensive enough to cover case of fraud as the basis of the contract according to the defendant. As the unrebutted evidence establishes, the plaintiff assured that the impugned letter would never be utilised to the detriment of the defendant which as the plaint indicates was an act of deception. It could also be said that in the context of the relationshipbetween the parties as landlord and tenant there was nothing unusual for the defendant to oblige, and, be dominated by, his landlord the plaintiff on the fact of his assurance for maintaining good relations with the landlord and such averments again were clearly within the ambit of issue No. 7 in the suit. Similar consideration for avoidability by wronged party of such contract induced by undue influence will prevail as in the case of contract obtained by fraud as indicated above.

13. On the issue No. 7 the plaintiff has not come forward to give his testimony in rebuttal of the defence case for no ostensible reason. The plaintiff should have appeared himself to disprove the defence case that the writing WAS obtained by fraud or undue influence. Alternatively he should have prayed for examination of the defendant first to prove his case to enable him to adduce evidence in rebuttal. His only witness, his brother, had and could have no personal knowledge about the assurance alleged to have been given to the defendant about the disputed letter. On the other hand the defendant's evidence to that effect supported by D. Ws. 2 and 3 goes unchallenged and was rightly accepted by the court below in the said circumstances as contended by Mr. Bijitendra Mohan Mitra, learned Advocate for the defendant respondent. The plaintiff accordingly cannot take advantage of the fetter of Sept. 12, 1962 which is unenforceable in law being vitiated by fraud and undue influence.

14. The learned trial court has further found that the agreement being a unilateral document signed only by the defendant could not be treated as an agreement in absence of the signature of the other party. The agreement of the nature we are concerned with, though it is to be in writing by the tenant under Clause (k) of Section 13 (1) is not required to be signed by the landlord in token of acceptance if there is any overt act indicating his acceptance thereof. There is no dispute that the disputed letter was accepted by the landlord, though it is said by the defendant for other purpose. Though it may be con-tended as we shall presently see that there was no real acceptance of the offer of surrender which was the purport of the letter, it is not necessary that there must be any writing by the landlord in token of accept-ance.

15. Mr. Mitra has further drawn my attention to the finding of the trial court that the disputed letter was not accepted or actedupon by the plaintiff. If in fact the defendant surrendered the tenancy with effect from three years from Sept. 12, 1962 the relationship of landlord and tenant between the parties ceased to exist on the expiry of the said period and no notice determining the tenancy with the expiry of November 1965 was necessary. Further Sub-section (6) of Section 13 of the West Bengal Premises Tenancy Act, 1956 excludes any notice of suit when ejectment is sought for on grounds of Clauses (j) and (k) of Sub-section (1) of Section 13. The notice served on the defendant, as it expressly states, is both under Section 13 (b) of the said Act as also under Section 106 of the Transfer of Property Act. 1882. Of course eviction was also sought for on ground of Clause (b) of Section 13 (1), but by determining the tenancy with effect from the expiry of Nov. 1965, beyond Sept 12, 1965, the plaintiff allowed the original tenancy to continue or treated the tenancy as subsisting which according to his case, ceased and determined on the expiry of three years from the date of the letter. It was observed in Calcutta Credit Corporation Ltd v. Happy Homes (P) Ltd. : [1968]2SCR20 as follows:--

'Once a notice is served determining the tenancy or showing an intention to quit on the expiry of the period of the notice the teancy is at an end unless with the consent of the other party to whom the notice is given the tenancy is agreed to be treated as subsisting.'

The result was that even if the letter ofSept. 12 1962 is accepted as a valid notice of surrender of the tenancy, the same, by reason of Fresh notice allowing the tenancy to continue beyond the date of expiry, was not accepted or acted upon by the plaintiff and the original tenancy was treated as subsisting, as before though validly determined by the notice of Oct. 6, 1965.

16. The plaintiff was accordingly entitled to a decree under Clause (b) of Section 13 (1) if established, but, as we have seen, both courts have found against him on this issue. The findings in respect thereof are binding on this court as findings of fact and eviction on this ground has not been pressed in this appeal,

17. As all contentions raised by the appellant fail this appeal is dismissed with costs.


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