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Syed Ali Kaiser Vs. Mstt. Ayesha Begum - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata High Court
Decided On
Case NumberA.F.O.D. No. 238 of 1969
Judge
Reported inAIR1977Cal226,81CWN639
ActsWest Bengal Premises Tenancy Act, 1956 - Section 3(1); ;Contract Act, 1872 - Section 74
AppellantSyed Ali Kaiser
RespondentMstt. Ayesha Begum
Appellant AdvocateP.N. Mitter, ;Sudhir Kr. Bose, ;Hari Narayan Mukherjee, ;Pronob Kumar Ghosh, Advs.
Respondent AdvocateRanjit Kumar Banerjee and ;Monon Kumar Ghosh, Advs.
DispositionAppeal dismissed
Cases ReferredRegor Estates Ltd. v. Wright
Excerpt:
- .....to an end on the 15th sept. 1949. thereafter by virtue of a clause for renewal contained in the lease the lease was renewed for a further period of six years. therefore, although the lease was initially for a period of twenty years the subsequent period for which it was renewed was only for six years. this aspect of the matter was considered by the division bench in satadal basini's case as would appear from the following passage in the judgment of the said case :'the controversy then reduces itself to this : what was her status after the said date was she a tenant if so, was she a thika tenant obviously, if the defendant was not a tenant after the above date, september 15, 1949, she can have no defence to the present action for ejectment and her present appeal must fail on that.....
Judgment:

Janah, J.

1. This appeal is by the defendant and it arises out of a suit for recovery of possession of a cinema house on the expiry of the lease. The plaintiffs case is that she is the owner of premises No. 2-C. Krishna Lal Das Road on which the disputed cinema house stands. The major nortion of the suit premises along with fittings, fixtures and furniture was demised to the defendant under a registered Deed of Lease dated June 29, 1951 for the purpose of showing cinema films and for variety shows and other light entertainments The lease was for a term of 15 years commenting from 1st June 1951 with option of renewal by the lessee for a further period of one year. The rent reserved was at a progressive rate, the rent for the last five years being at the rate of Rs. 1,150/- per month and the same rate of rent was also reserved in case the lessee exercised the option for a further period of one year. On the expiry of the original term of 15 years the defendant exercised his option for a further period of one year and on the expiry of the said further period on 31st May 1967 he was served with a notice by the plaintiff demanding possession. The defendant having failed to comply with the notice the plaintiff instituted the suit for recovery of possession. In the suit the plaintiff claimed liquidated damages at the rate of Rs. 50/- per diem on account of wrongful occupation of the defendant in terms of a covenant contained in the lease.

2. The suit was contested by the defendant and his defence, inter alia, was that the plaintiff had no locus standi to institute the suit inasmuch as she is a Pakistani National and in view of the Government of India, Ministry of Commerce Notification No. 12/2/65 E. PTY. dated 10th September 1965 issued under R. 133 (V) Of the Defence of India Rules, 1962 the suit property vested in the Custodian of Enemy Property with effect from 10th September 1965. The further defence of the defendant was that he was persuaded and induced to sign the lease on the express representation and assurance that the lease was for the term of 25 years and the signature of the defendant was obtained by fraud and mis-representation. The defendant alleged that he had put his signature without knowing the contents of the document. Accordingly it was claimed that the document was vitiated for want of intelligent execution, and also fraud on the part of the plaintiff. The defendant claimed that he was in lawful occupation in accordance with the real agreement between the parties which, however, was not fraudulently incorporated in the lease.

3. The trial court upon a consideration of the evidence adduced in the suit came to the conclusion that the plaintiff was not a Pakistani citizen but that she was an Indian citizen and held that the suit was perfectly maintainable by her. On the question of fraud and mis-representation the trial court found in favour of the plaintiff and came to the conclusion that the document was executed by the defendant with full knowledge about the terms and conditions of the lease. The trial court held that the plaintiff was entitled to recover possession of the demised premises on the expiry of the period fixed by the lease. The trial court, further held that the amount fixed in the document by way of liquidated damages should be paid by the defendant for his wrongful occupation. The suit was accordingly decreed in favour of the plaintiff. Against the said decision the defendant has come up in appeal.

4. Mr. Mitter learned Advocate for the appellant has not pressed the defence case regarding fraud and mis-representation in the matter of execution of the document by the defendant. He has contended before us that the finding of the trial court that the plaintiff is an Indian citizen is not warranted by the materials on record. According to him, the trial court ought to have held that the plaintiff who was admittedly an Indian citizen on the date of execution of the lease which has been marked Ext. 1 in the case, lost her Indian citizenship as she had acquired Pakistani citizenship. In order to substantiate this contention Mr. Mitter has drawn our attention to the notice of demand upon the plaintiff by the Income-tax Department, Ext. 3 series, in which the address of the plaintiff has been mentioned as 6, Hestings Street, Calcutta. Our attention was also drawn to the Assessment Orders passed by the I. T. O, Ext. 4 series, wherein the address of the plaintiff has been mentioned as C/o. M/s. A. N. Tagore and Company, 6 Hestings Street. Calcutta-1. From this, it was contended that the plaintiff had no permanent residential address in Calcutta and that is why her address was mentioned as C/o. M/s. A. N. Tagore and Company. It appears that M/s. A. N. Tagore and Company was dealing with the income-tax matters of the plaintiff. The plaintiff being a lady obviously entrusted her income-tax matters with her lawyer and that is why such address was given. It is significant to note that in the assessment orders, Ext. 4 series, the plaintiff has been described as a 'resident and ordinarily resident'. This would show that the plaintiff was a resident and ordinarily resident in India and she was an assessee under the Indian I.-T. Act. In this connexion a great deal of criticism was made over the petitions filed on behalf of the plaintiff in connexion with the defendant's petition under O. 11, R. 12 of the C. P. C. By that application which was filed on the 13th of March 1968 the defendant prayed for an order directing the plaintiff to make discovery on oath of the documents which were in her possession. In the petition of objection filed on behalf of the plaintiff on the 26th of March 1968 against the defendant's petition for discovery it was categorically stated that the plaintiff is not a Pakistani National but she was an Indian by birth and nationality and she was a holder of Indian passport. Some time, however, was prayed on the ground that the defendant was out of town. Subsequently, on the 8th July 1968 another application was filed on behalf of the plaintiff praying for some further time on the ground that the plaintiff had been to Dacca to see her sons and had not come back yet. The application was filed on the 8th July 1968. It was contended by Mr. Mitter that the plaintiff could not have returned to India within the period of validity of the passport. The passport, Ext. 2, shows that the period of validity of the passport was upto the 10th of July 1968. Mr. Mitter contended that the petition for time was filed on the 8th July 1968 and it was not Possible for the plaintiff to come back to India within the 10th of July 1968. Mr. Mitter contended that this Court should, therefore, presume that she returned to India with a Pakistani passport. Apart from the fact that such a presumption is not permissible in law, the Passport, Exhibit 2, itself bears an endorsement showing that the plaintiff did, in fact, return to India on the 9th July 1968. This contention advanced by Mr. Mitter on the basis of the photostatic copies of the passport which were marked Ext. 2 (a) has, therefore, no substance in view of the endorsement appearing on the original passport Ext. 2. The oral evidence which has been placed before the Court in this connexion is that of the two witnesses examined on behalf of the plaintiff and the only witness examined on behalf of the defendant P. W. 1 is the son of the plaintiff. He has stated that this mother, that is, the plaintiff, is an Indian National and not a Pakistani National. To the same effect is the evidence of P. W. 2 the brother of the plaintiff. On the other hand, the defendant, who examined himself as D. W. 1, has stated that he has no personal knowledge if the plaintiff is a Pakistani National or not. He said that he 'heard it from them'. Apart from the fact that the plaintiff was granted an Indian passport by the Central Government there is the undisputed fact that at the time of execution of the Deed of Lease the plaintiff wag an Indian Citizen and she was an Indian citizen by birth. By merely going to Pakistan and staying there for some time the plaintiff could not have lost her Indian Citizenship unless she renounced the Indian citizenship and voluntarily opted for citizenship of another country. In this state of evidence it must be held that the trial court has rightly found the plaintiff to be an Indian citizen.

5. The next contention advanced by Mr. Mitter in support of the appeal is that the defendant was entitled to protection under West Bengal Premises Tenancy Act, 1956. This contention was advanced on the basis that the original lease which was for 15 years, expired on the 31st of May 1966. Thereafter by the clause for renewal contained in the lease the defendant exercised the option and the term of the lease was extended by one year. The contention is that this exercise of option for renewal constitutes a fresh lease for one year and, therefore, it is not covered by Section 3(1)(b) of the Premises Tenancy Act. In support of this contention Mr. Mitter relied upon the decision in Basanta Charan Sinha v. Rajani Mohan Chatterji. reported in 26 Cal WN 711 : (AIR 1922 Cal 514). In that case the parties entered into an agreement for a lease of certain premises at a certain rent for three years with option to the lessee to renew it for a further period of three years. After the Calcutta Rent Act of 1920 was passed an application was made to the Rent Controller for fixing standard rent. This was refused on the ground that the lease was one for five years and upwards. On revision this Court held that the lease could not be held to be one for a period of over five years inasmuch as the application for standardisation of rent was filed before the Rent Controller before the expiry of three years from the date on which the lessee was put into possession by virtue of the agreement. This case, therefore, is very much different on facts and it cannot be held to be an authority for the proposition contended for by Mr. Mitter. The next decision cited by Mr. Mitter in support of his contention is the case of Purushottam Das Murarka v. Harendra Krishna Mukherjee, reported in (1975) 1 Cal LJ 581. In that case the lease was initially for a period of five years. There was a condition that 'if the lessee so desire' the lessor shall 'grant a fresh lease for a term of seven years'. The question which came up for consideration was whether such a lease would be governed by the Calcutta Thika Tenancy Act or whether such a lessee was excluded from the definition of a Thika tenant by virtue of Section 2(5)(b). Section 2 (5) (b) of the Calcutta Thika Tenancy Act provides that a tenant holding under a registered lease in which the duration of the lease is expressly stated to be for a period of not less than 12 years is not a Thika tenant. Moreover, in that case the stipulation was that the lessor shall 'grant a fresh lease for a term of seven years'. In view of the provision of Section 2 (5) (b) of the Act it was held that the period of the two leases could not be added up to make it a lease for a period of not less than 12 years. There was in fact no renewal of the original lease but a fresh lease was executed. That decision, therefore, is of no help to the appellant in the present case. In considering the said question the Division Bench had occasion to consider the decision of another Division Bench of this Court in the case of Satadal Basini Dasi v. Lalit Mohan Dey, reported in : AIR1965Cal55 . In the case of Purushottam Das Murarka the Division Bench took the view that as the lease in Satadal Basini's case was initially for a period of twenty years the lessee could not have been a thika tenant. Their Lordships, therefore, did not examine Satadal Basini's case any further. It would, however, appear that in Satndal Basini's case the initial lease for twenty years was continuing when the Calcutta Thika Tenancy Act came into force on the 28th of Feb. 1949. That lease eventually came to an end on the 15th Sept. 1949. Thereafter by virtue of a clause for renewal contained in the lease the lease was renewed for a further period of six years. Therefore, although the lease was initially for a period of twenty years the subsequent period for which it was renewed was only for six years. This aspect of the matter was considered by the Division Bench in Satadal Basini's case as would appear from the following passage in the judgment of the said case :

'The controversy then reduces itself to this : what was her status after the said date Was she a tenant If so, was she a thika tenant Obviously, if the defendant was not a tenant after the above date, September 15, 1949, she can have no defence to the present action for ejectment and her present appeal must fail on that single and simple ground. If, however, she was or continued to be a tenant after the aforesaid date, the question would naturally arise as to what was the nature and character of her said tenancy.'

Their Lordships then proceeded to consider the two possible views of this aspect of the case, namely, that it was a new tenancy or that it was the old tenancy continued under its renewal clause subject to its terms. On a consideration of several authorities of this Court as well as of the Supreme Court their Lordships came to the conclusion that the old relationship of landlord and tenant between the parties continued and did not come to an end and the lease between them did not determine, merely by reason of expiry of the original period of twenty years but survived in or by reason of its renewal clause aforesaid, which, as one of its terms, still retained its full vigour. We respectfully agree with the view taken by the Division Bench in Satadal Basini's case and in our view the said decision applies to the facts of the present case with full force. Mr. Mitter also relied on the decision of the Supreme Court in the case of Chhatu Ram Horil Ram Pvt. Ltd. v. State of Bihar reported in AIR 1969 SC 117. In that case the Supreme Court was considering the effect of Section 4(1)(a) of the Bihar Land Reforms Act, 1950 upon a lease which contained a clause for renewal at the option of the lessee. It was held that such a clause was merely in the nature of an encumbrance, and it did not confer upon the lessee any right to the leasehold land. It was held that by virtue of Section 4 of the Act a fresh statutory lease would come into being for the remainder of the term of that lease and the lessee had no right to exercise the option against the State. This case, in our view, can have no application to the facts of the present case. Mr. Mitter also drew our attention to certain observations of Lord Denning in Regor Estates Ltd. v. Wright, (1951) 1 KB 689 at p. 703. The observations referred to by Mr. Mitter were made in connexion with a different Act in which the language was different and the purpose of which was also different. We do not think that the said observations are of any assistance to the appellant in the present case. In our view, the subsequent period of one year for which the lessee had exercised his option in terms of the lease, Ext. 1, cannot be called to be a fresh lease. It must be held that it was a continuation of the, lease as originally executed. The defendant is, therefore, not entitled to any protection under the West Bengal Premises Tenancy Act because such lease is outside the provisions of the said Act by virtue of Section 3 (1) (b) of the Act.

6. The next point urged by the appellant is that the learned Judge was wrong in decreeing the suit with regard to liquidated damages at the rate of Rs. 50/- per diem. Reference was made to Section 74 of the Contract Act which provides for the payment of reasonable compensation for breach of any contract whether or not actual damages or loss is proved to have been caused thereby. It was contended that the distinction between the penalty and liquidated damages and all the intricacies of the English Common Law hag been done away with by the provisions of Section 74 of the Indian Contract Act. It was accordingly argued that the court below was not right in not considering this aspect of the case. In the present case the lease provides for payment of rent at the rate of Rs. 1,150/- per month for the last five years of the period of lease as well as for the period of renewal. The finding being that there was no fraud or misrepresentation as to the period fixed in the lease, it must be held that the lease stood terminated on the expiry of the period mentioned in the lease, that is to say, on the 31st May, 1967. The defendant had been in unlawful possession of the property since that date. In the circumstances it cannot be said that the sum of Rs. 50/-per day will not be a reasonable compensation for the wrongful occupation of the defendant. In the absence of any material before the court we do not think that the learned Judge was unjustified in taking into account what the parties at the time of the contract agreed to he the reasonable compensation for the breach of any of the terms and conditions of the lease.

7. The last point urged in support of the appeal is that this Court should take additional evidence and decide the question regarding the nationality of the plaintiff. An application has been filed for the reception of the additional evidence under O, 41. R. 27 of the C. P. C. annexing therewith the original letter dated the 4th July 1969 addressed to the defendant by the Deputy Controller of Enemy Firms. After reciting the Government of India, Ministry of Commerce Notification the defendant is informed that the writer of the letter has received information that the disputed Cinema Hall which is known as Regent Cinema is owned by Must. Ayesha Begum a Pakistan national. The defendant was accordingly asked to produce evidence before the authority concerned to dispute the aforesaid information. In the application the reason why this document could not be filed earlier has been mentioned in para. 7 in which it has been disclosed that all the papers were lying with Sri Mohini Mohan Roy learned Advocate for the defendant in the trial court and through inadvertence the said document escaped his notice and as such it could not be filed before the trial court. This mistake it is stated was detected only on the 5th of February 1977 at the house of the defendant appellants' learned Senior Advocate at the time of conference which was held on the 5th of February 1977. It has, therefore, been prayed that the said letter could not be produced before the trial court on account of the circumstances beyond the control of the appellant. The suit was decreed by the trial court on the 7th of November 1968 and the appeal was filed before this Court on the 6th of January 1969. The letter sought to be put in as additional evidence is dated the 4th of July 1969. It is beyond one's comprehension how this letter could have been filed before the trial court. The letter had no existence at that point of time. The story now set up by the appellant for reception of additional evidence appears to us to be clearly an afterthought. Moreover, the said letter cannot be a piece of evidence. Paragraph 3 of the letter reads:

'Information has been received that the 'Regent' Cinema hall situated at 2-C, Krishnalal Das Road, Calcutta-2 is owned by Must. Ayesha Begum, a Pakistan national and that you have been managing the property and realising income therefrom on her behalf. If that be the case, the property in question may be deemed to have been vested in the Custodian as from 10-9-1965 and all sums realised as income from the property as from that date are payable to him'.

It is clear, therefore, that there has been no decision as to whether Must. Ayesha Begum is a Pakistan national or not. The letter even does not disclose what are the information received and from whom those have been received. Moreover after a determination of the question by the civil court it was not competent for the Deputy Controller of Enemy Firms to come to a decision as to the nationality Of the plaintiff.

8. For the reasons mentioned above this appeal fails and it is accordingly dismissed with costs and the application for additional evidence is also rejected.

A.N. Banerjee, J.

9. I agree.


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