Skip to content

Tulsiram Shaw Vs. R.C. Pal Ltd. - Court Judgment

LegalCrystal Citation
CourtKolkata High Court
Decided On
Case NumberCivil Original Suit No. 1801 of 1948
Reported inAIR1953Cal160
ActsEvidence Act, 1872 - Section 154; ;Calcutta Municipal Act, 1923 - Section 3(7); ;Calcutta Rent Ordinance, 1946 - Section 2(5); ;Transfer of Property Act, 1882 - Section 111
AppellantTulsiram Shaw
RespondentR.C. Pal Ltd.
Appellant AdvocateB.K. Ghose, Adv.
Respondent AdvocateR.K. Ghose, Adv.
DispositionSuit decreed
Cases ReferredDoe v. Spiller
- a rent of rs. 40/- per month. it is the plaintiff's case that such tenancy was terminated by notice to quit, dated 28th december 1945. the plaintiff claims possession and mesne profits.3. the written statement on behalf of the defendant company was filed and verified by h. c. pal or ramesh chandra pal, who has described himself as the managing director of the defendant company.4. on the pleadings, the following issues were settled: (1) was the land vacant land? (2) is the notice to quit valid in law? (3) to what relief, if any, is the plaintiff entitled?5. issue no. 1: this issue is a question of fact. according to the defendant company the land that was let out was not vacant land. that is the plea in the written statement. in giving particulars in para 4 of the written statement.....

1. This is an action in ejectment instituted on 13th May 1948.

2. In this suit the plaintiff is suing as the trustee of a trust estate known as debutter estate of Sri Purushottamdas Bhagwan. A vacant plot of land on the premises No. 17, Bolai Singhee Lane, Calcutta, was let out to the defendant company at a rent of Rs. 40/- per month. It is the plaintiff's case that such tenancy was terminated by notice to quit, dated 28th December 1945. The plaintiff claims possession and mesne profits.

3. The written statement on behalf of the defendant company was filed and verified by H. C. Pal or Ramesh Chandra Pal, who has described himself as the Managing Director of the defendant company.

4. On the pleadings, the following issues were settled: (1) Was the land vacant land? (2) Is the notice to quit valid in law? (3) To what relief, if any, is the plaintiff entitled?

5. ISSUE NO. 1: This issue is a question of fact. According to the defendant company the land that was let out was not vacant land. That is the plea in the written statement. In giving particulars in para 4 of the written statement on this point, the defendant says that there is upon the said portion a building consisting of walls completely enclosing the said portion with a corrugated iron gate. This case of the written statement improved in evidence and I shall presently deal with the testimony of a witness produced on behalf of the defendant company and also suggestions made in the cross-examination of the plaintiff.

6., 7. and 8. (His Lordship considered the oral evidence and continued:) On the evidence of the plaintiff, I must hold that this was a vacant land. On the evidence of the solitary witness Kali Charan Jaiswal who was produced by the defendant company, only the same conclusion can be reached that the land is vacant land and bustee land. The conclusion is re-inforced by the fact that no one from the defendant company has come to say that it was otherwise. This much on the oral evidence.

9. The evidence on the documents bears out the same conclusion that the land when let to the defendant was vacant land.

10. That this was bustee land is apparent from the Deed of Settlement which has been exhibited in this suit where this portion of the land in Sch. 'D' to that Deed is described as 'bustee land measuring one bigha eight cottahs fifteen chittacks more or less.' Then again in the notice to quit dated 28th Decembeer 1945 the plaintiff's solicitors make it distinctly clear that the defendant company was an occupation of only ' a portion of the land' at No. 17, Bolai Singhee Lane as a monthly tenant. The defendant company replied on the 26th January 1946 to this notice. In this reply the defendant company far from contending that it is not vacant land expressly refers to 'portion of land' and plot. Not a word was suggested in the reply that it was anything other than vacant land.

11. On this evidence I hold that the land let out to the defendant was vacant land in fact.

12. Mr. R.K. Ghose, learned counsel for the defendant company finding the defendant's witness Kali Charan Jaiswal proving unhelpful to the defendant's case, wanted to declare him hostile. There was, however, no material on the basis of which the witness Kali Charan Jaiswal could be declared hostile. There is no evidence that the testimony of this witness contradicts any proof given by him. No reason or occasion is shown why he should bear any animus or prejudice against the defendant. Nothing on record, his testimony and his demeanour show that he was not desirous of telling the truth as he knew it. A witness is not necessarily hostile if in speaking the truth as he knows and sees it, his testimony happens to go against the party calling him. I do not consider that there is any proposition in the law of evidence as I understand it, that a witness who is not partial or partisan in favour of the party calling him is on that ground alone to be treated as hostile. The Court always aspires to find if the witness desires to tell the truth. That aspiration is the yardstick which measures the appreciation of the evidence of a witness. It is with that object that the Court is given the discretion to permit the person who calls a witness to put any question to the witness which might be put to him in cross-examination. That provision is enacted in Section 154, Evidence Act. As Sir Lawrence Jenkins delivering judgment of the Privy Council in -- 'Baikuntha v. Prasannamoyee', 27 Cal. W. N. 797 (P. C.) at p. 799 observes that this Section 154 of the Evidence Act Says nothing about declaring a witness hostile. It allows a party with the permission of the Court at itsdiscretion to cross-examine his own witness inthe same way as the adverse party. Suchcross-examination means he can be asked (a)leading questions (Section 143, Evidence Act),(b) questions relating to his previous statementsin writing (Section 145, Evidence Act) and (c) questions which tend to test his veracity, to discoverwho he is and what is his position in life or toshake his credit (Section 146, Evidence Act). Ordinarily a party calling his witness is not allowedto ask him these questions but this ordinaryrule is relaxed in Section 154, Evidence Act.The purpose of such relaxation can only be tofind out if the witness is one of truth & can berelied on because cross-examination is the mostpowerful & effective instrument for bringing outand testing truth. But that is far from sayingthat a witness is hostile whenever his testimony is such that it does not support the caseof the party calling him Such a view wouldseriously undermine the independence, integrity and dignity of a witness in a Court oflaw. Reference may be made in support of myview to the statement of the law on this pointas stated by the learned editor of Phipson'sLaw of Evidence, 8th Edn., at p. 461-

'A witness is not hostile merely because hegives evidence to a different effect from thatexpected by the party calling him.'

13. The next argument of the counsel for the defendant company on this issue requires to be noticed. It is contended that the presence of a boundary wall on the road side of the land, makes it 'premises' and not 'vacant land.' His argument is that according to the definition in Section 3(7), Calcutta Municipal Act, 'building' includes a wall. As there is the boundary wall, therefore it must be a 'Building'. The next step in his argument is that when it is a building, it must be within Section 2(5), Calcutta Rent Ordinance, 1946, which Ordinance according to Mr. Ghose is the Ordinance to be applied to this case. In that section of the Ordinance, 'premises' means a 'building'. Therefore, by the double operation of the Calcutta Municipal Act and the Rent Ordinance of 1946, Mr. Ghose wants me to hold that although I have found that the land was vacant in fact, it must be held to be a 'building' within the meaning of these two statutes. I am unable to accept that argument and come to such an insensible conclusion. The definition of a 'building' in the Calcutta Municipal Act must be read subject to the opening words of Section 3: 'For the purposes of this Act' and therefore is only limited for the purpose of the Calcutta Municipal Act and cannot be applied for the purpose of finding out whether an actual land let out to a tenant is vacant or not. The definition section of a particular statute should, in my view, be confined as a general rule to explain and define the meaning of words used in that statute and cannot be extended to define those words used in other statutes. The main reason for my view is that each statute is designed to meet a distinct and particular purpose and words used in each Statute must be read and interpreted in the context of that Statute and in aid of its purpose and object. Words are not necessarily used in the same sense in different Statutes The learned editor of the 9th Edn. of Maxwell's Interpretation of Statutes gives at page 41 numerous illustrations on the point such as the word 'goods' used differently in Bankruptcy Acts and Sale of Goods Act and the word 'bicycle' although a carriage for the purpose of furious driving is not a carriage under the Turnpike Act for the purpose of attracting the toll on carriages. I consider it is erroneous on principle and dangerous in practice to construe words used in one Statute in the light of and with reference to the definition of these words provided in another Statute. That is more so when the two Statutes are not in 'pari materia'. The Calcutta Municipal Act and the Rent Ordinance of 1946 are not Statutes which can be said to be 'pari materia'.

14. 'I, therefore, answer the first issue in the affirmative, holding that the land let out to the defendant was vacant land.

15. ISSUE NO. 2: The major attack was made under this issue on the validity of the notice to quit. The notice to quit appears as one of the admitted documents in Ex. A in these proceedings. It is dated 28th December 1945. In this notice the addressee at the top is described as 'R.C. Pal Esquire, 1, Jadu Pandit Road'. In that notice it is described:

'You are in occupation of a portion of the land comprised in the above premises as a monthly tenant at a rent of Rs. 40 per month, the month of the tenancy being according to the English calendar. You are a defaulter in respect of the payment of the rent'.

The notice therefore proceeded to ask that the land should be vacated on the expiry of the month of January 1946. In fact the exact language is

'We give you notice which we hereby do to quit and vacate the portion occupied by you on the expiry of the month of January 1946.'

This letter was replied to on 26th January 1946. The reply came from R.C. Pal Ltd. signed by R.C. Pal, the Managing Director. In that reply it is said:

'We are in receipt of your letter of 28th December 1945 and are surprised to note that your client instructed you to give us notice to quit the above plot for being defaulter in respect of the payment of the rent.'

16. The argument against the validity of this notice can now be summarised briefly. It is said that the defendant is a limited company and as such a juristic entity by itself, and therefore notice to quit addressed to R.C. Pal Esquire was a bad notice and cannot be said to have terminated the tenancy of the defendant company.

17. On behalf of the plaintiff Mr. B.K. Ghose, learned counsel, relied on the well-known decision of the Judicial Committee in -- 'Harihar Banerjee v. Ramshashi Roy', reported in 45 Ind App 222 (PC). Lord Atkinson delivering the judgment of the Board observed at p. 225:

'It has not been suggested, and could not, their Lordships think, be fully contended that the principles they lay down are not equally applicable to cases arising in India. They establish that notices to quit, though not strictly accurate or consistent in the statements embodied in them, may still be good and effective in law; that the test of their sufficiency is not what they would mean to a stranger ignorant of all the facts and circumstances touching the holding to which they purport to refer, but what they would mean to tenants presumably conversant with all those facts and circumstances; and, further, that they are to be construed, not with a desire to find faults in them which would render them defective, but to be construed 'ut res magis valeat quam pereat''.

That is the classic observation of the Privy Council on this point.

18. Mr. R.K. Ghose, appearing on behalf, of the defendant company, contended that these observations, although made in wide terms, should not be extended to cover cases where the notice to quit was addressed to the wrong person and not to the tenant at all. Put in that way the problem is misinterpreted. There can be no doubt that the law requires notice to quit to be given to the tenant and the Privy Council decision as I read it does not say otherwise. There is equally no doubt that the limited Company is a body corporate and a distinct legal entity apart from its directors -- 'Salomon v. Salomon & Co.', (1897) A C 22. But the whole question in this case is to determine whether the notice in this case was in fact to the tenant and understood and treated as such. It is unnecessary to repeat, taut I think it will bear repetition that every case should be decided on its own facts and on its own merits, and the broad principle which to my mind should be applied in these cases is that, although a notice to quit is a technical document, it need not be read and construed more technically than it must be.

19. Now, in this particular case, before I reach a conclusion, there are one or two other authorities which it is necessary to consider.

20. On behalf of the defendant company the case of -- 'Deo v. Woodman and Forster', (1807) 8 East 228 has been referred to. There the Earl of Carlisle brought an ejectment action to recover certain pasture lands in Morpeth and Mitford, in the county of Northumberland which had for many years before been demised by him to the Corporation of Morpeth as tenants from year to year, at an annual rent. There the notice to quit was directed only to the two bailiffs of the Corporation, and in fact the defendant in the action was not the Corporation but the two bailiffs only. Lord Ellenborough C. J. delivering judgment said:

'The bailiffs, as such, not being a distinct Corporation cannot have the possession-whatever they enjoy as bailiffs must be in the right of the Corporation at large. There is no evidence at all to affect these defendants; for the bailiffs are no Corporation of themselves, and therefore can have no possession; and consequently cannot, as bailiffs, be affected by the receipts for rent given to-their predecessors.'

21. I do not think this case helps the defendant. In the first instance, there is no observation here as to what the position in law is when instead of addressing the notice to a limited company or a corporation it is addressed to a person who happens in this case before me to be the managing director himself and where the name of the company is itself after the name of the managing director with a 'Limited' appended after his name.

22. On the other hand, on behalf of the plaintiff Mr. B.K. Ghosh relies on the case of -- Deo v. Spiller', (1806) 6 Esp 70: 170 E R 833. In that case the notice to quit was addressed to the tenant by a wrong Christian name. The tenant kept the notice and it was held that that was a waiver of the misdirection, and the lessor could recover on that notice to quit, if there was no other tenant of that name. Here again Lord Ellenborough delivered judgment for the plaintiff.

23. On the broad principles of interpretation of a notice to quit it is unnecessary to say much. It is common learning that each case must be taken by itself and that one decision on the meaning of a notice to quit in one context does not afford much guidance for interpretation of a notice in different words in a different context. It is necessary to look at the intention of the landlord, and when language js used which leaves the effect of the notice open to doubt, the rule of construction is to make it sensible and not insensible. Reference in this connection may be made to the observations of Ridley J. in --- 'Wride v. Dyer', (1900) 1 QB 23.

24. The latest position in law appears to me correctly expressed in Foa's Landlord and Tenant, edited in 1947, by Fcrbes J. at p. 598. According to the learned Editor, on the question of notice to quit the position is stated to be:

'It must be addressed to the proper person. A notice to a corporation should be addressed to the corporation; but a notice addressed to 'the directors' of a limited company is good. In the case of joint tenants, it seems that it may be addressed to any one of them. An omission, however, to address a notice to quit is cured if notice be proved to have been delivered to the proper person. In the same way, a mistake in the Christian name of the person to whom it was given was held to be cured by his having kept the notice without objection, there being no other tenant of the name of the property of which the promises demised formed part.'

25. The decision which is nearest to the problem for solution in this case is in -- 'Hawtrey v. Beaufront Ltd.', reported in (1946) KB 280. There Groom-Johnson J. reviewed all the leading authorities on the point. The point before that learned Judge was that a notice to quit was bad because the addressee of the notice to quit was the director of Beaufront Limited & not the company Beaufront Limited. That was the very question that was raised in that case, and at p. 287 the learned Judge poses the question: 'Is a notice in that form a good notice or not?' He proceeds to observe -- and it will bear quotation because I consider each of the observations made by the learned Judge to be relevant on the decision that I propose to take in this case. These observations appear at pp. 287 to 289. They are:

'Notices of this sort are documents of title. They are unilateral and not consensual documents. They have the object of bringing to an end a term in the land enjoyed by the tenant, and they have to be looked at with strictness in order to see whether they are in compliance with the rule illustrated by the decision of the Court of Appeal in --'Hankey v. Clayering', (1942) 2 KB 326. In the course of his judgment in that case Lord Greene M.R. said: 'It is perfectly true that in construing such a document, as in construing all documents, the court in a case of ambiguity will lean in iavour of reading the document in such a way as to give it validity, but I dissent entirely from the proposition that, where a document is clear and specific, but inaccurate on some matter, such as that of date, it is possible to ignore the inaccuracy and substitute the correct date or other particulars because it appears that the error was inserted by a slip.' The question which I have to determine is primarily a question of construction. There is no doubt that a notice to quit, when given by a landlord, should be given to the proper person.'

Thereafter the learned Judge quotes the passage which I have already quoted from Foa on Landlord and Tenant. The learned Judge dealt also with the case of--'Doe v. Spiller', (1806) 6 Esp 70 and described that case to be a case of 'falsa demonstratio'.

26. The question then turned upon the construction of the notice in that case which the learned Judge discusses at p. 288, where the same argument was made that the address being to the individual directors who were described to be in occupation, the notice was wrong and defective. Finally, what weighed with the learned Judge appears at p. 289 of the Report. Groom-Johnson J. observes:

'A limited company must, of course, act through agents. If it had been addressed to Beaufront Ltd., the document would still have had to be delivered to an agent or sent through the post to the registered office of the company, where it would have been dealt with by an agent. I think that within the rule referred to by Lord Greene M.R. in the case I have mentioned, that in a case of ambiguity the Court will favour the reading of the document in such a way as to give it validity, I ought to construe this notice as a notice to terminate the tenancy of the limited company.......... It was obviously so treated by the defendants' solicitors. They knew all about it.'

27. Here also, although the letter was written to R.C. Pal Esq., it was treated as notice to the company because the reply of January 26, 1946, indicates that. The reply itself says: 'to give us notice to quit.' Written by the limited company and signed by the managing director, this reply is proof enough to show that the notice to quit addressed to R.C. Pal Esqr., was understood and treated as notice to the company. That in my judgment is enough to hold that the notice in this case was in fact a notice to the tenant.

28. The, next reason which I think is decisive on the point is that this notice addressed to R.C. Pal, Esqr., was not only addressed to No. 1 Jadu Pandit Road, which is described in the cause title as the place where the defendant company has its registered office, but that R.C. Pal, Esqr., was, at the time when the written statement was filed, the managing director of the defendant company. It will, therefore, be 'insensible', to use the language of Ridley J., to say that this address in the notice to quit to R.C. Pal, Esqr., was being only to R.C. Pal individually in his individual capacity and not as a director, especially as managing director of the defendant company. This R.C. Pal was the duly authorised agent as Managing Director to receive notices on behalf of the defendant company. A company can only receive notice through the hand of a human agency and who could be better than the company's Managing Director himself. It is not necessary, in my opinion, for the validity of the notice to say when a letter is addressed to R.C. Pal. Esqr., that it should also have been stated that it was only in his capacity as director or the managing director of the company. That it was so understood is evident and indisputable from the reply which the company gave through R.C. Pal, the managing director, on January 26, 1946.

29. On a fair construction, therefore, 'and on the authorities I am satisfied that this notice is valid in law. I therefore answer the second issue in the affirmative.

30. ISSUE NO. 3: The reliefs follow as a matter of course. The notice terminated the tenancy with January 1946. In other words, from 1st February 1946, the possession became wrongful. That is the claim of the plaintiff.

31. There will, therefore, be judgment forthe plaintiff for possession of the land, formesne profits at the rate of rent from 1stFebruary 1946, until delivery of possession, andfor costs. The plaintiff will be at liberty towithdraw such deposits which may be lyingwith the Rent Controller and appropriate thesame towards the dues under this judgment.

Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //